-CHS (HC) Chandler v. Lewis, No. 2:2011cv00567 - Document 23 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Charlene H. Sorrentino on 11/21/2011 RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be denied; RECOMMENDING that a Certificate of Appealability not issue. Referred to Judge John A. Mendez. Objections to F&R due within 21 days. (Michel, G)
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-CHS (HC) Chandler v. Lewis Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GREGORY A. CHANDLER, 11 12 13 Petitioner, No. CIV S-11-567 JAM CHS vs. GREG LEWIS. 14 FINDINGS AND RECOMMENDATIONS 15 / 16 I. INTRODUCTION 17 Chandler, a state prisoner, proceeds pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. At issue are his 2007 convictions in the Sacramento 19 County Superior Court, case number 06F05421, for which he is serving an aggregate prison 20 sentence of 50 years to life. II. BACKGROUND1 21 22 Chandler began dating M.S. in February 2005 and later moved into her home. 23 While he lived there M.S. worked as a prostitute, paid the bills, and gave Chandler money. He 24 refused to allow her to quit prostituting, complaining there would be no money for them to live. 25 1 26 See People v. Chandler, No. C056039, 2008 WL 4184632, slip op. at 1 (Cal.App. 3rd Dist. 2008). 1 Dockets.Justia.com 1 She was listed on the Internet as an escort and testified she had never had a pimp before 2 Chandler. 3 In October 2005, Chandler met D.H. The next month, in November 2005, 4 Chandler moved out of M.S.’s house and into D.H.’s house. In June 2006, Chandler left 5 numerous messages on D.H.’s phone in which he threatened to assault and kill her. D.H. 6 believed his threats and feared he would do so. The messages were played for the jury at his 7 trial. 8 9 A jury convicted Chandler of making criminal threats to D.H. and pimping involving M.S. The jury acquitted him of numerous other counts involving both victims which 10 were based on facts not recounted here, including a charge of making criminal threats to M.S. In 11 a bifurcated proceeding, the court found true that Chandler had incurred three prior strikes within 12 the meaning of California’s habitual criminals or “three strikes” law and sentenced him to state 13 prison for an aggregate term of 50 years to life. 14 Chandler appealed his convictions to the California Court of Appeal, Third 15 District, where judgment was affirmed in an unpublished opinion. Petition for review to the 16 California Supreme Court was denied. 17 18 III. GROUNDS FOR RELIEF The petition sets forth six alleged constitutional violations. Chandler claims: 19 Ground One: He was denied his right to trial by a fair and impartial jury; 20 Ground Two: He was denied his right to appeal; 21 Ground Three: He was denied his right to the ineffective assistance of counsel on appeal; 22 Ground Four: He was denied his right to confront and cross-examine witnesses against him; 23 Ground Five: Police committed misconduct by coercing witnesses to file charges; and 24 Ground Six: 25 The trial court’s denial of the defense motion to reduce the criminal threats conviction to a misdemeanor violated due process and constituted cruel and unusual punishment. 26 2 1 2 3 4 For the reasons that follow, the claims are without merit and relief should be denied. IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of 5 a state court can be granted only for violations of the Constitution or laws of the United States. 6 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. 7 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 8 This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, 9 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 10 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the 11 AEDPA, federal habeas corpus relief is also precluded for any claim decided on the merits in 12 state court proceedings unless the state court’s adjudication of the claim: 13 14 15 16 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 17 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. 18 Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). 19 This court looks to the last reasoned state court decision to determine whether the 20 law applied to a particular claim by the state courts was contrary to the law set forth in the cases 21 of the United States Supreme Court or whether an unreasonable application of such law has 22 occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The 23 state court’s factual findings are presumed correct if not rebutted with clear and convincing 24 evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is 25 the habeas corpus petitioner’s burden to show the state court’s decision was either contrary to or 26 an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). 3 1 V. DISCUSSION 2 A. 3 Ground One: Fair and Impartial Jury 1. 4 Additional Background2 On the first day of trial, defense counsel filed a motion in limine seeking to 5 exclude evidence that Chandler was allegedly affiliated with a prison gang. Although Chandler 6 had gang tattoos suggesting he might have been affiliated with a prison gang, defense counsel 7 argued that neither victim had seen Chandler with a member of the gang. Defense counsel 8 further noted that Chandler was 39 years of age and had not been convicted of a crime for 10 9 years, while gang members “tend to be youthful” and there was no recent evidence of affiliation 10 with the gang. Conceding that the evidence might be relevant, defense counsel argued the 11 prejudicial affect outweighed any probative value. 