Colbert v. Martel, No. 5:2010cv01675 - Document 33 (N.D. Cal. 2012)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability. Signed by Judge Ronald M. Whyte on 3/28/12. (jg, COURT STAFF) (Filed on 3/28/2012)
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Colbert v. Martel Doc. 33 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 GREGORY COLBERT, 11 Petitioner, 12 vs. 13 14 WARDEN MICHAEL MARTEL, 15 Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 10-1675 RMW (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING CERTIFICATE OF APPEALABILITY 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition 19 should not be granted. Respondent has filed an answer addressing the merits of the petition. 20 Petitioner has filed a traverse. Having reviewed the briefs and the underlying record, the court 21 concludes that petitioner is not entitled to relief based on the claims presented and DENIES the 22 petition. 23 BACKGROUND 24 Petitioner was charged with first degree murder of Glen Phason (“victim”), and 25 possession of a firearm by a felon. (Petition Memo. at 1-2.) It was also alleged that petitioner 26 personally discharged a firearm which caused death, and personally used a firearm. (Id. at 2.) 27 The information also alleged one prior strike felony conviction, and three other prior felony 28 convictions. (Id.) Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd Dockets.Justia.com 1 At trial, the prosecution presented evidence that, on June 5, 2004, Lanika Evans was at 2 petitioner’s grandmother’s house where she was supposed to meet the victim to bring him some 3 clothes he had left at her apartment. (Resp. Ex. 6 at 2.) She arrived sometime before 11:30 p.m., 4 and met petitioner and others. (Id.) She had never met petitioner before. (Id.) She and the 5 victim left the house to buy a bottle of Hennessy, and on the way, the victim bought a bag of 6 marijuana. (Id. at 3.) After they returned to the house, Evans did not drink any Hennessy, but 7 she and the victim sat on the porch for about half an hour and then went inside the house. (Id.) 8 Petitioner was guarding the front door with his shotgun. (Id.) Evans wanted to leave, but the 9 victim asked her to wait so that he could go with her. (Id.) Evans smoked some marijuana but 10 did not drink alcohol. (Id.) At some point during the night, the victim took Evans’ car and left 11 the house, not returning until the following morning. (Id.) Evans testified that she spent the 12 night at the house even though she did not know anyone there. (Id.) The next morning, Evans 13 thought petitioner was trying to scare her into assuring him that she would not tell anyone what 14 had happened that night. (Id.) Evans began walking to a nearby gas station even though she was 15 barefoot when petitioner told her to come back and he would tell the victim to return with her 16 car. (Id.) Evans complied, and the victim soon drove up a few minutes later so that Evans could 17 drive home. (Id. at 3-4.) During re-direct, the court lifted its previous restriction on Evans’ 18 testimony, and allowed Evans to testify that during the night, petitioner raped her. (Id. at 4.) 19 Evans could not remember if petitioner mentioned being a member of the Nutcase gang, but she 20 knew that the victim belonged to the Nutcase gang and had seen his tattoo. (Id. at 5.) 21 On June 7, 2004, petitioner and the victim were sitting in front of petitioner’s 22 grandmother’s house when Larry Johnson joined them. (Id. at 1.) The three men spent some 23 time together on the front porch “just chilling, socializing.” (Id.) At some point, Johnson and 24 the victim went to a store when they bought Hennessy, and then returned to the porch and drank 25 from the bottle. (Id.) Later that night, the victim asked Johnson for a ride home. Petitioner went 26 with them. (Id. at 2.) When they arrived at their destination, the victim and petitioner got out of 27 the car and walked away. (Id.) After a minute or two, Johnson heard two gunshots. He looked 28 up and saw petitioner tuck a shotgun under his coat. (Id.) Petitioner returned to the car and Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 2 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 warned Johnson not to say anything. (Id.) Johnson did not say anything to the police because he 2 was scared, and he avoided petitioner because he did not want to be involved. (Id.) Johnson had 3 heard that petitioner belonged to the Nutcase gang, and that contributed to his fear. (Id.) In 4 December 2004, Johnson was questioned by the police about the murder, and Johnson told them 5 what he knew about the shooting. (Id.) 6 When the victim’s body was discovered, police found an open bottle of Hennessy in his 7 pocket. (Id. at 6.) DNA from three different people was recovered from the bottle neck. (Id.) 8 The victim and petitioner