Powell v. Ayers, No. 4:2008cv04011 - Document 13 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 11/23/2010. (ndr, COURT STAFF) (Filed on 11/23/2010)
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Powell v. Ayers Doc. 13 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 No. C 08-04011 CW (PR) QUINCY T. POWELL, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, v. JAMES A. YATES, Warden, 15 Respondent. / 16 17 Petitioner Quincy T. Powell is a prisoner of the State of 18 California, incarcerated at Pleasant Valley State Prison. 19 August 21, 2008, Petitioner filed a pro se petition for a writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity 21 of his 2006 state conviction. 22 10, 2009. 23 his disagreement with Respondent’s answer. 24 the deadline in which Petitioner was ordered to file his traverse, 25 the Court construes this pleading as Petitioner’s traverse and 26 considers it as such. 27 the parties, the Court DENIES the petition for writ of habeas 28 corpus. On Respondent filed an answer on April On June 25, 2010, Petitioner filed a pleading expressing Although filed outside Having considered all of the papers filed by Dockets.Justia.com 1 2 BACKGROUND I. 3 Procedural History On December 7, 2006, an Alameda County superior court jury 4 convicted Petitioner of one count of second degree robbery, in 5 violation of California Penal Code § 1170.12(c)(2)(A). 6 Petitioner waived his right to jury trial on three prior 7 convictions, the trial court found all the allegations true. 8 March 16, 2007, the trial court sentenced Petitioner to twenty- 9 eight years to life in prison. United States District Court For the Northern District of California 10 After On Petitioner timely appealed to the California court of appeal 11 claiming that there were two reversible errors at trial. 12 February 26, 2008, the court of appeal filed a written opinion 13 rejecting both claims. 14 California Supreme Court, which denied his petition in a one 15 sentence order on May 14, 2008. 16 II. 17 18 19 20 21 22 23 24 25 26 27 Resp.’s Ex. 8. On Petitioner proceeded to the Resp.’s Ex. 10. Statement of Facts Around 11:00 a.m. on October 5, 2005, a robbery occurred at the main branch of the Fremont Bank in Fremont. A man approached a teller, Janny Avon, asked for a withdrawal slip, and wrote on it that he had a gun. After the man said he was “serious,” Avon emptied her cash drawer, giving the man $1,873.78, which included five $20 “bait” bills for which the serial numbers had been recorded. Both Avon and a second teller, Alicia Abang, subsequently identified defendant as that man, and a surveillance tape of the robbery was played for the jury. FN1. After the robber had fled with the money and police had secured the area around the bank, Jason Merris approached the officers and told them he believed he had driven the robber to the bank and knew where he could be found. Merris gave the officers defendant's name and directed them to a motel room in Newark, where defendant (who initially denied his identity) was found, together with $1,877 plus change, including the five $20 bills with the recorded serial numbers, and clothing matching that worn by the robber. After defendant had been arrested, a detective arranged a telephone call in which defendant thought he was talking to Avon, and he apologized to her. At trial, the defense contended that the 28 2 1 evidence did not prove beyond a reasonable doubt that defendant was the person who committed the robbery. 2 3 4 5 FN1. The defense called one witness, Laura Janek, who had spoken to the robber while waiting in line just before the robbery, and she did not believe that defendant was the person with whom she had spoken. Resp.’s Ex. 8 at 2. 6 7 LEGAL STANDARD A federal court may entertain a habeas petition from a state 8 prisoner "only on the ground that he is in custody in violation of 9 the Constitution or laws or treaties of the United States." United States District Court For the Northern District of California 10 28 U.S.C. § 2254(a). 11 Penalty Act of 1996 (AEDPA), a district court may not grant habeas 12 relief unless the state court's adjudication of the claim: 13 “(1) resulted in a decision that was contrary to, or involved an 14 unreasonable application of, clearly established Federal law, as 15 determined by the Supreme Court of the United States; or 16 (2) resulted in a decision that was based on an unreasonable 17 determination of the facts in light of the evidence presented in 18 the State court proceeding." 19 Taylor, 529 U.S. 362, 412 (2000). 20 questions of law and to mixed questions of law and fact, id. at 21 407-09, and the second prong applies to decisions based on factual 22 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 23 Under the Antiterrorism and Effective Death 28 U.S.C. § 2254(d); Williams v. The first prong applies both to A state court decision is "contrary to" Supreme Court 24 authority, that is, falls under the first clause of § 2254(d)(1), 25 only if "the state court arrives at a conclusion opposite to that 26 reached by [the Supreme] Court on a question of law or if the state 27 28 3 court decides a case differently than [the Supreme] Court has on a 2 set of materially indistinguishable facts." 