Willis v. Sisto, No. 3:2007cv06003 - Document 15 (N.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus. Signed by Judge Thelton E. Henderson on 07/09/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 7/10/2009)
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Willis v. Sisto Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 No. C 07-6003 TEH (PR) BEASLEY WILLS, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. D.K. SISTO, Warden, Respondent. 16 / 17 18 Pro se Petitioner Beasley Wills seeks a writ of habeas 19 corpus under 28 U.S.C. section 2254, which, for the reasons that 20 follow, the Court denies. 21 22 23 I On April 28, 2005, an information filed in Alameda County 24 superior court charged Petitioner with two counts of second degree 25 robbery in violation of California Penal Code section 211 and 26 possession of a firearm by a felon in violation of California Penal 27 Code section 12021(a)(1). 28 allegation that Petitioner had personally used a firearm in Attached to the robbery charge was an Dockets.Justia.com 1 violation of California Penal Code sections 12022.5(a)(1) and 2 12022.53(b). 3 suffered three prior felony convictions. 4 70. 5 Doc. #10-2, Ex. 1 at 67- On August 15, 2005, a jury found Petitioner guilty on all 6 counts and found true the firearm allegation. 7 172-74. 8 9 United States District Court For the Northern District of California The information also alleged that Petitioner had Doc. #10-2, Ex. 1 at On October 13, 2005, the trial court sentenced Petitioner to thirteen years in prison, consisting of three years for each 10 robbery, to be served concurrently, and ten years for the firearm 11 enhancement. 12 prison for possession of a firearm by a felon, to be served 13 concurrently. 14 15 Doc. #10-2, Ex. 1 at 175-77. On March 20, 2007, the California court of appeal affirmed the judgment. 16 17 The court also sentenced Petitioner to two years in Doc. #10-2, Ex. 6 (Ex. A). On June 20, 2007, the Supreme Court of California denied review. 18 Doc. #10-2, Ex. 7. On November 28, 2007, Petitioner filed the instant federal 19 Petition for Writ of Habeas Corpus under 28 U.S.C. section 2254. 20 Doc. #1. 21 stated cognizable claims for relief and ordered Respondent to show 22 cause why a writ of habeas corpus should not be granted. 23 Respondent has filed an Answer and Petitioner has filed a Traverse. 24 Doc. ## 10, 13. On March 27, 2008, this Court found that the Petition Doc. #6. 25 26 27 28 II The California court of appeal summarized the factual background of the case as follows: 2 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 At around 7:50 p.m. on February 3, 2005, an armed robber entered the Beacon gas station at Foothill and Havenscourt Boulevards in East Oakland. Two employees of the gas station, Vijay Behl and Lucio Garcia, were on duty at the time. Garcia was behind the cash register, Behl was standing on the customer side of the counter speaking on his cell phone. No other customers or employees were present. The robber approached the counter and drew a large revolver from his waistband. He aimed the revolver at Behl’s chest, threatened to kill him, and demanded money. Garcia produced some money from the cash register and placed it on the counter. The robber repeated his demand for money and continued throughout to threaten Behl. Garcia removed the cash tray from the register and placed it on the counter. The robber filled his pockets with all the cash from the tray, backed out of the gas station and fled. The gas station lost $400-$500 in the robbery. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After the robber left, Garcia and Behl summoned Oakland Police by activating the gas station’s security alarm. Behl also described the robbery and the suspect to a 911 operator. Four security cameras recorded the crime but the poor quality of the tape precluded any meaningful depiction of the perpetrator. The robber also concealed himself from the cameras by his clothing and by walking backwards out of the gas station. On March 3, 2005, appellant’s step-brother, Eric Delk, told police appellant robbed the Beacon gas station on February 3. Delk was in custody on vehicle theft charges at the time, and appellant was also in custody on an unrelated charge. The investigating officers arranged an identification lineup to corroborate Delk’s information with the two eyewitnesses. Behl and Garcia attended a lineup on March 9, at the Oakland police station. The lineup included appellant and five “fillers” chosen by appellant from fellow inmates in accordance with standard lineup procedures. At the lineup appellant and the fillers each donned a black knit beanie, stepped forward and said: “Give me the money.” After the lineup, Behl unequivocally identified appellant as the robber. Garcia tentatively identified appellant, but indicated his uncertainty by marking his lineup card with a question mark. On March 25, 2005, police 3 1 formally charged appellant with robbing the Beacon gas station. 