could not be excluded as two of the contributors. (Id.) 9 During the defense case, Tanika Barber testified that she was petitioner’s “on and off” 10 girlfriend since 1999 or 2000. (Id.) She was at his grandmother’s house one night between June 11 4, 2004 and June 6, 2004 and worked on petitioner’s dreadlocks from 9:00 p.m. to 2:30 a.m. 12 (Id.) She could not have been there on June 7, 2004 because she worked in Pleasanton during 13 the week. (Id.) Barber did not see a gun in the house. (Id.) She never heard of the Nutcase 14 gang. (Id.) Deborah Colbert is petitioner’s aunt who lived in his grandmother’s house. (Id.) 15 She also testified that petitioner never left the house because he was afraid that people were 16 trying to kill him. (Id.) Colbert testified that that on June 7, 2004, Barber was at the house 17 working on petitioner’s hair from around 8:00 or 9:00 p.m. to 2:00 or 3:00 a.m. (Id. at 7.) 18 Colbert never saw a gun in the house, nor did she ever see petitioner with a gun. (Id.) She also 19 never saw Johnson at the house that day or hear anyone sitting on the porch. (Id.) She saw 20 Evans at the house three times, including June 5, when Evans and the victim left around 1:00 or 21 2:00 a.m. (Id.) Colbert did not know who the Nutcases were. (Id.) 22 After a jury trial, petitioner was found guilty of both counts. (Petition Memo. at 2.) The 23 jury also found true the weapon allegations, and found the prior strike conviction true. (Id.) On 24 March 23, 2007, the trial court sentenced petitioner to a total term of 75-years to life. (Id. at 2- 25 3.) 26 27 28 DISCUSSION A. Standard of Review This court may entertain a petition for writ of habeas corpus “in behalf of a person in Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 3 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 custody pursuant to the judgment of a state court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 3 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a district court 4 may not grant a petition challenging a state conviction or sentence on the basis of a claim that 5 was reviewed on the merits in state court unless the state court’s adjudication of the claim 6 “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 7 clearly established federal law, as determined by the Supreme Court of the United States; or 8 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of 9 the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). The first prong 10 applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 11 U.S. 362, 384-86 (2000), while the second prong applies to decisions based on factual 12 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 13 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 14 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of 15 law or if the state court decides a case differently than [the] Court has on a set of materially 16 indistinguishable facts.” Williams, 529 U.S. at 412-13. A state court decision is an 17 “unreasonable application of” Supreme Court authority, falling under the second clause of 18 § 2254(d)(1), if the state court correctly identifies the governing legal principle from the 19 Supreme Court's decisions but “unreasonably applies that principle to the facts of the prisoner's 20 case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because 21 that court concludes in its independent judgment that the relevant state-court decision applied 22 clearly established federal law erroneously or incorrectly.” Id. at 411. 23 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination 24 will not be overturned on factual grounds unless objectively unreasonable in light of the 25 evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340. 26 In determining whether the state court’s decision is contrary to, or involved an 27 unreasonable application of, clearly established federal law, a federal court looks to the decision 28 of the highest state court to address the merits of a petitioner’s claim in a reasoned decision. Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 4 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000). Here, that decision is the California 2 Court of Appeal. 3 B. 4 Petitioner’s Claims As grounds for federal habeas relief petitioner claims that: (1) the trial court violated 5 petitioner’s right to self-representation by revoking petitioner’s Faretta status; (2) the trial court 6 violated petitioner’s right to a fair trial by admitting prejudicial evidence of gang membership 7 and activity; (3) the trial court violated petitioner’s right to a fair trial by admitting prejudicial 8 evidence of petitioner’s sexual assaults and rapes, and counsel was ineffective for “opening the 9 door” to the admission of evidence of petitioner’s rapes and sexual assaults; (4) the evidence was 10 insufficient to sustain a first degree murder conviction; and (5) the cumulative effect of these 11 errors resulted in a miscarriage of justice. 