Bryant v. Felker, No. 4:2006cv00005 - Document 26 (N.D. Cal. 2011)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 1/24/2011. (ndr, COURT STAFF) (Filed on 1/24/2011)
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Bryant v. Felker Doc. 26 1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 v. T. FELKER, Warden, 10 United States District Court For the Northern District of California ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Petitioner, 8 9 No. C 06-0005 CW (PR) MARVIN BRYANT, Respondent. / 11 Petitioner Marvin Bryant is a prisoner of the State of 12 13 California, incarcerated at CSP-Solano. 14 Petitioner filed pro se a second amended petition1 for a writ of 15 habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity 16 of his 2002 state convictions. 17 Petitioner filed a traverse. 18 filed by the parties, the Court DENIES the petition for writ of 19 habeas corpus. 22 23 Respondent filed an answer and Having considered all of the papers BACKGROUND 20 21 On May 29, 2007, I. Procedural History In 2002, Petitioner waived his right to a jury trial and was convicted of attempted murder, residential robbery, assault with a 24 25 26 27 28 1 On January 3, 2006, Petitioner filed an original petition for writ of habeas corpus. On March 15, 2007, the Court stayed the petition in order to allow Petitioner to exhaust his claims. On April 23, 2007, Petitioner filed an amended petition and on May 29, 2007, Petitioner filed a second amended petition. On June 30, 2009, the Court lifted the stay, granted Petitioner leave to file the second amended petition, and directed Respondent to file a response showing cause why Petitioner’s second amended petition should not be granted. Dockets.Justia.com 1 firearm, and residential burglary. 2 2003, the trial court sentenced Petitioner to twenty-eight years. 3 (Second Amended Petition (SAP) at 2.) 4 the allegations of personal use of a firearm, intentional discharge 5 of a firearm, and infliction of great bodily injury. 6 (Resp. Memo. at 1.) On May 2, The trial court found true Petitioner timely appealed to the California Court of Appeal. 7 On September 20, 2004, the California Court of Appeal filed a 8 written opinion rejecting Petitioner’s claims. 9 Petitioner proceeded to the California Supreme Court, which denied (Resp. Ex. 9.) United States District Court For the Northern District of California 10 his petition in a one sentence order on December 1, 2004. (Resp. 11 Ex. 11.) 12 the California Court of Appeal and California Supreme Court. (Resp. 13 Exs. 12, 14, 16, 19-21.) 14 underlying second amended petition. 15 II. Petitioner filed unsuccessful state habeas petitions in Thereafter, Petitioner filed the Statement of Facts 16 The California Court of Appeal described the facts as follows: 17 In the spring of 2001 Denise Turner lived in the same Concord apartment complex as Pamela and Raman Khanna, and Turner sold Pamela Vicodin pills on a weekly basis. Sometimes Pamela paid for the Vicodin with $100 bills that she got from Raman. Raman kept $100 bills in a lockbox located in the Khannas's bedroom closet. 18 19 20 21 22 23 24 25 26 27 On May 7, 2001, Pamela hung up the telephone on Turner when Turner called asking for $40 that she claimed Pamela owed her for Vicodin. Minutes later Turner showed up at the Khannas's apartment and argued with Pamela, who asked her to leave. Raman gave Turner $40 and as she left, Pamela called her a “fucking black bitch.” Less than 10 minutes later, when Raman answered a knock at the door he saw two African American men on the landing outside his door, and a third African American man on the stairway. At trial Raman identified the 18-year-old defendant as one of the men on the landing. The other man on the landing, Turner's brother Nathan Westbrook, said to Raman, “You called my sister a black bitch,” and Pamela said, “No, I did.” After Westbrook threatened to break the door down, Raman went out 28 2 1 2 3 4 5 6 7 8 9 and apologized for the “misunderstanding” between Turner and Pamela. As the three men walked away, defendant said, “You're looking to get knocked off.” At approximately 2:30 a.m. on May 9, 2001, Pamela woke up Raman after hearing someone trying to break in the front door. Through the kitchen window Raman saw appellant prying the lock on the door. After several minutes, Raman unsuccessfully looked