(HC) Roots v. Virga, No. 2:2013cv01707 - Document 26 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 06/30/15 recommending that the petition for writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, M)
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(HC) Roots v. Virga Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES TYLER ROOTS, 12 Petitioner, 13 14 No. 2:13-cv-01707 KJM AC v. FINDINGS AND RECOMMENDATIONS TIM VIRGA, Warden, 15 Respondent. 16 17 Petitioner is a California state prisoner proceeding pro se with an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition filed on August 19 13, 2013,1 ECF No. 1, which challenges petitioner’s 2009 conviction for first degree murder and 20 related offenses. Respondent has answered, ECF No. 14, and petitioner has filed a traverse, ECF 21 No. 20. BACKGROUND 22 I. 23 Proceedings In the Trial Court 24 A. Preliminary Proceedings 25 On March 7, 2008, petitioner was charged by indictment in the San Joaquin County 26 27 28 Superior Court with the following seven counts: (1) first-degree murder on October 19, 2007 1 See Houston v. Lack, 487 U.S. 266 (1988) (establishing rule that a prisoner’s court document is deemed filed on the date the prisoner delivered the document to prison officials for mailing). 1 Dockets.Justia.com 1 (Cal. Penal Code § 187); (2) being a felon in possession of a firearm on October 19, 2007 (Cal. 2 Penal Code § 12021(a)); (3) attempted robbery on October 23, 2007 (Cal. Penal Code § 211/664); 3 (4) transporting cocaine on October 23, 2007 (Cal. Health & Safety Code § 11379); (5) 4 possession of cocaine with a loaded gun on October 23, 2007 (Cal. Health & Safety Code § 5 11370.1(a)); (6) being a felon in possession of a firearm on October 23, 2007 (Cal. Penal Code § 6 12021(a)); and (7) being an active member of a criminal street gang (Cal. Penal Code § 7 186.22(a)). Multiple additional enhancements for personally using a gun (Cal. Penal Code § 8 12022(c)), being released on bail (Cal. Penal Code § 12022.1), and serving a prior prison term 9 (Cal. Penal Code § 667.5) were also alleged. Finally, the indictment alleged that petitioner had 10 previously been convicted of a serious felony within the meaning of California’s Three Strikes 11 Law (Cal. Penal Code §§ 667(d), 1170.12(b)). 1 CT 1-4.2 A separate information filed in San 12 Joaquin County Superior Court on July 24, 2008, additionally charged petitioner with attempted 13 escape on May 14, 2008 (Cal. Penal Code § 664/4532(b)(1)), which was subsequently 14 consolidated as count 8 of the pending indictment. 2 CT 541; 3 CT 579. 15 16 After count 3 (attempted robbery) was severed, petitioner’s jury trial on the remaining seven counts commenced on January 16, 2009. 3 CT 773, 793, 801. 17 B. The Evidence Presented At Trial 18 1. Prosecution Case 19 On October 19, 2007, Obed Pigg was fatally shot in a “smoke shop” in Stockton, 20 California. Pigg was a friend of the shop’s owner and a frequent visitor to the business. On the 21 day of his death, Pigg drove to the shop in his green Cadillac. Soon after he entered the shop, 22 someone in a dark, hooded sweatshirt followed him into the store and shot him, firing at least 10 23 shots. The assailant fled the store and disappeared into the neighborhood on foot. The hooded 24 sweatshirt and the gun that fired the fatal shots were later found in a neighboring backyard. 25 //// 26 //// 27 28 2 “CT” refers to the Clerk’s Transcript on Appeal, which respondent lodged on December 20, 2013. See ECF No. 15. 2 1 2 The prosecution presented both motive evidence and eyewitness evidence, as follows, to establish that petitioner was the assailant.3 3 a. Motive Evidence 4 Pigg’s girlfriend, Tammy Samuels, testified that petitioner had robbed Pigg two weeks 5 before the shooting. On October 5, 2007, Samuels and Pigg had gone to Stribley Park in Pigg’s 6 green Cadillac to watch Samuels’s son play football. They stopped on the way to get $300 in 7 cash, which Samuels gave to Pigg to pay their share of the rent. At the park, Pigg parked the 8 Cadillac and stayed behind to talk to a friend while Samuels went across the park to the game. 9 When Samuels looked back toward Pigg a few minutes later, she saw a third man join him and his 10 friend. She observed what might have been horseplay or a scuffle, after which Pigg ran to his car, 11 jumped in, and sped off. A few seconds later, Pigg called Samuels’ cell phone and began 12 “ranting and raving” so that she could not understand what he was saying. He yelled at her to get 13 out of the park and meet him at the handball court. When he picked her up, he was angry and 14 scared. Pigg exclaimed, “That mother fucker Roots pulled a gun on me and robbed me!” Pigg 15 said that petitioner had taken the rent money that Pigg was carrying. Petitioner had also pulled 16 the trigger on the gun several times, making a clicking sound. Samuels had never before seen 17 Pigg so mad and scared. 18 Later that night, someone shot at the residence of Pamela Boyce, petitioner’s mother, who 19 lived in the same neighborhood as Stribley Park. Petitioner often stayed at the residence. Several 20 shots were fired and caused damage to the house, a vehicle in the driveway, and an adjacent 21 house. Bullets found at the Boyce residence were not a match for Pigg’s gun. 22 The next morning, Pigg took Samuels to Franklin High School for another football game. 23 From a distance, Samuels saw Pigg talking to several men, including petitioner’s stepfather, Joe 24 Boyce. The conversation lasted about five minutes, and Pigg left the group of men after giving 25 Boyce a handshake and hug. 26 27 28 After petitioner robbed Pigg and someone shot at the Boyce residence, Pigg and Samuels 3 The defendant could not be ruled out as a source of DNA found on the sweatshirt and gun, but no physical evidence definitively linked him to the shooting. 3 1 received numerous phone calls.4 Pigg became frightened, carrying a gun and saying that he was 2 “not going to fear any man.” One evening about a week after Pigg was robbed, Samuels returned 3 home to find Pigg asleep on the couch. When she touched him, he startled and jumped up with 4 the gun. 5 Stockton Police Department Detective James Ridenour testified as an expert on Stockton 6 gangs. Detective Ridenour identified indicia that petitioner was an active participant in the East 7 Coast Crips gang, based in southeast Stockton. Petitioner had East Coast Crips gang tattoos, had 8 been arrested with another East Coast Crips gang member, and had been identified by other East 9 Coast Crips gang members as a fellow gang member. He was well-respected in that gang. 10 Petitioner claimed to be an active East Coast Crips gang member when he was booked into jail 11 after being arrested for Pigg’s murder. Detective Ridenour testified that respect is the most 12 important thing to gang members. They tend to retaliate violently for any perceived lack of 13 respect. 