2 3 Doc. #10-2, Ex. 6 (Ex. A) at 1-2. 4 5 United States District Court For the Northern District of California 6 III Under the Antiterrorism and Effective Death Penalty Act of 7 1996 (“AEDPA”), a federal court may not grant a writ of habeas 8 corpus on any claim adjudicated on the merits in state court unless 9 the adjudication: “(1) resulted in a decision that was contrary to, 10 or involved an unreasonable application of, clearly established 11 Federal law, as determined by the Supreme Court of the United 12 States; or (2) resulted in a decision that was based on an 13 unreasonable determination of the facts in light of the evidence 14 presented in the State court proceeding.” 28 U.S.C. § 2254(d). 15 “Contrary to” requires a finding that the state court’s 16 conclusion of law is opposite Supreme Court precedent or that the 17 state court’s decision differs from Supreme Court precedent on a set 18 of materially indistinguishable facts. 19 362, 412-13 (2000). 20 law if it identifies the correct governing legal principle from 21 Supreme Court precedent, “but unreasonably applies that principle to 22 the facts of the prisoner’s case.” 23 court making the “unreasonable application” inquiry should ask 24 whether the state court’s application of clearly established federal 25 law was “objectively unreasonable.” 26 Williams v. Taylor, 529 U.S. A state court “unreasonably appli[es]” federal Id. at 413. A federal habeas Id. at 409. The only definitive source of clearly established federal 27 law under 28 U.S.C. section 2254(d) is in the holdings, as opposed 28 to the dicta, of the Supreme Court as of the time of the state court 4 1 decision. 2 1062, 1069 (9th Cir. 2003), cert. denied, 540 U.S. 968 (2003). 3 While circuit law may be “persuasive authority” for purposes of 4 determining whether a state court decision is an unreasonable 5 application of Supreme Court precedent, only the Supreme Court’s 6 holdings are binding on the state courts and only those holdings 7 need be “reasonably” applied. 8 United States District Court For the Northern District of California 9 Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d Clark, 331 F.3d at 1069. Finally, AEDPA requires a district court to presume correct any determination of a factual issue made by a state court 10 unless the petitioner rebuts the presumption of correctness by clear 11 and convincing evidence. 28 U.S.C. § 2254(e)(1). 12 13 14 IV Petitioner seeks habeas relief under 28 U.S.C. section 15 2254 based on four claims: 16 trial by the trial court’s exclusion of his expert witness evidence 17 on the unreliability of eyewitness testimony; (2) he was denied his 18 right to a fair trial by the trial court’s admission of opinion 19 testimony regarding the propensity of drug users to commit 20 robberies; (3) he was denied his Sixth Amendment right to effective 21 assistance of counsel due to defense counsel’s failure to object to 22 the admission of such propensity evidence; (4) the cumulative impact 23 of the errors in the case mandates reversal. (1) he was denied his right to a fair 24 25 26 A Petitioner claims the trial court erred by excluding 27 defense expert witness evidence on the unreliability of eyewitness 28 testimony because this exclusion impaired his right to “present a 5 1 complete defense.” 2 (1984). 3 Sixth Amendment rights to confront the witnesses against him and to 4 have compulsory process for obtaining witnesses in his favor, and of 5 his Fourteenth Amendment right to due process. California v. Trombetta, 467 U.S. 479, 485 Specifically, Petitioner claims he was deprived of his 6 7 8 9 United States District Court For the Northern District of California 10 11 1 The California court of appeal provided the following background for this particular claim: [Vijay Behl and Lucio Garcia were the attendants working at the Beacon station on the night of the robbery; Behl called 911 to report the crime.] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Behl told the 911 operator the robber had a dark complexion, a mustache and beard, was aged between 40 and 45, and wore jeans, a blue jacket with a hood and a black beanie hat. Behl also told the 911 operator he recognized the robber as a regular customer. Behl later gave the same description to police at the scene of the robbery. He went on to positively identify appellant as the robber at the police lineup; the preliminary hearing; and at trial; adding that appellant had bought beer at the gas station on the very afternoon of the robbery. In each case, Behl’s identification was unhesitant and unequivocal. On cross-examination, however, Behl stated he had not mentioned either appellant’s facial scar or missing bottom teeth in his prior statements. In his statement to police, Garcia described the robber as an African-American male, aged 40 to 45 years old, who was unshaven, had a dark complexion, stood between six feet and six feet two and weighed approximately 200 pounds. Garcia stated the robber wore blue jeans, a dark jacket and dark beanie. Garcia positively identified appellant as the robber at the preliminary hearing and trial. He testified he had indeed recognized appellant as the robber at the lineup, but hesitated to identify him out of fear of retribution and of having to testify. Garcia also testified that, upon reflection, he too remembered appellant as a regular customer 6 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 of the gas station. Like Behl, Garcia mentioned neither a facial scar nor missing teeth in any of his descriptions of appellant. [At trial,] [t]he prosecution called Eric Delk as its first corroboration witness. Delk, however, recanted his earlier statements to police and prosecutors about appellant being the robber. Delk testified he lied to police about appellant’s involvement in the robbery. He said he lied in order to get out of jail and because he was angry at appellant for sleeping with his (Delk’s) girlfriend. The prosecution impeached Delk with his prior inconsistent statements. The People also called John Paul Williams, a police officer with the district attorney’s office, and Allen Boyd, a security deputy at the Wiley Manuel Courthouse in Oakland. Williams testified to the statement he took from Delk, incriminating appellant. Boyd testified he overheard Delk’s statement to Williams from his post outside the interview room. Both witnesses related essentially the same statement from Delk. Both witnesses also affirmed neither the district attorney nor Williams made Delk an offer of leniency or any other incentive in exchange for his statement. 15 16 17 18 19 20 21 22 23 24 25 26 27 The People also listed Sherrill Charles as a corroboration witness. Charles and appellant had a romantic relationship and lived together. The prosecution expected Charles to testify as follows: she had seen appellant with a handgun similar to the one used in the gas station robbery, he lived within walking distance of the gas station, he smoked crack cocaine, and he had money for household expenses despite his unemployment. The district attorney subpoenaed Charles, but she failed to appear at trial. The court subsequently issued a bench warrant for her. Appellant asserted an alibi defense. Appellant’s longtime friend, Manfred “Dion” Jones, testified he and appellant purchased a car together on February 3, 2005 - the night of the robbery. No paperwork accompanied the sale of the car. On cross-examination Jones admitted he was uncertain about the exact date of the transaction. Appellant also testified he and Jones met with appellant’s nephew to purchase a car on February 3. 28 7 1 7 CALJIC No. 2.92 was included in the jury instructions at the request of both parties. The court thereby instructed jurors to consider eyewitness testimony in light of a number of factors bearing on its accuracy, including opportunity to observe; the effects of stress; ability to describe; the cross-racial nature of identification; capacity to identify; whether identification was made in a photo or physical lineup; and any prior contacts with the alleged perpetrator. Both the prosecution and defense addressed the factors of CALJIC No. 2.92 in detail during closing arguments. 8 . . . . 9 Before the trial the People moved to exclude the testimony of defense witness Dr. Robert Shomer under Evidence Code section 352. Dr. Shomer is an expert in eyewitness identification. In their offer of proof, the defense stated Dr. Shomer would testify to the potential unreliability of eyewitness identifications. Specifically, he would address the impact of emotional stress on eyewitness perception and recollection, as well as problems with interracial identifications. 