out the door's peephole, the door swung open hitting Raman, and he fell to the floor. Defendant entered, demanded Raman's money, asked where the “hundreds” and Raman's wife were. Defendant then shot Raman in the shoulder, grabbed his hair, and slashed his throat with a knife. Defendant then demanded that Raman crawl to the bedroom where he looked through drawers and the closet in which Pamela was hiding. About 10 minutes later, defendant left the apartment with Raman's lockbox and key, wallet and cell phone. Pamela called 911. United States District Court For the Northern District of California 10 11 12 13 14 15 While being transported to the hospital Raman told police about the argument between Turner and Pamela, that three men had come to the door and he was not sure he could identify his attacker. He did say his attacker wore black clothing and a black beanie. At about 7:00 a.m. following surgery, Raman gave a taped interview with police and described his attacker as the youngest of the three men who had come to his door. Two days later, while still in the hospital, Raman was shown a photo lineup and pointed to photo number 6, which was not defendant's photo, and said, “this guy looks the most like him.” 16 17 18 19 20 21 22 23 24 Thereafter defendant was interviewed by police and police obtained a current photograph of him to construct a new photo lineup. Several days later, after being discharged from the hospital, Raman identified defendant as his attacker in a second photo lineup which contained defendant's current photo. In the second photo, defendant was much lighter and in a different position than the photo of him which was included in the earlier photo lineup shown to Raman. The second photo lineup also contained five filler photos which were different from the five filler photos included in the earlier photo lineup. Raman identified defendant as his attacker from this second photo lineup and again at the preliminary hearing. A neighbor of the Khannas's told police that after hearing a “pop” he saw a Black man run from the stairwell leading to his and the Khannas's apartment. In August 2002 he picked defendant's picture from a photo lineup, said he recognized him from the night of the offense and that he looked familiar. 25 26 27 An investigation of the crime scene revealed that the screen to the Khannas's kitchen window had been removed, pry marks were on the screen and door frames and the peephole had been taped. Defendant's fingerprints were found on the exterior kitchen window. The knife which Raman said looked like the 28 3 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 one that had slashed him was recovered from a planter box on the other side of the apartment complex. Defendant, who lived at the apartment complex, was briefly detained by police about 30 minutes after the incident and about 200 yards from the Khannas's apartment. Defendant was released because his clothing did not match the dispatch description of Raman's attacker. Testifying on his own behalf, defendant admitted: vandalizing a car at age 14, an auto theft conviction at age 16, a 1997 arrest for possessing a “Ninja-rock,” used to break car windows, a 1998 arrest for stealing a video game, and a 1999 allegation of domestic violence by his girlfriend. Defendant said he was at Turner's apartment when she came home upset that Pamela had called her a “black bitch.” He admitted he went with Westbrook and two other men to Pamela's apartment to demand an apology. He said Westbrook, Raman and Pamela argued outside the Khannas's apartment. Defendant denied saying anything or threatening the Khannas. He also denied returning to the Khannas's apartment and having any involvement in the crimes committed. (Resp. Ex. 9 at 2-4.) 13 14 LEGAL STANDARD A federal court may entertain a habeas petition from a state 15 prisoner "only on the ground that he is in custody in violation of 16 the Constitution or laws or treaties of the United States." 17 28 U.S.C. § 2254(a). 18 Penalty Act of 1996 (AEDPA), a district court may not grant habeas 19 relief unless the state court's adjudication of the claim: 20 “(1) resulted in a decision that was contrary to, or involved an 21 unreasonable application of, clearly established Federal law, as 22 determined by the Supreme Court of the United States; or 23 (2) resulted in a decision that was based on an unreasonable 24 determination of the facts in light of the evidence presented in 25 the State court proceeding." 