Diaz v. Carey, No. 5:2006cv03162 - Document 45 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Jeremy Fogel on 7/1/10. (dlm, COURT STAFF) (Filed on 7/20/2010)
Download PDF
<![CDATA[
Diaz v. Carey Doc. 45 1 2 3 4 5 6 7 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 ) ) ) Petitioner, ) ) vs. ) ) TOM CAREY, Warden, ) ) Respondent. _________________________________ ) MIGUEL ENRIQUE DIAZ, 12 13 14 15 16 No. C 06-03162 JF (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY 17 18 Petitioner, a California prisoner proceeding pro se, filed a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254 challenging his state conviction. The Court ordered 20 Respondent to show cause why the petition should not be granted. Respondent filed an 21 answer and a supporting memorandum of points and authorities addressing the merits of 22 the petition, and Petitioner filed a traverse. Having reviewed the papers and the 23 underlying record, the Court concludes that Petitioner is not entitled to habeas corpus 24 relief and will deny the petition. BACKGROUND 25 26 27 28 The following facts are taken from the opinion of the California Court of Appeal affirming Petitioner’s conviction: [Petitioner] and Jane Doe began seeing each other in January Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1999. For a while they shared an apartment, but in October 2000 the relationship began to sour. [Petitioner] was using drugs. Doe moved out in March 2001, but continued to provide [Petitioner] with financial assistance and maintained a friendship with him. In July 2001, Doe was living in South San Francisco and [Petitioner] in San Francisco. [Petitioner] called Doe around 7:00 a.m. on the morning of July 12. He told her to come to his residence, because he was going to ram her parents’ house with a car. Doe’s sister L.P. lived with her parents. L.P. had initially introduced [Petitioner] and Doe, and [Petitioner] had been expressing animosity toward L.P. Doe went to meet [Petitioner], picked him up, and drove him to the drug program he was attending. However, [Petitioner] refused to get out of the car, and Doe drove him around San Francisco and eventually took him home. She tried to leave, but he took her keys. They went to his room, where he took drugs. They drove around the city again, during which time [Petitioner] showed Doe two knives he was carrying and threatened to “do something to the police, so the police would shoot him.” [Petitioner] also attempted to steer the car into a pole, but Doe slammed on the brakes. At one point while [Petitioner] was driving, he threatened to ram Doe’s ex-husband’s house, but drove Doe home instead. There, he took a kitchen knife and tried to force Doe to push the knife into him. Finally, he left in Doe’s car. She filed a police report. Also on July 12, 2001, [Petitioner] began harassing Doe’s sister L.P. with phone calls, threatening her daughters and her family. Doe learned about these calls and was angry, but continued to try to be a friend to [Petitioner], helping him move and get into another drug program. However, in September Doe told [Petitioner] she was tired of helping him, and asked him to stop contacting her and her sister. A few weeks later, [Petitioner] came to her apartment, but she refused to speak to him. That night, someone broke her car windows. In October, L.P. obtained a restraining order against [Petitioner] after he went to her daughters’ school and shouted threats, which were relayed to her daughters. Around 5:00 a.m. on November 17, 2001, L.P. was awakened in her ground floor apartment at the family home by “a banging and then like running around upstairs.” She ran upstairs, where her brother had dialed 911. He told her her car and the house were on fire; L.P. looked out the window and saw her car, parked in the driveway, in flames as well as the garage door in front of it. An arson investigator concluded the fire had been set with gasoline at three separate points, one on the garage door and two at the front of the car. Around 5:15 a.m. on the same morning, Doe was awakened by knocks on her window and door. She saw [Petitioner] through the sliding glass door, and told him she did not want to talk to him. However, when he said he had one of her sons, she let him in. He began pouring a container of gasoline in the living room. Doe ran to the bedroom to call 911. [Petitioner] pursued her, took the phone away, threw her on the bed, and choked her. He told her he had gone to L.P.’s house and “poured gasoline over there” or “set fire” (in her testimony, Doe could not recall his words exactly). Doe managed to get away, then saw [Petitioner] throw something into the living room, which immediately burst into flame. Doe called 911 again, as [Petitioner] shut the bedroom door. Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 2 Doe tried to open a window to escape, but [Petitioner] pulled her back three or four times. He told her they would both die there. Doe managed to break the window, and heard a neighbor shouting. She crawled out, with [Petitioner] climbing on top of her. [Petitioner] began to rush away, but stumbled, caught himself, and walked normally toward the front of the building. The neighbor’s son, a recent graduate of the California Highway Patrol Academy, was in the driveway and saw [Petitioner] walk around the corner of the building. The officer identified himself and ordered [Petitioner] to get down. [Petitioner] did not comply, and struggled when the officer grabbed him, but with the assistance of another neighbor [Petitioner] was restrained until the South San Francisco police arrived to arrest him. Doe’s car, parked nearby on the street, was found with gasoline poured over it. 1 2 3 4 5 6 7 8 9 See People v. Diaz, No. A101811, slip op. at 1-3 (Feb. 3, 2005) (Resp’t, Ex. 10). 10 In December 2002, a San Mateo Superior Court jury convicted Petitioner of the 11 following offenses: attempted murder, assault, infliction of corporal injury on a former 12 cohabitant, false imprisonment, dissuading a witness, burglary, three counts of arson and 13 one of attempted arson, making criminal threats, battery on a peace officer, resisting a 14 peace officer, and stalking. (Resp’t, Ex. 2, Vol. 2 at 269-85.) The jury found Petitioner 15 not guilty of several additional charges, including kidnaping, vandalism, and making 16 criminal threats. (Id. at 279, 281, 286-88.) On February 28, 2003, Petitioner was 17 sentenced to life in prison with the possibility of parole for the attempted murder 18 conviction and an additional determinate term of nine years, eight months for the other 19 offenses. (Id. at 427-29.) The California Court of Appeal affirmed the judgment on February 3, 2005, and 20 21 the California Supreme Court denied review on April 27, 2005. Petitioner originally filed 22 a petition for writ of habeas corpus in this Court on May 11, 2006, which was stayed to 23 permit Petitioner to exhaust his state remedies. Petitioner then filed a state habeas 24 petition which was denied by the superior court on June 23, 2006. The California 25 Supreme Court denied review on August 27, 2008. Petitioner filed the instant amended 26 petition, (Docket No. 12), on September 29, 2008. 27 /// 28 /// Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 3 DISCUSSION 1 2 3 I. Standard of Review Because the instant petition was filed after April 24, 1996, it is governed by the 4 Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposes 5 significant restrictions on the scope of federal habeas corpus proceedings. Under the 6 AEDPA, a federal court may not grant habeas relief with respect to a state court 7 proceeding unless the state court’s ruling was “contrary to, or involved an unreasonable 8 application of, clearly established federal law, as determined by the Supreme Court of the 9 United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination 10 of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 11 2254(d)(2). 12 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 13 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 14 question of law or if the state court decides a case differently than [the] Court has on a set 15 of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 16 (2000). “Under the ‘unreasonable application clause,’ a federal habeas court may grant 17 the writ if the state court identifies the correct governing legal principle from [the] 18 Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 19 case.” Id. “[A] federal habeas court may not issue the writ simply because the court 20 concludes in its independent judgment that the relevant state-court decision applied 21 clearly established federal law erroneously or incorrectly. Rather, that application must 22 also be unreasonable.” Id. at 411. 23 “[A] federal habeas court making the ‘unreasonable application’ inquiry should 24 ask whether the state court’s application of clearly established federal law was 25 ‘objectively unreasonable.’” Id. at 409. In examining whether the state court decision 26 was objectively unreasonable, the inquiry may require analysis of the state court’s method 27 as well as its result. Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003). The 28 “objectively unreasonable” standard does not equate to “clear error” because “[t]hese two Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 4 1 standards . . . are not the same. The gloss of clear error fails to give proper deference to 2 state courts by conflating error (even clear error) with unreasonableness.” Lockyer v. 3 Andrade, 538 U.S. 63, 75 (2003). A federal habeas court may grant the writ if it concludes that the state court’s 4 5 adjudication of the claim “resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence presented in the State court 7 proceeding.” 