12 1. 13 Prior to trial, petitioner filed two motions to substitute counsel, Theodore Berry, pursuant Right to self-representation 14 to People v. Marsden, 2 Cal. 3d 118 (1970). Both motions were denied. On April 21, 2006, 15 petitioner made another motion to substitute counsel and was denied. Thereafter, he moved to 16 represent himself. The trial court set the matter for a hearing on April 25, 2006. At that hearing, 17 the trial court conducted an extensive colloquy with petitioner regarding the dangers of self- 18 representation. (Resp. Ex. 2, Vol. 6.) Judge Sarkisian informed petitioner that if he wanted 19 appointed counsel, his only choice was Mr. Berry, and he would not receive a different attorney. 20 (Id., RT 4-5.) Petitioner consistently stated that if his only choice of appointed counsel was Mr. 21 Berry, he would rather represent himself. (Id., RT 8-9.) Judge Sarkisian set another hearing for 22 May 17, 2006, so that the petitioner could think about whether he wanted Mr. Berry as advisory 23 counsel, and also to resolve any outstanding discovery matters. (Id., RT 11.) 24 On May 17, 2006, Judge Hymer presided over petitioner’s hearing. (Resp. Ex. 2, Vol. 7.) 25 Judge Hymer acknowledged that petitioner was appearing pro se, having been granted his right 26 to self-representation. (Id., RT 1.) Judge Hymer also noted that on May 3, 2006, Mr. Berry filed 27 a motion to advance the hearing date on behalf of petitioner, after petitioner requested that the 28 hearing date be moved to an earlier date. (Id.) Judge Hymer also observed that within the court Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 5 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 file was a letter from petitioner dated May 5, 2006, stating, in part, “Your Honor, I know I need 2 an attorney for this homicide case, and I need all the good help I can get.” (Id.) 3 4 Judge Hymer asked petitioner if he read that statement correctly. (Id.) The following exchange occurred: 5 Petitioner: Yeah. I wrote the letter to Judge Clay and I asked him because me and Mr. Berry don’t see eye to eye. If we having problems, meaning he’s not filing none of my motions, right, and I asked – 6 7 The Court: Well, before that, are you making a motion to be represented by an attorney to revoke your Faretta status? 8 Petitioner: That’s if, um, if they, um, can assign me another attorney besides Mr. Berry. If not – 9 10 The Court: Well, I’m going to find based on this record that your request for Faretta status is equivocal, and, therefore, that you should not be representing yourself. Therefore, I will reappoint Mr. Berry to represent you. I take it, Mr. Berry, you’re not retained in this case. You have been referred by the Court Appointed Program? 11 12 13 Petitioner: No. See, when I wrote that letter to Don Clay, I wrote that letter as far as my motions being filed. And I asked him, right, that if I could have another attorney. I’m not – I’ll stay pro per, because Mr. Berry, I’m not representing – I don’t want him representing me. 14 15 The Court: It’s for that reason that I find your Faretta request to represent yourself is equivocal. In other words, you don’t really want to represent yourself. You just want a different attorney than Mr. Berry. 16 17 18 Petitioner: No, I do want to represent myself, and that ain’t all I wrote in that letter. You just – 19 The Court: Based on the record, I don’t believe you. So I’m finding that the motion to represent yourself is equivocal and Mr. Berry is reappointed. 20 (Id., RT 2-3.) Petitioner then continued to try to convince Judge Hymer that he in fact did wish 21 to represent himself. Petitioner attempted to file another motion to represent himself, as well as 22 a motion to dismiss Mr. Berry as his attorney. (Id., RT 3.) Both motions were denied. (Id., RT 23 3-4.) 24 A criminal defendant has a Sixth Amendment right to self-representation. Faretta v. 25 California, 422 U.S. 806, 832 (1975). A defendant’s decision to represent himself and waive the 26 right to counsel must be unequivocal, knowing and intelligent, timely, and not for purposes of 27 securing delay. Id. at 835. The denial of the right to self-representation is structural error not 28 Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 6 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 2 subject to harmless error analysis. