(HC) Alexander v. Hedgpeth, No. 2:2007cv00722 - Document 24 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John L. Weinberg on 05/07/10 recommending that the state court decisions denying petitioner's claims were not contrary to, or an unreasonable application of clearly established federal law, or based on an unreasonable determination of facts. I further recommend that the court decline to issue a certificate of appealability and enter an order approving and adopting this report and recommendation, denying the amended petition 15 and directing that judgment be entered dismissing this action with prejudice. Referred to Judge Richard A. Jones. Objections due within 14 days.(Plummer, M)
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(HC) Alexander v. Hedgpeth Doc. 24 01 02 03 04 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 05 06 DANTE JAMAHL ALEXANDER, 07 08 09 10 ) ) Petitioner, ) ) v. ) ) A. HEDGPETH, Warden, ) ) Respondent. ) ____________________________________ ) CASE NO. 2:07-cv-00722-RAJ-JLW REPORT AND RECOMMENDATION 11 12 I. INTRODUCTION 13 Petitioner is currently incarcerated at the Kern Valley State Prison in Delano, 14 California. He seeks relief under 28 U.S.C. § 2254 from his 2004 jury conviction in the 15 Sacramento County Superior Court for first degree murder, attempted murder, second degree 16 robbery, and attempted robbery, with special allegations of personal use and intentional 17 discharge of a firearm causing great bodily injury. (See Docket 21, Lodged Document 4 at 2; 18 Dkt. 15.) Petitioner is currently serving a sentence of life without the possibility of parole. 19 (See Dkt. 21, LD 4 at 2-3.) Respondent has filed an answer to the petition, as well as relevant 20 portions of the state court record. (See Dkts. 16, 21, and 23.) Although petitioner did not file 21 a traverse in reply to respondent’s answer, the briefing is nevertheless complete and this 22 matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of REPORT AND RECOMMENDATION - 1 Dockets.Justia.com 01 the parties, recommends that the Court deny the amended petition and dismiss this action with 02 prejudice. 03 II. 04 Petitioner was convicted of murdering Cheryl Jones, and attempting to murder her FACTUAL AND PROCEDURAL HISTORY 05 husband, Victor Jones, after carrying out an armed robbery of the victims in the early morning 06 hours of April 11, 2002. (See Dkt. 21, LD 4 at 2.) Petitioner’s co-conspirators, Ladell 07 Brown, Johtell Frank, and Sirrano Haywood, were also charged with these offenses. (See id.) 08 Victor and Cheryl first met petitioner and his co-conspirators at the Gold Rush Inn on 09 April 9, 2002. (See id. at 3.) Over the next two days, Victor purchased crack cocaine from 10 Brown on numerous occasions in exchange for money, as well as the use of the Jones’ van. 11 (See id.) On April 10, Brown informed Victor that his van had been stolen by someone. (See 12 id. at 4.) Victor did not believe Brown’s story about the theft and suggested that Brown return 13 all the money Victor had paid him for cocaine. (See id. at 5.) Petitioner, Brown, and Victor 14 discussed the problem until Brown eventually gave Victor a quarter ounce of cocaine and $20. 15 (See id.) 16 Late that evening, petitioner came to the Jones’ hotel room alone and asked Victor to 17 go to the store and buy him some liquor. Victor told petitioner it would cost $10. Petitioner 18 went back to his room, and then returned with $10 and his girlfriend, Johtell Frank. Frank 19 offered to drive Victor to the store. (See id.) As the group left the hotel, Victor heard 20 Brown’s girlfriend, Jaynelle Frank, tell her sister, Johtell Frank, “Did you hear what was 21 going to happen? That’s messed up.” (Id. at 6.) Petitioner then told Jaynelle to “go in the 22 house.” (Id.) At trial, Jaynelle Frank denied the statement attributed to her. (Id.) REPORT AND RECOMMENDATION - 2 01 Petitioner, Victor, Cheryl, and Johtell Frank left the hotel in Frank’s car. Once they 02 were on the road, Frank began answering phone calls on her cell phone while driving. (See 03 id. at 6.) At one point, when Frank received a cell phone call, she told the caller, “After I 04 finish with them, I’ll deliver what you need.” (Id.) Evidence later introduced by the 05 prosecution at trial suggested that Frank had been speaking to Haywood while driving. 06 Specifically, a number of calls were placed between Frank’s Metro PCS cell phone and a 07 particular SureWest cell phone, beginning at 10:52 p.m. on April 10, 2002, and ending at 2:42 08 a.m. on April 11, 2002. (See id. at 6-7.) The SureWest account for that phone was billed to 09 Haywood’s address, and Haywood’s sister testified that she had obtained a SureWest phone 10 for Haywood. (See id. at 7.) 11 Although Frank’s passengers attempted to give her directions to the store, Frank kept 12 turning the car in the opposite direction of their instructions. Victor had noticed that another 13 vehicle was following them, and when that vehicle flashed its high beams, Frank accelerated 14 and turned into a cul-de-sac. (See id. at 6-7.) The other vehicle followed them. (See id. at 7.) 15 Once Frank had parked the car, she immediately got out. Petitioner then pointed a handgun at 16 Victor and said, “Give me all your shit.” (Id.) Victor handed petitioner everything he had – a 17 wallet with bank cards and $12 in cash, a watch, keys to his car, and a packet of Tic Tacs. 18 (Id.) Brown then walked up to the car, pointed a rifle at Victor, and directed Victor and 19 Cheryl to get out of the car. (See id.) 20 Victor pushed Cheryl into the light in front of the car, and then stood back in the dark. 21 (Id. at 7.) He told Brown, “Man, you don’t have to do this . . . I’ll go to the bank and get you 22 money.” (Id.) When Victor yelled, “You’re going to kill us,” petitioner shot him in the left REPORT AND RECOMMENDATION - 3 01 shoulder. (Id. at 8.) Victor made a dash for the door of one of the nearby houses and heard 02 both guns fire at him, hitting him twice in the left arm. (See id. at 8.) Victor continued to run 03 until his feet were shot out from under him, and he fell to the ground. He remembers hearing 04 gunfire from multiple guns, and he watched Brown shoot Cheryl three or four times with his 05 