Allen Williams v. John Soto, No. 4:2015cv04783 - Document 29 (N.D. Cal. 2016)

Court Description: ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Allen Williams. Signed by Judge Yvonne Gonzalez Rogers on 10/26/16. (fs, COURT STAFF) (Filed on 10/26/2016)
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Allen Williams v. John Soto Doc. 29 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALLEN WILLIAMS, Case No. 15-cv-04783-YGR Petitioner, 8 v. ORDER DENYING PETITION FOR HABEAS CORPUS RELIEF 9 10 JOHN SOTO, Respondent. United States District Court Northern District of California 11 12 Now before the Court is petitioner Allen Williams’s amended petition for a writ of habeas 13 corpus. (Dkt. No. 26.) The government answered (Dkt. No. 27) and petitioner filed a traverse in 14 reply (Dkt. No. 28). Petitioner raises two grounds for relief. First, petitioner asserts that the trial 15 court violated his constitutional right to present a full defense under Chambers v. Mississippi when 16 it rejected admission of exculpatory evidence. Second, petitioner claims that his counsel rendered 17 ineffective assistance. Specifically, with respect to his ineffective assistance of counsel claims, 18 petitioner claims that his counsel failed to: (i) obtain admission of certain exculpatory hearsay 19 statements; (ii) move to suppress police testimony and photographs of blood inside the house 20 obtained through a warrantless search; and (iii) object to admission of certain hearsay statements 21 to the paramedic and 911 operator under the Confrontation Clause. 22 Based thereon, petitioner seeks a writ of habeas corpus. Having carefully considered the 23 petition and the papers submitted, and for the reasons stated below, the petition for such relief is 24 DENIED. 25 I. 26 BACKGROUND On February 4, 2013, a San Mateo County jury found petitioner Allen Williams guilty of 27 “infliction of corporal injury” on his spouse (“Jane Doe”) and of “assault by means of force likely 28 to cause great bodily injury.” People v. Williams, No. A-138275, 2014 WL 1465884, at *1 (Cal. Dockets.Justia.com 1 Ct. App. Apr. 15, 2014), review denied July 23, 2014. The trial court additionally found true 2 numerous enhancement allegations, and sentenced petitioner to a prison term of thirty-nine years 3 to life. Id. at *2. On April 15, 2014, the California Court of Appeal affirmed the judgment of the 4 trial court. Id. at *1. In addressing the petitioner’s claims on appeal, the California Court of 5 Appeal summarized the relevant facts as follows: On May 6, 2013, defendant’s wife called 9-1-l for help. She told dispatchers she had just been attacked by her husband and was hiding in her neighbor’s backyard. This information was relayed to Officer David Manion who was dispatched to their home in the City of San Mateo. 6 7 8 9 On his arrival, the door to the house was open but Manion at first saw no one. He then observed defendant on the porch and when defendant started to enter the home, Manion stopped and handcuffed him. Defendant told the officer, “I was going to turn myself in” and “I was wrong, I admit it.” Manion noticed defendant was bleeding from a cut on the back of his head. Defendant told Manion that his wife had hit him with a cane. Manion searched inside the home and observed blood on the wall, baseboard, carpet, and comforter of the master bedroom. Outside the home, in a garbage can located on the sidewalk, he found a bloodied wooden cane, a pillow, and a man’s undershirt. 10 United States District Court Northern District of California 11 12 13 14 15 When defendant’s wife approached, with a swollen face and in apparent pain, she was rushed to the emergency room for medical attention. On the way to the hospital, she told the paramedic that her husband hit her with a closed fist multiple times. She had a broken jaw, missing teeth, oral lacerations, multiple fractured ribs, and bruising around her eye, chest, and arm. 16 17 18 19 21 Defendant proffered testimony, which was excluded, that a few days after being discharged from the hospital, the wife spoke with her friend, Anne Savage, and told her “I don’t like what I did, I put my husband in jail” and that she “started it.” 22 Id. at *1. On July 23, 2014, the California Supreme Court denied review of the Court of Appeal 23 decision regarding petitioner’s Chambers due process violation and ineffective assistance of 24 counsel (“IAC”) claims. People v. Williams, No. S-218741 (Cal. July 23, 2014). 20 25 26 II. LEGAL STANDARD A federal court can entertain a petition for a writ of habeas corpus on behalf of a person in 27 state custody “only on the ground that he is in custody in violation of the Constitution or laws or 28 treaties of the United States.” 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death 2 1 Penalty Act (“AEDPA”) of 1996, section 2254(d)(1), a state prisoner can obtain habeas relief 2 regarding a claim adjudicated in state court only if the adjudication “(1) resulted in a decision that 3 was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as 4 determined by the Supreme Court of the United States; or (2) resulted in a decision that was based 5 on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court 6 proceeding.” 28 U.S.C. § 2254(a). 7 A state court decision is “contrary to” clearly established federal law, as determined by the 8 Supreme Court, only if “the state court arrives at a conclusion opposite to that reached by [the 9 Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 11 United States District Court Northern District of California 10 362, 412–13 (2000). A state court decision is considered an “unreasonable application” of clearly 12 established federal law, as determined by the Supreme Court, if it correctly identifies a governing 13 legal principle from a Supreme Court decision but “unreasonably applies that principle to the facts 14 of the prisoner’s case.” Id. at 413. A federal court reviewing a habeas petition cannot issue the 15 writ “simply because that court concludes in its independent judgment that the relevant state-court 16 decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, a 17 federal court may grant the writ only if they find the state court decision was contrary to or an 18 unreasonable application of a clearly established federal law. Id. at 412–13. The Supreme Court 19 has ruled that the petitioner has the burden of showing that a state court decision is an objectively 20 unreasonable application of clearly established federal law. See Cullen v. Pinholster, 563 U.S. 21 170, 181 (2011); Harrington v. Richter, 562 U.S. 86, 98, 101–03 (2011). 22 AEDPA requires a highly deferential standard for evaluating state court rulings and 23 “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 24 U.S. 19, 24 (2002); see also Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997). “[A] habeas court 25 must determine what arguments or theories supported or . . . could have supported, the state 26 court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that 27 those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] 28 Court.” Harrington, 562 U.S. at 102. A federal court should only grant relief due to a 3 1 con nstitutional error of the state court when the erro was not ha e s w or armless, that is, only if it had a t t 2 “su ubstantial an injurious effect or influence in det nd e termining th jury’s verd he dict.” Brech v. ht 3 Abrahamson, 507 U.S. 619 623, 638 (1993). 