26 Taylor, 529 U.S. 362, 412 (2000). 27 questions of law and to mixed questions of law and fact, id. at Under the Antiterrorism and Effective Death 28 U.S.C. § 2254(d); Williams v. The first prong applies both to 28 4 1 407-09, and the second prong applies to decisions based on factual 2 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 3 A state court decision is "contrary to" Supreme Court 4 authority, that is, falls under the first clause of § 2254(d)(1), 5 only if "the state court arrives at a conclusion opposite to that 6 reached by [the Supreme] Court on a question of law or if the state 7 court decides a case differently than [the Supreme] Court has on a 8 set of materially indistinguishable facts." 9 412-13. Williams, 529 U.S. at A state court decision is an "unreasonable application of" United States District Court For the Northern District of California 10 Supreme Court authority, under the second clause of § 2254(d)(1), 11 if it correctly identifies the governing legal principle from the 12 Supreme Court's decisions but "unreasonably applies that principle 13 to the facts of the prisoner's case." 14 court on habeas review may not issue the writ "simply because that 15 court concludes in its independent judgment that the relevant 16 state-court decision applied clearly established federal law 17 erroneously or incorrectly." 18 must be "objectively unreasonable" to support granting the writ. 19 Id. at 409. 20 Id. at 413. Id. at 411. The federal Rather, the application "Factual determinations by state courts are presumed correct 21 absent clear and convincing evidence to the contrary." 22 537 U.S. at 340. 23 evidence to overcome the presumption of correctness under 24 § 2254(e)(1); conclusory assertions will not do. 25 only Supreme Court law is binding on the states, Ninth Circuit 26 precedent remains relevant persuasive authority in determining Miller-El, A petitioner must present clear and convincing 27 28 5 Id. Although 1 whether a state court decision is objectively unreasonable. 2 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 3 Clark If constitutional error is found, habeas relief is warranted 4 only if the error had a "'substantial and injurious effect or 5 influence in determining the jury's verdict.'" 6 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 7 619, 638 (1993)). 8 9 Penry v. Johnson, When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last United States District Court For the Northern District of California 10 reasoned opinion of the highest court to analyze whether the state 11 judgment was erroneous under the standard of § 2254(d). 12 Nunnemaker, 501 U.S. 797, 801-06 (1991). 13 review under AEDPA is somewhat different where the state court 14 gives no reasoned explanation of its decision on a petitioner's 15 federal claim and there is no reasoned lower court decision on the 16 claim. 17 deciding whether the state court's decision was objectively 18 reasonable. 19 (9th Cir. 2006); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 20 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002). 21 When confronted with such a decision, a federal court should 22 conduct “an independent review of the record” to determine whether 23 the state court’s decision was an objectively unreasonable 24 application of clearly established federal law. 25 F.3d at 1198; accord Lambert v. Blodgett, 393 F.3d 943, 970 n.16 26 (9th Cir. 2004). 27 state court decision under AEDPA: Ylst v. However, the standard of In such a case, a review of the record is the only means of See Plascencia v. Alameida, 467 F.3d 1190, 1197-98 Plascencia, 467 The federal court need not otherwise defer to the "A state court's decision on the 28 6 1 merits concerning a question of law is, and should be, afforded 2 respect. 3 there is nothing to which to defer." If there is no such decision on the merits, however, 4 Greene, 288 F.3d at 1089. DISCUSSION 5 Petitioner raises four claims in his federal habeas petition. 6 First, he alleges that the pre-trial photo identification procedure 7 was unduly suggestive and tainted Raman’s in-court identification. 