rifle as she was in the process of kneeling on the ground. Cheryl Jones died of a gunshot 06 wound to the back inflicted by a .223 rifle. (See id.) 07 After Victor yelled and broke out windows in the door of a nearby house, a man’s 08 voice from inside the house announced that the police were on their way. (See id.) Brown 09 attempted to shoot Victor with the handgun Victor had seen in the hands of petitioner. After 10 the gun misfired twice, however, the co-conspirators fled. (See id.) Victor’s lack of sleep and 11 use of cocaine and alcohol prior to the offenses might have impaired his ability to observe and 12 describe the events that morning. (See id.) 13 Petitioner was arrested later that afternoon. Sacramento County Sheriffs’ Detectives 14 Grant Stomsvik and Will Bayles informed petitioner that he was in custody and they wished 15 to question him as part of their investigation regarding these offenses. (See Dkt. 21, 5 Clerk’s 16 Transcript on Appeal at 1201-02.) When Detective Stomsvik began to inform petitioner of 17 his rights under Miranda v. Arizona, 384 U.S. 436 (1966), petitioner interrupted him and 18 asserted that he would not speak with the detectives until he had an attorney. (See id. at 19 1208.) The detective responded, “That’s fine. What I can do is leave you a business card . . . 20 [a]nd either you or your lawyer can contact me. Okay. If you want – if you change your 21 mind and you want to tell me your side of the story, I’ll be glad to hear it. Okay?” (Id.) He 22 told petitioner they would be back with him soon, but they needed to interview a few other REPORT AND RECOMMENDATION - 4 01 witnesses. (See id. at 1209.) 02 While petitioner waited in an interview room, police performed a gunshot residue test 03 and took a few photographs of petitioner. (See id. at 1215-1237.) Although petitioner 04 repeatedly attempted to ask officers questions about the status of the case and what was 05 happening to his girlfriend, they declined to answer most of his questions. (See id.) When 06 petitioner asked Sergeant Hill if he could speed up the process by talking to the detectives 07 about the case, Sergeant Hill told him “No. I can’t say that. I don’t know. I mean, you have 08 that right, you don’t have to – to talk to us.” (Id. at 1234.) Finally, after petitioner persisted 09 in asking questions, Sergeant Hill said, 10 11 12 13 14 I – I would -- if I could legally, I could explain a lot of stuff to you, okay. You did something during your interview initially which prevents us from talking to you any further about the case. Okay. You asked for an attorney. Once you do that, we can no longer talk to you about the case. Okay? The only way around that is if you solicit (sic) and change your mind or whatever and I’m not in any kind of position to address that. Okay. That will be up to the other detectives and stuff. But since you asked for the attorney, I can’t talk to you about the case, Dante. 15 16 (Id. at 1236-37.) 17 Petitioner responded that he would “rather have the detectives come back then. I’ll 18 talk to them. Well, if I talk to them, and you know what I mean, and all this stuff come back 19 right, will I still go back – still go to jail?” (Id. at 1237.) Sergeant Hill said, “I can’t tell you 20 that. Um, you’re under arrest now for the murder like they explained to you about. What’s – 21 what’s happened if you talk to them, I don’t know . . . And I can’t ask them any questions 22 about it. I’m trying to make that perfectly clear, you asked for an attorney and I am not in a REPORT AND RECOMMENDATION - 5 01 position to talk to you about the case.” (Id.) Sergeant Hill then left the room to get petitioner 02 a Pepsi to drink. As soon as he returned with the Pepsi, petitioner repeated his request to 03 speak with the detectives. Petitioner explained, “I’m just trying to get this shit done possible 04 – quick.” (Id. at 1238.) Sergeant Hill then agreed to tell the detectives petitioner wanted to 05 talk to them. 06 Approximately twenty-five minutes later, Detectives Stomsvik and Bayles returned to 07 the interview room where petitioner was sitting. (See id. at 1238.) Petitioner told the 08 detectives, “You can talk to me, man.” (Id. at 1239.) Before questioning petitioner, Detective 09 Stomsvik asked petitioner again, “You – you notified my boss that you want to talk to me 10 now. Do you want to talk to me now?” Petitioner answered, “Yeah.” (Id. at 1239-40.) 11 Detective Stomsvik then read petitioner his Miranda rights. (See id. at 1240.) After being 12 fully informed of his rights, petitioner again agreed to speak with the detectives about the 13 case. (See id.) 14 The detectives then interviewed petitioner for several hours in a session that was video 15 recorded. (See id. at 1240-1459.) During the interview, petitioner admitted that he had 16 helped plan the robbery of Victor and Cheryl Jones. (See id. at 1422-1441.) He later asserted, 17 however, that he had lied to the detectives throughout the interview because he did not trust 18 them and “I’m going to jail anyway. . . .” (Id. at 1452; see id. at 1450-59.) 19 The district attorney charged petitioner, Brown, Frank, and Haywood with the crimes 20 committed against Victor and Cheryl Jones. (See id., LD 4 at 1.) Before trial, in September 21 2003, Haywood pled guilty to voluntary manslaughter and attempted murder, and admitted he 22 was an armed principal in the shootings. (See id. at 1.) The remaining three codefendants REPORT AND RECOMMENDATION - 6 01 were tried in a single criminal proceeding before three separate juries. (See id.) Because 02 Haywood had not yet been sentenced at the time of the trial, when the defense called him as a 03 witness Haywood invoked the Fifth Amendment and refused to answer any questions 04 regarding the offenses. (See id., 6 RT at 1281-84.) 