5 9, ( 4 When there is no re t easoned opin nion from the highest sta court con e ate nsidering the petitioner’s e 5 cla aims, the federal court reviewing the habeas petit tion should c consult the l state cou to render last urt 6 a decision on th claims to determine whether or n ot a clearly e d he w established l of the Su law upreme 7 Court was unre easonably ap pplied. Ylst v. Nunnemak 501 U.S 797, 805– (1991). T last v ker, S. –06 The 8 rea asoned state court decisio in this cas is the Cal on se lifornia Cour of Appeal’s unpublish rt hed 9 dis sposition issu on April 15, 2014. ued l 10 CHAMBERS CLAIM HA III. United States District Court Northern District of California 11 A. 12 The con nstitutional right of an ac r ccused to du process in a criminal t ue n trial guarant tees 13 def fendants “the right to a fair opportun to defend against the State’s acc e f nity d e cusations.” C Chambers v. 14 Mis ssissippi, 410 U.S. 284, 294 (1973). This right e encompasses the “rights to confront and crosss 15 exa amine witnesses and to call witnesse in one’s ow behalf.” Id.; see also Washingto v. Texas, c es wn o on 16 388 U.S. 14, 19 (1967). Sp 8 9 pecifically, Chambers he that the e C eld exclusion of reliable, def f fense- 17 crit tical evidenc through th mechanistic applicatio of eviden ce he on ntiary rules u undermines t the 18 def fendant’s rig to presen a defense and violates due process Chambers 410 U.S. a 302; see ght nt a s. s, at 19 als United Sta v. Evans 728 F.3d 953, 966 (9th Cir. 2013) (stating that the Ninth C so ates s, 9 h t Circuit has 20 fou violation of the con und ns nstitutional ri ight to prese a defense where the t ent e trial court incorrectly 21 exc cluded evide ence that was necessary for the defen s f ndant to refu a critical element of t ute the 22 pro osecution’s case) (interna citation om c al mitted); Cud v. Ayers, 698 F.3d 75 754 (9th Cir. 2012) djo 52, 23 (sta ating that Ch hambers clea establish that the “exclusion o trustworth and neces arly hed of hy ssary 24 exc culpatory tes stimony at tr violates a defendant’ due proces right to pr rial ’s ss resent a defe ense”). 25 Legal Fram mework The Sup preme Court holding in Chambers should be interpreted n t’s s narrowly, as it “does not 26 stand for the pr roposition th the defen hat ndant is denie a fair opp ed portunity to d defend hims self 27 henever a sta or federal rule exclud favorable evidence.” United Stat v. Scheffe 523 U.S. ate l des e tes fer, wh 28 303 316 (1998 The Cham 3, 8). mbers holdin allows fe ng ederal courts to defer to s s state evident tiary rules in n 4 1 crim minal trials and was mea to be con a ant nfined to the facts and ci e ircumstances of that case Id. The s e. 2 right to present a defense is violated on when exc t s nly clusion of su evidence is “arbitrar or uch e ry 3 dis sproportionat to the purp te poses [the ex xclusionary rule applied is] designed to serve.” Holmes v. d d 4 S. Carolina, 54 U.S. 319, 324 (2006) (internal cit C 47 tation and qu uotation mar omitted); Michigan v. rks ; v 5 Luc 500 U.S 145, 151 (1991). A de cas, S. ( efendant’s d process r due right may be violated wh the rule e here 6 is applied “mec a chanistically to defeat th ends of ju y he ustice,” even if the exclus sionary rule applied is 7 itse constituti elf ional, esteem and regu med, ularly applie Chambe 410 U.S. at 302 (hold ed. ers, . ding that 8 wh the exclu here uded eviden bares “pe nce ersuasive ass surances of t trustworthine and is “ ess” “critical” to 9 the defense, the exclusiona rule must yield to the defendant’s constitutio right to p e e ary t e s onal present a def fense); see also Montana v. Egelhoff 518 U.S. 3 52–53 (1996) (Chambers applied to a a ff, 37, d 11 United States District Court Northern District of California 10 evi identiary exc clusions that are without “valid state justification t t e n”). 12 Additio onally, even if a defendan constitu nt’s utional right to present a defense is v violated, 13 hab beas relief is warranted only if the er was like to have h a “substa s o rror ely had antial and inj jurious 14 eff fect” on the verdict. Brecht, 507 U.S at 637–38. v S. . 15 B. Backgroun nd 16 Petition contends that his con ner nstitutional ri ights under C Chambers w violated when the were d 17 tria court refus to admit Doe’s hears statemen to Savage Specifica al sed say nts e. ally, at trial, p petitioner 18 pro offered Doe’s hearsay sta atements thr rough Savag e: [Doe] was remorseful of the inciden preceding her explana r nt, g ation with someth hing similar to “I don’t li what I did . . . I put m ike my husband in jail.” She th admitted that she “st j hen d tarted it.” . . . According to [Doe], her husband ha been drink t r ad king, and he said e something offensive. She responde by grabbin a cane an o ed ng nd striking him repeatedly over the hea following which “it w on.” m ad, g was 19 20 21 22 23 24 25 26 27 28 (Dk No. 4 at 9.) The trial court found the testimo to be unr kt. 9 l d ony reliable and therefore ina admissible, and the Court of Appeal af d o ffirmed.1 In pertinent pa the Court of Appeal p art, t provides the facts and e rea asoning relev to this is vant ssue: 1 At tri petitioner proffered Doe’s hearsa statement to both Sa ial, D ay ts avage and Ke Graham. elly (Se Dkt. No. 23-6 at 73–8 (trial trans ee 2 87 scripts); Dkt No. 26-4 a 105–06 (tr transcript Dkt. No. t. at rial ts); 26- (trial cour decision ex -5 rt xcluding hea arsay statem ments); see al Dkt. No. 4 at 6–10 (p lso proffered statements from Graham an Savage).) Doe refuse to testify and therefor was deem m nd ) ed re med una available. 5 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant contends the trial court erroneously excluded evidence of incriminating statements his wife made to Anne Savage. Days after being discharged from the hospital, in a phone conversation with Anne Savage, defendant’s wife stated that she “started it” after defendant, who had been drinking, said something offensive, that she did not like what she had done, and that she put her husband in jail. Defendant argues that these statements were admissible as statements against his wife’s penal interest and were crucial to his self-defense claim. Evidence Code section 1230 provides that hearsay statements are admissible under the exception for declarations against penal interest. The party seeking to admit such evidence must show “that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Cudjo (1993) 6 Cal. 4th 585, 607.) “To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’” (Ibid.) Declarant’s statements are not sufficiently reliable for admission simply “‘because it incorporates an admission of criminal culpability.’” (People v. Duarte, 24 Cal. 4th 603, 611.) The trial court excluded the proffered hearsay statements of defendant’s wife to Anne Savage primarily on the ground that the statements were unreliable because of their inconsistency with other statements the wife had made. On two separate occasions the wife told police officers that defendant punched and kicked her and that, in response, she struck him in the head with a wooden cane. Defendant had also offered to prove that in a conversation with her friend Kelly Graham, the wife stated that defendant was intoxicated and belligerent, that after an exchange of words he pushed her and caused her to fall against a window sill, and that, as a response, she grabbed the cane and struck him over the head. The court granted the prosecutor’s motion to exclude these statements under Evidence Code sections 1230 and 352. The court explained its ruling as follows: “From the evidence before the court as presented by the proponent, this court finds that the offered statements that are attributed