2 3 4 5 6 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court granted the People’s motion to exclude Dr. Shomer’s testimony. The court ruled as follows: “Well, I have reviewed People versus McDonald, which is the Seminole [sic] case, and I do find that there is much more evidence bearing on the identification in this case than was true in McDonald. . . . [¶] In this case, there is both the factors of the positive identification at least by one individual, and there is corroborating evidence of whatever weight from both Mr. Delk and the other individual, [appellant’s girlfriend, Sherrill Charles] . . . describing a firearm. Therefore, it is my ruling that giving effect to the provisions of Evidence Code [section] 352, that there is no need for expert testimony in this particular case. Given that, the jury can be adequately instructed about it, and it will be their ultimate decision and effective argument can be made to the weight of the corroborating evidence.” Trial began on August 8, 2005. After Behl and Garcia testified, defense counsel moved for reconsideration of the court’s earlier ruling excluding Dr. Shomer’s testimony. Counsel emphasized appellant’s alibi defense, as well as 8 1 possible deficiencies in the corroboration testimony of Delk and Charles. The trial court again concluded expert testimony was not required because “there is . . . substantial corroboration of the [eyewitness] evidence giving it independent reliability.” 2 3 4 5 Doc. #10-2, Ex. 6 (Ex. A) at 3-6. 6 The court of appeal found that the trial court’s exclusion 7 of petitioner’s proposed evidence was not error. 8 (Ex. A) at 9. 9 The court reasoned: In contrast to the contradictory and uncertain testimony from multiple eyewitnesses seen in McDonald, the eyewitness testimony from the two victims here was focused, consistent and assured. Both witnesses observed the robber in close proximity and in a well-lit environment. Both observed their assailant for at least 30 seconds. Both positively identified appellant at the police line up, the preliminary hearing and at trial. The only flaws in any of the six identifications were Garcia’s hesitancy at the lineup (which he later explained) and both witnesses’ failure to describe certain minor, distinguishing features (primarily appellant’s missing bottom teeth). 10 United States District Court For the Northern District of California Doc. #10-2, Ex. 6 11 12 13 14 15 16 17 Moreover, in McDonald the reliability of the eyewitness identification was undermined by a very strong alibi defense. By comparison, appellant’s alibi defense was weak. Appellant testified he had been buying a car on the night of the robbery. The only corroboration for his alibi was the testimony of Dion Jones, a lifelong friend. On cross-examination Jones admitted his uncertainty about the exact date of the car purchase. Appellant did not produce any documentary or physical evidence to support his alibi. None of the other individuals either involved in the sale, or with whom appellant claimed he interacted that night appeared to testify.[1] 18 19 20 21 22 23 24 25 Furthermore, the eyewitness identification here was “substantially corroborated by evidence giving it independent reliability.” (McDonald, 26 27 1 28 Appellant admitted his alibi was false at the sentencing hearing. 9 1 supra, 37 Cal.3d at p. 377.) Eric Delk approached police and incriminated appellant independently of their investigation - appellant was not considered a suspect at the time. Delk’s information included appellant’s boast about robbing the Beacon gas station and a description of appellant’s gun which matched the eyewitnesses’ descriptions. 2 3 4 5 The proposed testimony of Charles would also have corroborated the eyewitness accounts. The People expected her, like Delk, to give a similar description of the revolver and also to testify she and appellant lived two blocks from the gas station. The close proximity of appellant’s residence supported Garcia’s statement the robber fled on foot.[2] 6 7 8 9 United States District Court For the Northern District of California 10 Doc. #10-2, Ex. 6 (Ex. A) at 7-8. 11 The court of appeal also held that even if the trial 12 court’s exclusion of Petitioner’s proposed evidence was error, it 13 was harmless. 14 law, reversal is warranted only if it is “reasonably probable that a 15 result more favorable to the appealing party would have been reached 16 in the absence of the error.” 17 (1956). 18 emphasized the problems of eyewitness testimony in her closing 19 argument and attempted to impeach the eyewitnesses on cross- 20 examination. 21 concluded that “the exclusion of Dr. Shomer’s testimony did not 22 preclude appellant from arguing mistaken identity.” Doc. #10-2, Ex. 6 (Ex. A) at 9. Under California People v. Watson, 46 Cal.2d 818, 836 The court of appeal observed that defense counsel Doc. #10-2, Ex. 6 (Ex. A) at 9. The court of appeal Id. 23 24 25 26 27 28 2 Despite Delk’s recantation at trial, his statements to police were, in turn, corroborated by the testimony of Inspector Williams and Deputy Boyd. Nor is the trial court’s ruling regarding corroboration affected by Charles’ failure to appear. (See People v. Welch (1999) 20 Cal.4th 701, 739. [“We review the correctness of the trial court’s ruling at the time it was made ... and not by reference to [the state of the] evidence ... at a later date”].) 