8 Second, Petitioner asserts that counsel was ineffective for failing 9 to file a motion to exclude the pre-trial identification. Third, United States District Court For the Northern District of California 10 Petitioner alleges that the prosecutor committed misconduct by 11 allowing Raman to commit perjury. 12 his sentence violates United States v. Booker, 543 U.S. 220 (2005). 13 I. 14 Finally, Petitioner claims that Suggestive identification procedure In the first photo line-up, Raman pointed at Number 6 as the 15 person who looked “most like” the assailant. 16 the person depicted in Number 6. 17 was shown another photo line-up, with a different, more recent 18 photo of Petitioner, and without photograph No. 6 from the first 19 line-up. 20 that he was the assailant. 21 photo identification procedure was unduly suggestive. 22 claims that because he was the only person to have appeared in both 23 photo line-ups, Raman was more likely to choose him. 24 also asserts that the failure to include the Number 6 photo from 25 the first line-up in the second line-up must have led Raman to 26 believe that the person he thought might be the suspect, in fact, 27 was not and therefore, he had to choose someone else. Petitioner was not Six days after the attack, Raman Raman pointed at the Petitioner’s photo and indicated Petitioner claims that the pre-trial 28 7 Petitioner Petitioner Thus, 1 alleges Petitioner, the identification procedure was unnecessarily 2 suggestive. 3 The California Supreme Court summarily denied this claim. 4 Procedures by which a defendant is identified as the 5 perpetrator must be examined to assess whether they are unduly 6 suggestive. 7 violates a defendant's right to due process.” 8 U.S. 188, 198 (1972). 9 suggestive when it emphasizes a single individual, thereby “It is the likelihood of misidentification which Neil v. Biggers, 409 An identification procedure is impermissibly United States District Court For the Northern District of California 10 increasing the likelihood of misidentification. 11 California, 394 U.S. 440, 443 (1969); United States v. Bagley, 772 12 F.2d 482, 493 (9th Cir. 1985). 13 Foster v. Petitioner’s photo in the first line-up, placed in position 14 Number 3, had been taken two years prior at a DMV office. 15 495.) 16 enhanced to improve exposure. 17 second line-up, placed in position Number 4, had been taken three 18 days after the underlying crimes. 19 (RT 494- The officer who assembled the photo line-up had the picture (Id.) Petitioner’s photo in the (RT at 498-499; Ex. 8.) The photo line-ups were not impermissibly suggestive. 20 Analyzing the photo line-ups separately, a comparison of the photos 21 in the first line-up does not reveal any significant differences 22 between the men displayed in the spread. 23 the men were African-American and mostly clean-shaven2 with similar 24 short hair styles. 25 Number 6, the one that Raman believed looked most like the (Id.) (Resp. Ex. 7.) All of In addition, with the exception of 26 27 28 2 Raman indicated that he was not sure whether his assailant had facial hair. (RT 221, 233-235.) 8 1 assailant, all of the men were photographed against a blue 2 background. 3 from the others. 4 The first photo line-up does not single out Petitioner A comparison of the photos in the second line-up also does not 5 reveal any significant differences among them. 6 Again, all the men were African-American and mostly clean-shaven 7 with similar short hair styles. 8 photographed against a light background. 9 particular emphasis on Petitioner in the second line-up that would United States District Court For the Northern District of California 10 11 (Id.) (Resp. Ex. 8.) The men were also all (Id.) There is no have singled him out from the others. In addition, the omission of photo Number 6 from the second 12 line-up, combined with Petitioner being the only common individual 13 in both line-ups, did not emphasize the focus upon a single 14 individual. 15 photographic line-ups to Raman, testified that prior to showing 16 Raman each photo array, he gave the standard admonition to him, 17 advising him that he was under no obligation to select any 18 individual and that the purpose of the line-up was not only to find 19 the attacker, but also to eliminate those who were innocent of the 20 crime. 21 individual when showing Raman the photo arrays. 