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). On direct appeal, petitioner argued that the trial court’s termination of petitioner’s Faretta 3 status violated his right to self-representation. The California Court of Appeal disagreed. It 4 concluded that the trial court’s ruling that petitioner’s statements and actions were an equivocal 5 request to represent himself was reasonable because: (1) petitioner originally invoked Faretta 6 only after his requests to substitute Mr. Berry were denied; (2) even after he was granted his 7 Faretta status, petitioner asked counsel to file a motion to advance the next hearing date; (3) as 8 petitioner was proceeding pro se, petitioner sent a letter to the court asking for appointment of 9 counsel; and (4) petitioner confirmed that he was willing to revoke his Faretta status if he could 10 have a different attorney from Mr. Berry. (Resp. Ex. 6 at 10-12.) 11 This court must review petitioner’s claim through the lens of the AEDPA’s extremely 12 deferential standard of review. Here, there is no clearly established Supreme Court precedent 13 setting forth the standard to determine whether a defendant, who has knowingly and voluntarily 14 waived his right to counsel, must establish that his request remains unequivocal at later stages of 15 the proceeding.1 Cf. John-Charles v. California, 646 F.3d 1243, 1249 (9th Cir. 2011) (finding no 16 Supreme Court case clearly addressing the right to re-assert a Sixth Amendment right to counsel 17 “later in the same stage of [defendant’s] criminal trial.”). Notwithstanding the lack of clearly 18 established Supreme Court precedent on this narrow issue, this court must consider whether the 19 state court’s reappointment of counsel after a Faretta waiver constitutes an unreasonable 20 application of the general principles enunciated in Faretta. Id. Cognizant that the more general 21 the rule that is considered, “the more leeway courts have in reaching outcomes in case-by-case 22 determinations,” id., the court concludes that the California Court of Appeal did not 23 unreasonably apply Faretta. 24 Once the right to the assistance of counsel has been competently waived, it does not 25 1 26 27 28 However, the law is clearly established that once Faretta is granted, a trial court can terminate that right if it finds that the defendant is engaging in misconduct. See Faretta, 422 U.S. at 834 n.46. However, here, the state courts did not interpret the events in such a manner. Rather, the state courts interpreted petitioner’s actions and statements as an equivocal request to maintain his Faretta status. Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 7 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 follow that a new waiver must be obtained at every subsequent court appearance by the 2 defendant, “unless intervening events substantially change the circumstances existing at the time 3 of the initial [Faretta] colloquy.” United States v. Hantzis, 625 F.3d 575, 580-81 (9th Cir. 2010). 4 Several other circuits have agreed that a defendant’s waiver of counsel is carried over to later 5 proceedings, absent a substantial change in circumstances, and thus, a court is not required to ask 6 defendant if he still wishes to represent himself. Id. at 581 n.7 (listing cases). On the other hand, 7 this circuit has intimated that, while the re-inquiry is not mandated, it is not erroneous to confirm 8 a defendant’s continued intent to represent himself. See, e.g., United States v. Farhad, 190 F.3d 9 1097 (9th Cir. 1999); United States v. Van Krieken, 39 F.3d 227, 229-30 (9th Cir. 1994). In the 10 absence of any clearly established Supreme Court precedent, and the lack of federal cases 11 suggesting that a re-inquiry of a pro se defendant’s wish to represent himself would be improper, 12 this court concludes that the state court’s decision was not an unreasonable application of 13 Faretta. See 28 U.S.C.§ 2254(d)(1). 14 Further, the state court’s determination that petitioner’s statements and actions 15 demonstrated an equivocal request for self-representation was not “an unreasonable 16 determination of the facts.” 28 U.S.C. § 2254(d)(2). Cf. United States v. Kienenberger, 13 F.3d 17 1354, 1356 (9th Cir. 1994) (expressly considering as a question of fact whether a defendant 18 made an unequivocal Faretta request). 19 In this circuit, a waiver is not considered equivocal merely because defendant chooses 20 self-representation rather than to be represented by counsel he believes to be incompetent. 21 United States v. Allen, 153 F.3d 1037, 1041 (9th Cir. 1998); see also United States v. 22 Hernandez, 203 F.3d 614, 617-18 (9th Cir. 2000) (defendant’s statement to judge, “if you cant 23 change [my attorney], I’d like to represent myself” may have been conditional, but it was not 24 equivocal). 