10 1 2 United States District Court For the Northern District of California 2 “[S]tate and federal rulemakers have broad latitude under 3 the Constitution to establish rules excluding evidence from criminal 4 trials.” 5 latitude is limited by a defendant’s right under the Sixth and 6 Fourteenth Amendments to “present a complete defense.” 7 South Carolina, 547 U.S. 319, 324 (2006) (quoting Trombetta, 467 8 U.S. at 485). 9 infringe upon a weighty interest of the accused and are arbitrary or United States v. Scheffer, 523 U.S. 303, 308 (1998). This Holmes v. “This right is abridged by evidence rules that 10 disproportionate to the purposes they are designed to serve.” 11 (quotations and citation omitted). 12 process does not give a defendant an absolute right to present any 13 and all relevant evidence. 14 (1996). 15 evidence that is repetitive . . ., only marginally relevant or poses 16 an undue risk of harassment, prejudice, [or] confusion of the 17 issues.” 18 and citation omitted). 19 Id. Further, the right to due Montana v. Egelhoff, 518 U.S. 37, 42 Rather, under the Constitution, judges may “exclude Crane v. Kentucky, 476 U.S. 683, 689-90 (1986) (quotations Failure to comply with state rules of evidence is neither 20 a necessary nor a sufficient basis for granting federal habeas 21 relief on due process grounds. 22 (9th Cir. 1999). 23 evidentiary error, a petitioner must show that the error “violated 24 fundamental due process and the right to a fair trial.” 25 petitioner also must demonstrate that the error “had substantial and 26 injurious effect or influence in determining the jury’s verdict.” 27 Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). 28 determines under an appropriate standard of review that the error Henry v. Kernan, 197 F.3d 1021, 1031 To obtain habeas relief on the basis of an 11 Id. The If a state court 1 was harmless, the federal court must accept this determination 2 unless it is objectively unreasonable. 3 872, 878 (9th Cir. 2004). Medina v. Hornung, 386 F.3d 4 5 3 United States District Court For the Northern District of California 6 Here, even though the trial court excluded the evidence 7 Petitioner sought to introduce to challenge the eyewitness 8 testimony, the exclusion of this evidence did not amount to a denial 9 of Petitioner’s right under the Sixth and Fourteenth Amendments to 10 present a defense. 11 Petitioner was precluded from presenting testimony from Dr. Shomer 12 regarding the reliability of eyewitness identifications, he 13 nonetheless was able to challenge and test the testimony of the 14 eyewitnesses who identified him as the robber. 15 See Scheffer, 523 U.S. at 308. Although First, his counsel was allowed to fully cross-examine the 16 eyewitnesses for the purpose of impeaching their testimony. 17 Doc. #10-2, Ex. 2, Vol. 1 at 70-100, 104-05, 108-09 [cross- 18 examination of gas station attendant Vijay Behl]; Doc. #10-2, Ex. 19 2., Vol. 1 at 146-56; Doc. #10-2, Ex. 2., Vol. 2 at 171-78, 183-85 20 [cross-examination of gas station attendant Lucio Garcia]. 21 Petitioner presented an alibi defense indicating he was in another 22 place at the time of the robbery, and therefore the eyewitnesses who 23 identified him were simply mistaken. 24 at 322-33. 25 which advises them to consider the following factors in determining 26 the accuracy of eyewitness identifications: 27 28 See Second, See Doc. #10-2. Ex. 2, Vol. 2 Third, the jurors were instructed with CALJIC No. 2.92, The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; 12 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 The stress, if any, to which the witness was subjected at the time of the observation; The witness’ ability, following the observation, to provide a description of the perpetrator of the act; The extent to which the defendant either fits or does not fit the description of the perpetrator of the act; The witness’ capacity to make an identification; Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act; Whether the witness was able to identify the alleged perpetrator in a photographic or physical line-up; The period of time between the alleged criminal act and the witness’ identification; Whether the witness had prior contacts with the alleged perpetrator; The extent to which the witness is either certain or uncertain of the identification; Whether the witness’ identification is in fact the product of her own recollection; and Any other evidence relating to the witness’ ability to make an identification. 