28 U.S.C. § 2254(d)(2). The Court must presume correct any determination 8 of a factual issue made by a state court unless the Petitioner rebuts the presumption of 9 correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 10 11 II. Legal Claims and Analysis Petitioner asserts the following claims for habeas relief: (1) ineffective assistance 12 of trial counsel; (2) juror misconduct; (3) ineffective assistance of appellate counsel for 13 failing to raise additional claims; (4) improper jury instructions; (5) abuse of discretion by 14 the trial court in sentencing; (6) “Cunningham/Apprendi” error in sentencing; (7) actual 15 innocence; and (8) cumulative error.1 16 A. Ineffective Assistance of Trial Counsel 17 Petitioner claims that his Sixth and Fourteenth Amendment rights were violated as 18 a result of the ineffective assistance of his trial counsel. (Am. Pet. at 34.) Petitioner 19 asserts that trial counsel failed to investigate and present a mental state defense related to 20 Petitioner’s diabetes. (Id. at 36.) In addition, Petitioner asserts that trial counsel 21 improperly acquiesced to the trial court’s order to stop exercising peremptory challenges. 22 (Id. at 40.) 23 The trial court found that Petitioner had failed to present sufficient evidence in 24 support of his claim that trial counsel was ineffective. (Am. Pet., Ex. J. at 5.) The court 25 concluded that there was no evidence that Petitioner suffered from uncontrolled diabetes 26 27 1 28 Petitioner raised claims 1, 2, 3, 4 and 7 in his state habeas petition and claims 5 and 6 in his direct appeal. Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 5 1 resulting in psychotic behavior at the time of his crime. (Id.) In addition, the court found 2 that Petitioner failed to show that the court had ordered counsel to cease exercising 3 peremptory challenges or that such an order rendered the result of the trial unreliable. 4 (Id.) 5 The Sixth Amendment right to counsel guarantees not only assistance, but 6 effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). 7 “The benchmark for judging any claim of ineffectiveness must be whether counsel’s 8 conduct so undermined the proper functioning of the adversarial process that the trial 9 cannot be relied upon as having produced a just result.” Id. In order to prevail on a Sixth 10 Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, 11 he must establish that counsel’s performance was deficient, i.e., that it fell below an 12 “objective standard of reasonableness” under prevailing professional norms. Id. at 687- 13 88. Counsel’s performance is presumed to fall “within a wide range of reasonable 14 representation.” Hoffman v Arave, 455 F.3d 926, 931 (9th Cir. 2006) (quoting United 15 States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1987)). Second, petitioner 16 must establish that he was prejudiced by counsel’s deficient performance, i.e., that “there 17 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 18 proceeding would have been different.” Strickland, 466 U.S. at 694. Petitioner must 19 show that counsel’s errors were so serious as to render the results of the trial unreliable. 20 Id. at 688. 21 Counsel must, at a minimum, conduct a reasonable investigation enabling him to 22 make informed decisions about how best to represent his client. Avila v. Galaza, 297 23 F.3d 911, 924 (9th Cir. 2002). Strickland directs that “‘a particular decision not to 24 investigate must be directly assessed for reasonableness in all the circumstances, applying 25 a heavy measure of deference to counsel’s judgments.’” Silva v. Woodford, 279 F.3d 26 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 491). 27 28 In a federal habeas challenge to a state criminal judgment, a state court’s legal conclusion that counsel rendered effective assistance is not binding on the federal court. Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 6 1 Both the performance and the prejudice components of the ineffectiveness inquiry are 2 mixed questions of law and fact. See Strickland, 466 U.S. at 698. Claims of ineffective 3 assistance therefore require an independent review of the record. 4 Petitioner fails to show that trial counsel rendered ineffective assistance by failing 5 to investigate a mental state defense related to Petitioner’s diabetes. As a threshold 6 matter, Petitioner has failed to present any evidence that he actually suffered from 7 diabetes at the time of his alleged crimes. He has presented only a copy of an insulin card 8 issued in 2006, five years after the date of the underlying offenses. (Trav. at 17.) 9 Moreover, Petitioner has not offered any evidence that he was diagnosed with diabetes by 10 a medical professional. Without this fundamental evidence, Petitioner cannot show that 11 his trial counsel was ineffective for failing to investigate diabetes-related defenses. 12 Even assuming that Petitioner was a diabetic in 2001, and that diabetes may cause 13 psychosis as a result of abnormal blood sugar levels, Petitioner has failed to present any 14 evidence that he was suffering from any such psychosis at the time of his crimes. (Am. 15 Pet. at 38.) He offers no medical records supporting an inference that he ever has 16 suffered from a diabetic psychosis. Based on this record, trial counsel had no reasonable 17 basis for investigating any diabetes-related mental health defense, and his failure to do so 18 did not constitute ineffective assistance. Strickland, 466 U.S. at 687-88. 19 Moreover, Petitioner has failed to show that he was prejudiced under Strickland’s 20 second prong. 466 U.S. at 686. Petitioner’s trial counsel did present a mental state 21 defense, arguing that continuous cocaine use in combination with use of the prescription 22 drug Paxil caused Petitioner to become psychotic and rendered him incapable of forming 23 the requisite specific intent at the time of his crimes. (See Resp’t, Ex. 1, Vol. 11-12.) 