to Jane Doe through the testimony of Kelly Graham and Anne Savage do not meet the required criteria for their admission under the declarations against interest exception to the hearsay rule. The two statements offered by the defense conflict with one another. In the statement to Kelly Graham, Jane Doe allegedly asserts that Allen Williams pushed her, causing her to fall to the ground before she picked up a cane and struck defendant on the head. In the statement to Anne 6 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Savage, Jane Doe purportedly picked up a cane and struck defendant repeatedly over the head with her cane; with no mention being made to her having been pushed. There are however certain similarities in each statement[], including that defendant had been drinking and was either belligerent or said something offensive to Jane Doe. [¶] This court has also made an analysis under Evidence Code § 352. The initial statements made by Jane Doe to the 9-1-1 dispatcher and responding paramedic were previously found to be sufficiently reliable to allow their admission into evidence. Jane Doe made other statements in addition to these which contradict the statements she purportedly made to Kelly Graham and Anne Savage. There is also question as to Jane Doe’s motivation when these statements [were] made to the defense witnesses. At some point after Allen Williams’ arrest, Jane Doe decided to stop cooperating with the prosecution and law enforcement and has refused to testify at trial.” “We review a challenge to a trial court’s choice to admit or exclude evidence under section 352 for abuse of discretion.” (People v. Branch (2001) 91 Cal.App.4th 274, 282.) A trial court’s exercise of discretion under Evidence Code section 352 “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Reversal is required only if it is reasonably probable that a result more favorable to defendant would have been reached had the excluded evidence been received. (People v. Watson (1956) 46 Cal.2d 818, 837.) If the court’s statement that the wife “decided to stop cooperating with the prosecution and law enforcement and has refused to testify at trial” was made in explanation of why the court considered the wife’s statements not to be trustworthy, reliance on that factor was improper. When deciding if incriminating statements made by an unavailable witness are reliable, Evidence Code section 913, subdivision (a) states that “no presumption shall arise because of the exercise of the privilege [to not testify], and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding.” (Italics added.) Nonetheless, reading the court’s remarks in context, it is apparent that the court’s conclusion that the necessary element of trustworthiness was lacking was not based exclusively or even primarily on this factor. As the trial court pointed out, the statements defendant’s wife made to Anne Savage and Kelly Graham conflict with one another. In one version, the wife purportedly picked up a cane and struck defendant repeatedly over the head, initiating the physical confrontation. In the other version, which is consistent with her contemporaneous statements to the police and the paramedic, she struck the defendant after he began the confrontation by pushing 7 her to the gr round. More eover, althou the cour could not p ugh rt properly rely on the wife’s refusa to testify, it could prop w al perly note her expressed co oncern over causing her husband to be jailed in r evaluating the reliability of her desc t y cription of ev vents. Based on the totality of th evidence presented, th he here was no abuse of dis scretion in excluding the wife’s hearsay state g ement that s started th fight, she he nor did the exclusion pr e reclude defen ndant from p presenting hi is defense. 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 Williams, 2014 WL 1465884, at *2–3. 4 C. Discussion Under Chambers, a defendant’s rights to pr C s resent a defe ense are violated when th he app plication of evidentiary rules bars tes e r stimony that “bore persu t uasive assura ances of trustworthiness and “was critical to [p s” petitioner’s] defense.” C Chambers, 410 U.S. at 30 Even if 02. a constitutional error occur l rred pursuan to Chambe reversal is warranted only if such error was nt ers, d not harmless. See Brecht, 507 U.S. at 637. The Co first add t S 6 ourt dresses whet ther there wa a as vio olation under Chambers, and then wh r hether any su violation was harml uch n less. 1. Chambe Violation ers n a) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Assuran nces of Trus stworthiness s Petition argues th the statem ner hat ments here w trustwor were rthy and reli iable because they were e spo ontaneously made to a cl lose friend shortly after t incident, and they w corrobor the , were rated by Do statemen to anothe friend, Gra oe’s nts er aham, and by petitioner’ injuries. A y ’s Additionally petitioner y, stre esses that the excluded hearsay state e h ements were against Doe penal inte e’s erest thereby falling into y o a hearsay excep h ption. Petition relies primarily on th Supreme C ner he Court’s deci ision in Cham mbers and th Ninth he Cir rcuit’s decisi in Cudjo in support of his argum that the statements m ion o o ment made by Doe to Savage bor the requis assurances of trustwo re site orthiness. B Both, howeve are distin er, nguishable fr rom the case at hand and the h erefore do no persuade. In Chambe the defen ot ers, ndant accuse of murder called a ed r wit tness, McDo onald, who had previousl confessed to the same murder. C h ly d e Chambers, 41 U.S. at 10 294 At trial, McDonald di 4. M isavowed the confession while on th stand, and the defenda was n he d ant the ereafter barre from treat ed ting McDonald as an adv verse witnes pursuant t Mississipp ss to pi’s “vo oucher rule,” which did not allow pa ” n arties to impe each their ow witnesses. Id. at 295 wn 5. 8 1 Additionally, the trial court refused to allow the defendant to introduce the testimony of three 2 individuals, each of whom would have testified that McDonald had confessed to them that he 3 committed the murder. Id. at 298. The Supreme Court held that McDonald’s confessions bore 4 sufficient indicia of trustworthiness because they were “made spontaneously to a close 5 acquaintance shortly after the murder occurred,” were each “corroborated by some other evidence 6 in the case,” and “each confession [] was in a very real sense self-incriminatory and 7 unquestionably against interest.” Id. at 300–01. Similarly, in Cudjo, the defense attempted to 8 offer hearsay testimony from a witness who had confessed to committing the murder to a close 9 friend shortly after the murder occurred. Cudjo, 698 F.3d at 754. The statements at issue here do not bear the same indicia of reliability. First, unlike the 11 United States District Court Northern District of California 10 statements in Chambers and Cudjo, which were made shortly after the murders, the statements 12 from Doe to Savage were made after she was released from the hospital, approximately eight days 13 after the incident. (Dkt. No. 23-8 at 22.) Second, unlike the confession at issue in Chambers, 14 which was consistent across the three witnesses to whom McDonald allegedly confessed, Doe’s 15 statements to Savage were inconsistent with her statements to another potential witness, Graham. 16 Whereas Doe’s statements to Savage alleged that she started the confrontation, her statements to 17 Graham indicated that petitioner began the altercation. (See Dkt. 4 at 6 (Graham’s statement 18 indicating that following “an exchange of words, [petitioner] pushed [Doe], causing her to fall 19 against a window seat” and in response, Doe grabbed a cane and struck petitioner in the head).) 