14 15 16 Doc. #10-2, Ex. 1 at 128-29. Finally, in her closing argument, Petitioner’s counsel 17 reinforced the defense theory of mistaken identity due to the 18 unreliability of eyewitness testimony. 19 the various factors that could have caused the eyewitnesses to make 20 a mistaken identification, including stress and the cross-racial 21 nature of the identification. 22 Although Dr. Shomer’s testimony would have demonstrated that these 23 particular factors, among others, produce less reliable eyewitness 24 identifications, Doc. #10-2, Ex. 2, Vol. 1 at 18-19 & 158-60, the 25 trial court found that under the circumstances, the jurors were able 26 to determine the reliability of the eyewitness identifications based 27 on the trial testimony and the jury instructions, and therefore the 28 expert testimony was unnecessary. She spoke at length about Doc. #10-2, Ex. 2, Vol. 2 at 443-64. Doc. #10-2, Ex.2, Vol. 1 at 22-23 13 1 & 162-63. 2 court’s decision upholding the trial court’s exclusion of 3 petitioner’s proposed evidence was contrary to, or involved an 4 unreasonable application of, clearly established federal law. 5 28 USC § 2254(d). United States District Court For the Northern District of California 6 On this record, the Court cannot say the state appellate See Even if the exclusion of this evidence was error, the 7 California court of appeal found that it was harmless. 8 Ex. 6 (Ex. A) at 10. 9 say that the state appellate court’s determination of harmless error For the reason that follow, the Court cannot 10 was objectively unreasonable. 11 28 U.S.C. § 2254(d)). 12 Doc. #10-2, See Medina, 386 F.3d at 878 (applying As described earlier, Petitioner was able to fully argue 13 the theory of mistaken identity without Dr. Shomer’s testimony. 14 Petitioner nonetheless claims the exclusion of Dr. Shomer’s 15 testimony left him completely unable to counter the prosecutor’s 16 inaccurate and prejudicial statements concerning the accuracy of 17 eyewitness testimony. 18 shows that in addition to hearing counsel’s theory of mistaken 19 identity, the jurors heard through instruction the limitations of 20 eyewitness testimony. 21 1 at 128-29. 22 heard essentially the same arguments [that Dr. Shomer would have 23 presented] and still took under 45 minutes to return a guilty 24 verdict.” 25 this Court cannot say that the state appellate court’s determination 26 of harmless error was objectively unreasonable. 27 F.3d at 878 (applying 28 U.S.C. § 2254(d)). But this claim is unconvincing. The record Doc. #10-2, Ex. 2 at 443-64; Doc. #10-2, Ex. As the California court of appeal noted, “[t]he jury Doc. #10-2, Ex. 6 (Ex. A) at 9. 28 14 Based on these facts, See Medina, 386 1 2 B Petitioner next claims he was denied his right to a fair 3 trial because the trial court admitted improper opinion testimony 4 regarding the propensity of drug users to commit robberies. 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 1 The California court of appeal provided the following background for this particular claim: The prosecutor asked Officer Jadallah about his interview with appellant after appellant had been identified as the robber at the physical lineup. At one point the following exchange took place: “[Prosecutor]: Now, did you talk to [appellant] about his drug use? 13 “[Jadallah]: Yes. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[Prosecutor]: use? “[Jadallah]: cocaine. What did he say about his drug He said that he smokes crack “[Prosecutor]: Did he say he smoked as in past tense, or did he say currently smoked crack cocaine? “[Jadallah]: In-it was current. “[Prosecutor]: Did you ask him about any other drug or alcohol use? “[Jadallah]: He indicated that he drinks beer, but no hard alcohol. “[Prosecutor]: The fact that [appellant] admitted to currently smoking crack cocaine, did it have any significance to you? “[Jadallah]: “[Prosecutor]: Yes, it did. What was that? “[Jadallah]: Typically, people with drug habits commit robberies to support their habit. 15 1 “[Defense counsel]: 2 “THE COURT: You can lay a foundation for him stating the opinion, if you wish. Objection. Speculation. 3 4 “[Prosecutor]: Thank you. [¶] You were part of the robbery team, is that right, for the Oakland Police Department? 5 “[Jadallah]: Yes. United States District Court For the Northern District of California 6 7 “[Prosecutor]: robberies? 8 “[Jadallah]: 9 “[Prosecutor]: And you’ve been investigating Yes. For how long? 10 “[Jadallah]: 11 12 “[Prosecutor]: You said the area that you are investigating the robberies in includes a portion of East Oakland; is that right? 13 “[Jadallah]: 14 “[Prosecutor]: And how many robberies would you say that you have investigated? A little over four years. Yes. 15 16 “[Jadallah]: Hundreds. 