05 In addition, petitioner moved during trial to exclude evidence of his interview with the 06 detectives. (Id., 2 Reporter’s Transcript on Appeal at 70-76.) The trial court found that “there 07 is no question that Mr. Alexander clearly invoked” his right to counsel when the detectives 08 first approached him regarding the offenses. (Id. at 81.) Contrary to petitioner’s contention 09 that the officers who spoke with petitioner and performed the drug residue test on him later 10 “badgered” or coerced him into waiving this right, however, the trial court found that “the 11 officers in fact bent over backwards to make it clear to Mr. Alexander that they could not talk 12 to him about what he was being held for because he had invoked his right to have a lawyer 13 present. Over and over again Mr. Alexander keeps trying to keep the conversation going by 14 asking questions.” (Id.) As a result, the trial court concluded that the portion of the 15 detectives’ interview which took place after petitioner had been fully advised of his Miranda 16 rights would be admissible at trial. (See id. at 82-83.) Pursuant to the trial court’s ruling, the 17 prosecution played an edited version of the videotaped interview for petitioner’s jury at trial. 18 (See id., 6 RT at 1242-50; see id., LD 4 at 9.) 19 The jury found petitioner guilty of first degree murder, attempted murder, second 20 degree robbery, and attempted robbery, and found true all the special allegations and 21 circumstances alleged in the amended information. (See id. at 2.) Specifically, the charges 22 included allegations of personal use and intentional discharge of a firearm causing great REPORT AND RECOMMENDATION - 7 01 bodily injury. (See id.) The trial court sentenced petitioner to a determinate term of twenty02 seven years, plus an indeterminate term of twenty-five-years-to-life without the possibility of 03 parole. (See id. at 2-3; CT 13.) 04 Petitioner timely appealed his conviction and sentence to the California Court of 05 Appeal, which affirmed the trial court’s judgment on September 21, 2005. (See id. at 28.) 06 The California Supreme Court summarily denied petitioner’s petition for review on 07 November 30, 2005. (See Dkt. 21, LD 5 and 6.) Petitioner did not seek habeas corpus relief 08 in the state courts. Petitioner filed his first federal habeas petition on April 6, 2007, but 09 subsequently retained new counsel to represent him. (See Dkts. 1, 4, 5, and 6.) He filed the 10 instant amended petition and memorandum of points and authorities on February 18, 2008. 11 (See Dkt. 15.) 12 III. 13 Petitioner presents the following claims for relief in his amended habeas petition: 14 1. Petitioner expressly invoked his right to counsel and his subsequent confession is inadmissible because police induced dialogue through coercive and deceptive methods. 2. The prosecutor violated petitioner’s due process rights to compulsory process and to present a defense by entering into an illusory plea agreement with Sirrano Hayward that discouraged Haywood from testifying. 15 16 17 FEDERAL CLAIMS FOR RELIEF 18 (See id. at 6 and 13.) 19 Respondent concedes that petitioner has exhausted his state court remedies as to both 20 claims for relief, but contends that his claims are without merit. (See Dkt. 16 at 2.) 21 22 REPORT AND RECOMMENDATION - 8 01 IV. STANDARD OF REVIEW 02 The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this 03 petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 04 320, 326-27 (1997). Because petitioner is in custody of the California Department of 05 Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive 06 vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) 07 (providing that § 2254 is “the exclusive vehicle for a habeas petition by a state prisoner in 08 custody pursuant to a state court judgment. . . .”). Under AEDPA, a habeas petition may not 09 be granted with respect to any claim adjudicated on the merits in state court unless petitioner 10 demonstrates that the highest state court decision rejecting his petition was either “contrary to, 11 or involved an unreasonable application of, clearly established Federal law” as determined by 12 the U.S. Supreme Court, or “was based on an unreasonable determination of the facts in light 13 of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). 14 As a threshold matter, this Court must ascertain whether relevant federal law was 15 “clearly established” at the time of the state court’s decision. To make this determination, the 16 Court may only consider the holdings, as opposed to dicta, of the U.S. Supreme Court. See 17 Williams v. Taylor, 529 U.S. 362, 412 (2000). In this context, Ninth Circuit precedent 18 remains persuasive but not binding authority. See id. at 412-13; Clark v. Murphy, 19 20 331 F.3d 1062, 1069 (9th Cir. 2003). The Court must then determine whether the state court’s decision was “contrary to, or 21 involved an unreasonable application of, clearly established Federal law.” See Lockyer v. 22 Andrade, 538 U.S. 63, 71 (2003). “Under the ‘contrary to’ clause, a federal habeas court may REPORT AND RECOMMENDATION - 9 01 grant the writ if the state court arrives at a conclusion opposite to that reached by [the 02 Supreme] Court on a question of law or if the state court decides a case differently than [the] 03 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13. 04 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the 05 state court identifies the correct governing legal principle from [the] Court’s decisions but 06 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. At all 07 times, a federal habeas court must keep in mind that it “may not issue the writ simply because 08 [it] concludes in its independent judgment that the relevant state-court decision applied clearly 09 established federal law erroneously or incorrectly. Rather that application must also be 10 [objectively] unreasonable.” Id. at 411. 11 In each case, the petitioner has the burden of establishing that the state court decision 12 was contrary to, or involved an unreasonable application of, clearly established federal law. 13 See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine 14 whether the petitioner has met this burden, a federal habeas court looks to the last reasoned 15 state court decision because subsequent unexplained orders upholding that judgment are 16 presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 17 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007). Where, as in this case, the 18 state courts have reviewed the claims and denied them without comment, the federal court 19 conducts an independent review of the record “to determine whether the state court clearly 20 erred in its application of controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th 21 Cir. 2000). 