20 Third, it was not unreasonable for the Court of Appeal to conclude that Doe may have had 21 motivation to lie to Savage regarding the incident. In both Chambers and Cudjo, neither of the 22 witnesses had an incentive to lie about committing the murders to exonerate the defendant. By 23 contrast, Doe herself expressed to Savage her concerns about causing petitioner, her husband, to 24 be placed in jail. (Dkt. No. 4 at 9.) Additionally, the gravity of the potential charges in Chambers 25 and Cudjo made it highly unlikely that the witnesses would lie about murdering someone given 26 the potential for lifetime incarceration. Here, the possible penalty for Doe hitting her husband 27 28 9 1 2 with a cane was miniscule compared to the probable sentence for petitioner’s third strike.2 On balance, the Court of Appeal’s conclusion about the lack of trustworthiness of the 3 proffered hearsay statements and the resulting exclusion of those statements was not contrary to or 4 an unreasonable application of the clearly established rule presented in Chambers. See Christian 5 v. Frank, 595 F.3d 1076, 1084–86 (9th Cir. 2010), cert. denied, 562 U.S. 1007 (2010) (rejection of 6 purportedly exculpatory hearsay statement did not merit habeas relief where the evidence was less 7 reliable than the hearsay evidence in Chambers). The Court of Appeal’s determination that the 8 hearsay statements lacked the basic assurances of reliability because of their inconsistencies, the 9 surrounding circumstances, and the potential motivation of the declarant was not an unreasonable application of the state evidentiary rule. Therefore, the Court of Appeal’s decision was not 11 United States District Court Northern District of California 10 contrary to, or an objectively unreasonable application of, any clearly established federal law as 12 determined by the United States Supreme Court in Chambers. 28 U.S.C. § 2254(d). b) 13 14 Critical to Petitioner’s Defense The Court also finds relief unwarranted here on the additional ground that Doe’s 15 statements to Savage were not critical to petitioner’s defense. Petitioner argues that the statements 16 at issue constituted the only evidence probative of mitigating petitioner’s guilt as they showed that 17 Doe initiated the conflict and that petitioner was only acting in self-defense. However, as 18 respondent argues, it does not appear that Doe’s statements were critical to petitioner’s defense. 19 First, testimony from the arresting officer described petitioner’s injuries and informed the jury that 20 such injuries resulted from Doe hitting petitioner on the head with a cane. (Dkt. No. 23-7 at 32– 21 2 22 23 24 25 26 27 28 Petitioner argues that the trial court misapplied California law in finding that Doe’s statements did not fall into the declarations against interest hearsay exception. Such, however, is not a ground for obtaining federal habeas relief. See 28 U.S.C. § 2254(a) (establishing that a district court may entertain an application for a writ of habeas corpus “only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States”). In any event, for the reasons stated above, it was not unreasonable for the trial court or the Court of Appeal to find that Doe’s statements at issue did not fall under the hearsay exception. Under California law, a hearsay statement falls into the declarations against interest hearsay exception where the “statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected [her] to the risk of civil or criminal liability . . . that a reasonable [woman] in [her] position would not have made the statement unless [s]he believed it to be true.” Cal. Evid. Code § 1230. The Court of Appeal reasonably found that Doe could have had several motivations for fabricating the story she provided Savage to protect petitioner. 10 1 33.) Second, unlike in Chambers where the excluded statements, if true, would have exonerated 2 the defendant, here, it was not unreasonable for the Court of Appeal to find that Doe’s statements, 3 even if admitted and believed to be true, would not have established a viable case for self-defense. 4 (See infra.) 5 Accordingly, the Court finds that petitioner has failed to carry his burden of showing that 6 the state court decision is an objectively unreasonable application of clearly established federal 7 law. See Cullen, 563 U.S. at 181.3 2. Harmless Error 8 9 Even assuming, arguendo, that the exclusion of Savage’s testimony was a Chambers violation, habeas relief would still be inappropriate in this case because any such error would be 11 United States District Court Northern District of California 10 harmless. The Supreme Court has held that unless the error at issue “had substantial and injurious 12 effect or influence in determining the jury’s verdict,” a trial court’s constitutional error does not 13 permit habeas relief. Brecht, 507 U.S. at 637–38. Under Brecht, a petitioner must show not just a 14 “reasonable possibility” that the error affected the verdict, but that the error resulted in “actual 15 prejudice.” Id. at 637–39 (holding that the error was harmless because the prosecution’s 16 “evidence of guilt was, if not overwhelming, certainly weighty.”) 17 Here, petitioner argues that the excluded evidence was critical to his claim that he attacked 18 Doe in self-defense. Petitioner asserts that Savage’s testimony provides evidence that Doe 19 initiated the altercation. Thus, petitioner argues, a jury could have determined that petitioner’s 20 reaction was not necessarily greater than what a reasonable person would deem necessary to 21 ensure their safety given the circumstances. With regards to this issue, the California Court of 22 Appeal held: Even if there was any error in excluding the wife’s statements, the error was harmless in light of the overwhelming evidence of defendant’s guilt. The undisputed evidence of the nature and 23 24 25 3 26 27 28 Petitioner also argues that it was error for the trial court to rely on the fact that Doe had stopped cooperating with the prosecution and law enforcement and refused to testify at trial in making its reliability determination. However, the California Court of Appeal agreed that it was improper for the trial court to do so, but held that the trial court had sufficient other bases upon which to find Doe’s statement to Savage unreliable. As discussed above, the Court agrees. 