22 Although Raman had pointed to the Number 6 photo in the first line- 23 up as the man who looked “most like” his assailant, both Raman and 24 Murray testified that Raman actually did not identify anyone in the 25 first photo line-up as his attacker. 26 fact, with respect to the first photo line-up, Raman referred to 27 every picture except Petitioner’s, and remarked that “the people Here, Officer Murray, the officer who presented both (RT 154, 498, 500.) At no time did Murray emphasize any 28 9 (RT 189.) (RT 155, 496, 532-33.) In 1 looked familiar.” 2 later, when the officer presented Raman with the second photo line- 3 up, which included the more recent photo of Petitioner, Raman 4 quickly pointed to Petitioner’s photograph and stated, “Right 5 there.” 6 that omitting the Number 6 photo from the second photo line-up 7 implicitly told Raman that his “initial choice” was wrong because, 8 although Raman stated Number 6 looked the most like his attacker, 9 he actually did not identify anyone from the first photo array as United States District Court For the Northern District of California 10 11 (RT 501.) (RT 496-98; 532-33.) In contrast, a few days Thus, the record belies Petitioner’s assertion his attacker. The fact that Petitioner was the only person to have appeared 12 in both photo line-ups is also not unduly suggestive. 13 States v. Davenport, 753 F.2d 1460, 1463 (9th Cir. 1985) (rejecting 14 a claim of suggestive pretrial identification based only on the 15 fact that appellant was “the only individual common to the photo 16 spread and the lineup”). 17 suggestive in certain instances, it does not per se invalidate the 18 procedure. 19 photograph of the Petitioner in each line-up and placed it in a 20 different location in the arrays. 21 Raman was repeatedly shown a photograph of Petitioner, or in which 22 the police specifically emphasized Petitioner in some way. 23 Simmons v. United States, 390 U.S. 377, 383-84 (1968). 24 See United While this practice can arguably be Moreover, in this case, Murray used a different This is not a situation in which See Thus, Petitioner has failed to demonstrate that the 25 identification procedures used in the case were "so unnecessarily 26 suggestive and conducive to irreparable mistaken identification 27 that he was denied due process of law." 28 10 Johnson v. Sublett, 63 1 F.3d 926, 929 (1995) (internal quotation marks and citation 2 omitted) (finding no due process violation where any possible 3 prejudice defendant may suffer from unreliable identification 4 mitigated by cross-examination and other courtroom safeguards). 5 However, even if the pretrial identification procedure was 6 unduly suggestive, the in-court identification need not necessarily 7 be excluded as tainted. 8 identification procedure is so unduly suggestive so as to give rise 9 to a substantial likelihood of misidentification, the Court must In order to determine whether an United States District Court For the Northern District of California 10 examine the totality of the circumstances. 11 492 (citing Simmons, 390 U.S. at 384). 12 in determining the admissibility of identification testimony. 13 Manson v. Brathwaite, 432 U.S. 98, 100-14 (1977). 14 See Bagley, 772 F.2d at Reliability is the linchpin In determining whether in-court identification testimony is 15 sufficiently reliable, courts consider five factors: (1) the 16 witness' opportunity to view the perpetrator at the time of the 17 incident; (2) the witness' degree of attention; (3) the accuracy of 18 the witness' prior description; (4) the level of certainty 19 demonstrated by the witness at the time of the identification 20 procedure; and (5) the length of time between the incident and the 21 identification. 22 200. 23 Cir. 2008) (finding that where first four factors weighed in favor 24 of reliability, four-day delay between robbery and photo spread 25 identification did not call identification's accuracy into 26 question); United States v. Wang, 49 F.3d 502, 505 (9th Cir. 1995) 27 (identification of defendant in photographs reliable where witness Manson, 432 U.S. at 114; Neil, 409 U.S. at 199- See, e.g., United States v. Drake, 543 F.3d 1080, 1089 (9th 28 11 1 had ample opportunity to view defendant and actually spoke with 2 him). 3 In order to analyze the in-court identification under the 4 factors set out in Manson and Neil, the specific circumstances of 5 Raman’s opportunity to view the assailant on the night of the 6 crimes must be considered. 