14 Yuronda Breed, the mother of petitioner’s child, told an officer one day after Pigg’s 15 murder that petitioner had told her several days earlier that he was having “serious problems” 16 with Pigg. At trial, she testified that she did not remember anything she had said to the officers, 17 due to her drug use at the time of the interview. 18 b. Eyewitness Testimony and Statements 19 Daryl Walters was the owner of the smoke shop where Pigg was killed. He was there on 20 the day of the shooting, and had entered the shop with his young children just ahead of Pigg. He 21 heard shots and pushed his children to the ground. He fired his own gun at the assailant after 22 Pigg fell to the floor.5 During the subsequent police investigation of the homicide, Walters was 23 shown a photo lineup and identified two photos (number four and number two) as looking 24 familiar. At trial, Walters testified that he recognized petitioner’s photo in the lineup from a 25 newspaper article about the crime. When asked whether the photo in the newspaper looked like 26 4 27 28 The trial court excluded the contents of the calls, which included third party reports that petitioner had threatened to harm Pigg. 5 Walters, who had a previous felony conviction, testified under a grant of immunity for his possession of the gun. 4 1 2 the assailant who came into his store, Walters responded: “I guess so. Yes. Yes.” Hilda Loza owned a hair salon next door to the smoke shop. She saw a man in a blue, 3 hooded sweatshirt walk past her business. He glanced in toward her and kept walking. She saw 4 the man walk into the smoke shop, and then she heard gunshots. Detective Lopez was present on 5 the day of the shooting when Loza was shown a photographic lineup. Loza looked at it for about 6 16 seconds before tapping on petitioner’s photo (number four in the lineup) and saying: “Oh, my 7 God. Oh, my God.... That’s him.” Her demeanor then changed as she became nervous and 8 frightened and started backpedaling, saying that it is between photographs four and five. She 9 noted that the eyes and complexion of number four were more like the person she saw, but the 10 facial hair was more like number five’s. She did not remember seeing a tattoo on the person’s 11 face as depicted in petitioner’s photo. At trial, Loza testified that she remembered saying the 12 assailant’s eyes were like number four, but did not remember the other statements. Looking at 13 photo number four frightened her. 14 Daryl Walters’s fiancée, Iisha Willis, was in her car behind the smoke shop when she 15 heard the shots fired. As she drove around the corner, she saw the assailant in the blue, hooded 16 sweatshirt. Thinking the man had shot Walters, Willis followed the assailant in her car. The 17 assailant took his hood off and looked at her. He then took off the sweatshirt and continued 18 running away from the smoke shop. Willis followed him for a short distance, yelling at him, 19 before he disappeared over a fence. When she was shown the photo lineup by police, Willis 20 stated that the persons in photos one and two had faces shaped similar to the assailant’s face and 21 that number one matched the assailant’s complexion. She did not identify petitioner’s picture, 22 which was photo number four. At trial, Willis identified petitioner as the man she followed in her 23 car. It was the first time she had seen him in person since the day of the murder. 24 Officer Raquel Betti testified that she heard a woman screaming and cussing outside while 25 she was conducting an investigation in a nearby bar. Officer Betti went outside and saw Willis in 26 her car following a man in a blue, hooded sweatshirt. Officer Betti had only a side view of the 27 man and could not positively identify the man in the photo lineup. Her report stated that 28 petitioner’s photo was “consistent with the subject I had seen running.” At trial, she said that the 5 1 2 defendant looked “just like” the man she saw. Armando Gutierrez heard the gunshots and saw a man running toward them in a blue, 3 hooded sweatshirt. Armando identified petitioner when shown the photo lineup later that day. At 4 trial, however, Armando could not identify the defendant as the man he saw. 5 6 7 Armando’s mother, Theresa Gutierrez was with Armando when they saw the assailant. She was unable to identify petitioner from the photo lineup. Armando’s sister, Elsa Castaneda Gutierrez, was also with Armando and their mother 8 when they heard the gunshots and saw the assailant. She made eye contact with the man. Elsa 9 identified petitioner in the photo lineup. She also identified petitioner at trial. 10 Maxx Chavez heard the gunshots and saw a man in a black, hooded sweatshirt run away 11 from the smoke shop. When shown the photo lineup, Chavez pointed to a few of the pictures but 12 did not specifically identify petitioner. About a week after the murder, however, Chavez saw 13 petitioner’s picture on the television news and recognized him as the assailant. At trial, Chavez 14 identified petitioner as the assailant. 15 16 17 18 Patricia Solano saw the assailant walk through her backyard. She tentatively identified petitioner from the photo lineup, saying petitioner’s photo looked like the man she saw. c. Evidence Regarding Petitioner’s Arrest On October 23, 2007, police pulled over a car in which petitioner was a passenger, and 19 arrested him for the Pigg shooting. Petitioner had a small, loaded revolver in his pocket. At the 20 police station, a baggie containing cocaine fell out of his pants leg. 21 2. Defense Case 22 The defense presented evidence that various eyewitnesses had given inconsistent 23 statements or prior descriptions of the assailant that did not match petitioner. The defense also 24 presented evidence that Daryl Walters expected to receive benefits from the district attorney’s 25 office in exchange for his testimony, including assistance relocating his business. 26 C. Outcome 27 On February 18, 2009, the jury acquitted petitioner on count 8 (attempted escape) but 28 found him guilty of the remaining counts (1, 2, and 4 through 7) and further found the gun-use 6 1 and bail enhancements to be true. 4 CT 881-895. In a bifurcated proceeding outside of the jury’s 2 presence, petitioner admitted the prior strike and prison term allegations. 10 RT 2704-2709.6 3 On April 14, 2009, the trial court dismissed count 3 (attempted robbery) and count 4 4 (transporting cocaine) on the prosecution’s motion. 4 CT 1063. Petitioner was sentenced on the 5 remaining counts and enhancements to an aggregate term of 78 years to life imprisonment. 4 CT 6 1071-1073. 