12 The prosecutor explained he did not intend to introduce evidence that Chandler 13 was a “validated” gang member but argued Chandler’s statements to both victims about his 14 membership in a prison gang were relevant to prove the victims’ state of mind for purposes of the 15 charges of making criminal threats. The prosecutor asserted that both victims claimed that 16 Chandler told them of his membership in the prison gang to show them how dangerous he could 17 be and to control them. 18 Defense counsel disputed that Chandler was currently or recently affiliated with a 19 prison gang, claiming the records of the Department of Corrections referred to information in 20 1996. Defense counsel indicated that she doubted the prosecutor could present evidence from the 21 victims that Chandler had told them anything about the gang. 22 Although noting that reference to prison gangs would be prejudicial, the trial court 23 tentatively ruled the evidence of the effect of Chandler’s membership in a prison gang on the 24 victims would be admitted for a limited purpose and the jury would be instructed that it was not 25 26 2 See People v. Chandler, 2008 WL 4184632, supra at 1-3. 4 1 offered to show defendant was a person of bad character. Because defense counsel asserted it 2 was not Chandler who informed the victims about the prison gang, the court scheduled an 3 evidentiary hearing for the next morning for the victims to testify. The court then finished ruling 4 on the in limine motions and proceeded with jury selection. 5 After defense counsel introduced herself and Chandler, the trial court informed a 6 panel of prospective jurors during voir dire about possible evidence of Chandler’s affiliation with 7 a prison gang. Specifically, the trial court stated: 8 9 10 11 12 13 14 15 16 17 18 19 20 [THE COURT:] I want to bring this to your attention because it’s kind of important. It may or may not come into evidence but there has- there may be representations that Mr. Chandler may well have some affiliation with a prison gang called the Black Gorilla Family. If that does come into issue then, of course, I would give you a special instruction that that information can only be used in a limited way. [¶] That is to say, it cannot be used to show that he is a person of bad character or that it would make him show that he has a tendency to commit criminal behavior or that he is a bad person simply because he’s a member of, if he is, a member of that organization. [¶] But, rather, it would come in to show the effect on one of the elements of the charges and I would show you that, in terms of the effect it may have on a person [who] is aware of that type of information. And it’s not coming in for the truth of the matter. [¶] Now, I know that sounds like a lot of legal maybe mumbo jumbo and I may well have hurt you more than I helped you, but the bottom idea is that you can’t consider it, if it comes in, to show he has a propensity to commit crimes or he’s a bad character. [¶] It cannot come in for the truth that he is in fact a member, but it will come [in] to show some effect if a listener believes that the effect in terms of a certain mental state it would have on the listener. [¶] Did I do any better? [¶] Does everyone kind of understand and get the drift? [¶] Now after saying all that, is there some prospective jurors [who] feel it’s just too overpowering and they can’t follow basically what I just told you? Anyone feel that? 21 22 (Augmented Reporter’s Transcript (“ART”) at 22-23.) Later that day, the trial court informed a 23 second venire pool about the same potential evidence: 24 25 26 [THE COURT:] There is some indication and I don’t know how it may play out, that Mr. Chandler may have some affiliation with a black prison gang known as the Black Gorilla Family. And if in fact that comes out you will be instructed you may only consider that for a limited purpose. You may not consider that in terms of 5 1 that he’s a bad person or that he has a propensity to commit criminal offenses. [¶] It would come in to show the effect that it would have on maybe one of the people who- alleged victims in terms of their state of mind. And that’s the only way it may be used. [¶] Now, despite me telling you that, [are] there some of you who feel you cannot follow my instruction and would be automatically prejudiced against Mr. Chandler? Any of you? Okay. 2 3 4 5 (ART at 41-42.) 6 The following morning, D.H. and M.S. testified at an evidentiary hearing outside 7 the presence of the jurors. The state appellate court summarized the substance of this 8 proceeding: 9 Both testified concerning their fear of [Chandler] and his relationship with a prison gang. M.S. testified that [Chandler] told he was a member of a prison gang, showed her the tattoo on his arm, and claimed he went to member meetings. M.S. knew about the prison gang because her “illegal husband” had been a member. M.S. claimed defendant would tap his tattoo whenever she argued with him. His membership in the prison gang kept her “in line” and made her more careful, knowing that even if he could not harm her, he had gang members who could. M.S. was afraid that [Chandler] would learn she had contacted the police and he had contacted one of his gang members to harm her. 10 11 12 13 14 15 D.H. entered the courtroom in glasses and a hood, fearing that defendant might have someone watching her. She testified that [Chandler] told her he was a member of a prison gang, explaining that when one of the members called him “to take care of somebody else” he would “hurt that person.” D.H. had no knowledge of the prison gang prior to being with [Chandler]. She claimed that he talked about the prison gang every time he left for a “meeting.” She stayed in the relationship with him because she was afraid, knowing what he was capable of, the “kind of gang” he was in and that he could send someone over “to get [her].” 