22 REPORT AND RECOMMENDATION - 10 01 Finally, AEDPA requires federal courts to give considerable deference to state court 02 decisions, and state courts’ factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). 03 Federal courts are also bound by a state’s interpretation of its own laws. See Murtishaw v. 04 Woodford, 255 F.3d 926, 964 (9th Cir. 2001) (citing Powell v. Ducharme, 998 F.2d 710, 713 05 (9th Cir. 1993)). 06 V. DISCUSSION 07 A. Petitioner’s Miranda Claim 08 Petitioner argues that his right to due process of law and a fair jury trial under the 09 Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution were violated by the trial 10 court’s admission of the incriminating statements petitioner made to police during his 11 interrogation on April 11, 2002. (See Dkt. 15 at 6.) Petitioner asserts that he unambiguously 12 invoked his right to counsel, and did not voluntarily waive this right when he reinitiated 13 dialogue with police about the offenses “because police induced dialogue through coercive 14 and deceptive methods.” (Id.) Petitioner also cites Miranda to support the proposition that 15 “[a]ny evidence that [petitioner] was threatened, tricked, or cajoled into a waiver will, of 16 course, show that [petitioner] did not voluntarily waive his privilege.” (Id. at 10.) See 17 Miranda, 384 U.S. at 476. Specifically, petitioner argues that after he invoked his right to 18 counsel, police officers “incorrectly told him they could not give him information about the 19 case because he asked for an attorney . . . They also implied that an attorney could only be 20 obtained by retaining one.” (Id. at 10.) 21 Petitioner seems to be characterizing several of the statements Sergeant Hill made in 22 response to petitioner’s persistent questions about the case as being coercive or deceptive. REPORT AND RECOMMENDATION - 11 01 (See id.) For example, while petitioner was being photographed by police officers, he asked 02 Sergeant Hill if “I just got to sit in jail till I talk to an attorney?” (See Dkt. 21, 5 CT at 1216.) 03 Sergeant Hill responded, “You can attempt to bail – well, your bail is going to be zero until 04 you go to court but yeah, you can just go ahead and try to get an attorney. We’re not picking 05 you at random but I’m – I can’t go into the case of why we know what we do. Okay?” (Id.) 06 Moments later, when petitioner asked why there was no lawyer present during his gunshot 07 residue test, Sergeant Hill responded, “ ‘Cause we’re not questioning you regarding what 08 happened . . . if we were questioning you regarding the incidents which occurred you could 09 have an attorney here. But right now you don’t have an attorney retained so it would be kind 10 of hard for us to question you regarding this – when you don’t have an attorney, right?” (Id. at 11 1217-1218.) Finally, after petitioner had been sitting alone in the interrogation room for 12 approximately forty minutes, petitioner asked, “So eventually I’m going to jail for murder?” 13 (Id. at 1232.) Sergeant Hill responded, “Yes.” (Id.) When petitioner asked if he would have 14 to stay in jail “until I beat the case,” Sergeant Hill explained, 15 16 17 18 No. You’ll have an opportunity to bail out. And again, I don’t know what your bail’s going to be or any of those circumstances right now. Right now it’s going to be no bail because that’s the way it is until you go to court. Once we go to court, uh, then your attorney can argue during the bail hearing that you should have some kind of a bail. So you’ll get the opportunity to get out if you can bail. Okay. 19 (Id. at 1232-33.) Petitioner then resumed asking questions about the status of his girlfriend, 20 and whether she was also going to jail after the detectives questioned her. (Id. at 1233-34.) 21 In Edwards v. Arizona, the U.S. Supreme Court set forth the bright line rule that once 22 an accused has “expressed his desire to deal with the police only through counsel, [he] is not REPORT AND RECOMMENDATION - 12 01 subject to further interrogation by the authorities until counsel has been made available to 02 him, unless the accused himself initiates further communication, exchanges, or conversations 03 with the police.” 451 U.S. 477, 484-85 (1981) (emphasis added). In determining whether the 04 accused waived his Fifth Amendment right to have counsel present during interrogation, the 05 government must show (1) that the accused initiated further discussions with the police, and 06 (2) that “the purported waiver was knowing and intelligent and found to be so under the 07 totality of the circumstances.” Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (quoting 08 Edwards, 451 U.S. at 486 n.9). See also Smith v. Illinois, 469 U.S. 91, 95 (1984). 09 To satisfy the first prong, the accused must initiate further communication, exchanges, 10 or conversations with the police by speaking words or engaging in conduct that can “be fairly 11 said to represent a desire on the part of the accused to open up a more generalized discussion 12 relating directly or indirectly to the investigation.” Bradshaw, 462 U.S. at 1045. To satisfy 13 the second prong, the waiver of Miranda rights must be knowing, intelligent, and voluntary. 14 Miranda, 384 U.S. at 479. A waiver is “knowing” and “intelligent” if an accused understands 15 the advisements and consequences of giving up the right to an attorney, and “voluntary” if 16 there is no “evidence that the accused was threatened, tricked, or cajoled into a waiver. . . .” 17 Id. at 476 and 479. Thus, “[o]nce it is determined that a suspect’s decision not to rely on his 18 rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and 19 that he was aware of the State’s intention to use his statements to secure a conviction, the 20 analysis is complete and the waiver is valid as a matter of law.” Moran v. Burbine, 475 U.S. 21 412, 422-23 (1986). 