7 II. Post-Conviction Proceedings 8 Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of 9 conviction on October 6, 2011. Lodged Doc. 4.7 The California Supreme Court denied review 10 on January 11, 2012. Lodged Doc. 8.8 11 Petitioner filed a first petition for writ of habeas corpus in the Superior Court of San 12 Joaquin County on July 20, 2012, which was denied without prejudice on the same day. Lodged 13 Docs. 10, 11. Petitioner filed another petition in the superior court on November 27, 2012. 14 Lodged Doc. 12. That petition was denied in a reasoned opinion on January 9, 2013. Lodged 15 Doc. 13. 16 Petitioner next filed a habeas petition in the California Court of Appeal, which was denied 17 without comment or citation on March 7, 2013. Lodged Docs. 14, 15. Petitioner then filed a 18 habeas petition in the California Supreme Court, which was denied on June 12, 2013 with citation 19 to In re Dixon, 41 Cal.2d 756, 759 (1953). Lodged Docs. 16, 17, 18. 20 By operation of the prison mailbox rule, the instant federal petition was filed August 13, 21 203.9 ECF No. 1. Respondent answered on December 20, 2013. ECF No. 14. Petitioner’s 22 6 23 24 25 26 27 28 “RT” refers to the Reporter’s Transcript on Appeal, which respondent lodged on December 20, 2013. See ECF No. 15. 7 The Court of Appeal struck the stayed bail enhancements and corrected the days of presentence credit, but affirmed the judgment in all other respects. 8 The petition was denied “without prejudice to any relief to which defendant might be entitled after this court decides People v. Rodriguez, S187680.” Lodged Doc. 8. On December 27, 2012, the California Supreme Court decided Rodriguez, 55 Cal. 4th 1125, 1138-1139 (2012), which held that a defendant is guilty of being an active participant in a criminal street gang within the meaning of California Penal Code § 186.22(a) only if he commits the underlying felony with at least one other gang member. 9 See supra n. 1. 7 1 2 3 4 5 6 7 8 9 10 11 12 traverse was docketed on March 13, 2014. ECF No. 20. STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (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. The statute applies whenever the state court has denied a federal claim on its merits, 13 whether or not the state court explained its reasons. Harrington v. Richter, 131 S. Ct. 770, 785 14 (2011). State court rejection of a federal claim will be presumed to have been on the merits 15 absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing 16 Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is 17 unclear whether a decision appearing to rest on federal grounds was decided on another basis)). 18 “The presumption may be overcome when there is reason to think some other explanation for the 19 state court's decision is more likely.” Id. at 785. 20 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 21 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 22 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established 23 Federal law,” but circuit law has persuasive value regarding what law is “clearly established” and 24 what constitutes “unreasonable application” of that law. Duchaime v. Ducharme, 200 F.3d 597, 25 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004). 26 A state court decision is “contrary to” clearly established federal law if the decision 27 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 28 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 8 1 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 2 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court 3 was incorrect in the view of the federal habeas court; the state court decision must be objectively 4 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 5 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 6 Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court 7 reasonably applied clearly established federal law to the facts before it. Id. In other words, the 8 focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. Where the 9 state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to “the 10 state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 738 (9th 11 Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, 12 without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court 13 denies a claim on the merits but without a reasoned opinion, the federal habeas court must 14 determine what arguments or theories may have supported the state court’s decision, and subject 15 those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786. 16 17 18 19 DISCUSSION I. Claim One: Admission of Hearsay Regarding Uncharged Robbery A. Petitioner’s Allegations and Pertinent State Court Record Petitioner contends that his rights to confrontation and to due process (“constitutional 20 right to fair trial”) were violated by the admission against him of hearsay evidence regarding a 21 prior robbery. ECF No. 1 at 5. Specifically, petitioner alleges as follows: 22 23 24 25 26 The trial court erroneously admitted inadmissible hearsay of an uncharged robbery into the trial which resulted in the petitioner’s unlawful conviction. The admission of the hearsay evidence was extremely prejudicial, as concerned “words” from the decedent which allegedly accused the petitioner of robbing the decedent. This inadmissible hearsay was the heart of the prosecution’s case even though it wasn’t supported by credible evidence. The admittance of overly prejudicial evidence denied the petitioner[’s] constitutional confrontation rights and a fair trial. 27 28 9 1 Id.10 2 The trial court record reveals the following background information. Tammy Samuels, 3 victim Obed Pigg’s girlfriend, testified that Pigg had reported being robbed by petitioner 4 approximately two weeks before his death. Evidence of the robbery was admitted to establish a 5 motive for the homicide. The prosecutor’s theory of the case was that the homicide culminated a 6 cycle of retaliation: petitioner had first robbed Pigg, then suspected Pigg (rightly or wrongly) of 7 shooting up petitioner’s mother’s house in retaliation for the robbery, and finally killed Pigg in 8 retaliation for the shooting of the house. 9 The admissibility of motive evidence generally, and the victim’s statements to Samuels 10 specifically, was extensively litigated.11 The court ruled pretrial that Pigg’s October 5, 2007 11 statements that he had just been robbed by petitioner were admissible for their truth, as 12 spontaneous declarations pursuant to Cal. Evid. Code § 1240, and as circumstantial evidence of 13 Pigg’s state of mind pursuant to Cal. Evid. Code § 1250. 2 RT 514-516, 3 RT 734-735. 