(HC) Robert Conner Wright v. Robert A. Horel, No. 1:2006cv00925 - Document 28 (E.D. Cal. 2009)
Court Description: ORDER Denying Petition for a Writ of Habeas Corpus, signed by Chief Judge Vaughn R. Walker on 4/3/09. CASE CLOSED(Gil-Garcia, A)
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(HC) Robert Conner Wright v. Robert A. Horel Doc. 28 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 ROBERT CONNOR WRIGHT, NO C-06-0925-VRW 10 Petitioner, ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 11 v 12 13 ROBERT A HOREL, 14 Respondent. 15 16 17 18 Petitioner Robert Connor Wright, a state prisoner 19 incarcerated at the Pelican Bay State Prison in Crescent City, 20 CA, seeks a writ of habeas corpus under 28 USC section 2254. 21 the reasons set forth below, a writ is DENIED. For 22 23 24 I On October 7, 2002, after a jury trial in Tuolumne 25 County superior court, petitioner was found guilty of voluntary 26 manslaughter of one Michael Gilligan. 27 John Davies and Edward Mendez, were also convicted in connection 28 with Gilligan’s homicide; Davies was convicted of first degree Two co-defendants, Michael Dockets.Justia.com 1 murder and Mendez of voluntary manslaughter. 2 sentenced to eleven years, and because he admitted a prior 3 “strike” conviction, pursuant to Penal Code 667(b)-(I), the 4 sentence was doubled for a total term of twenty-two years; 5 petitioner subsequently appealed unsuccessfully. 6 Petitioner was On January 18, 2005, in an unpublished opinion, the 7 California Court of Appeal affirmed the judgment.1 8 petition for review with the California Supreme Court was denied 9 “without prejudice to any relief to which defendant might be Petitioner’s 10 entitled after this court determines in People v. Black, S126182, 11 and People v. Towne, S125677, the effect of Blakely v. Washington 12 (2004) ___ U.S. ___ 124 S.Ct. 2531, on California law.” 13 Petitioner filed his federal court petition on July 19, 14 2006. 15 respondent to file an answer to the petition. 16 an answer addressing the merits of the petition on October 3, 17 2008 and petitioner filed a traverse on January 21, 2009. Per order filed on August 8, 2008, the court ordered 18 Respondent filed Petitioner raises nine claims in his petition. Five of 19 these assert instructional errors by the trial court. 20 of instructional error relates to omission of the “natural and 21 probable consequences” doctrine that applies to voluntary 22 manslaughter, and three to the requirements for aiding and 23 abetting liability. 24 to the trial court’s failure to instruct on involuntary One claim A fifth claimed instructional error relates 25 26 27 28 1 Because the opinion by the California Court of Appeal was unpublished, this court will refer to the lodged opinion (“Opinion”) throughout this order. The full opinion was lodged by respondent on January 31, 2008 as Lodged Document 2. 2 1 manslaughter. 2 trial rights were violated, that the trial court made an 3 erroneous evidentiary ruling and that his counsel was 4 ineffective. 5 sentence of twenty-two years was imposed in violation of the 6 Sixth Amendment. 7 In addition, petitioner claims that his speedy Finally, petitioner maintains that his upper-term Before turning to the rather lengthy recitation of 8 facts pertinent here, the court notes that the Antiterrorism and 9 Effective Death Penalty Act of 1996 ("AEDPA"), codified under 28 10 USC section 2254, provides "the exclusive vehicle for a habeas 11 petition by a state prisoner in custody pursuant to a state court 12 judgment, even when the [p]etitioner is not challenging his 13 underlying state court conviction." 14 1002, 1009-1010 (9th Cir 2004). 15 entertain a petition for habeas relief on behalf of a California 16 state inmate "only on the ground that he is in custody in 17 violation of the Constitution or laws or treaties of the United 18 States." 19 White v Lambert, 370 F3d Under AEDPA, this court may 28 USC section 2254(a). The writ may not be granted unless the state court's 20 adjudication of any claim on the merits: "(1) resulted in a 21 decision that was contrary to, or involved an unreasonable 22 application of, clearly established Federal law, as determined by 23 the Supreme Court of the United States; or (2) resulted in a 24 decision that was based on an unreasonable determination of the 25 facts in light of the evidence presented in the State court 26 proceeding." 27 federal habeas relief will not be granted "simply because [this] 28 USC § 2254(d). Under this deferential standard, 28 3 1 court concludes in its independent judgment that the relevant 2 state-court decision applied clearly established federal law 3 erroneously or incorrectly. 4 be unreasonable." Rather, that application must also Williams v Taylor, 529 US 362, 411 (2000). While circuit law may provide persuasive authority in 5 6 determining whether the state court made an unreasonable 7 application of Supreme Court precedent, the only definitive 8 source of clearly established federal law under 28 USC section 9 2254(d) rests in the holdings (as opposed to the dicta) of the 10 Supreme Court as of the time of the state court decision. 11 412; Clark v Murphy, 331 F3d 1062, 1069 (9th Cir 2003). Id at 12 13 II 14 Michael Gilligan, the homicide victim, was a 45-year-old alcoholic. He moved to Sonora in late 2000 following a serious illness that left him in a weakened state. Gilligan's mother * * * took care of his finances. She paid for his apartment rent, paid his bills, and gave him a small sum of cash each week. 15 16 17 18 19 20 21 22 23 24 25 * * * On February 26, 2001 (two days before Gilligan's body was discovered), Casty Santos went to Gilligan's apartment to install cable television. She arrived in the afternoon. Gilligan was there, as was Davies.2 They were both drinking beer. Gilligan was expecting a check to arrive in the mail. Davies went to the mailbox and retrieved the check. He handed it to Gilligan. Santos heard Gilligan talking on the telephone. He said, "You and Ziggy [the nickname for Mendez] better get up here and get your stuff off this lady's property because she's going to throw it away." Santos did not see a pizza box nor did she notice any blood on the couch when she moved it. She testified she would have noticed the blood on the couch if it had been there at the time. 26 27 2 28 Opinion Footnote 2: We refer to Wright as defendant; we refer to the codefendants by their last names. 4 4 That same day, a pizza order was called in at 6:20 p.m. The pizza was delivered to Gilligan's apartment around 7:00 p.m. A man answered the door and paid with money from his wallet. The person who answered the door did not look like defendant, Davies or Mendez, but there was at least one other person inside the apartment. 5 * * * 6 Anna Healy lived next door to Gilligan's apartment. She knew defendant, Mendez and Davies, having seen them at Gilligan's apartment on previous occasions. She could recognize Gilligan's voice. She frequently went out to her porch to smoke. On February 27, 2001 at approximately 8 p.m. Healy saw Mendez and another man on Gilligan's porch. 1 2 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At approximately 8:30 p.m. Healy heard Davies say, "Give me another fucking beer." Gilligan said, "Are you fucking with me?" Defendant said "damn" and laughed. It sounded like the group was joking around. * * * Deborah Davis was a neighbor of Gilligan's. She saw Defendant leaving the area of Gilligan's apartment at approximately 9:45 in the evening. Neighbor Jennifer Grove heard a loud thump and nothing else. A few hours later she woke up to the sound of glass breaking. Several other neighbors heard glass breaking at approximately 10 p.m. Anna Healy and Dovilio Garello went outside after hearing the glass break; they did not see anything unusual. Larry Coombes heard the sound of glass breaking shortly after 10 p.m. He went outside and saw the end of a leg going through a window at Gilligan's apartment. The person had on tan pants. Coombes sat on his patio for 25 minutes and did not see anyone exit the front door. He decided someone had locked himself out of the apartment and had gained entrance through the window. Kristina Lowry was at a bar on February 27, 2001. Mendez arrived at the bar at approximately 10:30. He was out of breath, sweating, and nervous. Mendez and several others left and spent the night in the house of a friend. At 5 a.m. Lowry woke up. She saw Mendez sitting up playing with what appeared to be a knife. James Walsh frequently socialized with Davies, Mendez and defendant. They would drink alcohol. He was with defendant and Mendez when he was arrested on February 27, 2001 at approximately 5 p.m. and placed in jail. Walsh was released at approximately 5 a.m. on 5 1 2 3 4 5 February 28. After his release, he bought beer and went to the park to drink. Ed Long was there. Long had previously told Walsh that Gilligan would let the homeless drink at his house and then he would kick them out in the middle of the night when there was no more alcohol. Davies arrived and they drank together. Davies said that Gilligan had been hurt or killed. [footnote 3 omitted]. 