11 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 gravity of his wife’s injuries makes clear that even if the jury were to have believed that his wife initiated the confrontation, defendant’s response went far beyond anything necessary to defend himself. The right to self-defense extends only to the degree of force that a reasonable person would employ under similar circumstances. (People v. Clark (2011) 201 Cal.App.4th 235, 250.) Only force that a reasonable person similarly situated would deem necessary to insure their safety is permissible. (Ibid.) “For acts done in selfdefense to remain lawful, the force that one uses must be only such as appears reasonably necessary, in view of the circumstances, to prevent the impending injury.” (19 Cal.Jur.3d (2014) Criminal Law: Defenses, § 51.) “Thus, under a charge of assault with a deadly weapon, the probable danger of a lesser degree than great bodily injury will not justify the exercise of the right of selfdefense.” (Ibid.) Here, even if the wife attacked defendant first and struck him three times in the back of the head with a cane, it is evident that defendant responded with significantly greater force than necessary. The wife was not wielding a knife or anything other than an apparently light-weight cane not likely to cause serious injury. The defendant could not reasonably have believed it was necessary, to ensure his own safety, to beat and kick his wife enough to break her jaw in three places, break seven of her ribs, knock teeth out, and bruise her in the eye, chest, and arm. Indeed, the futility of the self-defense defense in this case is highlighted by the evidence that when the police arrived at the scene, defendant spontaneously acknowledged, “I was wrong, I admit it” and “I was going to tum myself in.” Williams, 2014 WL 1465884, at *3–4. Unlike in Chambers where the hearsay testimony was a confession from another person 20 that he had committed the murder, Chambers, 410 U.S. at 298, the hearsay testimony here would 21 only confirm that Doe hit petitioner with a cane, with the additional fact that she may have 22 initiated the physical altercation, Williams, 2014 WL 1465884, at *2. It was not unreasonable for 23 the Court of Appeal to find that, given the “nature and gravity” of Doe’s injuries in comparison to 24 petitioner’s injuries, a jury would still find that petitioner’s response was “beyond anything 25 necessary to defend himself.” Williams, 2014 WL 1465884, at *5–6 (explaining that in defending 26 one’s self, “[o]nly force that a reasonable person similarly situated would deem necessary to 27 28 12 1 ins sure their saf is permissible”).4 fety Thus, even if the Co had fou a constitu e ourt und utional viola ation, such v violation wou have uld 2 3 4 bee harmless given the cir en rcumstances of this case s e. IV. INE EFFECTIVE ASSISTANCE OF COUNSE CLAIMS EL 5 A. Legal Fram mework 6 In order to establish IAC, petiti r h ioner must sh how both tha (i) his co at: ounsel perfor rmed 7 def ficiently and (ii) the defi d icient perform mance in fac prejudiced his defense Strickland v. ct d e. d 8 Wa ashington, 46 U.S. 668, 687–88 (19 66 , 984). A revi iewing court should deny an IAC cla if the t y aim 9 pet titioner cann adequatel demonstra either of the Stricklan prongs. I at 697 (courts are not not ly ate nd Id. t 10 United States District Court Northern District of California 11 req quired to add dress both pr rongs of the test if the pe t etitioner fails on one). s In estab blishing the first prong of Strickland petitioner m show th his coun f o d, must hat nsel’s 12 per rformance was deficient, i.e., it fell below an “ob w , b bjective stan ndard of reas sonableness” under ” 13 pre edominant pr rofessional norms. Id. at 687–88. T reviewin court shou treat cou n a The ng uld unsel’s 14 con nduct with a strong presu umption that the conduc is within th realm of r t ct he reasonable p professional 15 ass sistance. See id. at 689. e 16 In order to establish the second prong, petit r h d tioner must s show counse deficient el’s t 17 per rformance pr rejudiced him i.e., that “there is a re m, “ easonable pr robability tha but for co at, ounsel’s 18 unp professional errors, the result of the proceeding w r would have been differe ent.” Id. at 6 694. 19 20 21 22 23 24 25 26 27 28 4 Petiti ioner additio onally argues that the Co of Appea determin s ourt al’s nation that it was t evi ident that petitioner responded with significantly greater forc than nece y ce essary was ba ased on erroneous factu assumpti ual ions lacking evidentiary basis. Spec cifically, peti itioner takes issue with the Court of Ap e ppeal’s conc clusion that Doe was not wielding “a D t anything oth than an ap her pparently ligh ht-weight ca not likely to cause se ane y erious injury Williams 2014 WL 1 y.” s, 1465884, at *2. As res spondent ind dicates, howe ever, one of the trial exh ibits include a photograph of the w t ed wooden cane. (Se Dkt. No. 23-7 at 49.) Additionally the Court of Appeal c ee 2 y, could have concluded, ba ased on pet titioner’s ligh injury in comparison to Doe’s, tha the woode cane was “apparently light ht c at en y we eight” and no “likely to cause seriou injury.” P ot c us Petitioner als argues tha a jury coul have so at ld fou petitione justified in his use of force given D und er n f Doe’s and petitioner’s si imilarity in w weight. Ho owever, as re espondent argues, the Co of Appe could hav determine that a jury would not ourt eal ve ed y find it convinci that a ma “over six feet tall wei ing an ighing 220 p pounds” was justified in using such s for against a “five-foot five-inch, 62rce fi -year-old wo oman of 250 pounds (a w 0 weight sugge esting obe esity rather than power) to that exten to ensure h safety.” (Dkt. No. 27-1 at 23 (ci t nt his iting exh hibits).) See Harrington 562 U.S. at 102 (“[A] h e n, a habeas cour must determ what a rt mine arguments or r the eories suppor or . . . could have su rted upported, the state court’s decision.” e ”). 13 3 1 Petitioner must establish that counsel’s errors were so severe as to dispossess the petitioner of a 2 fair trial and reliable verdict. Id. at 692. When a petitioner is challenging a conviction, the 3 pertinent question is “‘whether there is a reasonable probability that, absent the errors, the 4 factfinder would have had a reasonable doubt respecting guilt.’” Hinton v. Alabama, 134 S. Ct. 5 1081, 1089 (2014) (quoting Strickland, 466 U.S. at 694). For petitioner to show prejudice due to 6 counsel’s failure to file a motion, petitioner has to prove that (1) had his counsel filed the motion, 7 it is reasonably probable that motion would have been granted, and (2) had the motion been 8 granted, it is reasonably probable that the result of the trial would have been more favorable to 9 him. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999). 10 For a federal court reviewing IAC claims in a habeas proceeding, the question “is not United States District Court Northern District of California 11 whether a federal court believes the state court’s determination” under Strickland “was incorrect[,] 12 but whether [that determination] was unreasonable—a substantially higher threshold.” Knowles v. 13 Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted). Under section 2254(d), a federal 14 habeas court reviewing Strickland claims should apply a decidedly deferential standard to state 15 court decisions. See Knowles, 556 U.S. at 123 (citing Yarborough v. Gentry, 540 U.S. 1, 5–6 16 (2003)); see also Cullen, 563 U.S. at 202 (holding that a federal habeas court applies a “doubly 17 deferential” standard of review in analyzing IAC claims under section 2254). In examining a 18 habeas IAC claim, if petitioner cannot prove the deficient performance prong, a federal court does 19 not need to explore Strickland’s prejudice prong. See Siripongs v. Calderon, 133 F.3d 732, 737 20 (9th Cir. 1998). Inversely, it is unnecessary for a federal habeas court to decide whether counsel’s 21 performance was deficient before examining whether petitioner was prejudiced due to the 22 purported deficient performance of his counsel. See Strickland, 466 U.S. at 697; Williams v. 23 Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (affirming the district court’s refusal to 24 contemplate whether counsel deficiently performed after already deciding that petitioner could not 25 show prejudice). 26 The pronounced deference in Strickland for reviewing a defense counsel’s effectiveness 27 provides state courts with more flexibility in reasonably applying the rule, consequently 28 “translat[ing] to a narrower range of decisions that are objectively unreasonable under AEDPA.” 