14 Before the jury, Samuels testified that she went to Stribley Park with Pigg and left him by 15 his car when she went to watch the football game. From a distance she saw Pigg, his friend 16 Robert Ware, and a third man engaged in what she thought was horseplay, slinging each other 17 around. Next she saw Pigg running, then taking off in his car. A few seconds later he called her, 18 yelling and screaming for her to get out of the park and meet him at the handball court. When he 19 20 21 22 23 24 25 26 27 28 10 In support of his federal habeas petition, petitioner provides the declaration of Robert Ware, who states that he was at Stribley Park between 4:00 and 7:00 p.m. on October 5, 2007, and saw no robbery. ECF No. 22 at 7. The declaration is dated March 10, 2014. Id. Because this declaration was obtained after petitioner had exhausted his state remedies, and was not submitted to the California Supreme Court, it cannot be considered here unless petitioner first passes through the gateway of § 2254(d) by establishing an objectively unreasonable application of clearly established federal law by the state court. Pinholster, 131 S. Ct. at 1398 (review under § 2254(d) limited to state court record), 1401 (new evidence may be considered, subject to limitations of § 2254(e)(2), where § 2254(d) does not bar federal habeas relief). 11 See 3 CT 705-714, 718-719 (in limine motions); 1 RT 53-164, 178-198 (Evid. Code § 402 hearing); 1 RT 203-208 (tentative ruling permitting motive theory); 3 CT 756-763 (defense motion to exclude evidence); 2 RT 350, 387 (court accepts motive theory); 2 RT 407-419, 445, 449, 456-464 (further discussions); 2 RT 505-529, 533-535 (final argument and ruling); 3 RT 734-735, 752-754 (limiting instructions); 4 RT 902-905 (further argument and ruling); 4 CT 1046-1048, 1052-1060 (new trial motion and opposition); 11 RT 2986-2988, 2990, 2992-2994 (hearing on new trial motion). 10 1 picked her up, he said, “That mother fucker Roots pulled a gun and robbed me.” 3 RT 726. 2 Samuels continued, “He just kept saying it and yelling and screaming. I’d never seen him so mad 3 and so scared on all my life. In our whole relationship, I’ve never seen him like that.” 3 RT 726. 4 Pigg also told Samuels that “Roots was clocking, clicking the gun, playing with his life.” 3 RT 5 727. 6 B. The Clearly Established Federal Law 7 “As applied to a criminal trial, denial of due process is the failure to observe that 8 fundamental fairness essential to the very concept of justice. In order to declare a denial of it we 9 must find that the absence of that fairness fatally infected the trial; the acts complained of must be 10 of such quality as necessarily prevents a fair trial.” Lisenba v. California, 314 U.S. 219, 236 11 (1991) (holding that admission of coerced confession violates due process). The United States 12 Supreme Court has “defined the category of infractions that violate ‘fundamental fairness’ very 13 narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990). 14 The admission of evidence is generally a matter of state law, and habeas relief does not lie 15 for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). The erroneous admission of 16 evidence violates due process, and supports habeas relief, only when it results in the denial of a 17 fundamentally fair trial. Id. at 72. The Supreme Court has rejected the argument that due process 18 necessarily requires the exclusion of prejudicial or unreliable evidence. See Spencer v. Texas, 19 385 U.S. 554, 563-564 (1967); Perry v. New Hampshire, 132 S.Ct. 716, 728 (2012). 20 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall 21 enjoy the right to . . . be confronted with the witnesses against him.” The Confrontation Clause 22 prohibits the admission of testimonial out-of-court statements by non-testifying individuals. 23 Crawford v. Washington, 541 U.S. 36 (2004). Not all hearsay implicates the core concerns of the 24 Confrontation Clause; the dispositive question is whether the statement is “testimonial.” 25 Crawford, 541 U.S. at 51. At the time petitioner’s appeal and state habeas petition were decided, 26 the U.S. Supreme Court had not addressed the question whether statements to persons other than 27 //// 28 //// 11 1 law enforcement officials can be “testimonial” for Sixth Amendment purposes.12 See Hammon v. 2 Indiana, 547 U.S. 813, 823 n.2 (2006) (reserving the question). However, it was clearly 3 established that a statement is testimonial only when its primary purpose is the development of 4 evidence to support a prosecution. Id. at 822 (statements are testimonial when “primary purpose” 5 is “to establish or prove past events potentially relevant to later criminal prosecution.”). The 6 ultimate question is whether, in light of all the circumstances, viewed objectively, the “primary 7 purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” 8 Michigan v. Bryant, 562 U.S. 344, 358 (2011). 9 C. The State Court’s Ruling 10 Petitioner raised his due process challenge to admission of Samuels’ hearsay testimony on 11 direct appeal. Because the California Supreme Court denied discretionary review, the opinion of 12 the California Court of Appeal constitutes the last reasoned decision on the merits and is the 13 subject of habeas review in this court. See Ylst v. Nunnemaker, 501 U.S. 797 (1991); Ortiz v. 14 Yates, 704 F.3d 1026, 1034 (9th Cir. 2012). After finding that the evidence was relevant and 15 admissible under the California Evidence Code, the appellate court ruled as follows: “Since there 16 was no mistake in allowing the prosecutor to pursue the motive theory, the defendant’s contention 17 that the trial was unfair and violated his due process rights is without merit.” Lodged Doc. 4 at 18 16-17. 19 Petitioner’s Confrontation Clause challenge to Samuels’ hearsay testimony was presented 20 to the California Supreme Court in a petition for writ of habeas corpus. Lodged Doc. 16 at 3 21 (citing Crawford v. Washington, supra), 5 (alleging that admission of Samuels’ hearsay testimony 22 violated right to confrontation of witnesses). That petition was denied with citation to In re 23 Dixon, 41 Cal.2d 756, 759 (1953). Lodged Doc. 18. 24 12 25 26 27 28 The Court has recently held that a child’s statements to his preschool teachers are not subject to the Confrontation Clause because they are non-testimonial. Ohio v. Clark, 2015 U.S. LEXIS 4060 (June 18, 2015). The Court declined to adopt a categorical rule that statements to individuals other than law enforcement officers can never count as testimonial, but stated that “such statements are much less likely to be testimonial than statements to law enforcement officers.” Id. at *13. The test is whether the statements were made with the primary purpose of creating evidence for a prosecution. Id. 12 1 D. Procedural Default 2 Respondent contends that petitioner’s confrontation clause claim is procedurally 3 defaulted, because it was rejected on procedural grounds by the California Supreme Court. ECF 4 No. 14 at 22-24. As a general rule, a federal habeas court “will not review a question of federal 5 law decided by a state court if the decision of that court rests on a state law ground that is 6 independent of the federal question and adequate to support the judgment.” Calderon v. United 7 States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.1996) (citing Coleman v. Thompson, 8 501 U.S. 722, 729 (1991)); cert. denied, 520 U.S. 1204 (1997). The fact that the state court 9 alternatively ruled on the merits does not erase the effect of a procedural bar. Harris v. Reed, 489 10 U.S. 255, 264 n. 10 (1989). 