16 17 18 19 20 21 People v. Chandler, supra, at 3. 22 As to M.S., the trial court precluded the prosecution from offering evidence 23 relating to the prison gang because “the probative value would be outweighed by the prejudice.” 24 As to D.H., the court precluded the prosecutor from offering “the prejudicial language of the 25 [prison gang]” because the prosecutor could sufficiently show D.H.’s fear without the gang 26 evidence. 6 1 Subsequently, defense counsel made a motion for a new panel of prospective 2 jurors because the court had informed the jury of possible prison gang evidence. The trial court 3 denied the motion for a new panel, noting that when it had informed the prospective jurors of 4 such evidence, the court indicated it “may or may not” be introduced and defense counsel voiced 5 no objection. 6 7 2. Analysis Chandler claims he was denied his right to a fair and impartial jury when the trial 8 court informed the prospective jurors there might be evidence of gang affiliation, but then 9 determined the evidence would not come it. On appeal, the state court found no error: 10 11 12 13 14 15 16 17 18 19 [W]e conclude that the trial court did not err in denying defense counsel’s motion for a new panel. In instructing the prospective jurors, the court stated that evidence of [Chandler]’s affiliation with a prison gang, if any existed, might or might not be introduced at trial. The trial court further instructed the prospective jurors that any such evidence would be admitted only to show its effect on the state of mind of the alleged victims and that the evidence could not be used to show [Chandler] was a bad person or had a propensity to commit crimes. Even though the trial court’s comments involved potentially inflammatory gang evidence, those comments were calculated to prevent any possible bias or prejudice that might flow from the mention of the possibility that such evidence would be admitted. Under these circumstances, the trial court acted well within its discretion in implicitly determining that the jury panel was not contaminated and in denying the motion for a panel. People v. Chandler, supra, at 3. The Sixth Amendment guarantees criminal defendants a verdict by impartial and 20 indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Turner v. State of 21 Louisiana, 379 U.S. 466, 471-72 (1965) (holding that due process requires same); Smith v. 22 Phillips, 455 U.S. 209, 217 (1982) (holding that due process requires that a defendant be tried by 23 a jury capable and willing to decide the case solely on the evidence before it). “Impartiality is... a 24 state of mind [for which] the Constitution lays down no particular tests and procedure is not 25 chained to any ancient and artificial formula.” Irvin, 366 U.S. at 724-25. An impartial jury 26 consists of “jurors who will conscientiously apply the law and find the facts.” Wainwright v. 7 1 Witt, 469 U.S. 412, 423 (1985). “Qualified jurors need not, however, be totally ignorant of the 2 facts and issues involved.” Murphy v. Florida, 421 U.S. 794, 800-801 (1975). The 3 constitutional standard for juror impartiality requires only that the juror be able to “lay aside his 4 impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 5 U.S. at 723; see also Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984). 6 Here, Chandler does not allege that any particular juror or jurors were biased; 7 rather, his claim of juror bias is based on speculation that the trial court’s comments infected the 8 potential jurors with bias. As set forth, the trial court asked both venire pools whether potential 9 evidence of prison gang affiliation would affect their ability to be fair, and none of the jurors 10 responded affirmatively. Thus the comments made were conditional, and the trial court 11 explained not only that such evidence might not materialize but also that if it were admitted, it 12 would be for a limited purpose and could not be used to prove criminal disposition. 13 Chandler cites no Supreme Court precedent requiring dismissal of a jury panel for 14 a trial court’s comments about the possibility of prejudicial evidence being received where that 15 evidence is not ultimately received. It appears there is no Supreme Court precedent directly on 16 point factually. Nor is there any Supreme Court precedent with which fairminded jurists could 17 hold that the state court’s decision conflicts. See Harrington v. Richter, 131 S.Ct. 770, 786 18 (2011) (explaining that the applicable standard is whether “fairminded jurists could disagree on 19 the correctness of the state court’s decision”) (internal quotation marks omitted). In sum, 20 Chandler fails to demonstrate that the state court’s rejection of this claim was contrary to, or an 21 unreasonable application of clearly established Supreme Court precedent. See Carey v. 22 Musladin, 549 U.S. 70, 77 (holding a state court’s decision cannot be contrary to, or an 23 unreasonable application of, clearly established federal law if there is a “lack of holdings from” 24 the Supreme Court). 25 Chandler also fails to demonstrate prejudice. On habeas corpus review, the 26 petitioner bears the burden of establishing that a constitutional error had a “substantial and 8 1 injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 2 619, 637 (1993). 