(HC) McCoy v. Subia, No. 1:2007cv00662 - Document 18 (E.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus 1 , signed by Chief Judge Vaughn R. Walker on 7/22/09: The Clerk shall enter judgment in favor of respondent and close this file. (CASE CLOSED)(Hellings, J)
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(HC) McCoy v. Subia Doc. 18 1 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE 5 EASTERN DISTRICT OF CALIFORNIA 6 FRESNO DIVISION 7 8 United States District Court For the Eastern District of California 9 JERRY WAYNE MCCOY, 10 Petitioner, 11 v 12 13 No C-07-0662 VRW ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WARDEN R J SUBIA, Respondent _____________________________/ 14 15 Petitioner, Jerry Wayne McCoy, a California state prisoner 16 proceeding pro se, seeks a writ of habeas corpus under 28 USC § 17 2254. For the reasons set forth below, a writ is DENIED. 18 19 I 20 On March 2, 2004, a jury found petitioner guilty of one 21 count of exhibiting harmful material to a minor and four counts of 22 committing a lewd and lascivious act on a child under the age of 14 23 years. 24 victim. 25 In all counts, his six-year-old stepdaughter, B, was the The California Court of Appeal affirmed the judgment in a 26 partially published opinion. 27 (2005). 28 did not seek review via a state habeas petition. People v McCoy, 133 Cal App 4th 974 The Supreme Court of California denied review. Petitioner Dockets.Justia.com 1 2 April 25, 2007. 3 outside of his and his counsel’s presence violated his right to 4 counsel and due process, challenges the constitutionality of CALJIC 5 2.20.1, argues that the trial court’s exclusion of evidence 6 impeaching B violated his constitutional rights, and alleges that 7 the prosecutor committed misconduct by asking the jury to “send a 8 message” to B. 9 10 United States District Court For the Eastern District of California Petitioner filed the instant federal habeas petition on He alleges that a readback of testimony to the jury Respondent filed an answer on February 28, 2008. Petitioner did not file a traverse. 11 12 13 II This court may entertain a petition for a writ of habeas 14 corpus “in behalf of a person in custody pursuant to the judgment of 15 a State court only on the ground that he is in custody in violation 16 of the Constitution or laws or treaties of the United States.” 17 USC § 2254(a); Rose v Hodges, 423 US 19, 21 (1975). 18 28 A district court may not grant a petition challenging a 19 state conviction or sentence on the basis of a claim that was 20 reviewed on the merits in state court unless the state court’s 21 adjudication of the claim: 22 contrary to, or involved an unreasonable application of, clearly 23 established Federal law, as determined by the Supreme Court of the 24 United States; or (2) resulted in a decision that was based on an 25 unreasonable determination of the facts in light of the evidence 26 presented in the State court proceeding.” 27 Williams v Taylor, 529 US 362, 412–13 (2000). 28 did not reach the merits of a claim, federal review of the claim is “(1) resulted in a decision that was 2 28 USC § 2254(d); If the state court 1 2 Nulph v Cook, 333 F3d 1052, 1057 (9th Cir 2003). A federal court must presume the correctness of the state 3 court’s factual findings. 4 decision implicated by 2254(d) is the “last reasoned decision” of 5 the state court. 6 Barker v Fleming, 423 F3d 1085, 1091–92 (9th Cir 2005). 7 28 USC § 2254(e)(1). The state court See Ylst v Nunnemaker, 501 US 797, 803–04 (1991); Habeas relief is warranted only if the constitutional 8 error at issue had a “‘substantial and injurious effect or influence 9 in determining the jury’s verdict.’” 10 United States District Court For the Eastern District of California de novo. Brecht v Abrahamson, 507 US 619, 638 (1993). 11 12 III 13 A 14 Petitioner alleges that his constitutional rights were 15 violated when B’s testimony was read back to the jury outside of his 16 and his counsel’s presence. 17 court a note asking for a readback of B’s testimony about watching 18 videos and viewing photographs on a computer with petitioner. 19 court granted the request, directing two court reporters to conduct 20 the readback in the jury room. 21 ask questions or deliberate in the reporters’ presence, and to 22 request further readbacks only from the court. 23 petitioner’s express objection to this procedure and denied his 24 request that the readback be conducted in open court. 25 contends that in so doing, the court denied him his rights to the 26 assistance of counsel and due process. 27 28 During deliberations, the jury sent the The The court cautioned the jury not to The court overruled Petitioner The state court rejected petitioner’s claim, finding that the trial court did not commit error in allowing the readback 3 1 outside of petitioner’s and his counsel’s presence. 