18 “[Prosecutor]: And in investigating these hundreds-or-so robberies, have you made a connection between drug use, and the people that have committed the robberies? 19 “[Jadallah]: 20 “[Prosecution]: 21 “[Jadallah]: 22 “[Prosecutor]: time? 17 23 24 25 26 27 28 Yes. That they have drug habits. Is that oftentimes or all the “[Jadallah]: Often. “[Prosecutor]: “[Jadallah]: And what is that connection? Not necessarily all the time? That’s correct. “[Prosecutor]: Did the fact that Mr. Wills admitted to smoking crack cocaine have any significance to you in relation to the information you learned from Eric Delk? 16 1 “[Jadallah]: It was significant because it corroborated what Eric Delk had told officers.” 2 3 Doc. #10-2, Ex. 6 (Ex. A) at 10-11. United States District Court For the Northern District of California 4 The court of appeal found that this testimony “went beyond 5 the permissible scope of lay opinion” and therefore its admission 6 was error. 7 Code section 800 allows opinion testimony by lay witnesses when 8 rationally based on the perception of the witness and helpful to a 9 clear understanding of his or her testimony,” the court held that 10 the opinions expressed by Officer Jadallah had no relation to the 11 subject of his legitimate testimony. 12 could have attempted to admit Officer Jadallah’s observations on the 13 criminal propensity of drug users as expert opinion, but it did not 14 attempt to do so. 15 error. Doc. #10-2, Ex. 6 (Ex. A) at 12-13. Id. at 12-13. Id. at 12. Although “Evidence The prosecution Its admission, therefore, was Id. 16 The court of appeal also determined, however, that the 17 error in admitting the testimony was harmless because it is not 18 “reasonably probable that a result more favorable to [Petitioner] 19 would have been reached in the absence of the error.” 20 Ex. 6 (Ex. A) at 13 (quoting Watson, 46 Cal.2d at 836). 21 reasoned: 22 23 24 25 26 27 28 Doc. #10-2, The court The two victims positively and confidently identified appellant as the robber and their testimony was corroborated by the statements of appellant’s step-brother, Eric Delk. The swiftness of the jury’s verdict [after 45 minutes of deliberation] again suggests little deliberation was required to convict. Consequently, we cannot say exclusion of the testimony would have been likely to render a different verdict. Doc. #10-2, Ex. 6 (Ex. A) at 13 (footnote omitted). 17 1 The court of appeal refused to consider Petitioner’s claim 2 that Officer Jadallah’s testimony also constituted “unduly 3 prejudicial and/or improper propensity evidence under Evidence Code 4 section 1101” because defense counsel had failed to raise this 5 objection at trial and therefore waived it on appeal. 6 Ex. 6 (Ex. A) at 13 n.5. Doc. #10-2, 7 United States District Court For the Northern District of California 8 2 9 The United States Supreme Court has expressly left open 10 the question of whether admission of propensity evidence violates 11 due process. 12 Therefore, the admission of propensity evidence does not violate any 13 due process right under clearly established federal law, as required 14 by AEDPA. 15 2006), cert. denied, 549 U.S. 1287 (2007). Additionally, admission 16 of such evidence is not “an unreasonable application of due process 17 principles.” 18 cert. denied, __ U.S. __, 129 S.Ct. 941, 173 L.Ed.2d 141 (2009). 19 Because the admission of the evidence in question was not contrary 20 to clearly established federal law, it cannot serve as the basis for 21 habeas relief. 22 Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), See Alberni, 458 F.3d at 866-67. And even if the admission of the propensity evidence at 23 issue was constitutional error, the California court of appeal found 24 that it was harmless. 25 reason that follow, the Court cannot say that the state appellate 26 court’s determination of harmless error was objectively 27 unreasonable. 28 2254(d)). Doc. #10-2, Ex. 6 (Ex. A) at 13. For the See Medina, 386 F.3d at 878 (applying 28 U.S.C. § 18 United States District Court For the Northern District of California 1 Here, Petitioner’s guilty verdict is supported by a wealth 2 of evidence. 3 repeatedly identified Petitioner as the robber, and Petitioner’s 4 step-brother spontaneously informed the police that Petitioner 5 admitted robbing the gas station attendants to him. 6 6 (Ex. A) at 4-5. 7 from the gas station and had been seen with a handgun similar to the 8 one used in the robbery. 9 primarily based on an alibi, supported only by his own testimony and As the court of appeal noted, two eyewitnesses Doc. #10-2, Ex. Additionally, Petitioner lived one block away Id. Further, Petitioner’s defense was 10 that of his lifelong friend. 