3 Chandler’s jury was admonished in their final instructions (1) “bias, sympathy, 4 prejudice, or public opinion” could not influence their verdict (CT at 404; RT at 446); (2) that 5 their verdict must be “based only on the evidence that has been presented to you in this trial” (CT 6 at 409; RT at 446); (3) that the defendant must be proven guilty beyond a reasonable doubt by the 7 evidence (CT at 413; RT at 449-450); and (4) that the evidence upon which they based their 8 verdict was limited to sworn testimony and exhibits (CT at 414; RT at 450-51). These 9 instructions mitigated the already very slight danger that the jury would use the trial court’s 10 remote comments made prior to trial as evidence of Chandler’s bad character or his propensity to 11 commit crimes. In the absence of any information to the contrary, it is presumed that the jury 12 followed these instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed 13 to follow its instructions.”) (citing Richardson v. Marsh, 481 U.S. 200, 206 (1987)). 14 In sum, Chandler fails to demonstrate the state court unreasonably applied 15 Supreme Court precedent regarding his right to a fair and impartial jury or that the comments 16 substantially and injuriously affected or influenced the jury’s verdict in his case. No relief is 17 available. 18 B. Right to Appeal 19 In a state habeas corpus petition filed to the Sacramento County Superior Court, 20 case number 09F06994, Chandler claimed (1) the trial court erred by limiting the cross- 21 examinations of D.H. and M.S.; (2) the police coerced the victims into filing charges; and (3) the 22 trial court erred by denying his request to reduce criminal threats conviction to a misdemeanor 23 and striking one his prior strike convictions. The petition was denied by the Sacramento County 24 Superior Court on the following basis: 25 26 Habeas corpus cannot serve a second appeal or substitute appeal [sic]. (In re Harris (1993) 5 Cal.4th 813, 829.) This rule covers matter that could have been raised on appeal but were not as well 9 1 2 3 4 5 6 7 8 9 10 as matter that were raised on appeal and decided [sic]. (Ibid.; see also In re Dixon (1953) 41 Cal.2d 756, 759; In re Waltreus (1965) 62 Cal.2d 218, 225.) Petitioner’s allegations that the trial court erred in excluding certain evidence and in refusing to reduce charges or strike strikes, as well as the suggestion of law enforcement’s pressuring the victims to cooperate are all matters that are part of the appellate record. This means that these claims could have been raised on appeal, although it appears that they were not; however, they cannot now be the subject of a habeas petition. Regarding Petitioner’s claim that a Sacramento police detective coerced the victims into filing charges against Petitioner: Petitioner subsequently had a trial on those charges. If they were untrue, he had an opportunity to challenge them, and, in fact, he was acquitted on many of the charged counts. Thus, Petitioner’s due process rights were adequately protected at trial. Petitioner has not described any law enforcement conduct that undermines the verdict. 11 For the foregoing reasons, 12 IT IS ORDERED that the petition is denied. 13 14 (Gregory Allen Chandler, Sr., On Habeas Corpus, Case No. 09F06994, Order Denying Petition, 15 (Cal. Sup. Ct., December 8, 2009)). 16 In a subsequent petition for writ of habeas corpus (case number 164185) filed to 17 the California Court of Appeal, Third District, and to the California Supreme Court, Chandler 18 claimed the Sacramento Superior Court denied him his right to appeal when it declined to review 19 or rule on his claims raised in the previous petition, case number 09F06994. 20 21 22 23 24 Here, too, Chandler claims the California courts “failed to rule on claims” in violation of his right to due process. Chandler’s federal claim is as follows: Petitioner contends that he was denied his Fourteenth Amendment right to due process because the reviewing court denied his Writ of Habeas Corpus (Case # 09F06994), because the federal claims on the writ of habeas corpus was not raised on direct appeal (Case # C056039), a state appellate process that was beyond Petitioner’s control [sic]. 25 26 (See Petition at p.94.) Chandler argues that he should not be faulted for his appellate counsel’s 10 1 failure to raise the claims on direct appeal, causing them to be procedurally defaulted, because 2 this circumstance was out of his control. 3 Presented with this claim, both the California Court of Appeal and the California 4 Supreme Court summarily denied it. Chandler fails to demonstrate the state courts’ rejection of 5 the claim was contrary to, or an unreasonable application of clearly established Supreme Court 6 precedent. 7 There is no independent federal constitutional right to a system of appellate 8 review. See Ross v. Moffitt, 417 U.S. 600, 611 (1974) (citing McKane v. Durston, 153 U.S. 684 9 (1894)). If a state provides for appellate and collateral review, however, the state must 10 implement such review in accord with due process. See Evitts v. Lucey, 469 U.S. 387, 401 11 (1983) (“In short, when a State opts to act in a field where its action has significant discretionary 12 elements, it must nonetheless act in accord with the dictates of the Constitution- and, in 13 particular, in accord with the Due Process Clause.”). 