2 relevant federal and state case law, the court stated: 3 4 5 6 7 Inferring a general rule from United States Supreme Court and California Supreme Court cases, we hold by parity of reasoning, on a record not only showing that the court carefully admonished the jury before the readback but also failing to show, let alone intimate, that McCoy’s or his attorney’s presence during readback could have assisted the defense in any way, that the court committed no constitutional error in allowing the readback over express defense objection. 8 People v McCoy, 133 Cal App 4th 974, 983 (2005). 9 below, the state court’s rejection of petitioner’s claim was 10 United States District Court For the Eastern District of California After reviewing As discussed reasonable. 11 A defendant is entitled to the presence of counsel “at 12 every stage of a criminal proceeding where substantial rights of a 13 criminal accused may be affected.” 14 (1967). 15 critical stages of the criminal prosecution where his [or her] 16 absence might frustrate the fairness of the proceedings.” 17 California, 422 US 806, 819 n15 (1975). 18 be present and participate in proceedings if his presence “has a 19 relation, reasonably substantial, to the fullness of his opportunity 20 to defend against the charge.” Snyder v Massachusetts, 291 US 97, 21 105-106 (1934), overruled on other grounds by Duncan v Louisiana, 22 391 US 145, 154-155 (1968). 23 however, require a defendant’s presence where “presence would be 24 useless, or the benefit of a shadow.” 25 Mempa v Rhay, 389 US 128, 134 Furthermore, a defendant has a right to be present “at all Faretta v An accused has a right to The Fourteenth Amendment does not, Id at 106-107. The Supreme Court has not held that a readback is a 26 critical stage of trial. 27 (9th Cir 2001). As such, the state court opinion was not contrary to 28 or an unreasonable application of clearly established federal law, La Crosse v Kernan, 244 F3d 4 702, 707-708 1 as determined by the Supreme Court of the United States. 2 § 2254(d). United States District Court For the Eastern District of California 3 See 28 USC Furthermore, petitioner’s reliance on Fisher v Roe, 263 4 F3d 906 (9th Cir 2001), overruled on other grounds by Payton v 5 Woodford, 346 F3d 1204 (9th Cir 2003), is misplaced. 6 Ninth Circuit found that the readback of critical testimony during 7 jury deliberations without the knowledge or participation of 8 petitioners and counsel violated petitioners’ due process rights and 9 was contrary to clearly established federal law. In Fisher, the Id at 917. The 10 court in Fisher however, acknowledged that the inquiry as to whether 11 a defendant’s rights will be adversely affected by his absence from 12 a readback is fact-sensitive, and limited its holding to the facts 13 before it. 14 aware of the readback and it took place under the guidance of the 15 trial judge. 16 17 18 19 20 Id. Unlike the situation in Fisher, here counsel was Finally, even if the readback resulted in a constitutional violation, it did not have a substantial and injurious effect or influence in determining the jury’s verdict. Brecht, 507 US at 623. As noted above, the trial court controlled the readback to the jury by instructing as follows: 21 22 23 24 25 26 [The court reporters will] read it to you in the jury room. You must not ask [the court reporter] any questions or ask her to read anything other than what you have indicated on this sheet of paper. And, second, you must not discuss in either one of their presence (sic) anything about the case because that would be deliberating and you cannot deliberate while there’s thirteen people in the room. If you want anything else read, please come back into court or send me a note advising me of what else you want read. 27 Reporter’s Transcript (“RT”) 4943. Furthermore, the jury requested 28 the readback of portions of the testimony of a single witness, 5 1 rather than a substantial portion of the prosecution’s case. 2 requested testimony was finite and discernible. 3 watching movies is transcribed at RT 3167-69, 3175-77, 3304-07, 4 3472-75, 3510-14, 3533-41, 3676-77, 3690. 5 watching photos on the computer is transcribed at RT 3322-25, 3684- 6 85. 7 fact in this case from the evidence received in this trial and not 8 from any other source.” 9 readback affected the jury’s verdict. United States District Court For the Eastern District of California B’s testimony about Her testimony about The jury was also instructed “You must decide all questions of 10 11 The RT 4910-11. There is no evidence that the For the above-mentioned reasons, petitioner’s claim is denied. 12 13 B 14 Petitioner alleges that CALJIC No 2.20.1 violated his 15 16 constitutional rights to due process, jury trial, to present a 17 defense and confront witnesses against him, by improperly bolstering 18 B’s credibility. 19 rejecting constitutional challenges to CALJIC No 2.20.3, the state 20 court denied petitioner’s claim. Relying on three Court of Appeal decisions McCoy, 133 Cal App 4th at 974-980. In order to challenge a jury instruction on habeas, a 21 22 petitioner must prove that the ailing instruction so infected the 23 entire trial that the resulting conviction violates due process. 