Unpublished Disposition, 904 F.2d 40 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 40 (9th Cir. 1989)

Leonard A. FULGHAM, Petitioner-Appellant,v.Robert M. REES, Superintendent, Respondent-Appellee.

No. 89-16244.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1990.* Decided June 7, 1990.

Before GOODWIN, Chief Judge, and CANBY and RYMER, Circuit Judges.


Petitioner-appellant Leonard Fulgham ("Fulgham") appeals pro se from the district court's denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his California state court convictions for first degree murder and robbery. Fulgham argues on appeal that the district court erred in concluding (1) that the state trial court's limitation on the use of multiple prior felony convictions for impeachment of prosecution witnesses did not violate the Confrontation Clause; (2) that the prosecution's failure to disclose that a witness had testified for the prosecution in a previous murder trial did not deny Fulgham a fair trial; (3) that the trial court's failure to instruct the jury that the testimony of a criminal informant should be viewed with caution and distrust did not deny Fulgham a fair trial; (4) that Fulgham was not denied a fair trial due to the admittance of perjured testimony, and (5) that Fulgham was not denied effective assistance of counsel at trial or on appeal. We affirm.

* On September 23, 1982, Fulgham was convicted, following a jury trial in state court, of first degree murder (Cal.Penal Code Sec. 187) and of robbery (Cal.Penal Code Sec. 211). On January 3, 1983, the trial court sentenced Fulgham to 25 years to life in state prison. The California Court of Appeal affirmed Fulgham's conviction on March 22, 1985, and denied two separate petitions for writ of habeas corpus which were considered together with the direct appeal. Fulgham's petition for rehearing was denied by the Court of Appeal on April 10, 1985; his petition for review was denied by the California Supreme Court on May 30, 1985.

On December 23, 1985, and June 24, 1986, Fulgham filed in the California Supreme Court two pro se petitions for writ of habeas corpus raising claims that had not previously been presented to the Court of Appeal. On July 30, 1986, and November 25, 1986, the California Supreme Court issued "postcard denials" of the habeas petitions. Because the postcard denials were presumptively on the merits, see LaRue v. McCarthy, 833 F.2d 140, 143 (9th Cir. 1987), cert. denied, 485 U.S. 1012 (1988), Fulgham exhausted his available state remedies with regard to the claims presented in his petition for writ of habeas corpus filed in the district court on December 4, 1986. See 28 U.S.C. § 2254(b), (c); Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). The district court denied this petition on September 6, 1989. Fulgham appeals.


The denial of a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). Any factual findings by the district court are reviewed for clear error. Norris, 878 F.2d at 1180.


Fulgham first contends that the trial court's ruling that only one prior felony conviction could be admitted for impeachment purposes against each of three criminal informants who testified as prosecution witnesses violated his sixth amendment right to confront the witnesses against him, by excluding important evidence of potential motive or bias to testify favorably to the prosecution in order to obtain leniency in exchange.

Although the sixth amendment right to confront adverse witnesses, as embodied in the right of cross-examination, encompasses the right to inquire into a witness' possible bias or self-interest in testifying, Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir. 1980), "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). "Because a [trial] court has a good deal of discretion in limiting cross-examination, a reviewing court normally will hold that the [trial] court violated the confrontation clause only if it concludes that the [trial] court denied the jury 'sufficient information to appraise the biases and motivations of the witness.' " United States v. Jenkins, 884 F.2d 433, 436 (9th Cir.), cert. denied, 110 S. Ct. 568 (1989) (quoting United States v. McClintock, 748 F.2d 1278, 1290 (9th Cir. 1984), cert. denied, 474 U.S. 822 (1985)).

The trial court permitted Fulgham to show that each of the three witnesses had a prior felony conviction, and allowed extensive cross-examination of the witnesses regarding their motives to testify favorably for the prosecution. The jury was presented with evidence of the witnesses' interest in the available reward money, of their legal difficulties at the time they testified, of any promises or consideration given them in exchange for their testimony, and that each witness had been convicted at least once of felonies other than those with which they were charged at that time. We think that this is "sufficient information to appraise the biases and motivations of the witness." Jenkins, 884 F.2d at 436; McClintock, 748 F.2d at 1290; Chipman, 628 F.2d at 530; see also Van Arsdall, 475 U.S. 673.


Fulgham next contends that the prosecution's failure to inform the defense that one criminal informant who testified against Fulgham had testified for the prosecution in another case five months earlier denied him a fair trial. The failure of the prosecution to disclose evidence, including impeachment evidence, that is both favorable to the accused and material to either guilt or punishment violates due process. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see also United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (impeachment evidence). A conviction must be reversed only if the withheld evidence is material in the sense that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Bagley, 473 U.S. at 682.

Even assuming arguendo that the fact that the informant had testified previously was material for impeachment purposes,1  we cannot conclude that its suppression undermines confidence in the outcome of the trial. The jury was informed that the informant was awaiting trial on kidnapping and robbery charges, had been in custody since March 1982, was interested in the reward money, and had at one time himself confessed to the murder with which Fulgham was charged. We find it improbable that the disclosure of the fact that the informant had previously testified for the prosecution would have altered the outcome of Fulgham's trial.