14 Nevertheless, Chandler fails to identify any Supreme Court precedent clearly 15 establishing a requirement that a state court conduct a review on habeas corpus in some manner 16 contrary to what occurred here in case number 09F06994. The Supreme Court has never held 17 that a state procedural bar such as California’s rule that “habeas corpus cannot serve a second 18 appeal or substitute appeal” violates federal due process where the default is alleged to be 19 counsel’s fault. To the contrary, the Supreme Court has consistently declined to review questions 20 of federal law decided by a state court if the decision of that court rests on a state law ground that 21 is independent of the federal question and adequate to support the judgment. Coleman v. 22 Thompson, 501 U.S. 722, 729-30 (1991) (“The doctrine applies to bar federal habeas when a 23 state court declined to address a prisoner’s federal claims because the prisoner had failed to meet 24 a state procedural requirement. In these cases, the state judgment rests on independent and 25 adequate state grounds.”) This claim is without merit. 26 ///// 11 1 C. 2 3 Ineffective Assistance of Appellate Counsel 1. Additional Background Chandler’s appellate counsel raised a single claim on direct appeal challenging the 4 trial court’s pre-instruction to the jury pool regarding potential evidence that Chandler was a 5 member of a prison gang, as discussed in subsection A, supra. Chandler claims appellate 6 counsel should have raised in addition the five issues set forth below which were listed as 7 potential grounds for appeal in the notice of appeal filed by trial counsel. 8 9 It is noted that Chandler has failed to develop the factual bases for some of appellate counsel’s alleged deficiencies. Rather, as will be discussed, his contentions are mostly 10 conclusory. Nevertheless, the factual bases underlying appellate counsel’s alleged deficiencies 11 are explained where possible. 12 13 14 Motion to sever Before the start of trial, the defense moved to sever the counts against Chandler. The trial court denied the motion; appellate counsel did not raise the issue. 15 16 Defense motion to dismiss Following the prosecution’s case-in-chief, the defense made a motion to dismiss 17 counts one, four, five and nine of the information pursuant to section 995 of the California Penal 18 Code. The motion was heard on March 2, 2007. The trial court granted the motion as to count 19 five, reducing the charge to a misdemeanor, and denied the motion as to the remaining counts. 20 Despite the fact that he was subsequently found not guilty of counts one, four, five and nine, 21 Chandler claims appellate counsel rendered ineffective assistance in failing to challenge the trial 22 court’s denial of this motion. 23 24 Defense’s trial objections Chandler contends appellate counsel was ineffective for failing to raise issues 25 concerning “defendant’s trial objections.” He provides no further allegations in support of this 26 alleged deficiency. 12 1 Confrontation/ cross-examination of D.H. and M.S. 2 M.S. testified at trial that D.H. called her on the telephone two times after 3 Chandler was arrested. Chandler’s attorney attempted to question M.S. about what D.H. told her 4 during those conversations. The trial court ruled the evidence was inadmissible hearsay which 5 could not come in at that time; the court indicated the defense could recall M.S. after D.H. 6 testified if necessary for impeachment. Subsequently D.H. confirmed in her testimony that she 7 spoke to M.S. over the phone in July 2006 and was cross-examined about what she said in those 8 conversations. 9 Chandler alleges “[c]learly the witnesses conspired with each other in each of 10 their phone conversations” and contends he was denied his right to confront witnesses against 11 him because the trial court did not allow defense counsel to question the two women about the 12 full content of their telephone conversations. The record does not support this assertion. 13 Although the trial court ruled inadmissible M.S.’s hearsay testimony about what D.H. said on the 14 phone, as discussed, D.H.’s live testimony on the subject was admitted. 15 Chandler also contends he was denied his right to cross-examine M.S. about a 16 telephone message she left for the district attorney’s office in which she allegedly stated that she 17 did not know what her testimony would be if she did not receive a response to her request for 18 money. The trial court prohibited such a line of questioning by the defense, ruling it would be an 19 undue consumption of time and would tend to confuse and mislead the jury. 20 Motion to reduce charges or strike prior convictions Prior to sentencing, Chandler moved pursuant to People v. Romero, 13 Cal.4th 21 22 497 (1996) to strike one or both of his prior felony strike convictions. He also filed a motion 23 pursuant to section 17(b) of the California Penal Code to reduce his felony conviction for 24 criminal threats to a misdemeanor. The trial court denied both motions and appellate counsel did 25 not raise either issue. 26 ///// 13 1 2 2. Analysis To demonstrate a denial of the Sixth Amendment right to the effective assistance 3 of counsel, a petitioner must establish that counsel’s performance fell below an objective 4 standard of reasonableness, and that he suffered prejudice from the deficient performance. 5 Strickland v. Washington, 466 U.S. 668, 690 (1984); see also Smith v. Robbins, 528 U.S. 259, 6 285 (2000) (applying the Strickland test to appellate counsel) (citing Smith v. Murray, 477 U.S. 7 527, 535-36 (1986)). Deficient performance requires a showing that counsel’s performance was 8 “outside the wide range of professionally competent assistance.” Id. at 687, 697. Prejudice is 9 found where there is a reasonable probability that, but for counsel’s unprofessional errors, the 10 11 result of the proceeding would have been different. Id. Appellate counsel does not have a constitutional obligation to raise every non- 12 frivolous issue requested by the client. Jones v. Barnes, 463 U.S. 745, 751 (1983). Often 13 appellate counsel may properly omit an issue if counsel reasonably foresees little or no likelihood 14 of success on that issue. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); Knowles v. 15 Mirzayance,129 S.Ct. 1411, 1422 (2009) (“Counsel is also not required to have a tactical reason- 16 above and beyond a reasonable appraisal of a claim’s dismal prospects for success- for 17 recommending that a weak claim be dropped altogether.”). The “weeding out of weaker issues is 18 widely recognized as one of the hallmarks of effective appellate advocacy.” Miller, 882 F.2d at 19 1434; see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (“Experienced advocates since time 20 beyond memory have emphasized the importance of winnowing out weaker arguments on appeal 21 and focusing on one central issue if possible, or at most on a few key issues.”). 22 The Supreme Court recently observed once again that “[s]urmounting Strickland’s 23 high bar is never an easy task,” and review under the AEDPA is doubly deferential. Harrington 24 v. Richter, 131 S. Ct. 770, 787 (2011) (citing Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)). 25 The relevant question is whether there is any reasonable argument that counsel satisfied 26 Strickland’s deferential standard. Harrington, 131 S. Ct. at 788. 14 1 Here, Chandler’s ineffective assistance claim is vague, conclusory, and 2 unsupported by necessary factual allegations. As to the issues he contends appellate counsel 3 should have raised, he makes no attempt to show they were as strong or stronger than the single 4 issue counsel did raise on appeal, or how the outcome of the appeal would have been different 5 had they been raised. Instead he alleges only that appellate counsel should have, but did not raise 6 the issues on appeal. A petitioner must do more than this in order to prevail. See, e.g., Jones v. 7 Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (“[C]onclusory suggestions that his... state appellate 8 counsel provided ineffective assistance fall short of stating a valid claim of constitutional 9 violation.”) James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not 10 supported by a statement of specific facts do not warrant habeas relief.”). 11 D. Confrontation and Cross-Examination 12 Chandler contends he was denied his right to confrontation and cross-examination 13 when the court “did not allow defense counsel to question witnesses [M.S.] and [D.S.] about the 14 content of their cell phone conversations with each other.” He also claims he was denied his 15 right to confrontation when the trial court held the defense could not question M.S. about two 16 telephone messages she allegedly left for the district attorney’s office. 17 Respondent contends this claim is procedurally barred. The procedural bar issue 18 need not be decided because the claim clearly lacks merit. See Lambrix v. Singletary, 520 U.S. 19 518, 525 (1997) (holding that for reasons of judicial economy an appellate court may pass on 20 deciding complicated procedural bar issues when a petition is “easily resolvable against the 21 habeas petitioner” on other grounds); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) 22 (“[A]ppeals courts are empowered to, and in some cases should, reach the merits of habeas 23 petitions if they are, on their face and without regard to any facts that could be developed below, 24 clearly not meritorious despite an asserted procedural bar.”). 25 26 The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to be confronted with the witnesses against him; “[t]he main and essential 15 1 purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” 2 Davis v. Alaska, 415 U.S. 308, 315-16 (1974). The Supreme Court has emphasized the policy 3 favoring expansive witness cross-examination in criminal trials. See Id.; Olden v. Kentucky, 488 4 U.S. 227, 231 (1988). The Confrontation Clause does not, however, guarantee unbounded scope 5 in cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (“The 6 Confrontation Clause guarantees an opportunity for effective cross-examination, not cross- 7 examination that is effective in whatever way, and to whatever extent, the defense might wish.” 8 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Trial judges retain wide latitude to 9 impose reasonable limits on cross-examination that is repetitive or only marginally relevant. Van 10 Arsdall, 475 U.S. at 679. A violation of the Confrontation Clause is found only where the trial 11 court’s ruling “limits relevant testimony, prejudices the defendant, and denies the jury sufficient 12 information to appraise the biases and motivations of the witness.” United States v. Lo, 231 F.3d 13 471, 482 (2000). In addition, on habeas corpus, relief is only available if the error had a 14 substantial and injurious effect or influence in determining the jury’s verdict. See Brecht, 507 15 U.S. at 623. 