24 Spivey v Rocha, 194 F3d 971, 976 (9th Cir 1999), citing Estelle v 25 McGuire, 502 US 62, 72 (1991). 26 the context of the entire trial and the jury instructions taken as a 27 whole.” 28 likelihood that the jury has applied the challenged instruction in a Id. “The instruction must be viewed in The relevant inquiry is “whether there is a reasonable 6 1 manner that prevents the consideration of constitutionally relevant 2 evidence.” 3 Boyde v California, 494 US 370, 380 (1990). Here, petitioner has failed to demonstrate a reasonable 4 likelihood that the jury applied the challenged instructions in an 5 unconstitutional manner. 6 part: CALJIC No 2.20.1 provides in relevant 7 8 9 United States District Court For the Eastern District of California 10 11 12 13 In evaluating the testimony of a child ten years of age or younger you should consider all of the factors surrounding the child’s testimony, including the age of the child and any evidence regarding the child’s level of cognitive development. A child, because of age and cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. ‘Cognitive’ means the child’s ability to perceive, to understand, to remember and to communicate any matter about which the child has knowledge. 14 Petitioner has not demonstrated a reasonable probability that the 15 jury understood the above instructions to bolster B’s credibility. 16 17 In denying a due process challenge to CALJIC No 2.20.1, the Ninth Circuit has observed that CALJIC No 2.20.1 merely prevents 18 disregard of a child’s testimony, but does not amplify it. See 19 Brodit v Cambra, 350 F3d 985, 990-91 (9th Cir 2003). This rationale 20 similarly negates petitioner’s contention that CALJIC 2.20.1 21 violated his right to jury trial, present a defense and confront 22 witnesses. Accordingly, petitioner’s entire claim lacks merit. 23 24 25 26 C Petitioner alleges that the trial court’s exclusion of 27 evidence impeaching B violated his constitutional rights. Petitioner 28 prepared to introduce evidence of B’s alleged dishonesty, 7 1 fabrication and vivid imagination, including an instance when she 2 created an entire fantasy surrounding a frog figurine that she saw 3 in an aquarium. 4 this evidence, prohibited its introduction. 5 6 The trial judge, failing to see the relevance of The Court of Appeal denied petitioner’s claim in a unpublished portion of its opinion as follows: 7 8 9 United States District Court For the Eastern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 McCoy argues that the court’s ruling precluding his proffer of “specific acts of dishonesty or fabrication to attack B’s credibility” constituted a prejudicial abuse of discretion. The Attorney General argues that the court’s ruling “excluding evidence of B’s imagination” was not error. The parties’ mutually inconsistent characterization of the court’s ruling help to frame the issue before us. To shed light on that issue, we turn to the record of the motion in limine. McCoy’s offer of proof was that a man who had babysat B for years would testify that she was “7, going on 15,” had a “vivid imagination,” was “bright” and “inquisitive,” and once “created, in his words, an entire fantasy” of “an aquatic baby frog figurine in an aquarium.” The prosecutor argues that the evidence had “no probative value.” McCoy argues that the evidence went “to her imagination, her manner of speech, her ma[nn]er of acting[, and] * * * [h]er reluctance to change once she makes a statement.” * * * He analogized his offer of proof to the evidence that only after J discovered B masturbating to an adult magazine did she talk about the molestations, a chronology, he argued, that showed she “created something to get out of trouble.” Noting the risks of confusing the jury and wasting the jury’s time with a story B made up about a frog, the court ruled inadmissible the evidence in McCoy’s offer of proof. (See Evid Code, § 352.) “I just don’t see that’s relevant,” the court stated. “I just don’t see it. You made your offer of proof. I just can’t see it.” 23 24 25 26 27 28 Although McCoy accurately argues that his case “turns on the credibility of witnesses,” the rules of evidence nonetheless apply. “No evidence is admissible except relevant evidence,” which is “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid Code, §§ 210, 350, italics added.) McCoy argues that his offer of proof 8 1 2 3 4 5 6 showed “dishonesty or fabrication,” but dishonesty describes acts that are neither “sincere” nor “trustworthy,” and fabrication shows acts that one “invent[s] in order to deceive.” Neither characterization of B’s innocent childhood fantasy is apt. To the contrary, as McCoy candidly acknowledged at the hearing on his motion in limine, his offer of proof showed imagination —– the ability of the mind to be creative or resourceful” or “the faculty or action of forming ideas or mental images.” The relevance of his offer of proof to any disputed fact of consequence was tenuous at best. 7 8 9 A reviewing court will disturb a court’s exercise of discretion to admit or exclude evidence only on a showing of arbitrariness, capriciousness, or patent absurdity causing a manifest miscarriage of justice. McCoy fails to make the requisite showing. United States District Court For the Eastern District of California 10 11 McCoy, 133 Cal App 4th at Part 1. 