10 Walsh and the others continued to drink. At approximately 10 a.m ., Walsh called Davies a "punk" and Davies punched him in the face. Walsh began to bleed. Davies helped clean up Walsh. Walsh then went to a medical drop-in center for bandages. Walsh told someone at the center that Gilligan was not a nice guy, but he did not deserve to die. Gilligan's neighbor, Healy, saw Walsh on the afternoon of the 28th. Walsh had blood on him and told her that Gilligan had been killed. 11 * * * 12 Gilligan's mother attempted to contact Gilligan on the 28th. After she called several times and he failed to answer the telephone, she went to his apartment at approximately 4 p.m. She had a key to the apartment. She opened the door and saw Gilligan on the floor. She called out to her husband and her husband called 911. There was glass on the floor as well[] as a flowerpot that Gilligan kept on the front porch. 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Police officer Harold Prock arrived at Gilligan's apartment. He entered and saw Gilligan on the floor; his head was covered with a towel. Prock removed the towel from Gilligan's head. He was not breathing and did not have a pulse. Forensic pathologist Dr. Jennifer Rulon conducted an autopsy on Gilligan's body. An external exam of the body revealed numerous injuries, too many for Dr. Rulon to put on one diagram. Gilligan had facial bruising on the right and left side and scrapes to his face. He had bruising on the back of his head as well as along the jawline. His nose was broken. He had lost two teeth and there were blunt force injuries to his mouth, around his eyes, and under the surface of both eyelids. His head injuries were consistent with being struck with a fist or a shoe. He had stab wounds to his left eye. Gilligan had abrasions on his neck, arm and knee. He had bruises on his back, calf, shoulder, and hand. Gilligan had sharp force injuries to the back of his right hand. In addition, he bore an incision to his neck traveling from ear to ear under the jawline. The wound went through the base of his tongue, his 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 esophagus, all carotid arteries, and all major vessels and nerves of the neck. The spine was not severed, but it was cut. It was likely that the person who cut Gilligan's neck was behind Gilligan when he did the cutting. An internal examination revealed that the hyoid bone in Gilligan's neck was broken. Additionally, he had fractures to the ribs and spine. His brain displayed bleeding. His liver was torn and he had blood in his abdomen. It was stipulated that Gilligan's blood alcohol level was .22 percent at the time of his death. Dr. Rulon opined that Gilligan's hand wounds were defensive wounds and his broken back was likely caused by a stomping. Several of his injuries could have been lethal and some injuries could have caused unconsciousness. The liver injury was lethal and the neck wound was clearly lethal. Dr. Rulon concluded that the cause of death was multiple sharp and blunt force injuries and the injury to the neck. From the blood evidence it appeared that the neck wound was inflicted while the victim was on the ground. In all likelihood, he was lifted up, his throat was cut, and he was put back down on the floor. Fingerprint evidence was obtained from Gilligan's apartment. Mendez's fingerprint was on a pie dish in the apartment. Two fingerprints of defendant were on the inside of the glass bedroom door. Davies's prints were found on a glass cup, a white bowl, a pizza box, and on Gilligan's glasses. There were other prints in the apartment that did not match any of the defendants' [fingerprints]. Several areas of blood were found in the apartment. There was blood from arterial spurting on the coffee table. There was blood spatter on the coffee table, the wall by the victim's head and the kitchen floor. This blood belonged to the victim. There were blood drops on the brass strip at the threshold of the front door. This blood belonged to defendant. There were bloodstains on the left arm of the couch and another bloodstain on the back of the couch. The stain on the back of the couch was darker in color and appeared older. The stain on the arm of the couch was from Davies; the stain on the back of the couch was from defendant. A piece of skin found on the broken glass window came from Davies. The blood on the kitchen floor had shoe impressions; the impressions matched Davies's shoe. On the evening of February 28, 2001, officers went to the park. They talked to Davies and Mendez. They 7 1 2 3 came to the police station and their clothes were seized. Davies had a laceration on his hand and scratches on his neck and hands. There was a blood smear on the left leg of his jeans. Mendez had an abrasion on his right cheek. 7 There were two small blood spots on Mendez's jacket. The blood on the jacket came from the victim. There was blood on Davies's boot, sweatshirt, jeans, and socks. The stains on Davies's jeans matched his [own] blood. The human bloodstains on Davies's shoes and socks appeared to have been washed. The stains on the shoes and socks could not be typed for DNA. 8 * * * 9 A videotape of a nearby store was produced. It showed defendant and Mendez in the store on February 27, 2001 buying alcohol at 4:30 p.m. Davies was in the same store that evening buying alcohol at 5:47, 7:03, 7:28 and 8:33 p.m. Defendant was with Davies on the last two occasions. 4 5 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Terry Keever was in custody in the jail, housed in a cell between Davies and defendant. Keever agreed to testify truthfully regarding written notes (kites) sent to him by Davies while in custody and to conversations he had with defendant and Davies in jail. * * * Jacqueline McLaughlin was defendant's girlfriend. She knew Gilligan. On the evening of February 27, 2001 Gilligan called her. He told her there was a party going on and things were getting out of hand. She asked if he needed help. He said no because Mendez was there. Gilligan said they were drinking beer and eating pizza. Defendant was with her when she received the call. She fell asleep and does not know if he left or not. When she awakened, defendant and Mendez were there. Mendez said to defendant that they found Gilligan's body and needed to clean up the mess so Gilligan's parents would not find him that way. On February 28, 2001, Mendez came to McLaughlin's apartment with Davies. Mendez said he had some bad news. McLaughlin said she did not want to hear it. Sometime after February 28, 2001, McLaughlin found a pair of pants in the laundry room. They had brownish stains on them. She cut them up and used them for cleaning rags. When McLaughlin was interviewed by police, she told them that defendant had told her he had cleaned up the mess at Gilligan's apartment so Gilligan's parents would not see it. McLaughlin was hospitalized for mental problems at the time of the interview. 28 8 1 Opinion at 2-8. A joint complaint charging petitioner, Davies and 2 3 Mendez was filed on September 14, 2001. 4 arraigned on December 28, 2001 and waived their right to have a 5 trial within 60 days. 6 for April 2002 in order to test the DNA evidence and retain 7 experts. 8 9 The defendants were Counsel for Davies requested a trial date Opinion at 18. In April 2002, Davies asked for a further continuance over the objection of Mendez and petitioner, both of whom 10 informed the court that they no longer wanted to waive time. 11 trial court found good cause for a continuance and reset the 12 trial date to July 17, 2002. 13 where counsel for Davies requested another DNA-related 14 continuance over petitioner’s objections, the court set a trial 15 date for August 28, 2002. 16 further one-week continuance based on good cause and set trial 17 for September 4, 2002. 18 and proceeded to trial. 19 The After a hearing on July 2, 2002, The court subsequently granted a The case was called on September 3, 2002 Opinion at 18-20. Petitioner testified on his own behalf at trial. He 20 testified that while he had gone to Gilligan’s apartment on the 21 27th, he did not go inside and was gone by approximately 9:30 pm. 22 Opinion at 9-10. 23 with Gilligan’s death. 24 He also testified that he had nothing to do Opinion at 10. John Isley also testified as a witness for petitioner. 25 Petitioner’s counsel questioned Isley about petitioner’s 26 behavior; Isley testified that he had never seen petitioner hit 27 anyone or get in a fight. 28 prosecutor argued that Isley was a character witness for Based on this questioning, the 9 1 petitioner, and that the government was allowed to introduce 2 evidence about petitioner’s prior violent acts. 3 agreed, and the prosecutor subsequently introduced evidence, over 4 defense counsel’s objection, of petitioner’s prior convictions 5 and arrest for assault and battery. 6 The trial court Opinion at 30-31. Terry Keever, a jail inmate housed near petitioner, 7 testified for the state. During his testimony, Keever stated, 8 inter alia, that petitioner had told him that he (petitioner) had 9 nothing to do with the killing and that he (petitioner) thought 10 that Davies had killed Gilligan. 11 petitioner told him that Mendez had put the knife used in the 12 killing down a mineshaft. 13 that Keever was testifying as to knowledge gained after he became 14 a government agent, the trial judge struck all of Keever’s 15 testimony concerning petitioner. 