16 Here, both M.S. and D.H. were cross-examined by defense counsel. Chandler 17 identifies two limitations on their cross-examination by the trial court: (1) questioning of M.S. 18 about D.H.’s hearsay statements to M.S. on the phone, as discussed in the previous subsection; 19 and (2) questioning of M.S. about two telephone messages she allegedly left for the district 20 attorney’s office asking about money payments, which the trial court held would constitute an 21 undue consumption of time and tend to confuse and mislead the jury.3 22 3 23 24 25 26 The telephone messages were transcribed and provided to the defense in discovery. According to Chandler’s exhibit attached to the petition, M.S. stated in the first message, in relevant part: “I need someone to answer my question in regard to me coming to Sacramento. I need to know that my reimbursement money can be there so that when I come from Sacramento and be left on my own, I don’t need to wait four to six weeks to remain homeless and I still can’t get a place because people can’t get everything coordinated. I really would appreciate a return phone call. 16 1 First, Chandler’s right to confrontation was not violated by the trial court’s 2 limitation of questioning of M.S. about D.H.’s hearsay statements. Although the testimony was 3 potentially relevant, it was excluded pursuant to a valid evidentiary rule. The United States 4 Supreme Court has observed that “[t]he historical evidences leaves little doubt [ ] that the 5 [Confrontation] Clause was intended to exclude some hearsay.” Ohio v. Roberts, 448 U.S. 56, 6 63 (1980) (overruled on other grounds by White v. Illinois, 502 U.S. 346 (1992) and abrogated on 7 other grounds by Crawford v. Washington, 541 U.S. 36 (2004)). Moreover, exclusion of D.H.’s 8 hearsay statements during M.S.’s testimony did not prejudice Chandler or deny the jury sufficient 9 information to appraise M.S.’s biases and motivations. The excluded hearsay came in anyway 10 11 when D.H. was herself cross-examined about what she said to M.S. on the telephone. M.S.’s telephone messages were also excluded pursuant to a valid rule of 12 evidence. See Cal. Evid. Code § 352; Holmes v. South Carolina, 547 US. 319, 326 (2006) 13 (“While the Constitution thus prohibits the exclusion of defense evidence under rules that serve 14 no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, 15 well-established rules of evidence permit trial judges to exclude evidence if its probative value is 16 outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential 17 to mislead the jury.”). Here the limitation on cross-examination was not so complete as to 18 amount to a denial of the right of confrontation. M.S. was cross-examined about her relationship 19 with Chandler, about letters she sent him in jail, about her telephone calls to D.H., and about her 20 21 22 23 24 25 26 [...] Uh, plane leaves tomorrow and I need to; cause um, if I can’t get an answer, um, I don’t know what to; all I can say is I don’t think I’d make a very good witness [sic]. Thank you.” M.S. allegedly stated in the second message, in relevant part: “Hi, AJ. This is [M.S.] My number is [redacted]. I’m calling to make sure that there are no, that my name is not to be mentioned anymore in the case for um, Gregory Allen Chandler. I’ve opted out of um, being assisted from Victim Witness; since there was no way that they could make sure that I would have my money uh, to secure a permanent location, housing, when I got back to Las Vegas. [...] Uh, again, I don’t wish to be a part of the case. If I am subpoenaed and forced to come to court, I will, but I won’t make a great witness. This is already guaranteed. Um, thank you. Maybe next time, you know, your office will investigate things sooner and actually take interest in the victims.” 17 1 contact with law enforcement. In sum, there was sufficient cross-examination at trial to establish 2 potential bias, motivation, or lack of credibility on the part of M.S. 3 Chandler also fails to demonstrate prejudice. He makes no attempt to show a 4 reasonable likelihood of a different result had counsel’s cross-examination of M.S. not been 5 limited in these two ways. No relief is available. 6 E. Police Misconduct/ Witness Coercion 7 Chandler claims his due process rights were violated by police misconduct. In 8 particular, Chandler asserts Sacramento Police Detective Sweeney coerced the victims into filing 9 charges during telephone interviews. Respondent contends this claim, too, is procedurally 10 barred. Nevertheless, it is recommended that it be rejected on the merits. See Lambrix, 520 U.S. 11 at 525; Franklin, 290 F.3d at 1232. 12 Prosecutorial or police misconduct rises to the level of a constitutional violation 13 only where it “so infected the trial with unfairness as to make the resulting conviction a denial of 14 due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. 15 DeChristoforo, 416 U.S. 637, 643 (1974)). 16 As support for this claim, Chandler gives a lengthy and thorough statement of 17 facts detailing Detective Sweeney’s contact with both witnesses and cites to Exhibit G of his 18 petition, which contains portions of various transcripts of telephone interview between Sweeney 19 and D.H. None of this evidence shows any attempt on Sweeney’s part to coerce either victim. 20 Chandler argues that Sweeney allegedly conducted his entire investigation on the phone, that 21 Sweeney never contacted him for a statement, and that Sweeney did not investigate D.H.’s 22 admitted prostitution. No one of these allegations tends to evidence police coercion. 23 Accordingly, even assuming that allegations of police “coercing” witnesses to file charges states 24 a valid due process claim, the claim is factually without merit in this instance. 