11 Here the state court rejected petitioner’s habeas petition with citation to Dixon, 41 Cal. 2d 12 756, which generally bars consideration in habeas of matters that could have been raised on direct 13 appeal. Respondent contends the Dixon bar applied to petitioner’s confrontation claim, which 14 was raised for the first time in state habeas, and that the claim is therefore defaulted. Petitioner 15 insists that he did present his confrontation claim on direct appeal, and contends that the Dixon 16 bar therefore does not apply to this claim. ECF No. 20 at 19-20 (“. . . the confrontation issue was 17 fairly tendered to both the California Appellate Court (on direct appeal) and Supreme (in Petition 18 for Review).”). Petitioner does not identify where in his petition for review the confrontation 19 claim was raised, however. The undersigned has reviewed the petition, and finds that its 20 discussion of the robbery evidence did not include an assertion of petitioner’s rights under the 21 Confrontation Clause. The direct appeal process exhausted petitioner’s due process claim(s) 22 regarding the motive evidence at issue in Claims One and Four of the federal petition, but did not 23 present any Confrontation Clause claim. Accordingly, respondent is correct that the state habeas 24 court’s citation to Dixon represents a rejection of the claim on procedural grounds. 25 A petitioner can overcome a procedural default by demonstrating cause and prejudice. 26 Coleman v. Thompson, 501 U.S. 722, 753 (1991). Ineffective assistance of counsel can, if 27 pleaded and proved, establish cause for a default. Murray v. Carrier, 477 U.S. 478, 488 (1986); 28 Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Here, petitioner’s Claim Two, liberally 13 1 construed, alleges that trial counsel was ineffective in failing to make objections that would have 2 excluded the hearsay evidence of the robbery. Although petitioner has not stated a free-standing 3 claim for ineffective assistance of appellate counsel,13 trial counsel’s failure to preserve the 4 confrontation issue may have prevented such presentation and thus constituted the underlying 5 cause for the default. Accordingly, the cause and prejudice inquiry applicable to Claim One 6 could arguably overlap with the merits of Claim Two. This is so because in both the default and 7 merits contexts, petitioner must establish prejudice from counsel’s performance, which in turn 8 requires analysis of the strength of the claims that counsel failed to present. See Moorman v. 9 Ryan, 628 F.3d 1102, 1106-07 (9th Cir. 2010), cert. denied, 132 S.Ct. 346 (2011). 10 Apart from the cause and prejudice inquiry, application of the default doctrine requires 11 evaluation of the “adequacy” of the state rule invoked to bar relief in state court. To be deemed 12 adequate, the rule must be well established and consistently applied at the time of the purported 13 default. Walker v. Martin, 131 S.Ct. 1120, 1128 (2011). Adequacy is analyzed pursuant to the 14 burden-shifting framework established by Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), 15 which requires consideration of empirical data regarding the state courts’ history of application of 16 the rule at issue. The adequacy inquiry regarding Dixon can be particularly complicated. See 17 Lee v. Jacquez, __ F.3d __, 2015 U.S. App. LEXIS 9586 (June 9, 2015) (reversing and 18 remanding for further proceedings regarding regularity and consistency of Dixon bar’s 19 application at time of petitioner’s default). This court need not delay disposition of petitioner’s 20 claims in order to enter that fray. 21 A federal court may bypass consideration of a procedural bar issue in the interests of 22 judicial economy, where the asserted default presents complicated questions and the other issues 23 are resolvable against the petitioner. Lambrix v. Singletary, 520 U.S. 518, 522−25 (1997); 24 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). The court finds that the circumstances 25 here, as summarized above, support bypass of the procedural default issue. 26 13 27 28 Petitioner does argue in the traverse that ineffective assistance of appellate counsel caused any default. ECF No. 20 at 29. In order to support cause and prejudice, however, ineffective assistance of appellate counsel must be independently pleaded and exhausted. See Carrier, 477 U.S. at 489. 14 1 E. Objective Reasonableness Under § 2254(d) 2 The state court’s rejection of this claim did not involve an objectively unreasonable 3 application of clearly established federal law. The confrontation claim fails because Pigg’s 4 statements to his girlfriend were not “testimonial statements” which implicate the core of the 5 Confrontation Clause. See Crawford, 541 U.S. at 51. Pigg’s exclamations to Samuels cannot 6 even arguably have had the primary purpose of creating an out-of-court substitute for trial 7 testimony. See Michigan v. Bryant, 562 U.S. at 358. Because the statements about which 8 Samuels testified were not testimonial, and therefore fall outside the scope of “clearly 9 established” confrontation law, § 2254(d) bars relief. See Delgadillo v. Woodford, 527 F.3d 919, 10 927 (9th Cir. 2008) (AEDPA bars relief on confrontation claim involving hearsay statement by 11 non-testifying victim to co-workers, because statement not testimonial under clearly established 12 federal law). 13 No matter how meritorious petitioner’s hearsay argument, the admissibility of non- 14 testimonial hearsay is a question of state law that this court may not revisit. See Lewis v. Jeffers, 15 497 U.S. 764, 780 (1990) (federal habeas corpus relief does not lie for errors of state law). This 16 court is bound by the California Court of Appeal’s ruling that the motive evidence generally, and 17 Pigg’s statements to Samuels specifically, were admissible. See Bradshaw v. Richey, 546 U.S. at 18 76 (federal habeas court bound by state court’s interpretation of state law). Because U.S. 19 Supreme Court precedent does not clearly bar consideration of non-testimonial hearsay, federal 20 habeas relief is unavailable. See Delgadillo, 527 F.3d at 927. 