16 Keever also stated that Upon objection by petitioner’s counsel Opinion at 26-28. A number of petitioner’s claims involved alleged 17 instructional error. 18 instructed that it could find petitioner guilty of murder as a 19 natural and probable consequence of an assault on Gilligan. 20 Opinion at 13-14. 21 the elements necessary to convict of manslaughter under the 22 natural and probable consequences doctrine. 23 The jury at petitioner’s trial was The jury was not, however, instructed as to Opinion at 10-11. The trial court did not instruct the jury that if they 24 had a reasonable doubt whether petitioner committed voluntary 25 manslaughter, but believed he committed involuntary manslaughter, 26 they must give him the benefit of the doubt and find him guilty 27 of the lesser offense of involuntary manslaughter. 28 court did instruct the jury with the benefit of the doubt 10 The trial 1 instructions between first degree murder and second degree 2 murder, and between murder and manslaughter. 3 Opinion at 35-37. The jury was also instructed on aider and abetter 4 liability, and termination of liability of an aider and abettor. 5 The jury was not, however, instructed on the burden of proof it 6 should apply in determining whether petitioner had terminated his 7 liability as an aider and abettor. Opinion at 38. 8 After petitioner was found guilty of voluntary 9 manslaughter, the trial court sentenced defendant to the 10 aggravated term of eleven years, doubled to twenty-two years 11 under the Three Strikes Law. 12 aggravated terms, finding inter alia that the crime involved 13 great violence and acts of viciousness. 14 trial court also relied upon and adopted the findings of the 15 probation report, including petitioner’s prior convictions and 16 his probationary status. The trial court chose the Opinion at 39. The Opinion at 39-40. 17 A 18 19 In his first claim for relief, petitioner alleges that 20 the trial court violated his constitutional rights by permitting 21 the jurors to convict him of voluntary manslaughter under the 22 natural and probable consequences doctrine without a proper 23 instruction. 24 convicted him based on the natural and probable consequences 25 doctrine, even though instructions on that doctrine as it 26 pertained to voluntary manslaughter were not given to the jury. 27 28 According to petitioner, the jurors necessarily The California Court of Appeal addressed this claim in a reasoned opinion on direct appeal and concluded that petitioner 11 1 had not demonstrated reversible error. 2 “there were other viable theories available to the jury to find 3 defendant guilty.” 4 for example, that petitioner aided and abetted the slitting of 5 the victim’s throat but had a less culpable mental state than 6 Davies. 7 concurrent causes of Gilligan’s death (the initial brutal beating 8 and the subsequent throat-slitting), the jury could have found 9 that petitioner participated in the first beating only, but due 10 to intoxication or heat of passion, he was guilty of voluntary 11 manslaughter and not murder. 12 court found that any instructional error did not result in 13 prejudice to petitioner. 14 defendant's underlying premise, the court failed to give 15 instructions that would have allowed a conviction on an available 16 theory – natural and probable consequences. 17 theory as a basis to find defendant guilty could only have inured 18 to his benefit. 19 not complain of instructional error favorable to him. 20 Lee (1999) 20 Cal. 4th 47, 57.)” 21 Opinion at 11. The state court found The jury could have found, In addition, based on the evidence that there were Opinion at 12. Finally, the state The court found that “accepting The elimination of a Absent a showing of prejudice, a defendant may (People v. Opinion at 13. To obtain federal collateral relief for instructional 22 error, a petitioner must show that the ailing instruction or the 23 lack of instruction by itself so infected the entire trial that 24 the resulting conviction violates due process. 25 McGuire, 502 US at 72); see also Donnelly v DeChristoforo, 416 US 26 637, 643 (1974) ("'[I]t must be established not merely that the 27 instruction is undesirable, erroneous or even "universally 28 condemned," but that it violated some [constitutional right].'"). 12 See Estelle v 1 The instruction may not be judged in artificial isolation, but 2 must be considered in the context of the instructions as a whole 3 and the trial record. 4 words, the court must evaluate jury instructions in the context 5 of the overall charge to the jury as a component of the entire 6 trial process. 7 (citing Henderson v Kibbe, 431 US 145, 154 (1977)); Prantil v 8 California, 843 F2d 314, 317 (9th Cir), cert denied, 488 US 861 9 (1988); see also, Middleton v McNeil, 541 US 433, 434-435 (2004) 10 (per curiam) (no reasonable likelihood that jury misled by single 11 contrary instruction on imperfect self-defense defining "imminent 12 peril" where three other instructions correctly stated the law). See Estelle, 502 US at 72. In other United States v Frady, 456 U.S. 152, 169 (1982) Here, petitioner has not demonstrated that the state 13 14 court's reasoned opinion is contrary to, or an unreasonable 15 application of, clearly established United States Supreme Court 16 law. 17 opinion relied on an unreasonable determination of the facts. 18 As the state court reasonably confirmed, there were at least two 19 theories under which the jury could have found defendant guilty 20 of voluntary manslaughter that were not reliant on the "natural 21 and probable consequences" theory. 22 any instructional error does not rise to the level of a due 23 process violation. Petitioner also fails to demonstrate that the state court's Opinion at 11-12. As such, See Estelle, 502 US at 73. Moreover, petitioner cannot demonstrate that he 24 25 suffered any prejudice as a result of alleged instructional 26 error. 27 2254(d), habeas relief is warranted only if the constitutional 28 error at issue had a substantial and injurious effect or Even if a petitioner meets the requirements of section 13 1 influence in determining the jury's verdict. 2 Abrahamson, 507 US 619, 638 (1993). 3 petitioners "may obtain plenary review of their constitutional 4 claims, but they are not entitled to habeas relief based on trial 5 error unless they can establish that it resulted in ‘actual 6 prejudice.'" 7 474 US 438, 439 (1986). 8 9 Brecht v Under this standard, Brecht, 507 US at 637, citing United States v Lane, As the California Court of Appeal found, the trial court did not instruct on an additional theory that would have 10 permitted the jury to convict petitioner of manslaughter. 11 Petitioner fails to show that eliminating this theory resulted in 12 actual prejudice to him. Thus, this claim must be denied. 13 B 14 15 In his second claim for relief, petitioner claims that 16 his constitutional rights to due process were violated because 17 the trial court's jury instructions allegedly allowed the jury to 18 convict him without finding that voluntary manslaughter was a 19 foreseeable consequence at the time he aided and abetted the 20 criminal activity. 21 This claim was rejected by the California Court of 22 Appeal in a reasoned opinion on direct appeal. 23 recited the lengthy instruction at issue and concluded that it 24 was erroneous. 25 The state court Opinion at 14-15 (footnote 5). After finding instructional error, the court first 26 noted that petitioner again incorrectly presumed that the only 27 viable theory for conviction was the natural and probable 28 consequences doctrine. The state court went on as follows: 14 1 2 3 4 5 6 7 8 9 10 11 12 Defendant claims that it was reversible error to not tell the jury to assess for[e]seeability under the natural and probable consequences doctrine at the time defendant committed the act that made him an aider and abettor. We reject defendant's argument. The jury was clearly told that they must find that defendant aided and abetted the commission of the target crime. In addition they had to find that a reasonable person would expect the consequence to be likely to occur in order for it to be a natural and probable consequence. Also the jury was told that the consequence must be in the normal range of outcomes if nothing unusual has intervened. This combination of instructions clearly informed the jury that the homicide must have been a foreseeable (natural and probable) consequence of the actual acts aided and abetted by defendant. The instruction clearly set forth that defendant was liable only for those offenses that were foreseeable from his own acts. Opinion at 15. As with his first claim of instructional error, 13 14 petitioner has not demonstrated that the state court's reasoned 15 opinion is contrary to, or an unreasonable application of, 16 clearly established United States Supreme Court law. 17 also fails to demonstrate that the state court's opinion relied 18 on an unreasonable determination of the facts. Petitioner To prevail on this claim, petitioner must show that the 19 20 ailing instruction by itself so infected the entire trial that 21 the resulting conviction violates due process. 22 US at 72. 