22 REPORT AND RECOMMENDATION - 13 01 Applying the relevant U.S. Supreme Court precedent discussed above, the California 02 Court of Appeal rejected petitioner’s claims. Specifically, the court reasoned as follows: 03 04 05 06 07 08 09 10 11 On appeal, defendant argues that the trial court erred in failing to exclude the entire interview. He contends that after he initially invoked his right to counsel, the conduct of the sheriff’s deputies, which included misinforming him of the consequences of asserting his rights, defeated the requirement that any postinvocation waiver of Miranda rights be knowing and intelligent. We conclude there was no error. . . . Viewing the ongoing conversation between defendant and the sheriff’s deputies in its totality, it is clear that defendant repeatedly attempted to initiate a generalized discussion about the investigation, and said he would talk to the detectives before directly asking Sergeant Hill to tell the detectives he was willing to talk to them. (San Nicholas, supra, 34 Cal.4th at pp. 642-643.) Defendant doggedly sought information from Sergeant Hill about Johtell and how long he would have to wait for something to happen. And, as defendant demonstrates, Sergeant Hill doggedly refused to discuss the case with him. 12 13 14 15 16 Turning to defendant’s specific arguments . . . the fact that defendant interrupted Detective Stomsvik to invoke his right to counsel before Stomsvik gave the entire Miranda admonition is a difference without a distinction because it does not distinguish this case in any material way from prior decisions finding defendant’s statements admissible. Defendant’s conduct simply suggests that defendant understood his right to remain silent and not talk with the detectives without an attorney before Stomsvik recited the full admonition. . . . 17 18 19 20 21 22 Nor do we find merit in the claim that Sergeant Hill misled defendant about his right to appointed counsel. Sergeant Hill correctly informed defendant that he was not entitled to have an attorney present during gunshot residue tests. An indigent criminal defendant is entitled to appointed counsel “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” (Mempa v. Rhay (1967) 389 U.S. 128, 134 [19 L.ED.2d 336, 340.) Defendant does not contend the administration of a gunshot residue test was a proceeding that affected defendant’s substantial rights. Sergeant Hill’s other statements were also correct when read in REPORT AND RECOMMENDATION - 14 01 02 03 04 context. No attorney would have been appointed for defendant until the district attorney filed a criminal complaint and defendant appeared in court for his arraignment. ([California Penal Code] § 987.) Sergeant Hill did not tell defendant he could have an attorney only if he retained one. Moreover, any possible confusion was remedied by Stomsvik when he read defendant the complete Miranda admonition when defendant agreed to talk. 05 06 07 08 09 Defendant also complains that Hill misinformed defendant that he could not discuss anything about the case once defendant invoked his right to counsel. There is often a fine line between police answering a defendant’s questions and police renewing interrogation. (See People v. Boyer (1989) 48 Cal.3d 247, 273275, overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see also People v. Sims (1993) 5 Cal.4th 405, 440-444.) In this legal context, Sergeant Hill acted prudently in declining to discuss the case with defendant. 10 11 12 13 14 15 16 17 18 19 20 Three other factors are worthy of consideration in assessing the “totality of the circumstances” showing that defendant, not the sheriff’s deputies, initiated further communication with the detectives. (San Nicholas, supra, 34 Cal.4th at pp. 642-643.) First, nearly two hours passed between the time defendant invoked his right to an attorney at 5:50 p.m. and the time the detectives returned, at his request, to talk to him at 7:27 p.m. This was ample time for defendant to evaluate his situation and to dispel the effects of what defendant characterizes on appeal as “misadvice of rights and deceptive or misleading statements.” Second, as the transcript reveals, defendant’s general antagonistic attitude and lack of cooperation with deputies during this period belies any claim his will was overborne. Third, defendant had to repeat his request to talk to the detectives twice before Sergeant Hill delivered his message. And Sergeant Hill said it would have to wait until the officers were done with what they were doing, further indicating the detectives were not endeavoring to overcome defendant’s will. Based on the foregoing, we also conclude defendant made a knowing and intelligent waiver of his Miranda rights. 21 (Dkt. 21, LD 4 at 9 and 16-19.) 22 REPORT AND RECOMMENDATION - 15 01 Here, the California Court of Appeal applied the appropriate federal standard in 02 evaluating petitioner’s claim, and reasonably concluded that petitioner’s constitutional rights 03 were not violated by the trial court’s admission of the portion of the interrogation that took 04 place after petitioner had been fully advised of his Miranda rights and nevertheless agreed to 05 discuss the case with the detectives. Although petitioner clearly and unambiguously invoked 06 his right to counsel when the detectives first approached him to discuss the case, petitioner 07 subsequently “initiated further communication, exchanges, or conversations with police.” See 08 Edwards, 451 U.S. at 484-85. Specifically, petitioner’s questioning of Sergeant Hill about the 09 status of his case, as well as the status of his girlfriend, may have been “fairly said to 10 represent a desire on the part of the accused to open up a more generalized discussion relating 11 directly or indirectly to the investigation.” Bradshaw, 462 U.S. at 1045. In any event, 12 petitioner’s multiple requests for Sergeant Hill to inform the detectives that he had changed 13 his mind and wished to talk to them to “speed up” the process constituted an initiation of 14 further communication or conversation with police relating to the investigation. 