7 Petitioner from his window trying to pry open Raman’s front door. 8 (RT 130-131.) 9 three minutes. At the time of the robbery, Raman saw Raman observed Petitioner’s face for about two or (Id.) Once the Petitioner came into the house, United States District Court For the Northern District of California 10 Raman had an opportunity to observe his face for another few 11 minutes before Petitioner shot him and slashed his throat, and 12 again when Raman gave Petitioner a key to a lockbox. 13 138, 147-148.) 14 reliability of the identification. 15 fearful and distracted once Petitioner entered the house, Raman did 16 watch Petitioner for several minutes prior to that time trying to 17 pry open the front door. 18 described his attacker as an African-American male, about 5’9” or 19 5’10”, 160 pounds, and approximately 20 years old. 20 third factor also weighs in favor of reliability, especially 21 considering that Raman recognized Petitioner from the May 7 22 incident. 23 Petitioner from the second photo line-up, he did not hesitate and 24 was certain that Petitioner was the assailant. 25 that Raman was shown this second photo line-up only six days after 26 the attack supports the reliability of the identification. 27 Neil, 409 U.S. at 201. (RT 133-135, The first two factors weigh in favor of the (RT 151, 216.) Even though Raman was likely In his interview with the police, Raman (RT 167.) The In addition, when Raman selected 28 12 (RT 501.) Finally, See 1 In sum, the state court decisions were not unreasonable: the 2 identification was reliable and, even assuming that the photo 3 identification procedure was suggestive, its admission and the in- 4 court identification did not violate due process. 5 II. 6 Ineffective Assistance of Counsel Petitioner claims that counsel rendered ineffective assistance 7 by failing to move to exclude Raman’s pretrial or in-court 8 identification of Petitioner as being a result of an impermissibly 9 suggestive identification procedure. United States District Court For the Northern District of California 10 11 12 The California Supreme Court denied this claim without comment. A claim of ineffective assistance of counsel is cognizable as 13 a claim of denial of the Sixth Amendment right to counsel, which 14 guarantees not only assistance, but effective assistance of 15 counsel. 16 benchmark for judging any claim of ineffectiveness must be whether 17 counsel's conduct so undermined the proper functioning of the 18 adversarial process that the trial cannot be relied upon as having 19 produced a just result. 20 Amendment ineffectiveness of counsel claim, a petitioner must 21 establish two things. 22 performance was deficient, i.e., that it fell below an "objective 23 standard of reasonableness" under prevailing professional norms. 24 Strickland, 466 U.S. at 687-88. 25 performance must be highly deferential, and a court must indulge a 26 strong presumption that counsel's conduct falls within the wide Strickland v. Washington, 466 U.S. 668, 686 (1984). Id. The In order to prevail on a Sixth First, he must establish that counsel's Judicial scrutiny of counsel's 27 28 13 1 range of reasonable professional assistance. 2 U.S. at 689. See Strickland, 466 3 Second, a petitioner must establish that he was prejudiced by 4 counsel's deficient performance, i.e., that "there is a reasonable 5 probability that, but for counsel's unprofessional errors, the 6 result of the proceeding would have been different." 7 A reasonable probability is a probability sufficient to undermine 8 confidence in the outcome. 9 deferential judicial review” is appropriate in analyzing Id. Id. at 694. In federal habeas cases, a “doubly United States District Court For the Northern District of California 10 ineffective assistance of counsel claims. 11 614 F.3d 987, 994-95 (9th Cir. 2010) (citing Yarborough v. 12 Alvarado, 541 U.S. 652, 664 (2004)). Cheney v. Washington, 13 Notwithstanding the declaration from Petitioner’s appellate 14 counsel that trial counsel admitted there was no tactical reason 15 for him not to raise a suppression motion (Traverse, Ex. C), the 16 state courts were not unreasonable in determining that counsel was 17 not ineffective. 18 find that the pretrial identification procedure was not unduly 19 suggestive. 20 reliable identification. 21 100-14 (1977). 