23 instructions given to the jury "clearly set forth that defendant 24 was liable only for those offenses that were foreseeable from his 25 own acts." 26 state court's conclusion, but his arguments do not demonstrate 27 that the state court's decision was contrary to, or an 28 unreasonable application of, clearly established United States See Estelle, 502 As the state court reasonably concluded, the Opinion at 15. Petitioner may disagree with the 15 1 Supreme Court law. Furthermore, petitioner has failed to 2 establish that any purported state court error had a substantial 3 and injurious effect or influence in determining the jury's 4 verdict. 5 to federal habeas relief on this claim. See Brecht, 507 US at 638. Petitioner is not entitled 6 C 7 8 Petitioner's third claim also alleges that his due 9 process rights were violated as a result of instructional error. 10 Specifically, petitioner argues that it was prejudicial error for 11 the trial court to instruct the jury that it could convict him 12 for a death resulting from the natural and probable consequences 13 of aiding and abetting an assault by means of force likely to 14 cause great bodily injury or death. 15 application of the natural and probable consequences rule in such 16 circumstances improperly relieves the government of proving the 17 requisite mental state necessary for a voluntary manslaughter 18 conviction, and violates the principles announced in People v 19 Ireland, 70 Cal 2d 522 (1969) (holding that a felony-murder 20 instruction is not proper when the predicate felony is an 21 integral part of the homicide). 22 According to petitioner, This claim was considered and rejected by the 23 California Court of Appeal in a reasoned opinion. 24 primarily on People v Luparello, 187 Cal App 3d 410 (1986), the 25 state court found that petitioner could not demonstrate 26 instructional error, and that “the impediments to criminal 27 liability as found in Ireland do not have persuasive value and 28 are not applicable with respect to limiting an[] aider and 16 Relying 1 abettor’s liability under the natural and probable consequences 2 doctrine.” Opinion at 16-18. As with claims 1 and 2, petitioner cannot demonstrate 3 4 that the state court's rejection of claim 3 was either contrary 5 to or an unreasonable application or, United States Supreme Court 6 precedent, or an unreasonable determination of the facts. 7 Petitioner also cannot establish that any purported state court 8 error had a substantial and injurious effect or influence in 9 determining the jury's verdict. See Brecht, 507 U.S. at 638. Indeed, petitioner cannot even clearly state a federal 10 11 constitutional claim. As the state court’s opinion demonstrates, 12 petitioner is alleging that the trial court's instructions 13 violated California state law as set forth in People v Ireland, 14 70 Cal 2d 522 (1969). 15 Supreme Court has confirmed that a challenge to a jury 16 instruction solely as an error under state law does not state a 17 claim cognizable in federal habeas corpus proceedings. 18 502 US at 71-72; see also, Stanton v Benzler, 146 F3d 726, 728 19 (9th Cir 1998) (state law determination that arsenic trioxide is 20 a poison as a matter of law, is not element of crime for jury 21 determination and not open to challenge on federal habeas 22 review); Walker v Endell, 850 F.2d 470, 475-476 (9th Cir. 1987) 23 (failure to define recklessness at most error of state law where 24 recklessness relevant to negate duress defense and government not 25 required to bear burden of proof of duress). Opinion at 16-18. The United States Estelle, Here, petitioner cannot show that the trial court's 26 27 alleged violation of Ireland states a federal constitutional 28 claim. To the extent he is alleging that an Ireland violation is 17 1 a violation of federal due process law, his claim must fail as he 2 he can cite to no relevant case or statutory law supporting such 3 an argument. 4 not, . . . transform a state-law issue into a federal one merely 5 by asserting a violation of due process." 6 F3d 1380, 1389 (9th Cir 1996). 7 As the Ninth Circuit has stated, a petitioner "may Langford v Day, 110 Even if petitioner had properly stated a federal due 8 process claim, he would not be entitled to relief because he has 9 failed to establish that any purported state court error had a 10 substantial and injurious effect or influence in determining the 11 jury's verdict. 12 claim must be denied. See Brecht, 507 US at 638. Accordingly, this 13 D 14 15 In claim 4, petitioner alleges that his constitutional 16 right to a speedy trial was violated. 17 that the state did not complete DNA testing in a timely manner, 18 resulting in an unconstitutional delay in his trial. 19 Specifically, he maintains The California Court of Appeal considered and rejected 20 this claim in a reasoned opinion. 21 of the relevant facts, including a recitation of petitioner's 22 objections to the continuances granted as a result of the delay 23 in DNA testing (Opinion at 18-21), the state court analyzed 24 petitioner's claim: 25 26 27 28 After a detailed description Defendant contends he was denied his state and federal constitutional rights to a speedy trial when the trial court continued the matter over his objection. "A defendant's right to a speedy trial is a ‘fundamental right' secured by both the United States 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and California Constitutions [U.S. Const., 6th Amend,; Cal. Const., art. I, § 15.]." (Bailon v. Appellate Division (2002) 98 Cal. App. 4th 1331, 1344.) Defendant relies on the four-part balancing test announced by the United States Supreme Court in Barker v. Wingo, (1972) 407 U.S. 514 at page 530 to support his contention that his federal constitutional right to a speedy trial was violated. Under this balancing test, at least the following four criteria should be considered: "(1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant." (People v. McDermott (2002) 28 Cal. 4th 946, 987.) * * * "The length of the delay is the ‘triggering mechanism' of the Barker analysis. ‘Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.' [Citation.]" (U.S. v. Dennard (11th Cir. 1984) 722 F2d 1510, 1513.) Here, five months had passed since the time defendant refused to waive further time for trial until the trial occurred, and one year had passed since the complaint was filed. Defendant cites to cases where a five-month delay was found to be significant in the weighing process. Defendant does not discuss the factors relevant to the delay, nor does he cite cases where a delay longer than five months was held not to violate the speedy trial guarantee. (See cases listed in Greenberger v. Superior Court (1990) 219 Cal. App. 3d 487, 502-503.) For example, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." (Barker v. Wingo, supra, 407 U.S. at p. 531.) Other than a capital murder, the charge here, first-degree murder, is the most serious charge that can be lodged against a defendant. Such a case should not be rushed to judgment. Also, defendant does not discuss the complexity of the case. This case involved three defendants, numerous witnesses, and scientific evidence requiring the testimony of experts. Defendant has cited to no evidence to dispute the trial court's finding that this was a very serious and complex case, and we find the evidence supports this finding and supports a one-year period to bring the case to trial. * * * Thus we hold that defendant has failed to show that the length of the delay was presumptively prejudicial. Assuming for the sake of argument that the delay was sufficient to trigger further analysis, we discuss 19 1 the other Barker factors. * * * 2 Defendant argues that the state was responsible for the delay and this weighs in favor of finding a speedy trial violation. * * * 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We do not interpret the record in the same manner as defendant. Although the People at one point admitted there was "some delay" getting the evidence from the Department of Justice to the laboratory where Davies wanted the evidence tested, there is nothing in the record to indicate this was anything other than an insignificant and minor delay. Defendant did not claim below that the time taken to test and retest items was unreasonable, and, in fact, at one point counsel for defendant stated that he agreed the testing could not be completed by the time set for trial. Defendant has not shown that the reason for the delay was unreasonable. Next, defendant argues that his assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether he was deprived of that right. Defendant did assert his objection to any further continuances and this is relevant in determining if he was deprived of his speedy trial right. Yet, this is merely one of the factors to be looked at. Defendant claims he was prejudiced because many of the witnesses had vague recollections of the details of the incident. First, we note that no witnesses died or became unavailable as a result of the delay. Next, defendant has not demonstrated that the witnesses' inability to recall important details was related to the time delay rather than the normal inability of some witnesses to recall particular details. Defendant has not shown