Fulgham's third contention is that he was denied a fair trial by the trial court's failure to give a cautionary jury instruction that the testimony of criminal informants should be viewed with suspicion and distrust. Because the defense did not object to the trial court's omission of such an instruction, Fulgham is essentially arguing that the trial court should have given this instruction sua sponte.2 

To obtain federal collateral relief for errors in the jury charge, the petitioner must show that the error rendered the trial so fundamentally unfair that the resulting conviction violates due process. See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); Ahlswede v. Wolff, 720 F.2d 1108, 1111 (9th Cir. 1983), cert. denied, 469 U.S. 873 (1984). Although in the Ninth Circuit the failure to give sua sponte a special cautionary instruction regarding the credibility of a criminal informant constitutes reversible error when the informant's testimony is "important," see United States v. Patterson, 648 F.2d 625, 631 (9th Cir. 1981); Guam v. Dela Rosa, 644 F.2d 1257, 1259-60 (9th Cir. 1980),3  California has no such requirement, see People v. Hovey, 44 Cal. 3d 543, 565-66, 244 Cal. Rptr. 121, 749 P.2d 776, cert. denied, 109 S. Ct. 188 (1988); People v. Alcala, 36 Cal. 3d 604, 624, 205 Cal. Rptr. 775, 685 P.2d 1126 (1984). It is beyond question that the testimony of the three informants was "important" in this case. However, although the giving of such an instruction, even when not requested, is strongly preferred, we decline, in the absence of authority to support the proposition, to hold that such an instruction is required by the Constitution. In view of the trial court's general credibility instruction and of the extensive evidence and testimony regarding the credibility of the criminal informants, we are unable to conclude that the failure to give this instruction sua sponte rendered Fulgham's trial so fundamentally unfair as to deny due process.


Fulgham contends that he was denied a fair trial, in violation of the due process clause, by the prosecution's knowing use of perjured testimony. A conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). To state a federally cognizable claim, the petitioner must show that the prosecution's case included perjured testimony and that the prosecutor knew, or should have known, of the perjury. Agurs, 427 U.S. at 103.

Fulgham's examples of allegedly perjured testimony actually involve only instances of conflicting testimony between witnesses. Such conflicts simply require that the jury determine which witness is more credible; in Fulgham's case, these conflicts were fully before the jury, which made its own credibility determinations. Fulgham has failed to establish that this testimony was in fact false, or that the prosecution knew, or should have known, that any of the allegedly perjured testimony was false.


Fulgham's final contention is that he was denied effective assistance of counsel at trial and on appeal. To prevail on his ineffective assistance claim, Fulgham must demonstrate, first, that his counsel's representation fell below an objective standard of reasonableness, and, second, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.

Fulgham's first and second claims are that trial counsel was ineffective for failing to object to or to move for a mistrial as a result of prosecutorial misconduct during closing argument. Fulgham points to ten instances of alleged misconduct. We have reviewed each of these instances, and conclude that the prosecutor's statements, although not commendable, were simply attempts to cast the evidence in the light most favorable to the prosecution, and do not rise to the level of prosecutorial misconduct. Fulgham therefore has failed to establish either deficient representation or prejudice to his defense.

Fulgham next argues that defense counsel should have moved to exclude the perjured testimony of two criminal informants, and should have moved for a mistrial after the perjured testimony was received. However, as discussed above, Fulgham has failed to establish that this testimony was in fact perjurious.

Fulgham next contends that trial counsel was ineffective for failure to move for a mistrial after the prosecutor elicited testimony on cross-examination that the husbands of two of Fulgham's alibi witnesses were currently undergoing trial on criminal charges. Defense counsel did object to the admission of this testimony, however. Consequently, we are unable to say that his representation falls outside the wide range of reasonable professional assistance.

Finally, Fulgham contends that his counsel on appeal was ineffective due to his failure to challenge the sufficiency of the evidence to support the conviction. We conclude that, viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Miller v. Stagner, 757 F.2d 988, 992 (9th Cir. 1985), amended, 768 F.2d 1090 (9th Cir.), cert. denied, 475 U.S. 1048 (1986). Thus, Fulgham has demonstrated neither deficient representation nor prejudice on this issue. See also Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (defense counsel on appeal does not have duty to raise every non-frivolous issue requested by defendant).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In his testimony at the prior trial, the informant apparently testified that he hoped for leniency in exchange for his cooperation in Fulgham's cases, that he had been made no promises of leniency, that he gave officers information regarding Fulgham's case because he was a witness to Fulgham's acts and a friend of the victim, and that he spoke with officers regarding Fulgham's case prior to his arrest on the charges pending against him at the time of Fulgham's trial


The trial court gave a general credibility instruction, instructing the jury to consider "anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including ... the existence or nonexistence of a bias, interest or other motive, ... the character of the witness for honesty, truthfulness or their opposites, ... [and] a witness' prior conviction of a felony."


A general credibility instruction does not adequately substitute for a specific informant instruction in such a case. Patterson, 648 F.2d at 631 n. 15