25 ///// 26 ///// 18 1 F. Defense Motion to Reduce Conviction 2 As set forth, the defense moved pursuant to People v. Romero, 13 Cal.4th 497 3 (1996) to strike one or both of Chandler’s prior felony strike convictions for sentencing purposes, 4 and moved pursuant to section 17(b) of the California Penal Code to reduce his felony criminal 5 threats conviction to a misdemeanor. The trial court denied both motions. Chandler contends 6 the trial court’s denial of these motions violated his right to due process and constituted cruel and 7 unusual punishment. Although respondent contends this claim is procedurally barred, the merits 8 should be reached since the claim is easily resolvable against Chandler. See Lambrix, 520 U.S. 9 at 525; Franklin, 290 F.3d at 1232. 10 This claim is not cognizable because it relates solely to the application of a state 11 sentencing law. A petitioner cannot “transform a state-law issue into a federal one merely by 12 asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). 13 Absent fundamental unfairness, federal habeas corpus relief is not available for a state court’s 14 misapplication of its own sentencing laws. Estelle v. McGuire, 502 U.S. 62, 67 (1991); Brown v. 15 Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002), vacated on other grounds, 538 U.S. 901, remanded 16 to 66 F. App’x 136 (9th Cir. 2003) (“The district court correctly concluded that this state law 17 [Romero] claim is not cognizable on federal habeas review.”); Christian v. Rhode, 41 F.3d 461, 18 469 (9th Cir. 1989) (petitioner not entitled to habeas relief on claim that state court improperly 19 used prior federal offense to enhance punishment); Miller v. Vasquez, 868 F.2d 1116, 1118-19 20 (9th Cir. 1989) (claim that prior conviction was not a “serious felony” under California 21 sentencing law not cognizable in federal habeas corpus proceeding). No fundamental unfairness 22 appears here and Chandler’s due process claim fails. 23 Chandler also fails to demonstrate that the manner in which the sentence was 24 imposed constitutes cruel and unusual punishment. Outside of the capital punishment context, 25 the Eighth Amendment of the United States Constitution “forbids only extreme sentences that are 26 grossly disproportionate to the crime.” Graham v. Florida, 130 S. Ct. 2011, 2021 (2010) (quoting 19 1 Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and 2 concurring in judgment)). The United States Supreme Court has held that the gross 3 disproportionality principle is the only relevant clearly established law applicable to an Eighth 4 Amendment challenge to a sentence under section 2254. Lockyer v. Andrade, 538 U.S. 63, 73 5 (2003). The threshold for an inference of gross disproportionality is high. Generally, so long as 6 the sentence imposed by the state court does not exceed statutory maximums, it will not be 7 considered cruel and unusual punishment under the Eighth Amendment. United States v. 8 McDougherty, 902 F.2d 569, 576 (9th Cir. 1990); United States v. Mejia-Mesa, 153 F.3d 925, 9 930 (9th Cir. 1998) (“punishment within legislatively mandated guidelines is presumptively 10 11 valid”). The United States Supreme Court has upheld a term of life with the possibility of 12 parole for the offense of theft of $120.75 by false pretenses, under a recidivism statute which 13 accounted for the defendant’s two prior offenses of fraudulent use of a credit card and passing a 14 forged check in the amount of $28.36; this life sentence did not offend the gross proportionality 15 principle of the Eighth Amendment. Rummel v. Estelle, 445 U.S. 263, 265, 285 (1980). 16 Likewise, a term of life in prison without the possibility of parole was held not disproportionate 17 to the crime of possession of 672 grams of cocaine. Harmelin v. Michigan, 501 U.S. 957, 1009 18 (1991). In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld a decision of the California 19 Court of Appeal affirming a sentence of two consecutive terms of 25 years to life in prison for a 20 “third strike” conviction of theft of $150 worth of video tapes as a reasonable application of the 21 gross disproportionality principle. Id. at 73-74. 22 In this case, Chandler was sentenced to a term of 50 years to life pursuant to 23 California’s habitual criminals or “three strikes” law. The trial court noted that his extensive 24 criminal history included prior convictions for possession of a controlled substance, felony 25 domestic violence, felony intimidation of a victim or witness, felony criminal threats, and felony 26 burglary, and found that he fell within the spirt of the three strikes law. Chandler’s third strike 20 1 sentence was reasonably imposed and his is not “the rare case in which a threshold comparison of 2 the crime committed and the sentence imposed leads to inference of gross disproportionality.” 3 Harmelin, 501 U.S. at 1005. No relief is available. 4 5 VI. CONCLUSION For the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of 6 the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the applicant. A certificate of appealability 8 may issue only “if the applicant has made a substantial showing of the denial of a constitutional 9 right.” 28 U.S.C. § 2253(c)(2). For the reasons discussed, a substantial showing of the denial of 10 a constitutional right has not been made in this case. 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. The petition for writ of habeas corpus be denied; and 13 2. A certificate of appealability not issue. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 16 one days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 20 951 F.2d 1153 (9th Cir. 1991). Any reply to the objections shall be filed and served within seven 21 days after service of the objections. 22 DATED: November 21, 2011 23 24 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 25 26 21