22 reasonable probability that the result of the proceeding would have 23 been different had counsel challenged the pretrial identification 24 procedure. 25 (to show prejudice under Strickland from failure to file a motion, 26 petitioner must show that (1) had his counsel filed the motion, it 27 is reasonable that the trial court would have granted it as As discussed above, it was not unreasonable to Moreover, the circumstances weigh in favor of a See Manson v. Brathwaite, 432 U.S. 98, Accordingly, Petitioner has not demonstrated a See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) 28 14 1 meritorious, and (2) had the motion been granted, it is reasonable 2 that there would have been an outcome more favorable to him). 3 III. Prosecutorial misconduct 4 Petitioner claims that the prosecutor committed misconduct 5 when he allowed Raman to testify falsely that before the attack, 6 there was a screen on the kitchen window that was not there after 7 the attack. 8 that on May 7 when the three men confronted Raman and his wife, 9 Raman had said, “When the guys were leaning through my kitchen Petitioner argues that Raman had stated previously United States District Court For the Northern District of California 10 window . . .” which indicated that there was no screen present at 11 least two days before the attack. 12 13 The California Supreme Court denied this claim without comment. 14 “[A] conviction obtained by the knowing use of perjured 15 testimony is fundamentally unfair, and must be set aside if there 16 is any reasonable likelihood that the false testimony could have 17 affected the judgment of the jury.” 18 U.S. 97, 103 (1976). 19 testimony or false evidence, presented in good faith, does not 20 comport with notions of fundamental fairness guaranteed by the due 21 process clause. 22 2005). 23 testimony, a reviewing court must determine whether “‘there is a 24 reasonable probability that [without all the perjury] the result of 25 the proceeding would have been different.’” 26 F.3d 1204, 1209 (9th Cir. 2002). 27 whether, with the perjured testimony or false evidence, the United States v. Agurs, 427 Even a conviction based in part on perjured See Hayes v. Brown, 399 F.3d 972, 980 (9th Cir. Thus, when the government unwittingly presents perjured Killian v. Poole, 282 Ultimately, relief will depend on 28 15 1 petitioner received a fair trial. 2 419, 434 (1995). 3 granted, upon a showing that the perjured testimony or false 4 evidence could reasonably be taken to put the whole case in such a 5 different light as to undermine confidence in the verdict. 6 at 435. 7 See Kyles v. Whitley, 514 U.S. A violation will be found, and relief will be See id. Even if Raman’s testimony was inconsistent, this does not mean 8 that one of his statements was false. 9 testimony by government witnesses do not establish knowing use of “Mere inconsistencies in United States District Court For the Northern District of California 10 false testimony.” 11 see United States v. Croft, 124 F.3d 1109, 1119-1120 (9th Cir. 12 1997) (“The fact that a witness may have made an earlier 13 inconsistent statement, or that other witnesses have conflicting 14 recollections of events, does not establish that the testimony 15 offered at trial was false.”); United States v. Zuno-Arce, 44 F.3d 16 1420, 1423 (9th Cir. 1995) (no evidence of prosecutorial misconduct 17 where discrepancies in testimony could as easily flow from errors 18 in recollection as from lies). 19 Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998); Moreover, even if the trial testimony were false, it is not 20 probable that, without it, the result of the trial would have been 21 different. 22 attack, he investigated the crime scene and noticed that although 23 there was a frame within the kitchen window, the frame was bent and 24 there were pry marks on the corner, but no screen inside the frame. 25 (RT 272.) 26 latent prints from the kitchen window with Petitioner’s prints. 27 Finney also testified that he found a portion of screen fabric on Detective Finney testified that on the day of the The prosecution’s fingerprint expert matched three 28 16 1 the stairway leading up to Raman’s apartment (RT 274), but never 2 located the entire screen (RT 288). 3 that someone tried to pry open the window and removed the screen 4 around the time of the attack. 