24 The jury rejected this defense, and Petitioner does not contend that trial counsel’s conduct 25 in presenting the defense was defective. (Am. Pet. at 36-40.) Trial counsel clearly 26 presented an adequate mental state defense, and he did not render ineffective assistance 27 merely because a similar defense based on diabetes might have been available. Cf. 28 Plascencia v. Alameda, 467 F.3d 1190, 1198-1201 (9th Cir. 2006) (counsel’s alleged Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 7 1 failure to investigate informants background, motives and interests not prejudicial where 2 trial record showed that counsel vigorously attacked their credibility in several other ways 3 to show that their testimony was fabricated). Petitioner has failed to show a reasonable 4 probability that the result of his trial would have been different if his mental state defense 5 had been based on psychosis caused by his alleged blood-sugar imbalance instead of a 6 drug interaction. 7 Petitioner also claims that his trial counsel was ineffective because he agreed to the 8 trial court’s order that he cease exercising peremptory challenges. (Am. Pet. at 40.) 9 Assuming that such an order was given by the trial court and that counsel should not have 10 acquiesced to it, Petitioner has failed to show that but for such acquiescence the result of 11 the proceeding would have been different. Strickland, 466 U.S. at 694. While the right to 12 exercise peremptory challenges is grounded in the Sixth Amendment, the loss of a 13 peremptory challenge as such does not violate the Constitution as long as the jury that is 14 ultimately selected is impartial. See Martinez-Salazar, 528 U.S. 304, 313 (2000); Davis 15 v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004) (“we cannot say that counsel was 16 deficient in declining to exercise peremptory challenges”). Petitioner has not shown that 17 trial counsel’s failure to exercise all peremptory challenges rendered the results of his trial 18 unreliable. 19 B. Juror Misconduct 20 Petitioner’s second claim is that an alternate juror committed prejudicial 21 misconduct by “physically comforting” a prosecution witness, depriving Petitioner of his 22 Sixth Amendment right to an impartial jury. (Am. Pet. at 51.) Petitioner alleges the trial 23 court erred by failing to conduct an evidentiary hearing to determine the impact of the 24 alleged misconduct on the other jurors. (Id.) 25 Following testimony by the victim’s sister about threatening phone calls made to 26 the witness by Petitioner, an alternate juror allegedly patted the witness several times on 27 the shoulder as the jurors exited the courtroom. (Resp’t, Exh. 1, Vol. 7 at 519.) Based on 28 the record, Petitioner was the only witness to the interaction. (Id.) After bringing the Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 8 1 incident to the trial court’s attention, Petitioner’s counsel moved for an evidentiary 2 hearing to determine the impact of the interaction, if any, on the other members of the 3 jury. (Id.) Counsel also moved for a mistrial. (Id.) The trial court accepted that the 4 incident had occurred but denied both motions, finding that the incident “would not 5 influence the jury in any way.” (Id. at 521.) The trial court emphasized that in light of 6 the provocative phone calls that were played for the jury, a brief showing of emotion by a 7 single juror member was insignificant in the context of the case as a whole. (Id. at 518.) 8 9 In Petitioner’s state habeas proceedings, the trial court found that Petitioner had provided only documentary support that an alternate juror made “a physical expression of 10 sympathy towards a prosecution witness,” and that this did not amount to juror 11 misconduct. (Am. Pet., Ex. J. at 5.) The court noted that Petitioner failed to allege that 12 anyone other than himself witnessed the gesture, negating any claim of prejudice. (Id.) 13 The Supreme Court has held that any possibly prejudicial communications 14 between a juror and a witness “are absolutely forbidden and invalidate the verdict, at least 15 unless their harmlessness is made to appear.” Mattox v. United States, 146 U.S. 140, 150 16 (1892). Accordingly, any unauthorized communication between a juror and witness is 17 presumed to be prejudicial. Caliendo v. Warden of Calif. Men’s Colony, 365 F.3d 691, 18 696 (9th Cir. 2004). However, chance encounters between the jury members and 19 witnesses are inevitable and “it is virtually impossible to protect jurors from every contact 20 or influence that might theoretically affect their vote.” Id. (quoting Gonzalez v. Beto, 405 21 U.S. 1052, 1058 (1972)). Before conduct is presumed prejudicial, petitioner must show 22 that the contact in question raises a risk of influencing the verdict. Id. In other words, 23 Petitioner must offer sufficient evidence to “trigger the presumption of prejudice.” Id. 24 (quoting United States v. Day, 830 F.2d 1099, 1103-1104 (10th Cir. 1987)). 