14 1 Cheney v. Washington, 614 F.3d 987, 995 (9th Cir . 2010) (citin Yarborou v. Alvara 4 9 ng ugh ado, 541 2 U.S 652, 664 (2004)). Because the Str S. ( rickland prej ejudice exam mination is co omprehensiv in itself, ve 3 the is no need for a habea court to em ere d as mploy the h armless erro review und Brecht. Brecht, 507 or der 4 U.S at 637; see also Musla S. adin v. Lama arque, 555 F F.3d 830, 834 (9th Cir. 2 4 2009). 5 B. Discussion 6 The Co addresse each of the IAC claim brought, n ourt es e ms namely, petit tioner’s coun nsel’s failure e 7 to: (i) obtain admission of Doe’s hears statemen through S a f say nts Savage’s test timony; (ii) move to 8 sup ppress police testimony and photogra e a aphs of bloo inside the house; and (iii) object t admission od to n 9 of Doe’s hearsa statement to the para D ay ts amedic and 9 911-operator under the C r Confrontatio Clause. on 10 United States District Court Northern District of California 11 1. Failure to Obtain Adm O mission of H Hearsay Stat tements As prev viously discu ussed, the tri court den ial nied the defen nse’s reques for admiss st sion of Doe’s 12 hea arsay statem ments through Savage as an exception based on a declaration against pena interest. h a n al 13 Alt ternatively, petitioner arg p gues that his trial counse should hav sought ad s el ve dmission for purposes of r f 14 imp peachment under the inc u consistent sta atements exc ception. The California Court of Ap e ppeal agreed d 15 tha such performance was deficient. Williams, 20 WL 1465 at W 014 5884, at *4. However, t Court of the 16 Ap ppeal held that petitioner IAC claim failed on th ground b r’s m his because any such error w was 17 har rmless. Id. Thus, the co reasoned ourt d: 18 19 20 21 22 23 24 25 26 27 28 “Evidence that would have been adm t mitted to att tack or suppo the ort credibility of a hearsay declarant if he or she ha actually te o ad estified is admissibl to attack or support th hearsay de le o he eclaration.” (Simons, Ca Evidence Manual (20 ed.) § 2:17; Evid. Co § al. 013 ode, 1202.) How wever, “the prosecution m not offe for their tr p may er ruth the inconsistent statements of a declaran who does not testify a trial.” t nt s at (People v. Blacksher (20 B 011) 52 Cal. .4th 769, 808.) Defenda ant’s wife was a hearsay decl h larant. The s statements sh made to t 9-1he the 1 dispatcher and the par r ramedic wer properly re re eceived in ev vidence. (See subdiv vision c., post.) The truth of these sta h atements wa as contradicted at least in part, by her statements t Anne Sav d, to vage. Therefore, although the incriminatin statement were a ng ts inadmissible under Evid e dence Code section 1230 they were 0, admissible under Eviden Code se u nce ection 1202 f the limite for ed purpose of evaluating th truth of th hearsay st e he he tatements tha were at admitted. Although def A ference must ordinarily b given to t be counsel’s ta actical decisi ions, we can think of no possible stra n ategic reason for having failed to advance this alternat ground f the h d tive for admission of the statem o ments to Anne Savage. T admissib e The bility of 15 5 this evidence was considered outside the presence of the jury and it was unquestionably in defendant’s interest to cast doubt on the credibility of what the wife told the officers and the paramedic. 1 2 Nonetheless, even if counsel was deficient in failing to seek admission of this evidence under Evidence Code section 1202, there was no prejudice. (See In re Crew (2011) 52 Cal.4th 126, 150 [“If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel’s performance was deficient.”].) For the reasons discussed above, even on the assumption that consideration of this evidence for the limited permissible purpose would have caused the jury to doubt whether defendant was the original aggressor—a dubious assumption—the extent of the wife’s injuries, coupled with defendant’s spontaneous acknowledgement of guilt, leaves little room to believe that admission of this evidence would have affected the outcome of the trial. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 Id. For the reasons discussed above, and in light of the undisputed evidence indicating the injuries inflicted on Doe, it was not unreasonable for the California Court of Appeal to decide that there was no reasonable probability of Doe’s statement to Savage changing the jury verdict. Therefore, the Court of Appeal did not contravene or unreasonably apply the standard for IAC set forth in Strickland in finding no prejudice due to defense counsel’s deficient performance. 2. Failure to Move to Suppress Police Testimony and Photographs of Blood Inside the House 18 Petitioner next argues that his counsel’s failure to suppress police testimony and 19 photographs of blood inside the house was IAC. Specifically, petitioner argues that his counsel 20 should have moved to exclude the testimony of Officer Manion and the introduction of 21 photographs taken by Officer Manion based on his warrantless search of petitioner’s house. With 22 regards to this issue, the California Court of Appeal explained: 23 24 25 26 27 28 Defendant also contends his attorney’s performance was deficient because he failed to move to suppress evidence obtained as a result of Officer Manion’s warrantless entry into his home. Manion entered the home after placing defendant in handcuffs and before locating his wife. Manion testified to his observation of blood in the master bedroom and photographs of the bedroom were admitted into evidence. Defendant claims that a warrantless entry was not justified because there were no exigent circumstances and a protective sweep was not warranted. Under the Fourth Amendment, searches and seizure inside a home 16 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 without a warrant are presumptively unconstitutional. (Groh v. Ramirez (2004) 540 U.S. 551, 552.) However, warrantless entries are allowed during exigent circumstances (Minnesota v. Olson (1990) 495 U.S. 91, 100), and for purposes of a limited protective sweep (Maryland v. Buie (1990) 494 U.S. 325, 335-337). Exigent circumstances are defined as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) When emergency situations arise, “[o]fficers do not need ironclad proof of a ‘serious, life-threatening injury to invoke the emergency aid exception.” (Michigan v. Fisher (2009) 558 U.S. 45, 49.) “ ‘[A]n objectively reasonable basis for believing’ [citation] that ‘a person within [the house] is in need of immediate aid’ ” is sufficient. (Id. at p. 47.) In the present case, defendant’s wife had told the police dispatcher that she was hiding in her neighbor’s backyard. When police officers arrived at the scene, Officer Manion spotted only the defendant on the porch of his home. The whereabouts of defendant’s wife’s was unknown, but the door to the home was open and defendant made an attempt to enter. Under the circumstances it was eminently reasonable, and responsive to the 9-1-1 emergency call for assistance, for the officer to determine whether the wife had returned to her home and was in immediate need of aid. Because a motion to suppress evidence of what was observed inside the home was doomed to fail (e.g., Michigan v. Fisher, supra, 558 U.S. 45), the attorney’s failure to bring such a motion was neither a deficiency nor prejudicial. Williams, 2014 WL 1465884, *4–5. Under the Fourth Amendment, warrantless searches of a home are presumptively unconstitutional, however, that presumption may be overcome if exigent circumstances exist. Michigan v. Fisher, 