15 In addition, the record demonstrates that the California Court of Appeal’s finding that 16 under the totality of the circumstances, petitioner’s waiver of his Miranda rights was 17 voluntary, knowing, and intelligent, was not an unreasonable application of clearly 18 established federal law. See Bradshaw, 462 U.S. at 1045. Contrary to petitioner’s 19 contentions, Sergeant Hill’s statements to petitioner, viewed in context, did not induce 20 dialogue by petitioner through coercive and deceptive methods. (See Dkt. 1 at 10.) On the 21 contrary, Sergeant Hill repeatedly advised petitioner that he could not discuss the case 22 because petitioner did not yet have an attorney present, and there is no evidence that petitioner REPORT AND RECOMMENDATION - 16 01 “was threatened, tricked, or cajoled” into waiving his right to counsel. See Miranda, 384 U.S. 02 at 476. Furthermore, before detectives began to question petitioner about the case, they fully 03 advised petitioner of his Miranda rights. (See Dkt. 21, 5 CT at 1240.) Petitioner then agreed 04 to speak with the detectives about the case without any impropriety on the part of police. (See 05 id.) As a result, petitioner’s subsequent statements to the detective during the interrogation 06 were the result of a voluntary and knowing waiver of his rights. See Bradshaw, 462 U.S. at 07 1046. 08 Accordingly, petitioner has failed to establish that the California Court of Appeal’s 09 denial of petitioner’s claim was contrary to, or an unreasonable application of, clearly 10 established federal law as determined by the U.S. Supreme Court. I therefore recommend that 11 petitioner’s request for habeas relief based upon this claim be denied. 12 B. Petitioner’s Prosecutorial Misconduct Claim 13 Petitioner contends that “the prosecutor violated petitioner’s due process rights to 14 compulsory process and to present a defense by entering into an illusory plea agreement with 15 Sirrano Haywood that discouraged Haywood from testifying” by improperly inducing him to 16 invoke his Fifth Amendment privilege when he was called as a defense witness. (Dkt. 15 at 17 13.) Specifically, petitioner contends that the prosecutor committed misconduct when she 18 failed to consummate Haywood’s plea bargain so that he could be sentenced prior to 19 petitioner’s trial. (See id. at 13-15.) Petitioner argues that, if Haywood had been sentenced 20 prior to petitioner’s trial, Haywood might have testified in a manner incriminating himself and 21 exonerating petitioner. (See id.) In addition, petitioner contends that the prosecutor 22 committed misconduct when she conditioned Haywood’s plea bargain upon Haywood REPORT AND RECOMMENDATION - 17 01 refraining from providing any information about his role in the offenses that was inconsistent 02 with his prior statements to authorities. (See id.) Petitioner claims this misconduct caused 03 Haywood to invoke the Fifth Amendment when called to testify as a defense witness, which 04 “stripped the Petitioner of his Constitutional rights under the Sixth and Fourteenth 05 Amendments to have a ‘meaningful opportunity to present a defense’” under Crane v. 06 Kentucky, 476 U.S. 683, 690 (1986). (Id. at 15.) 07 Petitioner’s claim involves the interplay between a witness’ Fifth Amendment privilege 08 against self-incrimination, a defendant’s Sixth Amendment right to present a defense and 09 compel testimony, and the doctrine of prosecutorial misconduct. The Fifth Amendment 10 privilege against self-incrimination applies to evidence which may directly support a criminal 11 conviction, information which would furnish a link in the chain of evidence that could lead to 12 a prosecution, and evidence which an individual reasonably believes could be used against 13 him in a criminal prosecution. Maness v. Meyers, 419 U.S. 449, 461 (1975). Significantly, a 14 convicted but unsentenced defendant retains his Fifth Amendment rights. United States v. 15 Paris, 827 F.2d 395, 399 (9th Cir. 1987). 16 With respect to the Sixth Amendment, the U.S. Supreme Court has stated that “[t]he 17 right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in 18 plain terms the right to present a defense . . . . This right is a fundamental element of due 19 process of law.” Washington v. Texas, 388 U.S. 14, 19 (1967). This right, however, is not 20 absolute, and may bow to accommodate other legitimate interests in the criminal trial process 21 in appropriate cases. See Chambers v. Mississippi, 410 U.S. 284, 295 (1973). More than the 22 mere absence of testimony is necessary to establish a violation of the Sixth Amendment right REPORT AND RECOMMENDATION - 18 01 to compulsory process. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). 02 Furthermore, a criminal defendant’s Sixth Amendment rights, including the right to 03 compulsory process, do not necessarily include the right to compel a witness to waive the 04 Fifth Amendment privilege against self-incrimination. See Kastigar v. United States, 406 05 U.S. 441, 444-45 (1972); United States v. Vavages, 151 F.3d 1185, 1191-92 (9th Cir. 1998); 06 United States v. Straub, 538 F.3d 1147, 1166 (9th Cir. 2008) (no Fifth Amendment right for 07 defendant to demand “use immunity” for a co-defendant; courts must be “extremely hesitant” 08 to intrude on the Executive’s discretion to decide whom to prosecute). Similarly, an accused 09 is generally not entitled to compel a prosecutor to grant immunity to a potential defense 10 witness to get the witness to testify. See United States v. Paris, 827 F.2d 395, 399 (9th Cir. 11 1987); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir. 1978). 12 In considering “prosecutorial misconduct,” the U.S. Supreme Court has stated that 13 prosecutors must “refrain from improper methods calculated to produce a wrongful 14 conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). The Supreme Court has also 15 held that the appropriate standard of review for prosecutorial misconduct is “the narrow one 16 of due process,” because a defendant’s due process rights are violated when a prosecutor’s 17 misconduct renders a trial “fundamentally unfair.” Darden v. Wainwright, 477 U.S. 168, 181 18 (1986). See also Greer v. Miller, 483 U.S. 756, 765 (1987); Donnelly v. DeChristoforo, 416 19 U.S. 637, 642 (1974). 20 In Webb v. Texas, the U.S. Supreme Court held that if a trial court unduly interferes 21 with a defense witness’ choice whether to testify, the trial court’s conduct may amount to a 22 due process violation. 