11 evidence against Petitioner and that the jury took only forty-five 12 minutes to return a verdict of guilty on all counts, this Court 13 cannot say that the state appellate court’s determination of 14 harmless error with respect to the admission of propensity evidence 15 was objectively unreasonable. 16 28 U.S.C. § 2254(d)). Id. at 5-6. Given the weight of the See Medina, 386 F.3d at 878 (applying 17 18 C 19 Petitioner next claims that he was denied his Sixth 20 Amendment right to effective assistance of counsel because trial 21 counsel failed to object to Officer Jadallah’s testimony on the 22 grounds that it was improper propensity evidence. 23 24 1 25 The California court of appeal rejected Petitioner’s claim 26 that trial counsel’s failure to object on propensity grounds 27 constituted ineffective assistance. 28 n.5. The court explained: Doc. #10-2, Ex. 6 (Ex. A) at 13 “Whether or not the evidence was 19 1 admissible as propensity evidence, no prejudice can be ascribed to 2 the failure to object. . . . [A]ppellant fails to demonstrate a 3 reasonable probability that Officer Jadallah’s opinion testimony 4 affected the verdict.” Id. 5 6 United States District Court For the Northern District of California 7 2 To prevail on a claim of ineffective assistance of counsel 8 claim, Petitioner must establish two things. 9 establish that counsel’s performance was deficient, i.e., that it First, he must 10 fell below an “objective standard of reasonableness” under 11 prevailing professional norms. 12 668, 687-88 (1984). 13 prejudiced by counsel’s deficient performance, i.e., that “there is 14 a reasonable probability that, but for counsel’s unprofessional 15 errors, the result of the proceeding would have been different.” 16 Id. at 694. 17 undermine confidence in the outcome. Strickland v. Washington, 466 U.S. Second, he must establish that he was A reasonable probability is a probability sufficient to Id. 18 “[A] court need not determine whether counsel’s 19 performance was deficient before examining the prejudice suffered by 20 the defendant as a result of the alleged deficiencies.” 21 466 U.S. at 697. 22 claim on the ground of lack of sufficient prejudice, which we expect 23 will often be so, that course should be followed.” Strickland, “If it is easier to dispose of an ineffectiveness Id. 24 25 26 3 The California court of appeal’s rejection of petitioner’s 27 ineffective assistance of counsel claim was not an objectively 28 unreasonable application of Strickland. 20 See 28 U.S.C. 2254(d). As 1 discussed earlier, the admission of Officer Jadallah’s testimony 2 regarding the propensity of drug users to commit robberies was not 3 prejudicial. 4 probability that had counsel objected to the admission of the 5 testimony as improper propensity evidence, “the result of the 6 proceeding would have been different.” 7 Petitioner is not entitled to federal habeas relief on his 8 ineffective assistance of counsel claim. It therefore cannot be said that there is a reasonable Strickland, 466 U.S. at 694. 9 United States District Court For the Northern District of California 10 D 11 Petitioner’s final claim is that the cumulative impact of 12 the errors in his trial was prejudicial and therefore mandates 13 reversal. 14 In some cases, although no single trial error is 15 sufficiently prejudicial to warrant reversal, the cumulative effect 16 of several errors may still prejudice a defendant so much that his 17 conviction must be overturned. 18 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple 19 constitutional errors hindered defendant’s efforts to challenge 20 every important element of proof offered by prosecution). 21 single constitutional error exists, however, nothing can accumulate 22 to the level of a constitutional violation. 23 Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); Fuller v. Roe, 182 F.3d 24 699, 704 (9th Cir. 1999); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 25 1996). See Alcala v. Woodford, 334 F.3d Where no See Mancuso v. 26 Because this Court has determined that there was no single 27 constitutional error, there can be no cumulative prejudicial impact. 28 See Mancuso, 292 F.3d at 957; Fuller, 182 F.3d at 704; Rupe, 93 F.3d 21 1 at 1445. 2 his cumulative prejudice claim. Petitioner is not entitled to federal habeas relief on 3 4 5 6 7 8 V For the foregoing reasons, the Petition for a writ of habeas corpus is DENIED. The Clerk shall enter Judgment in favor of Respondent and close the file. 9 United States District Court For the Northern District of California 10 IT IS SO ORDERED. 11 12 13 14 DATED: 07/09/09 THELTON E. HENDERSON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\TEH\HC.07\Wills-07-6003-petition denied.wpd 22
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