558 U.S. 45, 47 (2009); United States v. Alaimalo, 313 F.3d 1188, 1192–93 (9th Cir. 2002). “[E]xigent circumstances are present when a reasonable person [would] believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” Bailey v. Newland, 263 F.3d 1022, 1033 (9th Cir. 2001) (internal quotations omitted); Kentucky v. King, 563 U.S. 462, 471–72 (2011) (exception to prevent destruction of evidence). The Fourth Amendment also permits police officers to enter a home without a search warrant to provide emergency aid to a wounded inhabitant or to defend an 28 17 1 inhabitant from impending harm. Fisher, 558 U.S. at 45, 47. This “emergency aid” exception 2 requires only that the officer had an “objectively reasonable” foundation for thinking that someone 3 in the house was in need of urgent care. Id. 4 Here, when the officer reached petitioner’s home, Doe had told the dispatcher that she was 5 in her neighbor’s backyard. Williams, 2014 WL 1465884, at *5. However, when the officer 6 arrived, he saw petitioner on the front porch, and he was not certain as to the victim’s location, as 7 it was not clear whether or not she remained in her neighbor’s yard. Id. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The officer’s testimony on this issue is instructive: Q: What happened when you first arrived at 723 Cypress? A: I noticed that the front door of the home was wide open. Q: Did you initially see anybody? A: Not initially. Q: At some point, did you see someone at 723 Cypress? A: Yes. Q: Can you describe who you saw? A: I saw Mr. Williams standing at the front porch. ... Q: What was the defendant doing when you saw him standing at the porch? A: He was just standing there. Q: What did you do? A: I asked him to come down to me. He was standing on the sidewalk in front of the house. Q: What was his reaction or response when you asked him to come toward you? A: He turned around and started to walk inside the house. Q: What did you do? A: I went in the front door and handcuffed him. I didn’t want him to go into the house, have possible weapons, make the situation dangerous for me and fellow officers. ... Q: And at the time when you first saw the defendant standing on the porch, did you have any idea where the possible victim might be? A: Possibly in the back yard of the neighbor’s house. Q: But you weren’t sure at that time? A: I did not know. (Dkt. No. 23-7 at 29–31.) Under these circumstances, it was not unreasonable for the Court of Appeal to find that the officer had an “objectively reasonable basis for believing that a person within the house [was] in 28 18 1 need of immediate aid.” Fisher, 558 U.S. at 47; see also United States v. Black, 482 F.3d 1035, 2 1039 (9th Cir. 2006) (finding search justified where police feared that victim could have been 3 inside the apartment). Accordingly, the Court of Appeal’s conclusion that it was not outside the 4 scope of professional conduct for petitioner’s trial counsel to decide not to bring a motion to 5 suppress such evidence was also reasonable and subject to this Court’s deference. 6 Additionally, it was not unreasonable for the Court of Appeal to find that counsel’s failure to move for suppression did not prejudice petitioner. Even if petitioner’s counsel had moved to 8 suppress such evidence and succeeded, the prosecution also presented photographs and medical 9 testimony of Doe’s actual injuries. (See Dkt. No. 23-7 at 118–35.) As respondent argues, the 10 “emotional impact that could have arisen from the photographs of the bedroom were already 11 United States District Court Northern District of California 7 independently evoked by the photographs of the victim’s face and body.” (Dkt. No. 27-1 at 36.) 12 Thus, there is no “reasonable probability that, absent the errors, the factfinder would have had a 13 reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. 14 3. Failure to Move to Suppress Hearsay Statements to Paramedic and 911 Operator 15 Petitioner further argues that he received ineffective assistance of counsel due to defense 16 counsel’s failure to object to the admission of Doe’s statements to the 911 operator and paramedic 17 as a violation of the Sixth Amendment’s Confrontation Clause. The California Court of Appeal 18 rejected petitioner’s argument: 19 20 21 22 23 24 25 26 27 28 [D]efendant argues that his lawyer provided ineffective assistance in failing to object to the admission of the statements made by his wife in her 9-1-1call for help and to the attending paramedic, on the ground that these hearsay statements were testimonial and their admission violated his Sixth Amendment right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36.) Defendant asserts that by the time his wife made the 9-1-1 call, the emergency had already ended, so that the operator’s line of questioning (“what’s going on?”) had evolved into an interrogation in which she told the authorities that “her husband” “had beat [her] and kicked [her].” Likewise, defendant asserts that by the time the paramedic arrived the emergency was no longer in progress, so that when the paramedic asked his wife “if she was struck with any weapons or how she was struck,” her response “that she had been kicked multiple times and all over her body” was testimonial in nature. Defendant relies on Davis v. Washington (2006) 547 U.S. 813, 822 to support his argument that statements become testimonial “when 19 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” However, “a 911 call, and at least the initial questioning by the operator, are not primarily designed to prove some past fact, but to elicit current circumstances requiring police assistance.” (People v. Cage (2007) 40 Cal.4th 965, 982.) Here, after the wife told the 9-1-1 dispatcher “I need help please,” the dispatcher asked “what’s going on” in order to determine if police assistance was needed. Likewise, the paramedic was eliciting information in order to determine appropriate medical treatment. At trial, the paramedic explained that it is general procedure to ask trauma patients a series of questions to ascertain if they are alert and oriented. One of those questions is “if they know what happened to them.” The purpose of these questions is to “make sure that when they answer questions what they are saying is going to make sense.” If the responses do not make sense, the paramedics “wouldn’t take what they are saying” and instead “go by what [they] see.” Additionally, these questions help paramedics “find out where the injures could be, and pretty much line up for the hospital so they can know what to expect, what areas to look at.” Thus, these questions and the wife’s answers were made primarily to deal with an ongoing emergency situation. The statements were not elicited to establish facts for use in a later criminal prosecution, and their admission was not a violation of defendant’s Sixth Amendment rights as construed in Crawford v. Washington, supra, 541 U.S. 36 and its progeny. Deference is ordinarily due to tactical decisions by defense counsel, including particularly decisions on whether to object to the introduction of evidence. This decision is inherently tactical and seldom establishes a counsel’s incompetence. (People v. Roberts (2011) 195 Cal.App.4th 1106; see generally, Douglas v. Woodford (2003) 316 F.3d 1079.) In the present case, the failure to raise this meritless objection clearly was neither deficient nor prejudicial. Williams, 2014 WL 1465884, at *5–6. The Sixth Amendment’s Confrontation Clause affords the accused in criminal cases the 24 right to “be confronted with the witnesses against him.” U.S. Const. amend. VI. The goal of the 25 Confrontation Clause is to guarantee due process and the trustworthiness of evidence. Crawford 26 v. Washington, 541 U.S. 36, 61 (2004). The clearly established Supreme Court precedent under 27 Crawford demands that the reliability of evidence be tested by the adversarial process’ hallmark of 28 cross-examination. Id.; see also Davis v. Alaska, 415 U.S. 308, 315–16 (1974). 