409 U.S. 95, 97-98 (1972) (defense witness influenced not to testify by REPORT AND RECOMMENDATION - 19 01 intimidating remarks of trial judge). Although the Supreme Court has not yet considered 02 whether similar interference by a prosecutor would violate a defendant’s due process rights, 03 the Ninth Circuit has extended the rule of Webb to encompass the conduct of prosecutors as 04 well. See Earp v. Ornoski, 431 F.3d 1158, 1167-68 (9th Cir. 2005) (prosecutor’s intimidating 05 threats to prevent witness from testifying may amount to misconduct; case remanded for 06 evidentiary hearing); United States v. Vavages, 151 F.3d 1185, 1189-90 (9th Cir. 1998) 07 (holding that a prosecutor’s conduct is also governed by Webb, and asserting that “a 08 defendant’s constitutional rights are implicated only where the prosecutor or trial judge 09 employs coercive or intimidating language or tactics that substantially interfere with a defense 10 witness’ decision whether to testify.”). 11 Thus, in the absence of more specific guidance by the U.S. Supreme Court, the relevant 12 inquiry for this Court is whether (1) the prosecutor committed misconduct which (2) rendered 13 the trial so “fundamentally unfair” as to make the resulting conviction a denial of due process. 14 See Wainwright, 477 U.S. at 181; Jeffers v. Ricketts, 832 F.2d 476, 479-80 (9th Cir. 1987) 15 (where defendant has failed to provide evidence of prosecutorial misconduct, he has failed to 16 show that he was denied a fair trial), overruled on other grounds in Lewis v. Jeffers, 497 U.S. 17 764 (1990). See also Karis v. Calderon, 283 F.3d 1117, 1128 (9th Cir. 2002) (claim of 18 prosecutorial misconduct is analyzed under prejudice standard set forth in Brecht v. 19 Abrahamson, 507 U.S. 619, 638 n. 9 (1993), regardless of type of harmless error review 20 conducted by the state courts); Woods v. Adams, 631 F. Supp. 2d 1261, 1279 (C.D. Cal. 2009) 21 (applying a two-part inquiry to prosecutorial misconduct claim, and finding that a prosecutor 22 who refused to prevent a witness from invoking their Fifth Amendment privilege by REPORT AND RECOMMENDATION - 20 01 consummating the witness’ plea bargain before trial so the witness could be called to testify 02 by the defense did not commit prosecutorial misconduct rendering the trial “fundamentally 03 unfair.”). 04 At trial, counsel for petitioner and codefendant Frank argued to the trial court that the 05 prosecutor’s plea agreement with Haywood was “inherently coercive” because they “want[ed] 06 to be able to call [Haywood] as a witness and not have him take the Fifth Amendment.” (Dkt. 07 21, 2 RT at 130 and 134.) In response, the prosecutor acknowledged that Haywood’s plea 08 agreement “was based upon the information and evidence the People had against Mr. 09 Haywood at the time the plea was entered. Should the people receive other evidence or 10 information from Mr. Haywood that implicates him further in this crime, the plea would be 11 withdrawn.” (Id. at 132.) In other words, “[i]f Mr. Haywood wants to come in here and say 12 he is the one that shot Victor and Cheryl Jones, which is not what we had at the time of the 13 plea, the plea will be withdrawn.” (Id. at 135.) She also noted, however, that Haywood “was 14 interviewed numerous times by law enforcement in this case, all on videotape . . . [b]ut he 15 never once said anything that would do anything except incriminate the three [codefendants].” 16 (Id. at 130.) “He never made any type of admissions or confessions to anything except that he 17 was the driver of the second car and that he was unaware and had not been told why they were 18 going out or following the car that was in front of them, that he – his statement was he was 19 simply called over [and] . . . [w]hen he got there, Mr. Brown said, ‘Hey, I want a ride. Take 20 me somewhere,’ and they ended up going to where the shooting occurred.” (Id.) 21 The trial court ultimately agreed with the prosecutor. When Haywood was later called 22 as a defense witness at a hearing held outside the presence of the juries, he exercised his Fifth REPORT AND RECOMMENDATION - 21 01 Amendment privilege to remain silent. (See id., 6 RT at 1281-84.) As a threshold matter, this Court notes that petitioner has failed to make any showing 02 03 or proffer as to what Haywood would have said if he had not invoked the Fifth Amendment at 04 trial. As discussed above, there is no indication in the record that Haywood would have made 05 any self-incriminating statements, or that he would have made any statements that would have 06 helped exculpate petitioner. On the contrary, if Haywood had testified consistent with his 07 previous statements to law enforcement, his testimony would have been detrimental to 08 petitioner’s case. As the California Court of Appeal observed, in applying the relevant state 09 court precedent to petitioner’s claim, “there is nothing in this record to show that . . . the 10 structure of the plea agreement was a substantial cause in Haywood’s refusal to testify, or that 11 Haywood could provide any evidence material to the defendant’s defense.” (Id., LD 4 at 2012 26.) Without more, petitioner’s speculation that Haywood’s testimony would have benefited 13 his case is insufficient to entitle him to habeas relief. See Jones v. Gomez, 66 F.3d 199, 20414 05 (9th Cir. 1995) (conclusory allegations are insufficient to support a claim for habeas 15 relief). 16 With respect to the first prong of this Court’s analysis, there is no “clearly established 17 Federal law” holding that the prosecutor’s refusal to consummate Haywood’s plea bargain 18 before trial in this case constituted misconduct. See Woods, 631 F. Supp. 2d at 1279-80 (C.D. 19 Cal. 2009) (acknowledging the absence of clearly established federal law on this precise 20 issue). Similarly, there is no “clearly established Federal law” that holds that the prosecutor’s 21 refusal to grant Haywood immunity from prosecution so that he was unable to invoke his 22 Fifth Amendment rights when called as a witness at trial constitutes misconduct. As REPORT AND RECOMMENDATION - 22 01 discussed above, federal courts that have considered this issue have found that “[t]he Sixth 02 Amendment right of an accused to compulsory process to secure the attendance of a witness 03 does not include the right to compel the witness to waive his Fifth Amendment privilege. Nor 04 is an accused entitled to compel a prosecutor to grant immunity to a potential defense witness 05 to get him to testify.” Paris, 827 F.2d at 399. See also Ricketts, 832 F.2d at 479-80 (holding 06 that where there is no evidence the prosecutor refused to grant immunity to a defense witness 07 in order to distort the judicial fact-finding process, there was no prosecutorial misconduct); 08 Davis v. Straub, 430 F.3d 281, 287-88 (6th Cir. 2005) (providing that state courts necessarily 09 could not have acted contrary to clearly established Supreme Court precedent in this context, 10 because the U.S. Supreme Court has not resolved the conflict between a witness’ Fifth 11 Amendment privilege and a defendant’s right to present his defense.) 