12 The admission of evidence is not subject to federal habeas 13 review unless the error is of such magnitude that the result is a 14 denial of the fundamentally fair trial guaranteed by due process. 15 See Colley v Sumner, 784 F2d 984, 990 (9th Cir 1986), cert denied, 16 479 US 839 (1986). 17 petitioner did not result in a denial of due process. 18 court reasonably concluded, the evidence in petitioner’s offer of 19 proof merely demonstrated B’s imagination and its relevance was 20 minimal. 21 22 Here, the exclusion of evidence proffered by As the state For the above-mentioned reasons, petitioner’s claim lacks merit. 23 24 25 D 26 Petitioner alleges that the prosecutor committed 27 misconduct during closing argument by arguing that the criminal 28 justice system should not tell B she was not molested just because 9 1 she did not remember every detail of the crime. 2 doing so, the prosecutor asked the jury to send B “a message.” 3 4 He asserts that in The Court of Appeal summarized the prosecutor’s comments as follows: 5 6 7 8 9 United States District Court For the Eastern District of California 10 11 12 The prosecutor argued that no one from his office talked with B about the specifics of the case or refreshed her memory with the pediatric nurse’s report but that to avoid traumatizing her he met with her in his office, talked with her about things like school, and showed her where she, McCoy, and the jury were going to sit in court. “She was molested by Jerry McCoy,” he argued. “She is not going to be molested by the criminal justice system.” He argued that B’s failure to remember details like the color of a woman’s hair and the color of a strap-on penis were inconsequential. “Are you going to tell this child that wasn’t molested because she didn’t get the hair color right?,” the prosecutor asked the jury. “Are you going to tell this child that she was not molested because she missed out on the color of that penis?” 13 14 McCoy, 133 Cal App 4th at Part 4. 15 petitioner’s claim, finding that “the prosecutor neither exhorted 16 the jury to send the community a message nor played with jurors’ 17 emotions about an issue not properly before the jury but instead 18 simply asked the jury to decide the case on the basis of the 19 evidence.” 20 were a rhetorical device meant to ask “Are you going to find Mccoy 21 not guilty because B . . .” rather than an attempt to play on the 22 sympathies of the jury. 23 Id. The state court proceeded to deny The court concluded that the prosecutor’s comments Id. The relevant inquiry in a claim of prosecutorial 24 misconduct is whether the prosecutor’s comments “so infected the 25 trial with unfairness as to make the resulting conviction a denial 26 of due process.” 27 prosecutor’s arguing facts supported by the record, and relevant to 28 the charges, do not constitute a prohibited appeal to the jury’s Darden v Wainwright, 477 US 168, 181 (1986). 10 A 1 emotions, passions, or sympathy for the victim. 2 F3d 1101, 1113, 1115 (9th Cir 2005). United States District Court For the Eastern District of California 3 Tan v Runnels, 413 The court has reviewed the record and the parties’ 4 arguments and concludes that petitioner has failed to establish a 5 constitutional violation. 6 constituted a rhetorical device rather than improper argument. 7 Moreover, the court instructed the jury that statements made by 8 attorneys during trial are not evidence. 9 CALJIC No 1.00 was also given to the jury, instructing them that 10 they “must not be influenced by sentiment, conjecture, sympathy, 11 passion, prejudice, public opinion or public feeling. 12 People and a defendant have a right to expect that you will 13 conscientiously consider and weigh the evidence, apply the law, and 14 reach a just verdict regardless of the consequences.” 15 Curative instructions given by a trial judge are presumed to have 16 17 been followed. The prosecutor’s arguments indeed Clerk’s Transcript 1025. Both the RT 4909-10. United States v Brady, 579 F2d 1121, 1127 (9th Cir 1978). 18 Petitioner fails to demonstrate that the state court 19 decision was contrary to or unreasonable application of United 20 States Supreme Court precedent. His claim lacks merit. 21 22 \\ 23 \\ 24 \\ 25 \\ 26 27 28 \\ \\ 11 1 2 V For the reasons set forth above, the petition for a writ 3 of habeas corpus is DENIED. 4 of respondent and close the file. The clerk shall enter judgment in favor 5 6 IT IS SO ORDERED. 7 8 9 United States District Court For the Eastern District of California 10 ___________________________________ Vaughn R Walker United States District Chief Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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