3 412-13. 4 Supreme Court authority, under the second clause of § 2254(d)(1), 5 if it correctly identifies the governing legal principle from the 6 Supreme Court's decisions but "unreasonably applies that principle 7 to the facts of the prisoner's case." 8 court on habeas review may not issue the writ "simply because that 9 court concludes in its independent judgment that the relevant 10 United States District Court For the Northern District of California 1 state-court decision applied clearly established federal law 11 erroneously or incorrectly." 12 must be "objectively unreasonable" to support granting the writ. 13 Id. at 409. 14 Williams, 529 U.S. at A state court decision is an "unreasonable application of" Id. at 413. Id. at 411. The federal Rather, the application "Factual determinations by state courts are presumed correct 15 absent clear and convincing evidence to the contrary." 16 537 U.S. at 340. 17 evidence to overcome the presumption of correctness under 18 § 2254(e)(1); conclusory assertions will not do. 19 only Supreme Court law is binding on the states, Ninth Circuit 20 precedent remains relevant persuasive authority in determining 21 whether a state court decision is objectively unreasonable. 22 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 23 Miller-El, A petitioner must present clear and convincing Id. Although Clark If constitutional error is found, habeas relief is warranted 24 only if the error had a "'substantial and injurious effect or 25 influence in determining the jury's verdict.'" 26 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 27 619, 638 (1993)). 28 4 Penry v. Johnson, 1 When there is no reasoned opinion from the highest state court 2 to consider the petitioner's claims, the court looks to the last 3 reasoned opinion of the highest court to analyze whether the state 4 judgment was erroneous under the standard of § 2254(d). 5 Nunnemaker, 501 U.S. 797, 801-06 (1991). 6 California court of appeal is the highest court that addressed 7 Petitioner's claims. 8 9 Ylst v. In the present case, the DISCUSSION In this case, the trial court permitted the jurors to submit United States District Court For the Northern District of California 10 written questions to the witnesses during trial, which were subject 11 to review and approval by the parties and the court. 12 Detective Holguin testified, one juror submitted the following 13 question: “Did you get a fingerprint from the pen Quincy used at 14 the Fremont Bank?” 15 objected to the question and the court read the question as 16 written. 17 Record Transcript (“RT”) 379. After Neither party Resp.’s Ex. 3 at 7; RT 379. Petitioner raises two claims related to this exchange in his 18 federal habeas petition. 19 committed misconduct by prematurely determining his guilt prior to 20 deliberations as evidenced by the juror’s submitted question. 21 Petitioner argues that the form of the question and the use of 22 Petitioner’s first name rather than “suspect” or “robber” indicates 23 that the juror improperly predetermined Petitioner’s guilt and that 24 the juror’s misconduct prejudiced him. 25 26 First, he alleges that the juror Next, Petitioner alleges that when the trial court read the question aloud as written, the trial court essentially directed a 27 28 5 1 verdict against him because it demonstrated that the trial court 2 agreed with the juror’s perception. 3 I. 4 Juror misconduct The Sixth Amendment guarantees to the criminally accused a 5 fair trial by a panel of impartial jurors. 6 see Irvin v. Dowd, 366 U.S. 717, 722 (1961). 7 juror is unduly biased or prejudiced, the defendant is denied his 8 constitutional right to an impartial jury." 9 F.2d 520, 523-24 (9th Cir. 1990) (internal quotations omitted). U.S. Const. amend. VI; "Even if only one Tinsley v. Borg, 895 A United States District Court For the Northern District of California 10 court confronted with a colorable claim of juror bias will 11 generally conduct an investigation. 12 628, 652-53 (9th Cir. 2004). 13 premature deliberations took place, however, an investigation may 14 not be necessary, especially if the judge provides an appropriate 15 instruction. 16 serious as private communication, contact or tampering. 17 653. 18 other about the case but that each juror keep an open mind until 19 the case has been submitted to the jury.’” 20 United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974)); see 21 Davis, 384 F.3d at 651-53 (where juror submitted note to judge 22 before deliberations saying “we” wanted to know whether defendant 23 would remain in prison if jury returned a noncapital sentence, no 24 error where judge provided a detailed instruction that jurors 25 should presume that state officials would properly perform their 26 duties when executing the sentence). Id. Davis v. Woodford, 384 F.3d Where there is no evidence that Further, premature deliberations are not as Id. at “What is crucial is ‘not that jurors keep silent with each 27 28 6 Id. at 653 (quoting “The test is whether or not 1 the misconduct has prejudiced the defendant to the extent that he 2 has not received a fair trial.” 