25 In determining whether an unauthorized communication raises a risk of tainting the 26 verdict, courts should consider factors such as whether the unauthorized communication 27 concerned the case, the length and nature of the contact, the identity and role at trial of the 28 parties involved, evidence of actual impact on the juror, and the possibility of eliminating Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 9 1 prejudice through a limiting instruction. See Id. at 697-98. In weighing these factors, 2 great deference should be given to the trial court’s determination. Rinker v. County of 3 Napa, 724 F.2d 1352, 1354 (9th Cir. 1983). 4 A court confronted with a plausible claim of juror bias generally will conduct an 5 evidentiary hearing to determine the extent of the bias. Davis v. Woodford, 384 F.3d 628, 6 652-53 (9th Cir. 2004). However, a court need not hold an evidentiary hearing every time 7 there is an allegation of jury misconduct. See United States v. Angulo, 4 F.3d 843, 847 8 (9th Cir. 1993). To determine whether an evidentiary hearing is necessary to evaluate the 9 impact of unauthorized communication, a court must consider the content of the 10 allegations, the seriousness of the alleged misconduct, and the credibility of the source. 11 United States v. Brande, 329 F.3d 1173, 1176-77 (9th Cir. 2003). A hearing is required 12 only if there is a “reasonable possibility” of bias. United States v. Ivester, 316 F.3d 955, 13 960 (9th Cir. 2003). 14 Here, Petitioner has not shown that an evidentiary hearing was warranted. 15 Petitioner has failed to present any evidence that other jurors were influenced by the 16 incident or even witnessed it. At trial, defense counsel conceded that the seated jurors 17 “were directed away” from the witness at the time of the incident but that another 18 alternate juror might have seen it. (Resp’t, Exh. 1, Vol. 7 at 516.) Considering that the 19 contact was brief and witnessed if at all only by another alternate juror who did not decide 20 the case, as well as the and the lack of evidence of any actual influence on the jurors who 21 did decide the case, it does not appear that the contact raised a risk of influencing the 22 verdict. Caliendo, 365 F.3d at 696. Accordingly, the trial court’s determination that an 23 evidentiary hearing was not warranted was appropriate. Cf. Brande, 329 F.3d at 1177 24 (explaining evidentiary hearing not necessary where “exact scope and nature” of 25 improper contact apparent). 26 While extrinsic communication between a juror and witness generally may be 27 presumed prejudicial, the trial judge in this case reasonably determined the conduct in 28 question did not raise a significant possibility of bias. Ivester, 316 F.3d at 960. This Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 10 1 Court must defer to the trial court’s determination unless that determination was clearly 2 erroneous. Caliendo, 365 F.3d at 696 (explaining deference must be accorded to the trial 3 judge “who is in the best position to determine whether possibly prejudicial misconduct 4 took place”). Therefore, the state court’s finding that the alleged juror misconduct was 5 non-prejudicial was not contrary to or an unreasonable application of clearly established 6 federal law, nor based on an unreasonable determination of the facts presented. See 28 7 U.S.C. § 2254(d). 8 C. Ineffective Assistance of Appellate Counsel 9 Petitioner next claims that his appellate counsel failed to raise several meritorious 10 issues on direct appeal, thereby violating Petitioner’s right under the Sixth and Fourteenth 11 Amendments. (Am. Pet. at 61.) He alleges that his appellate counsel failed to “argue 12 ineffective assistance of trial counsel, juror misconduct, speedy trial, evidentiary 402(b) 13 abuse of discretion, instructional error and refusal to call alibi witness.” (Id.) In rejecting this claim, the superior court found that Petitioner had failed to show 14 15 that any of the issues Petitioner urged appellate counsel to raise were nonfrivolous. (Am. 16 Pet., Ex. J. at 6.) In addition, the court found that appellate counsel had acted as an 17 “active advocate” by raising and arguing several issues on appeal and that Petitioner was 18 “not entitled to more.” (Id.) The Due Process Clause of the Fourteenth Amendment guarantees a criminal 19 20 defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. 21 Lucey, 469 U.S. 387, 391-405 (1985). Like claims of ineffective assistance at trial, 22 claims of ineffective assistance of appellate counsel are reviewed under the Strickland 23 standard. 466 U.S. at 668; Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). 24 Petitioner thus must show that counsel’s performance fell below an objective standard of 25 reasonableness and that there is a reasonable probability that, but for counsel’s errors, 26 Petitioner would have prevailed on appeal. Id. at 1434 n.9 (citing Strickland, 466 U.S. at 27 688). 28 Appellate counsel does not have a constitutional duty to raise every nonfrivolous Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 11 1 issue requested by a defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). 