20 1 The Confrontation Clause applies to all “testimonial” statements, whether made in court or 2 out of court. Crawford, 541 U.S. at 50–51. A statement is testimonial hearsay subject to the 3 Confrontation Clause when the main purpose of presenting the out-of-court statement is to create 4 an out-of court substitute for trial testimony. Michigan v. Bryant, 562 U.S. 344, 369 (2011); see, 5 e.g., Bullcoming v. New Mexico, 564 U.S. 647, 655–59 (2011) (finding that a lab report prepared 6 in connection with a criminal investigation and certifying that petitioner’s blood alcohol level was 7 above limit for aggravated DUI was testimonial); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 8 310, 329 (2009) (concluding a certificate from a crime lab analyst identifying a controlled 9 substance qualified as testimonial evidence because it was produced for the purpose of proving a 10 fact in trial and was basically identical to other in-court testimony). United States District Court Northern District of California 11 Where an investigation or preparation for trial is not the primary purpose of garnering a 12 statement, “the admissibility of a statement is the concern of state and federal rules of evidence, 13 not the Confrontation Clause.” Bryant, 562 U.S. at 358. The relative formality of the questioning, 14 or the lack thereof, may aid a court’s inquiry as to its “primary purpose.” Id. at 366. The primary 15 purpose of a statement is determined objectively. United States v. Rojas-Pedroza, 716 F.3d 1253, 16 1267 (9th Cir. 2013). Accordingly, “‘the relevant inquiry is not the subjective or actual purpose of 17 the individuals involved in a particular encounter, but rather the purpose that reasonable 18 participants would have had, as ascertained from the individuals’ statements and actions and the 19 circumstances in which the encounter occurred.’” Id. (quoting Bryant, 562 U.S. at 360). 20 “Statements are nontestimonial when made in the course of police interrogation under 21 circumstances objectively indicating that the primary purpose of the interrogation is to enable 22 police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 23 (2006). Statements are testimonial “when the circumstances objectively indicate that there is no 24 such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove 25 past events potentially relevant to later criminal prosecution.” Id. at 814, 822. Testimonial 26 hearsay statements are prohibited under the Confrontation Clause unless (1) the witnesses are 27 unavailable, and (2) the defendants had a prior opportunity to cross-examine the witnesses. 28 Crawford, 541 U.S. at 59. 21 1 Here, the statements of concern involved, like Davis, a 911 call occurring in an ongoing 2 emergency: Doe’s request for medical help and rescue from the neighbor’s backyard. In Davis, 3 the Supreme Court held that the statements were not testimonial because the nature of “what was 4 asked and answered . . . was such that the elicited statements were necessary to be able to resolve 5 the present emergency.” Davis, 547 U.S. at 817, 827 (discussing that the operator asked “What’s 6 going on?,” “Are there any weapons?,” and “What’s his . . . name?,” to which the victim answered 7 “He’s jumpin’ on me again,” “No. He’s usin’ his fists,” and “Davis . . . Adrian”). The questions 8 asked by the 911 operator in the instant matter are indistinguishable from those asked by the 911 9 operator in Davis. (See Dkt. No. 23-5 at 42–43 (transcript of 911 call where operator asked Doe what happened, whether her husband had any weapons, and what her husband’s name was). 11 United States District Court Northern District of California 10 Petitioner attempts to distinguish Davis by arguing that here, Doe informed the 911 operator that 12 she had been attacked forty-five minutes prior to making the call. However, in the same breath, 13 Doe also informed the operator that she had just been “able to slip away” from petitioner, which 14 could have implied that she remained in danger. (Dkt. No. 23-5 at 42.) Thus, it was not 15 unreasonable for the Court of Appeal to determine that the statements made to the 911 operator 16 were not testimonial and that therefore, defense counsel’s failure to object was not deficient. 17 Petitioner’s arguments with respect to Doe’s statements to the paramedic are equally 18 unavailing. Petitioner argues that the paramedic’s questions went beyond what was necessary to 19 provide treatment but rather were intended to obtain information for a future prosecution. 20 Specifically, petitioner takes issue with the paramedic asking Doe what happened, how she 21 received her injuries, and whether she was struck with an open hand, closed hand, or kicked. 22 These questions, petitioner argues, were not necessary for Doe’s diagnosis or treatment. However, 23 at trial, the paramedic testified that such questions help them determine “where the injuries could 24 be, and pretty much line up for the hospital so they can know what to expect, what areas to look 25 at.” (Dkt. No. 23-15 at 12.) The Ninth Circuit has held similar questioning from a physician to be 26 non-testimonial. See Moses v. Payne, 555 F.3d 742, 748, 755 (9th Cir. 2008) (holding that state 27 court’s determination that emergency room physician’s questions about what happened to assault 28 victim was not testimonial was not an unreasonable application of Crawford). Thus, it was also 22 1 not unreasonable for the Court of Appeal to determine that Doe’s statements to the paramedic 2 were non-testimonial and that defense counsel’s failure to object to such statements was not 3 deficient. Williams, 2014 WL 1465884, at *5. 4 In any event, even if the Court were to find that counsel’s performance with respect to this 5 issue was deficient, it was not unreasonable for the Court of Appeal to find that petitioner was not 6 prejudiced by any potential error. Id. As discussed above, the evidence of Doe’s severe injuries, 7 coupled with petitioner’s admission of guilt would likely not have been outweighed or even 8 compromised by the exclusion of the statements at issue here. Additionally, Doe’s medical 9 records and contemporaneous photographs amply document the extent of the injuries inflicted on Doe. Hence, no reasonable probability exists that the outcome of the trial would have been 11 United States District Court Northern District of California 10 different if defense counsel had objected to the admission of the statements at issue here. 12 13 V. CONCLUSION Accordingly, petitioner has not met his burden to show that he is in custody in violation of 14 the Constitution or laws or treaties of the United States, and his petition is hereby DENIED. A 15 certificate of appealability will not issue. Reasonable jurists would not “find the [Court’s] 16 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 17 484 (2000). Petitioner may seek a certificate of appealability from the Ninth Circuit Court of 18 Appeals. The Clerk shall enter judgment in favor of respondent and close the file. 19 20 21 22 IT IS SO ORDERED. Dated: October 26, 2016 ______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 23 24 25 26 27 28 23