5 testified that he could have left his fingerprints accidentally on 6 the window on May 7 rather than on May 9. 7 Petitioner’s version of events included Raman’s wife sticking her 8 head out of the kitchen window on May 7 to confront Denise (RT 818- 9 21), which would indicate that there was no screen on the window on This leads to the inference On the other hand, Petitioner (RT 822.) In addition, United States District Court For the Northern District of California 10 that date, contrary to Raman’s trial testimony. 11 determinations were properly weighed and determined by the trier of 12 fact and may not be re-weighed in this Court. 13 in this case was one of identification, and whether the screen was 14 present at the time of the attack was not material to the ultimate 15 determination of Petitioner’s guilt. 16 These credibility Moreover, the issue Therefore, because Petitioner fails to prove that the 17 statements were false, or that the testimony was material, his 18 prosecutorial misconduct claim fails under the Agurs/Napue 19 standard. 20 (rejecting claim of prosecutorial misconduct where witness’ 21 inconsistencies were pointed out to the jury and witness was 22 subjected to impeachment evidence and concluding that appellant 23 failed to establish falsity of testimony). 24 courts’ decision denying relief on this claim was not contrary to 25 or an unreasonable application of clearly established federal law. See Allen v. Woodford, 395 F.3d 979, 995 (9th Cir. 2005) 26 27 28 17 Accordingly, the state 1 2 IV. Booker claim Petitioner argues that, because United States v. Booker, 543 3 U.S. 220 (2005), held that the mandatory application of the United 4 States Sentencing Guidelines was unconstitutional, the trial court 5 was not required to impose a twenty year mandatory gun enhancement 6 pursuant to California Penal Code § 12022.53(c). 7 Because Petitioner was not sentenced under the United States 8 Sentencing Guidelines, this argument is meritless. 9 Petitioner is arguing that his twenty year gun enhancement violates To the extent United States District Court For the Northern District of California 10 the Sixth Amendment because it was not submitted to a jury, his 11 argument still fails. 12 and waived his right to a jury trial. 13 was found true by the trier of fact. 14 F.2d 915, 918-919 (9th Cir. 1969); Swanson v. Adams, 2007 WL 15 3119553, *6 (N.D. Cal.) (“Although there is little recent law and 16 none directly on point, it was reasonable for the court of appeal 17 to hold that when petitioner waived his right to a jury trial, he 18 waived his right to a jury determination of all issues in the case, 19 including those that formed the basis of the trial court’s 20 sentencing decision.”). 21 22 23 24 Petitioner opted to be tried by the court Thus, the gun enhancement See Wright v. Craven, 412 CONCLUSION For the foregoing reasons, the petition for a writ of habeas corpus is denied. Rule 11(a) of the Rules Governing Section 2254 Cases now 25 requires a district court to rule on whether a petitioner is 26 entitled to a certificate of appealability in the same order in 27 which the petition is denied. Reasonable jurists could find the 28 18 1 Court’s assessment of the following claims debatable: (1) the pre- 2 trial photo identification procedure was unduly suggestive and 3 tainted Raman’s in-court identification, and (2) counsel was 4 ineffective for failing to file a motion to exclude the pre-trial 5 identification. 6 Thus, a certificate of appealability is GRANTED as to those two 7 claims and denied as to the others. 8 9 United States District Court For the Northern District of California 10 11 See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The clerk shall enter judgment and close the file. pending motions are terminated. All Each party shall bear his own costs. IT IS SO ORDERED. 12 13 Dated: 1/24/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 MARVIN BRYANT III, Case Number: CV06-00005 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 T.FELKER et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on January 24, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 17 Marvin Bryant T-92379 3-114U CSP-Solano P.O. Box 4000 Vacaville, CA 95696-4000 18 Dated: January 24, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 20
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