2 Frequently, appellate counsel will fail to raise an issue because he foresees little 3 likelihood of success on that issue. Miller, 882 F.2d at 1434. “The weeding out of 4 weaker issues is widely recognized as one of the hallmarks of effective appellate 5 advocacy.” Id. 6 Petitioner contends that his appellate counsel was ineffective in failing to raise 7 claims of ineffectiveness of trial counsel and juror misconduct on direct appeal. As 8 discussed above, Petitioner failed to show that trial counsel was ineffective or that 9 Petitioner was prejudiced by juror misconduct. As will be discussed below, see infra at 10 13-14, Petitioner also has failed to show that an attempted voluntary manslaughter 11 instruction was warranted. In light of these determinations, appellate counsel’s actions 12 were not objectively unreasonable, nor was Petitioner prejudiced by appellate counsel’s 13 failure to raise these issues on direct appeal. 14 Petitioner also alleges that appellate counsel was ineffective by failing to raise 15 claims regarding a “speedy trial, evidentiary 402(b) abuse of discretion and refusal to call 16 alibi witness.” (Am. Pet. at 61.) Petitioner has failed to develop these claims with any 17 factual specificity by identifying evidence demonstrating that any of them are 18 meritorious. Petitioner’s entire factual showing with respect to this issue is a letter from 19 his trial counsel listing potential issues to be considered on direct appeal. (Am. Pet., Ex. 20 C at 3.) 21 D. Improper Jury Instructions 22 Petitioner claims that the trial court committed prejudicial error and violated his 23 Sixth Amendment rights by failing to instruct the jury on the lesser included offense of 24 attempted voluntary manslaughter. (Am. Pet. at 73.) Petitioner contends that the trial 25 court had an obligation to instruct the jury on all lesser included offenses of attempted 26 murder, including attempted voluntary manslaughter. (Id.) In support of his claim, 27 Petitioner provides excerpts from the trial transcript in which the trial court denied his 28 request to instruct on a lesser included offense. (Am. Pet., Ex. D at 1.) Petitioner also Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 12 1 provides two sworn affidavits alleging that at least one juror would have considered 2 convicting on a lesser charged offense if one had been presented. (Am. Pet., Exh. E at 1- 3 4.) 4 In rejecting this claim, the superior court found the record did not support an 5 attempted voluntary manslaughter instruction. (Am. Pet., Ex. J at 7.) The court also 6 concluded that evidence that a single juror might have considered a lesser included 7 offense was insufficient to warrant habeas relief. (Id.) 8 Generally, the failure of a state trial court to instruct on lesser-included offenses in 9 a non-capital case does not present a federal constitutional claim. See Solis v. Garcia, 10 219 F.3d 922, 929 (9th Cir. 2000). However, “the defendant’s right to adequate jury 11 instructions on his or her theory of the case might, in some cases, constitute an exception 12 to the general rule.” Solis, 219 F.3d at 929 (citing Bashor v. Risley, 730 F.2d at 1240). 13 Solis suggests strongly that there must be substantial evidence to warrant the instruction 14 on the lesser included offense. See Id. at 929-30 (no duty to instruct on voluntary 15 manslaughter as lesser included offense to murder because evidence presented at trial 16 precluded a heat of passion or imperfect self-defense instruction; no duty to instruct on 17 involuntary manslaughter because evidence presented at trial implied malice). 18 Here, Petitioner has failed to demonstrate that an attempted voluntary 19 manslaughter instruction was warranted. Voluntary manslaughter is an unlawful killing 20 done without malice, committed either in the heat of passion, or in the unreasonable belief 21 that self-defense is necessary. Solis, 219 F.3d at 929. The evidence presented with 22 respect to Petitioner’s actions does not support a heat of passion or an imperfect self- 23 defense instruction. Petitioner had harassed the victim and her family continuously for 24 several months prior to the arson attacks. On the morning of November 17, 2001, 25 Petitioner chased down the victim in her home, choked her, set fire to her residence and 26 then pulled her back through the window several times while she attempted to escape the 27 burning building. Thus the evidence more than amply supports the jury’s finding that 28 Petitioner engaged in a series of deliberate actions with the intent to kill. On these facts, Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 13 1 the trial court’s determination that an attempted voluntary manslaughter instruction was 2 unjustified was not clearly erroneous. 3 E. Sentencing Errors 4 Petitioner claims that the trial court’s failure to submit aggravating factors 5 regarding the arson to a jury was prejudicial in light of Cunningham v. California, 549 6 U.S. 270, 274-275 (2007). (Am. Pet. at 89.) He also claims that the trial court’s 7 imposition of consecutive terms for his additional offenses was an abuse of discretion. 8 (Id.) 1. 