how witness inability to recall was exacerbated by the additional delay after defendant objected to any further continuances. Furthermore, with the exception of witnesses Isley and Davis, defendant has not particularized how any witnesses' failure or recollection might have harmed him. Defendant contends that Isley's inability to accurately recall the events of February 27, 2001 prejudiced the defense. Isley could not recall exactly what time he saw defendant at McLaughlin's apartment the night of February 27, 2001 and the timing was critical to defendant's defense that he was not involved. Isley testified at trial that he could not remember the exact time that defendant returned to McLaughlin's apartment. On further questioning, he was asked if he remembered telling an investigator that he thought defendant returned home between 9 and 10 that 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evening. He said that that would make sense since McLaughlin had a 10 o'clock rule – that she would not let anyone in her apartment after 10 o'clock at night. Thus, any forgetfulness on the part of Isley was rehabilitated with further questioning and, in fact, strengthened by his recall of the 10 o'clock rule. Defendant contends his defense was damaged because Isley could not remember when McLaughlin got a telephone call from Gilligan about a party getting out of control. As to that telephone call, Isley stated that even two years ago he had dismissed that information because he did not know if it was true or not and did not want to get involved in McLaughlin's fantasies. Isley's failure of recall on this fact was thus not shown to be based on the passage of time but, instead, because he did not want to get involved on this issue. Defendant contends that Davis's failure of recollection regarding a conversation she had with him in April of 2001 allowed the People to infer a sinister motive to this conversation. Davis testified that she saw defendant leaving the area of Gilligan's apartment at approximately 9:45 p.m. February 27, 2001. She also testified that in April of 2001 defendant came into her place of business, forcefully put his things down, and wanted to know why she had told police that he had been at Gilligan's house the night before. He was drunk at the time. Although Davis could not recall exactly what defendant asked her in the store, on further questioning she clarified the matter. Davis was asked about her report to the police of the April encounter with defendant. She was asked if she told the police that defendant asked her why she told the police that he left Gilligan's between 10:30 and 11. She recalled saying something along those lines and reaffirmed that she saw defendant around 9:45 on February 27, 2001. Thus, any failure of recollection was sufficiently clarified and Davis reaffirmed that defendant was leaving the area of Gilligan's apartment around 9:45. Defendant has not shown the requisite prejudice. Defendant fails to discuss other factors relevant to the inquiry before us. The DNA evidence was a very important portion of the trial against defendant and the others. Davies sought a continuance to complete DNA testing of the evidence. Davies's assertion that he needed a continuance to properly test the DNA evidence was good cause for a continuance. The evidence was very important to the case. Defendant did not assert below that Davies's request for a continuance was not based on good cause, nor does he assert such a position on appeal. [footnote omitted] 21 1 2 3 4 5 6 7 8 9 "Where a continuance is granted to a codefendant upon good cause, the rights of other jointly charged defendants are generally deemed not to have been prejudiced." (Hollis v. Superior Court (1985) 165 Cal. App. 3d 642, 646.) Also, trying all defendants together offers an accurate assessment of relative culpability, an advantage that sometimes operates to the defendant's benefit. [citation omitted] Defendant was found less culpable that Davies; it appears he gained an advantage from the joint trial. The interests of justice are better served by trying defendants jointly, avoiding the inequity of inconsistent verdicts. * * * The continuances granted by the trial court did not deprive defendant of his right to a speedy trial. Opinion at 21-25. 10 11 12 13 14 15 Petitioner argues that the state court's decision regarding his speedy trial claim was incorrect. however, demonstrate that the state court's decision was contrary to, or an unreasonable application of, clearly established United States Supreme Court law or was based on an unreasonable determination of the facts. 16 17 18 19 20 21 22 23 24 25 26 27 He cannot, 28 USC § 2254(d). Petitioner primarily argues that the state court misapplied the Barker factors and was mistaken in its conclusion that the state was not responsible for any allegedly unreasonable delay. As petitioner acknowledges in his pleadings, however, "it was co-defendant Davies actually moving for the continuances." Traverse at 17. The state court's detailed analysis properly considered the relevant Barker factors, and fully addressed petitioner's claim, even after a reasonable finding that he had not shown that the length of the delay was presumptively prejudicial. Opinion at 22. In addition, petitioner does not cite to any persuasive caselaw or to any relevant parts of the record that suggests that the state court's application of the 28 22 1 Barker factors was unreasonable. Petitioner also argues, as he did on direct appeal, 2 3 that the delay prejudiced him because several witnesses had vague 4 memories of relevant details. 5 however, thoroughly addressed this argument on direct appeal, 6 reasonably concluding that any failure to recall was not 7 necessarily based on the delay, and that petitioner had not been 8 prejudiced by the testimony in question. The California Court of Appeal, Opinion at 23-24. 9 Finally, even if petitioner had been able to 10 demonstrate that his constitutional right to a speedy trial had 11 been violated, he would not be entitled to habeas relief because 12 he has failed to establish that any purported state court error 13 had a substantial and injurious effect or influence in 14 determining the jury's verdict. 15 Petitioner's claim must be denied. See Brecht, 507 US at 638. 16 E 17 In his fifth claim for relief, petitioner claims that 18 19 his due process rights and his right to a fair trial were 20 violated when a portion of witness Keever's testimony was 21 excluded. 22 testified for the state. 23 inter alia, that petitioner had told him that he (petitioner) had 24 nothing to do with the killing and that he (petitioner) thought 25 that Davies had killed Gilligan. 26 petitioner told him that Mendez had put the knife used in the 27 killing down a mineshaft. 28 that Keever was testifying as to knowledge gained after he became Terry Keever, a jail inmate housed near petitioner, During his testimony, Keever stated, Keever also stated that Upon objection by petitioner’s counsel 23 1 a government agent, the trial judge struck all of Keever’s 2 testimony concerning petitioner. Opinion at 26-28. This claim was considered and rejected by the 3 4 California Court of Appeal in a reasoned opinion on direct 5 appeal. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The exclusion of critical exculpatory evidence can result in the denial of the right to a fair trial. (Chambers v. Mississippi (1973) 410 U.S. 284, 302.) Due process violations can occur when excluded evidence is highly probative of the defendant's innocence. "[I]f the exculpatory value of the excluded evidence is tangential, or cumulative of other evidence admitted at trial, exclusion of the evidence does not deny the accused due process of law." (People v. Smithey (1999) 20 Cal. 4th 936, 996.) We find that defendant did not properly preserve the issue for appeal. It was defendant's objection to the testimony being elicited from Keever that resulted in the trial court's excluding all testimony from Keever about any statements made to him by defendant. The basis for this ruling was that Keever did not clearly articulate which conversations occurred before he became an agent for the state and which conversations took place afterwards. When, in response to defendant's objection, the trial court ruled that it would exclude all evidence from Keever regarding defendant, defense counsel did not make any argument to the court that it should excise a portion of the testimony and admit the excised portion. Having failed to make a request for differential treatment of the testimony below, defendant has forfeited that argument for purposes of appeal. (People v. Saunders (1993) 5 Cal. 4th 580. 589-590). Furthermore, the testimony by Keever that defendant told him he did not have anything to do with the killing of Gilligan was cumulative to defendant's own statement that he had nothing to do with the killing of Gilligan. The statement to Keever of defendant's noninvolvement did not have an independent origin but came from defendant himself and thus had no more reliability than defendant's actual testimony given under oath at trial. Error, if any, in excluding the testimony did not undermine the outcome of the case. Opinion at 29-30. 