3 4 5 6 7 8 9 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 Klee, 494 F.2d at 396. The California court of appeal addressed this claim in the following passage: On appeal, defendant contends that “[i]n posing the question using the name Quincy rather than using a term such as ‘suspect’ or ‘robber,’ this juror revealed that he or she had prematurely determined that Mr. Powell was the robber, in a case in which the defense was identity. This prejudging of the pivotal contested issue in the question was juror misconduct.” There is of course no dispute about a defendant's constitutional right to be tried by an impartial jury (e.g., In re Hamilton (1999) 20 Cal. 4th 273, 293-294), nor is there any dispute that prejudgment by a juror is misconduct that may require vacating a verdict (People v. Brown (1976) 61 Cal. App. 3d 476). Moreover, one must agree that the juror's question was not phrased properly and should have referred to the user of the pen in some neutral manner that did not imply that it was necessarily the defendant. However, we cannot agree that the lay juror's inartful manner of expressing the question necessarily demonstrated that the juror had predetermined defendant's guilt. Indeed, if the juror had already decided that defendant was the robber, it is unlikely that he or she would have asked the question. Juror misconduct must be “‘established as a demonstrable reality, not as a matter of speculation.’” (People v. Hord (1993) 15 Cal. App. 4th 711, 725.) Whether a juror or prospective juror has a prejudiced state of mind is “‘ordinarily an issue of fact left to the sound discretion of the trial judge.’” (People v. Clay (1984) 153 Cal. App. 3d 433, 450.) Here, the implication improperly embedded in the question apparently did not occur to anybody at the time, since no objection was raised to the form of the question and the court did not rephrase the question. Moreover, the jurors were properly instructed not to form any conclusions until their deliberations began and they are presumed to follow those instructions. (People v. Mickey (1991) 54 Cal. 3d 612, 689, fn.17.) In all events, the defense certainly has failed to carry its burden of establishing juror misconduct. (People v. Stanley (1995) 10 Cal. 4th 764, 836; see Kimic v. San Jose-Los Gatos etc. Ry. Co. (1909) 156 Cal. 379, 400.) Resp.’s Ex. 8 at 3. Taking the state court’s factual findings as presumptively 26 correct, as this Court must do, 28 U.S.C. § 2254(e)(1), Petitioner 27 has not demonstrated clear or convincing evidence that the juror’s 28 7 1 question was a predetermined judgment rather than merely a sloppily 2 phrased inquiry. 3 was looking for more evidence of guilt by inquiring whether 4 Petitioner’s fingerprints were found on the pen. 5 The question itself demonstrates that the juror Moreover, jury misconduct that occurs during trial and that can be weighed in the context of other evidence presented generally 7 constitutes trial error subject to harmless-error analysis. 8 Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005) (noting there 9 is no Supreme Court precedent holding that either juror bias, or 10 United States District Court For the Northern District of California 6 the failure by the trial court to hold a hearing to investigate 11 potential juror bias, constitutes structural error); see, e.g., 12 Fields v. Brown, 503 F.3d 755, 781 (9th Cir. 2007) (en banc) (court 13 need not decide whether jury's use of juror's notes on Bible 14 passages was juror misconduct because it had no substantial and 15 injurious effect or influence on the verdict). 16 Cf. In light of the overwhelming evidence of identity at trial, 17 despite the fact that the disputed issue at trial was identity, 18 Petitioner has failed to demonstrate any prejudice. 19 identified by two bank tellers who both noted a cut near the 20 Petitioner’s eye, RT 184, 185-86, 241, 245, 266; Petitioner was 21 seen on a bank surveillance video, RT 271; the man who drove 22 Petitioner to the bank identified him and gave police Petitioner’s 23 address, 227-28, 298; and Petitioner was found shortly after the 24 robbery with the same amount of money taken from the bank, which 25 included the bait bills, RT 355-56, 358, 362-68. 26 this record, there is no indication that the juror was biased or 27 prejudged the Petitioner. Petitioner was In addition, on Nor was there any sign that the juror 28 8 1 was unable or unwilling to decide the case solely on the evidence 2 presented at trial. 3 jury not to form any conclusions until deliberations. 4 Weeks v. Angelone, 528 U.S. 225, 234 (2000) (stating that jurors 5 are presumed to follow the court’s instructions). 