9 10 Aggravating Factor The trial court sentenced Petitioner to the maximum term of eight years for the 11 arson, finding “the crime involved a threat of great bodily harm in setting the fire and, in 12 that fashion, disclosed a high degree of cruelty, viciousness and callousness.” (Resp’t, 13 Ex.1, Vol. 17 at 1980.) Petitioner contends that the trial court’s failure to submit this 14 issue to the jury was structural error and warrants reversal per se. (Am. Pet. at 92.) 15 “Other than the fact of a prior conviction, any fact that increases the penalty for a 16 crime beyond the prescribed statutory maximum must be submitted to a jury, and proved 17 beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000). The 18 “statutory maximum” for Apprendi purposes is the maximum sentence a judge could 19 impose based solely on the facts reflected in the jury verdict or admitted by the defendant; 20 that is, the relevant “statutory maximum” is not the sentence the judge could impose after 21 finding additional facts, but rather is the maximum he or she could impose without any 22 additional findings. Blakely v. Washington, 542 U.S. 296, 303-04 (2004). The Supreme 23 Court has clarified that the middle term specified in California’s statutes is the relevant 24 statutory maximum. Cunningham, 549 U.S. at 273. Fact-finding to elevate a defendant’s 25 sentence beyond the prescribed middle term falls solely within the province of the jury. 26 Id. at 292. 27 28 However, contrary to Petitioner’s assertion, failure to submit a sentencing factor to the jury is not structural error; rather, it is trial error and thus is subject to harmless-error Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 14 1 analysis. Washington v. Recuenco, 548 U.S. 212, 221-22 (2006). Here, the state 2 appellate court, applying pre-Cunningham precedent, determined that the trial court did 3 commit constitutional error by failing to submit the issue to the jury but that the error was 4 “harmless beyond a reasonable doubt” under Chapman v. California, 386 U.S. 18, 24 5 (1967). (Resp’t, Ex. 10 at 9.) While the Chapman standard remains applicable to criminal 6 convictions challenged on direct appeal, the Supreme Court has adopted a less strict 7 standard for federal habeas review. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 8 (1993). A habeas petitioner is not entitled to relief unless the trial error “‘had substantial 9 and injurious effect or influence in determining the jury’s verdict.’” Id. at 637 (quoting 10 Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state prisoners 11 seeking federal habeas relief may obtain plenary review of constitutional claims of trial 12 error, but are not entitled to habeas relief unless the error resulted in “actual prejudice.” 13 Id. (citation omitted). 14 Here, the trial court, rather than the jury, found additional facts as aggravating 15 factors and sentenced Petitioner to more than the relevant statutory maximum on the 16 arson charge. Petitioner was convicted of arson of an inhabited structure, which 17 mandated a middle term of five years in state prison. Cal. Penal Code § 451(b). The trial 18 court, finding that the crime involved a “high degree of cruelty, viciousness and 19 callousness,” imposed the upper term sentence of eight years. (Resp’t, Ex.1, Vol. 17 at 20 1980.) The trial court erred by elevating Petitioner’s sentence beyond the relevant 21 statutory maximum without submitting to the jury the issue of whether the crime involved 22 a threat of great bodily harm. Cunningham, 549 U.S. at 273. 23 This Court thus must then assess whether the trial court’s error had a “substantial 24 and injurious effect” on Petitioner’s sentence. Fry v. Pliler, 551 U.S. 112, 120 (2007). 25 Under Fry, relief is warranted when there is “grave doubt” that a jury would have found 26 the relevant aggravating factor beyond a reasonable doubt. Butler v. Curry, 528 F.3d 624, 27 648 (9th Cir. 2008). “Grave doubt exists when, ‘in the judge’s mind, the matter is so 28 evenly balanced that he feels himself in great equipoise as to the harmlessness of the Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 15 1 2 error.’” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). Here, there is little doubt that had the matter been submitted to it, the jury would 3 have found Petitioner’s crime did involve a threat of great bodily harm. Petitioner had 4 harassed the victim for several months prior to the arson attacks. He set fire to the 5 victim’s residence early in the morning, when it was highly likely that she and her family 6 were at home, and the victim’s car was parked in the driveway. Such evidence was more 7 than sufficient to permit a jury to find beyond a reasonable doubt that the arson involved a 8 threat of great bodily harm to the victim and her family, and therefore exhibited “a high 9 degree of cruelty, viciousness or callousness.” Cal. Rules of Ct. 4.421(b)(1). Because 10 Petitioner has not shown that he was prejudiced by the trial court’s error, the state 11 appellate court’s rejection of this claim was not contrary to or an unreasonable application 12 of clearly established federal law, nor based on an unreasonable determination of the facts 13 presented. See 28 U.S.C. § 2254(d). 