28 24 1 1 Respondent first argues that, as the California Court 2 3 of Appeal concluded, this claim is procedurally defaulted due to 4 petitioner's failure to raise a contemporaneous objection to the 5 trial court's decision to strike the portion of Keever's 6 testimony that petitioner now argues would have been helpful to 7 him. 8 federal courts will not review "a question of federal law decided 9 by a state court if the decision of that court rests on a state Opinion at 29. Under the doctrine of procedural default, 10 law ground that is independent of the federal question and 11 adequate to support the judgment." 12 722, 729 (1991). 13 procedural rules and was barred from litigating a constitutional 14 claim in state court, the claim may be considered on federal 15 habeas only if petitioner shows "cause" for the default and 16 "actual prejudice" from failure to raise the claim, or 17 demonstrates that failure to consider the claim will result in a 18 fundamental miscarriage of justice. 19 Coleman v Thompson, 501 US Thus, if petitioner failed to comply with state See id at 750. "For a state procedural rule to be ‘independent,' the 20 state law basis for the decision must not be interwoven with 21 federal law." 22 citing Michigan v Long, 463 US 1032, 1040–1041 (1983). 23 law ground is interwoven with federal law if application of the 24 state procedural rule requires the state court to resolve a 25 question of federal law. 26 (9th Cir 2000), citing Ake v Oklahoma, 470 US 68, 75 (1985). 27 28 LaCrosse v Kernan, 244 3d 702, 704 (9th Cir 2001), A state Park v California, 202 F3d 1146, 1152 For a state procedural rule to be "adequate," it must be clear, well-established and consistently applied. 25 Id The 1 issue of whether a state procedural rule is adequate to foreclose 2 federal review is itself a federal question. 3 380 US 415, 422 (1965). 4 must be assessed as of the time when the petitioner committed the 5 default. 6 The burden of proving the adequacy of a state procedural rule 7 lies with the state. 8 (9th Cir 2003). Douglas v Alabama, The adequacy of a state procedural rule Fields v Calderon, 125 F3d 757, 760 (9th Cir 1997). Bennett v Mueller, 322 F3d 573, 585–586 California law has long required a defendant to make a 9 10 timely and specific objection at trial in order to preserve a 11 claim for appellate review. 12 People v Ramos, 15 Cal 4th 1133, 1171 (1997). 13 Supreme Court has acknowledged that a state court's application 14 of the contemporaneous objection rule may constitute grounds for 15 default. 16 Ninth Circuit has honored defaults for failure to comply with the 17 contemporaneous objection rule. 18 953, 957-958 (9th Cir 1999). 19 See, e g, Cal Evid Code § 353; The United States See Wainwright v Sykes, 433 U.S 72, 87 (1977). The See Vansickel v White, 166 F3d In this case, the state court denied petitioner's claim 20 because he did not object to the trial court's ruling and 21 accordingly "did not properly preserve the issue for appeal." 22 Opinion at 29. 23 claim to be procedurally defaulted due to lack of a 24 contemporaneous objection, which has been found by the Ninth 25 Circuit to be an independent and adequate state rule. 26 does not argue to the contrary, nor does he argue either that 27 there was cause for and prejudice from the default, or that 28 defaulting the claim will result in a fundamental miscarriage of As respondent agues, the state court found this 26 Petitioner 1 justice. As such, this court finds that petitioner's fifth claim 2 for relief is procedurally defaulted. 3 2 4 Petitioner's claim is also without merit. 5 He has not 6 shown that the state court's reasoned opinion was contrary to, or 7 an unreasonable application of, clearly established United States 8 Supreme Court law, nor has he shown that it was an unreasonable 9 determination of the facts. 28 USC § 2254. 10 The California Court of Appeal recognized that 11 petitioner was making a constitutional claim pursuant to Chambers 12 v Mississippi, 410 US 284, 302 (1973), which holds that a 13 defendant's due process rights may be violated when he or she is 14 prevented from presenting exculpatory evidence. 15 found that even if it had been error for the trial court to 16 exclude Keever's testimony, there was no prejudice because 17 Keever's testimony that petitioner had told him that he 18 (petitioner) had nothing to do with the killing was cumulative to 19 petitioner's own testimony under oath. The state court Opinion at 29-30. Petitioner cannot demonstrate that the state court's 20 21 decision was unreasonable. The state court correctly stated that 22 Keever's testimony "did not have an independent origin but came 23 from defendant himself and thus had no more reliability than 24 defendant's actual testimony given under oath." 25 30. 26 violation of due process for a trial court to exclude evidence 27 that bolsters defendant's credibility. 28 Scheffer, 523 US 303, 316-317 (1998). Opinion at 29- The United States Supreme Court has held that it is a not a 27 See United States v In this case, Keever's 1 testimony was at best cumulative of petitioner's testimony and 2 perhaps would have bolstered his credibility, but did not consist 3 of any independent exculpatory factual evidence. 4 cite to no case establishing that the state court's decision was 5 in error. 6 error resulted in prejudice. 7 entitled to habeas relief on this claim. Petitioner can In addition, petitioner cannot show that any alleged Brecht, 507 US at 637. He is not 8 F 9 10 In his sixth claim for relief, petitioner maintains 11 that his right to effective assistance of counsel was violated 12 when his defense attorney allegedly opened the door for the 13 prosecutor to introduce evidence of petitioner's prior 14 convictions for violent crimes. 15 John Isley testified as a witness for petitioner. 16 Petitioner’s counsel questioned Isley about petitioner’s 17 behavior; Isley testified that he had never seen petitioner hit 18 anyone or get in a fight. 19 prosecutor argued that Isley was a character witness for 20 petitioner, and that the government was now allowed to introduce 21 evidence about petitioner’s prior violent acts. 22 agreed, and the prosecutor subsequently introduced evidence, over 23 defense counsel’s objection, of petitioner’s prior convictions 24 and arrest for assault and battery. 25 ruled that, if petitioner testified, he could be impeached with 26 his conviction for felony assault. 27 28 Based on these questions, the The trial court The court had previously Opinion at 30-31. Later during the trial, while acknowledging that the jury would probably have known of the felony assault conviction 28 1 even absent the court’s later ruling, petitioner’s counsel moved 2 for a mistrial based on the character evidence. 3 denied, and the trial court ruled that the government could 4 present opinion evidence regarding petitioner’s reputation. 5 Opinion at 31-32. 6 witnesses regarding defendant’s character. 7 testified that, in his opinion, petitioner “can go from talking 8 to being extremely belligerent and violent when you are dealing 9 with him.” The motion was The government subsequently presented two Opinion at 32. Officer Prock Darlene Adams, the mother of 10 petitioner’s twin daughters, testified that in her opinion, 11 defendant had a violent character. 12 admitted that in 1993, both she and petitioner were heavy drug 13 users. 14 On cross-examination, she Opinion at 32. In order to prevail on a Sixth Amendment 15 ineffectiveness of counsel claim, petitioner must first 16 establish that counsel's performance was deficient, i e, that it 17 fell below an "objective standard of reasonableness" under 18 prevailing professional norms. 19 668, 687-688 (1984). 20 prejudiced by counsel's deficient performance, i e, that "there 21 is a reasonable probability that, but for counsel's 22 unprofessional errors, the result of the proceeding would have 23 been different." 24 probability sufficient to undermine confidence in the outcome. 25 Id at 694. 26 Strickland v Washington, 466 US Second, he must establish that he was Id at 694. A reasonable probability is a Petitioner has the burden of showing that counsel's 27 performance was deficient. 28 (9th Cir 1990). Toomey v Bunnell, 898 F2d 741, 743 Similarly, he must "affirmatively prove 29 1 prejudice." 2 that counsel was ineffective do not warrant relief. 3 Gomez, 66 F3d 199, 205 (9th Cir 1995). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Strickland, 466 US at 693. Conclusory allegations Jones v The California Court of Appeal considered and rejected this claim in a reasoned opinion on direct appeal. We will assume for the sake of argument that trial counsel was ineffective when he opened the door allowing the People to present evidence of defendant's prior crimes and reputation in the community. But, we find that defendant has not demonstrated that it is reasonably probable a different result would have occurred in the absence of the error. As part of his prejudice argument, defendant asserts that jury deliberations show this was a close case. He contends the closeness of the case was demonstrated by the length of deliberations (19 hours), the request for a readback of testimony (Keever's testimony), and that he was acquitted of the most serious charge (murder). We disagree with defendant's assessment that this was a close case. In light of the numerous witnesses, length of trial, and the fact that this case involved three defendants, 19 hours of deliberations is not lengthy. The request for a readback of Keever's testimony was not surprising. There was confusion about Keever's testimony and the court struck some of his testimony, yet allowed part of it to remain. The readback was justified by this confusion and demonstrates diligence on the part of the jurors in ascertaining what evidence from Keever they could and could not consider. Defendant was not acquitted of the killing of Gilligan, but found guilty of a lesser included offense. The jury found differing liability among the three defendants. We do not think this demonstrates a close case, but believe it demonstrates that the jury was diligent and paid close attention to their duties while assessing individual responsibility for the crimes. Rather than proving the case was close, we believe the factors suggested by defendant suggest the jury conscientiously performed its duty. (People v. Carpenter (1997) 15 Cal. 4th 312, 422.) Nor was the case close based on the evidence presented at trial. Defendant's blood was found at the crime scene, as well as his fingerprints. His voice was heard coming from Gilligan's home by a neighbor the night of the killing. Defendant was with Davies and Mendez at the store buying beer during the evening. 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 There was very strong physical evidence tying Davies to the murder of Gilligan. Defendant was seen walking away from Gilligan's apartment before 10 o'clock. Furthermore, we agree with the trial court that this case was not going to turn on the basis of defendant's conduct with Officer Prock or with the mother of defendant's children in light of the fact that he was impeached with a felony conviction involving violent conduct. [footnote 9 omitted] Thus the jury was aware that defendant had a violent past. [footnote 10 omitted] The violent conduct evidence was tempered by Isley's testimony, based on knowing defendant for 20 years, that he was not a violent individual. Also, if the jury had been unduly inflamed by this evidence, they would have convicted him of murder instead of the lesser offense of voluntary manslaughter. Defendant has not affirmatively proved that but for counsel's error there is a reasonable probability that the result would have been different. Opinion at 30-35. Here, too, petitioner fails to demonstrate ineffective assistance of counsel and cannot show that the state court's reasoned opinion is contrary to, or an unreasonable application of, clearly established United States Supreme Court law. Petitioner also fails to demonstrate that the state court's opinion relied on an unreasonable determination of the facts. Even assuming petitioner could demonstrate that his counsel's actions were deficient, he cannot show that there is a reasonable probability that, but for his counsel's failure to open the door to his prior convictions, the results of the proceeding would have been different. See Strickland, 466 US at 693, 694. Petitioner argues, as he did on direct appeal, that the evidence of his violent background was prejudicial and that the jury deliberations of 19 hours show that this was a close case. As the state court's lengthy analysis demonstrates, however, the 28 31 1 evidence against petitioner was extremely strong. Opinion at 34. 2 In addition, given the lengthy trial, multiple defendants and 3 numerous witnesses, "19 hours of deliberations is not lengthy." 4 Id 5 petitioner, along with the other factors cited by the state 6 court, petitioner cannot demonstrate that but for his counsel's 7 alleged errors, the result of his trial would have been 8 different. 9 federal habeas relief on this claim. Given the strength and volume of the evidence against Strickland, 466 US at 694. He is not entitled to 10 G 11 12 In his seventh claim for relief, petitioner maintains 13 that the trial court committed prejudicial error when it failed 14 to instruct the jury regarding involuntary manslaughter. 15 Specifically, the trial court did not instruct the jury that “if 16 it had a reasonable doubt whether defendant committed voluntary 17 manslaughter, but believed he committed involuntary manslaughter, 18 they must give him the benefit of the doubt and find him guilty 19 of the lesser offense of involuntary manslaughter.” 20 35. 21 benefit of the doubt instructions between first degree murder and 22 second degree murder, and between murder and manslaughter. 23 Opinion at 37. 24 Opinion at The trial court did, however, instruct the jury with the This claim was considered by the California Court of 25 Appeal in a reasoned opinion on direct appeal. 26 v Musselwhite, 17 Cal 4th 1216, 1262-1263 (1998), the state court 27 denied petitioner’s claim. 28 found that, as in Musselwhite, the trial court in petitioner’s Opinion at 35-38. 32 Relying on People The state court 1 case had “instructed the jury with the benefit of the doubt 2 instructions between first degree murder and second degree 3 murder, and between murder and manslaughter. 4 instructed the jury regarding specific intent or mental state, 5 that they must adopt the interpretation which points to the 6 absence of the specific intent or mental state (CALJIC No. 2.02), 7 the instruction that the Musselwhite court found dispositive of 8 the issue.” 9 The court here also Opinion at 37-38. As with claims 1-3, which also involved alleged 10 instructional error, petitioner cannot demonstrate that the 11 California Court of Appeal's reasoned decision was contrary to, 12 or involved an unreasonable application of, clearly established 13 United States Supreme Court law. 14 state court's factual findings were unreasonable. Nor can he demonstrate that the At the outset, the court notes that it is not clear 15 16 that this claim states a violation of federal constitutional law. 17 As with claim 3, petitioner is alleging that the trial court's 18 instructions violated California state law, and the United States 19 Supreme Court has confirmed that a challenge to a jury 20 instruction solely as an error under state law does not state a 21 claim cognizable in federal habeas proceedings. 22 at 71-72. 23 in this claim that his federal due process rights were violated, 24 the court will consider it on the merits. 25 Estelle, 502 US Nonetheless, because petitioner does generally allege To obtain federal collateral relief for instructional 26 error, a petitioner must show that the ailing instruction by 27 itself so infected the entire trial that the resulting conviction 28 violates due process. Estelle, 502 US at 72. 33 Demonstrating 1 prejudicial error due to an omitted instruction is a particularly 2 heavy burden because "[a]n omission, or an incomplete 3 instruction, is less likely to be prejudicial than a misstatement 4 of the law." 5 found that the jury had been properly instructed under state law, 6 and petitioner does not cite to any clearly established United 7 States Supreme Court law to the contrary. 8 cannot demonstrate that he suffered any prejudice as the result 9 of the alleged instructional error. 10 Henderson, 431 US at 155. Here, the state court Moreover, petitioner Brecht, 507 US at 638. This claim must be denied. 11 H 12 13 Petitioner's eighth claim also alleges instructional 14 error; specifically, petitioner maintains that the trial court 15 erred in instructing the jury regarding aider-abettor liability. 16 While the jury was instructed generally on aider and abettor 17 liability, including the requirements for termination of the 18 liability of an aider and abettor, it was not instructed as to 19 the burden of proof it should apply in determining whether a 20 defendant had terminated his liability as an aider and abettor. 21 The Court of Appeal addressed and rejected this claim 22 in a reasoned opinion on direct appeal. 23 assuming the trial court had a sua sponte duty to instruct the 24 jury on burden of proof, any error was harmless under Chapman v 25 California, 368 US 18 (1967). 26 27 28 It found that, even Opinion at 38. All of the defendants denied any involvement in the killing of Gilligan. None of them relied on a theory that they participated to some extent and then withdrew from participation in the crime. More 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 importantly, the evidence and the verdict do not demonstrate that the defendant was harmed by this claimed error. If the jury believed defendant's testimony, he would have been acquitted of the charge against him and the jury would have had no need to resort to the aiding and abetting instructions. There was evidence supporting a theory that defendant participated in the initial brutal beating but was not present when someone returned and slit Gilligan's throat. Although the slitting of Gilligan's throat was clearly first degree murder, the jury only found defendant guilty of voluntary manslaughter. Other than defendant's intoxication or the theory that the initial altercation was caused by a quarrel, which did not differ in any significant way from the evidence regarding Davies, there was nothing in the record to reduce the murder to manslaughter, yet the jury found Davies guilty of murder and defendant guilty of manslaughter. The only viable theory that may have resulted in finding defendant guilty of manslaughter and Davies guilty of first degree murder was that defendant was not present during the second incident and had withdrawn from participation in the criminal activities. Thus the jury accepted his withdrawal without being instructed on the burden of proof. No harm resulted. Opinion at 39. 