21 Petitioner’s alternative due process theory does not support relief, because the trial was 22 not rendered fundamentally unfair by the disputed hearsay. The U.S. Supreme Court has 23 explained that the improper admission of evidence does not render a trial fundamentally unfair 24 where the evidence is subject to adversarial testing, and the jury is properly instructed. Dowling, 25 493 U.S. at 353 (rejecting argument that admission of acquitted conduct rendered trial 26 fundamentally unfair). Here, Samuels was cross-examined about what Pigg told her, defense 27 counsel argued strenuously that the robbery had not been proven, the motive theory as a whole 28 was attacked by the defense and debated in closing arguments, and the jury was given appropriate 15 1 limiting instructions. Eyewitness testimony, completely independent of the motive evidence, 2 supported the jury’s finding that petitioner was the assailant. 3 In light of the record as a whole, there is no likelihood that the prosecution’s burden of 4 proof was undermined by the jury’s consideration of the robbery evidence, or that the trial was 5 otherwise rendered fundamentally unfair. Certainly there was nothing objectively unreasonable 6 about the state court so concluding. And because no Supreme Court precedent holds that due 7 process is violated by the admission of non-testimonial hearsay, or motive evidence in general, 8 relief is not available here. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) 9 (where no Supreme Court precedent controls the issue raised by a habeas petitioner in state court, 10 the state court’s decision cannot be contrary to, or an unreasonable application of, clearly 11 established federal law). 12 13 14 15 16 17 18 19 20 21 22 II. Claim Two: Ineffective Assistance Of Counsel A. Petitioner’s Allegations and Pertinent State Court Record Petitioner alleges as follows: Petitioner’s trial counsel, Lance Jacot, did not do any pre-trial investigation which left him unprepared and incompetent in defending petitioner at trial. Trial counsel failed to make the proper E.C. 702 (personal knowledge) objection at a 402 hearing, concerning the inadmissible hearsay that was ultimately allowed to taint the petitioner’s chance at a fair trial. Had trial counsel properly objected as competent counsel should have, the prosecution would have been compelled to prove that the witness had personal knowledge of the uncharged robbery which ultimately was used as motive evidence against petitioner and resulted in the illegal conviction that petitioner got. ECF No. 1 at 7. The trial court record reflects that defense counsel moved in limine to exclude motive 23 evidence generally and Tammy Samuels’ hearsay testimony about the robbery in particular. 3 CT 24 714-720. Defense counsel cross-examined Samuels at an in limine hearing pursuant to Cal. Evid. 25 Code § 402, 1 RT 53-135, and subsequently filed a brief arguing that her hearsay testimony was 26 inadmissible, 3 CT 756-763. Counsel argued that there was no credible evidence to establish that 27 petitioner had robbed Pigg. 2 RT 371. Counsel renewed the hearsay objection when Samuels 28 testified. 3 RT 725. 16 1 B. The Clearly Established Federal Law 2 To establish a constitutional violation based on ineffective assistance of counsel, a 3 petitioner must show (1) that counsel’s representation fell below an objective standard of 4 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. 5 Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an 6 adverse effect on the defense. There must be a reasonable probability that, but for counsel's 7 errors, the result of the proceeding would have been different. Id. at 693-94. The court need not 8 address both prongs of the Strickland test if the petitioner's showing is insufficient as to one 9 prong. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of 10 sufficient prejudice, which we expect will often be so, that course should be followed.” Id. 11 C. The State Court’s Ruling 12 Respondent represents that this claim was submitted to the California Supreme Court in 13 petitioner’s state habeas petition. ECF No. 14 at 24. Although that petition as a whole was 14 rejected with citation to Dixon, 41 Cal. 2d 756, respondent does not assert any procedural bar in 15 this context because he acknowledges that Dixon does not apply to ineffective assistance claims. 16 Id. at 24-25. 17 If this claim was indeed presented to the California Supreme Court in habeas, then its 18 denial would be unexplained and this court’s review would be guided by Richter, 131 S.Ct. 784- 19 85. However, it does not appear to the undersigned that the claim was in fact presented to the 20 California Supreme Court. The petition filed in that court attacks the admission of hearsay and 21 motive evidence in a single omnibus claim; it does not assert ineffective assistance of counsel. 22 Lodged Doc. 18. The exhibits submitted in support of the California Supreme Court petition 23 included a statement of the IAC claim that appears to be excerpted from a petition filed in a lower 24 state court. Lodged Doc. 17.14 It is doubtful that inclusion of the claim in exhibits to a different 25 claim constitutes the “fair presentation” necessary to exhaust state remedies. See Baldwin v. 26 Reese, 541 U.S. 27, 32 (2004) (holding that “ordinarily a state prisoner does not ‘fairly present’ a 27 28 14 Lodged Doc. 17 is not internally paginated. The IAC claim, identified as Ground 4, is included at the end of Exhibit F (Yuronda Breed’s testimony). 17 1 claim to a state court if that court must read beyond a petition . . . that does not alert it to the 2 presence of a federal claim in order to find material. . . that does so.”). 3 This exhaustion problem is another procedural rabbit-hole the court chooses to avoid. 4 Relief may not be granted on an unexhausted claim, but it may be denied. § 2254(b)(1)(A), 5 (b)(2). For the reasons that follow, the claim fails whether it is reviewed deferentially, as a silent 6 denial, or under the de novo standard. 7 D. Objective Reasonableness Under § 2254(d) 8 If petitioner’s ineffective assistance of counsel claim was considered by the California 9 Supreme Court, it was not unreasonably denied. Conclusory allegations are insufficient to 10 support a collateral attack on a conviction. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) 11 (“[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 12 habeas relief.”). Petitioner alleged no facts to support the prejudice prong of Strickland. He did 13 not specify what evidence would have been discovered by additional defense investigation, or 14 how further preparation would have led to a different outcome. See Grisby v. Blodgett, 130 F.3d 15 365, 373 (9th Cir. 1997) (“Speculation about what [a witness] could have said is not enough to 16 establish prejudice.”); Hendricks v. Calderon, 70 F.3d 1032, 1042 (1995) (“Absent an account of 17 what beneficial evidence investigation into any of these issues would have turned up, [petitioner] 18 cannot meet the prejudice prong of the Strickland test.”).15 Because petitioner’s allegations of 19 failure to investigate do not establish a prima facie claim under Strickland, the state court’s denial 20 of relief was both reasonable and correct. See Strickland, 466 U.S. at 697 (if it is easiest to 21 dispose of an ineffectiveness claim on the ground of lack of prejudice, that course should be 22 followed). 