14 2. Consecutive Terms 15 The trial court ordered Petitioner to serve consecutive terms because “the manner 16 in which the crime was carried out indicates plan, sophistication or professionalism . . .”. 17 (Resp’t, Ex.1, Vol. 17 at 1982.) Petitioner contends that the Sixth Amendment requires 18 that the decision to impose consecutive sentences be made by the jury rather than the 19 judge. (Am. Pet. at 99.) The state appellate court, in rejecting this claim, determined that 20 the trial court was within its discretion to impose consecutive determinate terms for 21 Petitioner’s additional offenses. (Resp’t, Ex. 10 at 10.) 22 The application of Apprendi and its progeny is limited to sentencing decisions 23 historically reserved for the jury. See Oregon v. Ice, 129 S. Ct. 711, 717-18 (2009). The 24 Constitution does not inhibit judges, rather than juries, from finding facts necessary to 25 impose consecutive sentences. See id. Accordingly, Petitioner has failed to demonstrate 26 a violation of his constitutional rights. The trial judge was well within his discretion to 27 impose consecutive sentences for Petitioner’s additional arson, stalking and attempted 28 arson convictions, and the state court’s rejection of this claim was not contrary to or an Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 16 1 unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d). 2 F. Actual Innocence 3 Petitioner claims that he is innocent of all charges because he lacked the requisite 4 mental culpability as a result of his uncontrolled diabetes. (Trav. at 9.) In rejecting this 5 claim, the superior court emphasized that Petitioner had failed to show that he had been 6 diagnosed with diabetes, that diabetes may cause psychotic behavior or that he suffered 7 from such a psychosis at the time of his offenses. (Am. Pet., Ex. J at 8.) 8 As discussed in connection with Petitioner’s first claim, see supra at 5-7, Petitioner 9 has failed to present any evidence showing that he lacked the requisite mental capacity for 10 his crimes as a result of abnormal blood sugar levels from diabetes. Petitioner has offered 11 no medical documentation that he was a diabetic in November 2001 much less that he 12 suffered from a diabetic psychosis at the time of his crimes. Accordingly, the superior 13 court’s denial of his actual innocence claim was not contrary to or an unreasonable 14 application of clearly established federal law, nor based on an unreasonable determination 15 of the facts presented. See 28 U.S.C. § 2254(d). 16 G. 17 Finally, Petitioner claims that he is entitled to habeas relief as a result of 18 Cumulative Error cumulative error. (Am. Pet. at 102.) 19 In some cases, although no single trial error is sufficiently prejudicial to warrant 20 reversal, the cumulative effect of several errors may still prejudice a defendant so much 21 that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 22 (9th Cir. 2003). However, where only one single constitutional error exists, nothing can 23 amount to the level of a cumulative error. U.S. v. Sager, 227 F.3d 1138, 1149 (9th Cir. 24 2000) (“one error is not cumulative error”). 25 Here, Petitioner has failed to demonstrate cumulative error warranting habeas 26 relief. At most, as discussed above, see supra at 14-16, the trial court erred by failing to 27 submit the question of aggravating factors to the jury. However, this single non- 28 prejudicial error does not amount to cumulative error. Sager, 227 F.3d at 1149. Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 17 1 CERTIFICATE OF APPEALABILITY 2 3 The federal rules governing habeas cases brought by state prisoners have been 4 amended to require a district court that denies a habeas petition to grant or deny a 5 certificate of appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing § 6 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). Petitioner has not 7 shown “that jurists of reason would find it debatable whether the petition states a valid 8 claim of the denial of a constitutional right [or] that jurists of reason would find it 9 debatable whether the district court was correct in its procedural ruling.” Slack v. 10 McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA will be denied. 11 CONCLUSION 12 13 The Court concludes that Petitioner has not shown any violation of his federal 14 constitutional rights in the underlying state criminal proceedings. Accordingly, the 15 petition for a writ of habeas corpus is denied. The Clerk shall enter judgment and close 16 the file. 17 18 IT IS SO ORDERED. DATED: 7/1/10 JEREMY FOGEL United States District Judge 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus; Denying COA P:\PRO-SE\SJ.JF\HC.06\Diaz03162_denyhc.wpd 18 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MIGUEL E DIAZ, Case Number: CV06-03162 JF Petitioner, CERTIFICATE OF SERVICE v. TOM CAREY, Warden, Respondent. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 7/20/10 That on , 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. Miguel E. Diaz T-83077 CA State Prison 2100 Beabody Road 6-102 Lower Vacaville, CA 95687 Dated: 7/20/10 Richard W. Wieking, Clerk
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