15 16 17 18 19 20 Assuming that petitioner properly states a colorable federal constitutional claim, his claim must fail.3 cannot demonstrate that the state court's rejection of his claim was contrary to, or an unreasonable application of, clearly established United States Supreme Court law, or relied on an unreasonable determination of the facts. 21 22 23 Petitioner Here, the state court assumed that the trial court committed error when it did not give a specific burden of proof instruction on aider and abettor liability, but concluded that 24 25 26 27 28 3 As with Claim 3, it is unclear if petitioner is stating a cognizable claim. Given that petitioner is a prisoner proceeding pro se, however, the court will again assume that petitioner has properly stated a violation of his federal due process rights due to instructional error. 35 1 the error was harmless under Chapman v California, 386 US 18 2 (1967). 3 court's conclusion unless the state court "applied harmless-error 4 review in an objectively unreasonable manner." 5 Esparza, 540 US 12, 18-19 (2003) (citations omitted). 6 reviewed the state court's opinion, as well as the underlying 7 record and the applicable caselaw, this court finds no support 8 for petitioner's allegation that the state court's conclusion was 9 "objectively unreasonable." Opinion at 28-29. This court may not overturn the state Mitchell v Having Finally, petitioner cannot demonstrate that the alleged 10 11 constitutional error in his case resulted in "actual prejudice" 12 to him. 13 2254(d), habeas relief is warranted only if the constitutional 14 error at issue had a substantial and injurious effect or 15 influence in determining the jury's verdict. 16 Abrahamson, 507 US 619, 638 (1993). 17 Court has held that, even when a state court has found 18 constitutional error and addressed it under the Chapman standard, 19 a federal habeas court should apply the "more forgiving" 20 substantial and injurious effect standard announced in Brecht. 21 Fry v Pliler, 551 US 112, 127 SCt 2321, 2325-2328 (2007) 22 (confirming that the Brecht standard is "more forgiving" of trial 23 errors than the Chapman standard). Even if a petitioner meets the requirements of section Brecht v The United States Supreme 24 As discussed in detail supra, the California Court of 25 Appeal analyzed the alleged instructional error and found it to 26 be harmless beyond a reasonable doubt. 27 state court examined the record, including the theories advanced 28 by the defense and petitioner's testimony, and concluded that 36 Opinion at 38-39. The 1 "the evidence and verdict do not demonstrate that the defendant 2 was harmed by this claimed error." 3 may disagree with the state court's analysis, but he has not 4 demonstrated that the state court's harmless error decision was 5 contrary to, or an unreasonable application of clearly 6 established federal law, nor has he demonstrated that it was 7 based on an unreasonable determination of the facts. 8 2254(d). 9 review is "more forgiving" of trial error than the Chapman Opinion at 39. Petitioner 28 USC § Given that the standard to be applied on collateral 10 standard reasonably applied by the California Court of Appeal, 11 petitioner cannot demonstrate "actual prejudice." 12 therefore, entitled to federal habeas relief on this claim. He is not, 13 I 14 15 In his ninth and final claim for relief, petitioner 16 maintains that his upper-term sentence was imposed in violation 17 of Blakely v Washington, 542 US 296 (2004). 18 of Appeal addressed and rejected this claim. 19 Petitioner also raised this claim in his petition for review with 20 the California Supreme Court; that court referenced petitioner's 21 Blakely claim when it denied the petition "without prejudice to 22 any relief to which defendant might be entitled to after [the 23 California Supreme Court] determines in People v. Black, S126182, 24 and People v. Towne, S125677, the effect of Blakely v. Washington 25 (2004) ___ U.S. ___ 124 S. Ct. 2531, on California law." 26 Document 7. 27 28 The California Court Opinion at 39-40. Lodged Since the Court of Appeal's reasoned opinion denying petitioner's claim, other relevant cases have been decided. 37 1 Petitioner now bases his claims on the Supreme Court's holding in 2 Cunningham v California, 549 US 270 (2007), in which the Supreme 3 Court held California's determinate sentencing law4 violates the 4 Sixth Amendment because it authorizes the judge, not the jury, to 5 find the facts permitting an upper-term sentence.5 Cunningham is the most recent in a line of Supreme 6 7 Court cases decided subsequent to Apprendi v New Jersey, 530 US 8 466 (2000). 9 defendant's right to trial by jury to findings of fact used by In Apprendi, the Supreme Court extended a 10 the sentencing court to increase a defendant's sentence. "Other 11 than the fact of a prior conviction, any fact that increases the 12 penalty for a crime beyond the prescribed statutory maximum must 13 be submitted to a jury, and proved beyond a reasonable doubt." 14 Id at 490. 15 maximum sentence a judge could impose based solely on the facts 16 reflected in the jury verdict or admitted by the defendant; in 17 other words, the relevant "statutory maximum" is not the sentence 18 the judge could impose after finding additional facts, but rather 19 the maximum he could impose without any additional findings. 20 Blakely v Washington, 542 US 296, 303-04 (2004). Under Apprendi, the "statutory maximum" is the In Cunningham, the Supreme Court applied the above 21 22 reasoning to California's determinate sentencing law ("DSL"), and 23 found it violated the Sixth Amendment because it allowed the 24 4 25 26 27 28 California’s determinate sentencing procedures have since been amended to be in compliance with the applicable law. 5 The Court of Appeal found in petitioner’s case that California’s determinate sentencing law was constitutional (Opinion at 41), as the California Supreme Court later did in People v Black, 35 Cal 4th 1238 (2005). 38 1 sentencing court to impose an elevated sentence based on 2 aggravating facts that the trial court found by a preponderance 3 of the evidence, rather than facts found by a jury beyond a 4 reasonable doubt. 5 recently concluded that Cunningham did not announce a "new rule" 6 for Teague purposes and thus is applicable to cases on collateral 7 review. 8 SCt 767 (2008). Id at 860, 870-871. The Ninth Circuit has Butler v Curry, 528 F3d 624, 634-636, cert denied, 129 9 Here, petitioner's Cunningham claim is without merit 10 because the record of the sentencing shows the trial court did 11 not err in imposing the upper term on the manslaughter 12 conviction. 13 relied upon the following aggravating factors to impose the upper 14 term on the manslaughter charge: petitioner's prior convictions, 15 the fact petitioner was on probation when the crime was 16 committed, the nature of the crime, and the vulnerability of the 17 victim. 18 only one aggravating factor is necessary to support imposition of 19 the upper term. 20 least one of the aggravating factors on which the trial court 21 relied in sentencing petitioner was established in a manner 22 consistent with the Sixth Amendment, petitioner's sentence was 23 not in violation of the Sixth Amendment. 24 In particular, the record shows the trial court Opinion at 39-40. Under California's sentencing scheme, Butler, 528 F3d at 639. Consequently, if at Id at 643. Contrary to petitioner's assertion, no Sixth Amendment 25 violation occurred when the trial court relied upon the fact of 26 petitioner's prior convictions to apply the upper term. 27 Apprendi made clear, the fact of a prior conviction is a 28 sentencing factor that may be relied upon to enhance a sentence 39 As 1 without being submitted to a jury or proved beyond a reasonable 2 doubt. 3 Zepeda, 234 F3d 411, 414-415 (9th Cir 2001), cert denied, 532 US 4 966 (2001) (relying on Apprendi to hold prior convictions, 5 whether or not admitted by defendant on record, are sentencing 6 factors rather than elements of charged crime). 7 See Apprendi, 530 US at 490; United States v Pacheco- It is clear from the record that at least one of the 8 aggravating factors on which the trial court relied in sentencing 9 petitioner was established in a manner consistent with the Sixth 10 Amendment. Accordingly, petitioner's Cunningham claim is without 11 merit and must be dismissed. See Butler, 528 F3d at 643. 12 III 13 14 15 16 17 For the reasons set forth above, the petition for a writ of habeas corpus is DENIED. The clerk shall enter judgment in favor of respondent and close the file. 18 19 IT IS SO ORDERED. 20 21 22 _________________________________ Vaughn R Walker United States District Chief Judge 23 24 25 26 27 28 40
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