23 The section 402 hearing was vigorously litigated. Petitioner contends that an objection on 24 personal knowledge grounds pursuant to Cal. Evid. Code § 702 would have kept out the evidence 25 of the robbery, but the objection is unlikely to have succeeded. The hearsay objections counsel 26 15 27 28 To the extent that the declarations of Robert Ware and Yuranda Breed, ECF No. 22, can be construed as evidence that diligent trial counsel might have developed for trial, they cannot be considered here because they were not before the California Supreme Court. See Pinholster, 131 S. Ct. at 1398. 18 1 did make, which fully addressed the fact that Samuels was testifying to something she had heard 2 from Pigg and not something she had personally observed, were overruled and that decision was 3 upheld on appeal. There is no reason to think that the result would have been different had the 4 objection been couched in personal knowledge terms. Accordingly, the claim fails insofar as it is 5 predicated on failure to make an objection under Cal. Evid. Code § 702. See Lowry v. Lewis, 21 6 F.3d 344, 346-47 (9th Cir. 1994) (to prevail on ineffective assistance of counsel claim, petitioner 7 must demonstrate that motion would have succeeded and that outcome of trial would have been 8 different as a result). 9 For all these reasons, relief is not available on Claim Two under any standard of review. 10 III. Claim Three: Admission Of Detective Hutto’s Testimony Regarding Yuronda Breed’s 11 Statement 12 A. Petitioner’s Allegations and Pertinent State Court Record 13 Petitioner alleges as follows: 14 The trial court allowed the prosecution to illegally impeach one of its own witness[es] and circumvent CA evidence codes by allowing the investigating officer to testify to multi-layered hearsay which was used against petitioner as substantive evidence and truth of the matter evidence. Yuronda Breed testified in open court that she didn’t recall giving Detective Hutto a statement about petitioner allegedly telling her that he had “serious problems” with the decedent Obed Pigg. The detective was then allowed to testify that petitioner told Breed that he was having “serious problems” with decedent, which violated petitioner’s due process and confrontation rights guaranteed by the U.S. Constitution. 15 16 17 18 19 20 ECF No. 1 at 8.16 21 The trial court record reflects that petitioner moved during trial to exclude a number of 22 23 24 25 26 27 28 16 In support of his federal habeas petition, petitioner provides a declaration from Breed, asserting that petitioner never said or insinuated that he had a problem with Pigg, and that she did not make the disputed statement to Officer Hutto. ECF No. 22 at 5. The declaration is dated January 27, 2014. Id. Because this declaration was obtained after petitioner had exhausted his state remedies, and was not submitted to the California Supreme Court, it cannot be considered here unless petitioner first passes through the gateway of § 2254(d) by establishing an objectively unreasonable application of clearly established federal law by the state court. Pinholster, 131 S. Ct. at 1398 (review under § 2254(d) limited to state court record), 1401 (new evidence may be considered, subject to limitations of § 2254(e)(2), where § 2254(d) does not bar federal habeas relief). 19 1 statements made by Yuronda Breed, the mother of petitioner’s child, which were included in a 2 police report. 3 CT 815-816. The court excluded all the statements but one: Breed’s statement 3 that petitioner told her he was having “serious problems” with Pigg. The court ruled that this 4 statement was admissible as a party admission. 7 RT 1968-1969. When Breed testified, she 5 claimed not to remember what she had told the police. 7 RT 1756. Officer Hutto then testified 6 that he had interviewed Breed, and she stated “that James Roots had told her he was having 7 serious problems with Obed Pigg.” 7 RT 1767. 8 B. The Clearly Established Federal Law 9 The admission of evidence is generally a matter of state law, and habeas relief does not lie 10 for errors of state law. Estelle v. McGuire, 502 U.S. at 67. The erroneous admission of evidence 11 violates due process, and supports habeas relief, only when it results in the denial of a 12 fundamentally fair trial. Id. at 72. The Supreme Court has rejected the argument that due process 13 necessarily requires the exclusion of prejudicial evidence. Spencer v. Texas, 385 U.S. at 563- 14 564. 15 The Confrontation Clause prohibits the admission of testimonial out-of-court statements 16 by non-testifying individuals. Crawford v. Washington, 541 U.S. 36. The Confrontation Clause 17 is not violated by admission of out-of-court statements when the declarant testifies as a witness 18 and is subject to cross-examination. California v. Green, 399 U.S. 149, 158 (1970). Furthermore, 19 not all hearsay implicates the core concerns of the Confrontation Clause; the dispositive question 20 is whether the statement is “testimonial.” Crawford, 541 U.S. at 51. A statement is testimonial 21 only when its primary purpose is the development of evidence to support a prosecution. Hammon 22 v. Indiana, 547 U.S. at 822; Michigan v. Bryant, 562 U.S. at 358. 23 24 C. The State Court’s Ruling Petitioner raised the Breed hearsay issue on appeal, as part of his general challenge to 25 motive evidence. Lodged Doc. 7 at 20. Because the California Supreme Court denied the 26 petition for review without comment, this court looks through to the California Court of Appeal’s 27 reasoned opinion. As noted previously, the intermediate appellate court rejected petitioner’s due 28 process challenge to hearsay and motive evidence in broad terms: “Since there was no mistake in 20 1 allowing the prosecutor to pursue the motive theory, the defendant’s contention that the trial was 2 unfair and violated his due process rights is without merit.” Lodged Doc. 4 at 16-17. 3 The confrontation aspect of the claim was presented for the first time in petitioner’s state 4 habeas petition. Respondent contends that the California Supreme Court’s denial of the petition 5 on Dixon grounds creates a procedural bar to consideration of the claim here. For the same 6 reasons previously explained in relation to Claim One, the court exercises discretion to bypass the 7 procedural default issue and proceed to the merits of the claim. 