12 Furthermore, the fact that Haywood’s plea bargain could have been revoked in the 13 event that Haywood provided information or testimony that further implicated him in the 14 offenses does not represent undue coercion, threat, or intimidation by the prosecutor. See 15 Woods, 631 F. Supp. 2d at 1279 (providing that where a witness’ plea agreement was 16 conditioned upon that witness testifying truthfully, which would be “assumedly in conformity 17 with prior statements [the witness] had made to police and authorities, as a result of which the 18 prosecutor proffered the plea bargain in the first place, such a ‘condition’ does not represent 19 undue coercion, threat, or intimidation.”). In contrast to cases where the prosecutor directly 20 coerced, threatened, or intimidated a witness into refusing to testify or invoking his Fifth 21 Amendment privilege, petitioner does not allege that the prosecutor threatened Haywood with 22 a perjury prosecution if he testified for the defense, or granted immunity to prosecution REPORT AND RECOMMENDATION - 23 01 witnesses while withholding immunity from Haywood. See Williams v. Woodford, 384 F.3d 02 567, 599 (9th Cir. 2004); Ricketts, 832 F.2d at 479-80. Haywood’s plea agreement did not 03 prohibit him from testifying as a defense witness at trial. (See Dkt. 21, 2 RT at 132-33.) As 04 the prosecutor explained to the trial court, she had no objection to Haywood testifying for the 05 defense, as long as the plea bargain could be revoked in the event that Haywood personally 06 admitted shooting the victims. (See id. at 135.) Indeed, in the absence of such a condition, a 07 defense witness may falsely attempt to “take the heat” for the offenses after receiving the 08 benefit of his plea agreement. 09 Accordingly, petitioner has failed to show that the prosecutor’s actions with respect to 10 Haywood’s plea agreement constituted misconduct. As discussed above, petitioner has also 11 failed to make any showing or proffer to demonstrate that his trial was so “fundamentally 12 unfair” as to make the resulting conviction a denial of due process. See Wainwright, 477 U.S. 13 at 181; Jeffers v. Ricketts, 832 F.2d 476, 479-80 (9th Cir. 1987). The California Court of 14 Appeal’s denial of petitioner’s prosecutorial misconduct claim was therefore not contrary to 15 clearly established U.S. Supreme Court precedent. Petitioner’s request for habeas relief based 16 upon this claim should be denied. 17 VI. CERTIFICATE OF APPEALABILITY 18 The federal rules governing habeas cases brought by state prisoners have recently been 19 amended to require a district court that denies a habeas petition to grant or deny a certificate 20 of appealability in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. 21 § 2254 (effective December 1, 2009). 22 REPORT AND RECOMMENDATION - 24 01 A petitioner seeking post-conviction relief under § 2254 may appeal a district court’s 02 dismissal of his federal habeas petition only after obtaining a certificate of appealability from 03 a district or circuit judge. A judge shall grant a certificate of appealability only where a 04 petitioner has made “a substantial showing of the denial of a constitutional right.” See 28 05 U.S.C. § 2253(c)(3). The certificate must indicate which issues satisfy this standard. See id. 06 § 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the 07 showing required to satisfy § 2253(c) is straightforward: the petitioner must demonstrate that 08 reasonable jurists would find the district court’s assessment of the constitutional claims 09 debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 474 (2000). 10 For the reasons set out in the discussion of the merits, above, jurists of reason would 11 not find the result debatable. Accordingly, I recommend that the Court decline to issue a 12 certificate of appealability. Petitioner is advised that, if this Court denies a certificate of 13 appealability, he may not appeal that denial in this Court. Rather, he may seek a certificate 14 from the Ninth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate 15 Procedure. 16 VII. CONCLUSION 17 For all of these reasons, I recommend the Court find that the state courts’ decisions 18 denying petitioner’s claims were not contrary to, or an unreasonable application of, clearly 19 established federal law, or based on an unreasonable determination of facts. I further 20 recommend that the Court decline to issue a certificate of appealability and enter an Order 21 approving and adopting this Report and Recommendation, denying the amended petition 22 (Dkt. 15), and directing that judgment be entered dismissing this action with prejudice. REPORT AND RECOMMENDATION - 25 01 This Report and Recommendation is submitted to the United States District Judge 02 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 03 days of being served with this Report and Recommendation, any party may file written 04 objections with this Court and serve a copy on all parties. Such a document should be 05 captioned “Objections to Magistrate Judge’s Report and Recommendation.” Either party may 06 then respond to the other party’s objections within fourteen (14) days of being served a copy 07 of such written objections. Failure to file objections within the specified time may waive the 08 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). A 09 proposed order accompanies this Report and Recommendation. 10 DATED this 7th day of May, 2010. 11 A 12 13 JOHN L. WEINBERG United States Magistrate Judge 14 15 16 17 18 19 20 21 22 REPORT AND RECOMMENDATION - 26
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