6 Furthermore, the trial court instructed the RT 155. Accordingly, the California court of appeal’s decision denying 7 relief on this claim was not contrary to or an unreasonable 8 application of clearly established federal law. 9 § 2254(d). 10 United States District Court For the Northern District of California See 11 II. See 28 U.S.C. Judicial misconduct The Due Process Clause guarantees a criminal defendant the 12 right to a fair and impartial judge. 13 133, 136 (1955). 14 sensitive role [the court] plays in a jury trial and avoid even the 15 appearance of advocacy or partiality.'" 16 732, 741 (9th Cir. 1995) (quoting United States v. Harris, 501 F.2d 17 1, 10 (9th Cir. 1974)). 18 approve of a state judge's conduct. 19 conduct might be, when considered in the context of the trial as a 20 whole it may not be of sufficient gravity to warrant the conclusion 21 that fundamental fairness was denied. 22 F.3d 734, 741 (9th Cir. 1995) (citations omitted). 23 judicial misconduct by a state judge in the context of federal 24 habeas review asks whether the state judge's behavior "rendered the 25 trial so fundamentally unfair as to violate federal due process 26 under the United States Constitution." See In re Murchison, 349 U.S. A trial judge "'must be ever mindful of the Stivers v. Pierce, 71 F.3d It is not enough that a federal court not 27 28 9 Objectionable as a judge’s See Duckett v. Godinez, 67 Id. at 740. A claim of 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 The California court of appeal addressed this claim as follows: Defendant also argues that the judge's reading of the question “conveyed to the jury the message the judge believe[d] the defendant was the perpetrator” and “effectively directed a finding that [defendant] was the perpetrator.” Again, there is no question that the court may not direct a guilty verdict (e.g., People v. Figueroa (1986) 41 Cal. 3d 714, 724), but that is hardly what occurred here. In context it was unmistakably clear that the question did not originate with the judge, but that the judge was simply reading “in no particular order” three questions that jurors wished to ask. No juror could reasonably have understood that in reading the question the judge was expressing any question of his own, much less any opinion or directive. Moreover, the jury was properly instructed that questions do not constitute evidence and that “It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.” The presumption that the jury followed the court's instructions applies to this contention as well. 13 Resp.’s Ex. 8 at 3-4. 14 Again, Petitioner has not demonstrated clear or convincing 15 evidence that the state court’s factual finding is incorrect. 28 16 U.S.C. § 2254(e)(1). Both parties reviewed the juror’s question 17 and neither objected to its substance or form. The trial court read the submitted question as it was written. In light of the 18 19 overwhelming evidence against Petitioner, especially as compared to 20 the isolated instance of the challenged submitted question, the 21 trial court’s reading of the question did not render the trial 22 fundamentally unfair. See, e.g., Duckett, 67 F.3d at 734 23 (concluding no judicial misconduct even after the judge inserted 24 his own questioning to witnesses, laid the foundation for evidence 25 on behalf of the State, and expressed clear hostility toward 26 defense counsel and defense witnesses). 27 28 10 1 Accordingly, the California court of appeal’s decision denying 2 relief on this claim was not contrary to or an unreasonable 3 application of clearly established federal law. 4 § 2254(d). 5 CONCLUSION 6 7 8 9 See 28 U.S.C. For the foregoing reasons, the petition for a writ of habeas corpus is denied. No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. United States District Court For the Northern District of California 10 § 2254 (requiring district court to rule on certificate of 11 appealability in same order that denies petition). 12 failed to make a substantial showing that any of his claims 13 amounted to a denial of his constitutional rights or demonstrate 14 that a reasonable jurist would find this Court's denial of his 15 claims debatable or wrong. 16 484 (2000). 17 Petitioner has See Slack v. McDaniel, 529 U.S. 473, The clerk shall enter judgment and close the file. 18 pending motions are terminated. 19 All costs. 20 Each party shall bear his own IT IS SO ORDERED. 21 22 Dated: 11/23/2010 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 11 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 QUINCY T POWELL, Case Number: CV08-04011 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 SAN QUENTIN STATE PRISON 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 November 23, 2010, 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 Quincy T. Powell E-24418 C-5-125-U Pleasant Valley State Prison P.O. Box 8503 Coalinga, CA 93210 18 Dated: November 23, 2010 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 12
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