8 D. Objective Unreasonableness Under § 2254(d) 9 The state court did not unreasonably apply any clearly established federal law, and 10 petitioner’s claim fails even without recourse to AEDPA deference. Petitioner’s underlying 11 statements to Breed were not “testimonial statements” and therefore do not come within the scope 12 of the confrontation clause as identified by the Supreme Court. See Michigan v. Bryant, 562 U.S. 13 at 358; Delgadillo, 527 F.3d at 927. Breed’s out-of-court statement to Officer Hutto was 14 testimonial, but petitioner had the opportunity to cross-examine both Breed and Officer Hutto 15 about the statement and its circumstances. Accordingly, petitioner was not denied his Sixth 16 Amendment right to confront witnesses. See California v. Green, 399 U.S. at 158 (no 17 confrontation clause violation where declarant testifies and is subject to cross-examination). 18 Moreover, because the evidence of Breed’s statement was subject to adversarial testing, 19 petitioner was not denied a fundamentally fair trial. See Perry v. New Hampshire, 132 S.Ct. at 20 728 (because the reliability of evidence is generally a question for the jury, admission of 21 potentially unreliable evidence subject to adversarial testing does not violate due process). 22 Finally, for the same reasons that petitioner’s due process challenge to the Samuels’ hearsay fails, 23 his due process challenge to Officer Hutto’s testimony fails under any standard of review. 24 25 26 27 For all these reasons, petitioner is not entitled to relief on Claim Three. IV. Claim Four: Admission of Residential Shooting Evidence A. Petitioner’s Allegations and Pertinent State Court Record Petitioner alleges as follows: 28 21 1 The trial court erroneously allowed irrelevant and overly prejudicial evidence of a shooting of the petitioner’s mother’s home and her neighbor as motive evidence to the homicide petitioner was illegally convicted of. This evidence was used as part of the unsupported motive theory the prosecution presented during trial. The prosecution speculated that the petitioner suspected the decedent was the person responsible for the shooting so the petitioner murdered the decedent in retaliation. This theory was wholly unsupported by any credible evidence and was another weak link in the prosecution’s used to bolster her case [sic] which ultimately led to the petitioner’s unjust conviction. Had this unsupported and overly prejudicial evidence been properly disregarded and not allowed to taint the jury’s decision, the petitioner would have received a more favorable result. 2 3 4 5 6 7 8 9 ECF No. 1 at 10. The trial court record reveals that police community services officer Maureen Hopson 10 11 testified regarding the October 5, 2007 shooting of the home of Pamela Boyce, petitioner’s 12 mother. Officer Hopson responded on the morning of October 6 to follow up on a report of a 13 shooting the night before. She observed bullet-holes in the walls of the house, the car parked in 14 the driveway, and the house next door. The prosecution also introduced evidence that petitioner 15 had given the Boyce address as his address when he was booked after arrest. The prosecutor was 16 permitted to argue that the sequence of events – petitioner’s robbery of Pigg, closely followed by 17 the shooting of a residence associated with petitioner, after which petitioner stated that he had a 18 serious problem with Pigg – supported an inference that petitioner believed Pigg was responsible 19 for the shooting of the house. This inference was an integral part of the prosecution’s motive 20 theory. 21 22 B. The Clearly Established Federal Law The admission of evidence is generally a matter of state law, and habeas relief does not lie 23 for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). The erroneous admission of 24 evidence violates due process, and supports habeas relief, only when it results in the denial of a 25 fundamentally fair trial. Id. at 72. The Supreme Court has rejected the argument that due process 26 necessarily requires the exclusion of prejudicial evidence. Spencer v. Texas, 385 U.S. at 563- 27 564. Due process does not generally require the exclusion of evidence subject to challenge for 28 22 1 unreliability, which is traditionally a question for the jury. Perry v. New Hampshire, 132 S.Ct. at 2 728. 3 4 C. The State Court’s Ruling Petitioner’s due process challenge to admission of the residential shooting evidence was 5 presented on appeal as part of his overall due process challenge to the prosecution’s motive 6 evidence. That argument was rejected as follows: “Since there was no mistake in allowing the 7 prosecutor to pursue the motive theory, the defendant’s contention that the trial was unfair and 8 violated his due process rights is without merit.” Lodged Doc. 4 at 16-17. 9 D. Objective Unreasonableness Under § 2254(d) 10 The state court’s rejection of this claim did not unreasonably apply clearly established 11 federal law. The U.S. Supreme Court has never held that the admission of motive evidence in 12 particular, or prejudicial evidence in general, violates due process. Accordingly, the AEDPA 13 precludes relief in this court. See Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per 14 curiam) (where no Supreme Court precedent controls the issue raised by a habeas petitioner in 15 state court, the state court’s decision cannot be contrary to, or an unreasonable application of, 16 clearly established federal law); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 17 2009) (denying relief under § 2254(d), for lack of clearly established federal law, on claim that 18 prejudicial evidence denied due process); Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) 19 (denying relief under § 2254(d), for lack of clearly established federal law, on claim that 20 propensity evidence denied due process), cert. denied, 549 U.S. 1287 (2007). 21 Short of a due process violation under clearly established federal law, the propriety of 22 motive evidence is a state law question which is not subject to review here. Because no clearly 23 established due process precedent forbids the evidence at issue here, § 2254(d) bars relief. 24 CONCLUSION 25 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not 26 objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Even without reference to 27 AEDPA standards, petitioner has not established any violation of his constitutional rights. 28 23 1 Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be 2 denied. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(l). Within twenty-one days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 8 he shall also address whether a certificate of appealability should issue and, if so, why and as to 9 which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed 10 within fourteen days after service of the objections. The parties are advised that failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: June 30, 2015 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24
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