25 However, a defendant’s expression of a clear preference for receiving new counsel over 26 representing himself may be an indication that the request is equivocal. See Stenson v. Lambert, 27 504 F.3d 873, 883 (9th Cir. 2007) (state court’s determination that defendant had not made an 28 unequivocal request was not an unreasonable determination of the facts where defendant made Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 8 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 several statements that he really did not want to represent himself but felt the court and his 2 existing counsel were forcing him to do so, defendant had tried to locate another attorney and 3 had not included a request to represent himself in his final written request for new counsel, and 4 requested a particular co-counsel be retained as his counsel). In addition, in certain 5 circumstances, a pro se defendant can waive his right to self-representation. See, e.g., McKaskle 6 v. Wiggins, 465 U.S. 168, 182 (1984) (“A defendant’s invitation to counsel to participate in the 7 trial obliterates any claim that the participation in question deprived the defendant of control 8 over his own defense. Such participation also diminishes any general claim that counsel 9 unreasonably interfered with the defendant’s right to appear in the status of one defending 10 himself.”). 11 Petitioner’s case is strikingly similar to Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989). 12 In that pre-AEDPA case, after the defendant’s motion to substitute counsel had been denied, the 13 defendant made an express statement that he would rather represent himself than be represented 14 by his attorney, Mr. Carroll. Id. at 1442. The defendant represented himself for six weeks, and 15 then again requested appointment of a different attorney. Id. That request was denied. Id. 16 Three weeks later, the defendant requested appointment of co-counsel, which was denied. Id. 17 More than a month later, the defendant made another request for appointment of counsel other 18 than Mr. Carroll. Id. The trial court granted defendant’s motion, and Mr. Carroll was reassigned 19 to the case. Id. at 1443. The defendant objected at four subsequent hearings, and at each 20 hearing, defendant made clear that he would rather represent himself than be represented by Mr. 21 Carroll. Id. The Ninth Circuit concluded that the defendant’s requests for counsel did not 22 demonstrate vacillation because his position was consistent that his desire was to represent 23 himself if the only alternative was the appointment of Mr. Carroll. Id. at 1444-45. “While 24 [defendant’s] requests no doubt were condition 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 9 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 to represent himself after his motions to substitute Mr. Berry were denied, petitioner used Mr. 2 Berry to file an insubstantial motion not long after he was granted the right to represent himself, 3 and petitioner asked for appointment of an attorney after being granted his Faretta right because 4 he recognized that homicide was a serious charge. Although this court m 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 10 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 Federal law under § 2254(d)). Failure to comply with state rules of evidence is neither a 2 necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See 3 Henry, 197 F.3d at 1031. Only if there are no permissible inferences that the jury may draw 4 from the evidence can its admission violate due process. See Jammal v. Van de Kamp, 926 F.2d 5 918, 920 (9th Cir. 1991). 6 On direct appeal, petitioner argued that evidence of his gang membership violated his 7 right to due process because the evidence was irrelevant, and even if it were relevant, it was 8 overly prejudicial, in violation of the California Rules of Evidence and federal due process. The 9 California Court of Appeal disagreed. It stated that Johnson testified that he understood 10 petitioner to have threatened him, and the gang evidence was relevant to the determination of 11 credibility, which was important for the jury to consider in order to assess Johnson’s credibility. 12 (Resp. Ex. 6 at 15.) It also rejected petitioner’s assertion that the evidence was unduly 13 prejudicial under state law. (Id. at 16.) 14 The California Court of Appeal’s rejection of this claim was not contrary to, or an 15 unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. 16 § 2254(d)(1); Holley, 568 F.3d at 1101. Moreover, the state court reasonably concluded that 17 witness’ belief that petitioner was a member of the Nutcase gang was admissible because it was 18 relevant to determine the witness’ credibility. See People v. Olguin, 31 Cal. App. 4th 1355, 19 1368 (1994) (“A witness who testified despite fear of recrimination of any kind by anyone is 20 more credible because of his or her personal stake in the testimony.”); Cf. United States v. Abel, 21 469 U.S. 45, 49 (1984) (evidence of gang membership admissible on issue of bias); United 22 States v. Santiago, 46 F.3d 885, 890 (9th Cir. 1995) (recognizing that gang-related testimony that 23 only addressed the witnesses’ fear of retaliation was admissible on the issue of credibility); 24 United States v. Keys, 899 F.2d 983, 987 (10th Cir. 1990) (evidence of gang membership 25 admitted to show that testimony could be influenced by fear of retaliation). Because there was a 26 permissible inference that the jury could draw from the admission of evidence regarding 27 petitioner’s gang membership, its admission did not violate due process, especially in light of the 28 trial court’s limiting instruction. Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 11 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 Accordingly, petitioner is not entitled to federal habeas relief on this claim. 2 3. 3 Prior to trial, the trial court ruled that Evans would not be allowed to testify as to her Admission of rape testimony 4 allegation that petitioner raped her or threatened her not to tell anyone about the rape while 5 mentioning his affiliation with the Nutcase gang. (RT 59-61, 99.) However, the trial court 6 stated that Evans could testify that, while he was loading a shotgun, petitioner threatened to kill 7 her if she went to the police. (RT 99-101.) The trial court reasoned that the jury was entitled to 8 learn why Evans feared going to the police, and the basis behind that fear, for the purpose of 9 assessing credibility. (RT 100-01.) 10 During Evans’ testimony on direct, she answered the prosecutor’s questions regarding 11 whether petitioner threatened her or if she was afraid by stating things like, “he basically was 12 just like, what happened?” (RT 347); and “Just I wouldn’t say he was trying to scare me because 13 I wasn’t scared. I was like traumatized, like the whole situation just completely what happened, 14 I was ready to go” (id.); “[I was scared] a little bit, but more just I was traumatized, ready to go”; 15 (RT 351); and Evans testified that she didn’t feel comfortable. Defense counsel attempted to 16 clarify Evans’ testimony during cross-examination to elicit testimony regarding whether 17 petitioner made direct threats or not. In responding to defense counsel’s questions, Evans 18 answered ambiguously. (Resp. Ex. 6 at 19.) Some of Evans’ responses to defense counsel’s 19 questions tended to raise more questions. For example, “I couldn’t get out the front door. I was 20 trying to leave. I didn’t make it to the door.” (RT 388); “I never went to sleep. (RT 389); “He 21 brought up am I going to tell someone, or if I’m going to tell . . .” (RT 396). 22 The parties revisited the court’s ruling regarding the exclusion of testimony about the 23 rape, and the trial court agreed with the prosecutor that because of the ambiguous responses 24 Evans was giving to defense counsel in light of the trial court’s restriction, the rape testimony 25 would be admitted. 26 On direct appeal, the California Court of Appeal ruled that the trial court properly re- 27 weighed the evidence during examination of Evans and determined that it was not unduly 28 prejudicial. (Resp. Ex. 6 at 19.) Moreover, the appellate court concluded that the testimony was Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 12 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 “highly relevant to the context and credibility” of Evans’ testimony. 2 The California Court of Appeal’s rejection of this claim was not contrary to, or an 3 unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. 4 § 2254(d)(1); Holley, 568 F.3d at 1101. For the same reason as the evidence of petitioner’s 5 membership in the Nutcase gang was relevant, the state court reasonably concluded that 6 admission of Evans’ fear of recrimination was relevant as to the issue of Evans’ credibility. See 7 People v. Olguin, 31 Cal. App. 4th at 1368. Because there was a permissible inference that the 8 jury could draw from the admission of evidence regarding Evans’ allegation of rape, its 9 admission did not violate due process, especially in light of the trial court’s limiting instruction. 10 See Jammal, 926 F.2d at 920. Further, as the California Court of Appeal noted, even if the 11 admission of the rape testimony was erroneous, any error was harmless in light of the substantial 12 evidence against petitioner. Even without the rape testimony, the evidence demonstrated that 13 petitioner brought a shotgun with him when he accompanied Johnson and the victim to the 14 victim’s house; petitioner got out of the car with the victim; Johnson heard two shots and then 15 saw petitioner return to the car after collecting the spent shells; and petitioner threatened Johnson 16 not to tell anyone. 17 Accordingly, petitioner is not entitled to federal habeas relief on this claim. 18 Relatedly, petitioner’s claim that counsel was ineffective for “opening the door” to the 19 rape testimony is equally without merit. In order to prevail on a Sixth Amendment 20 ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish 21 that counsel’s performance was deficient, i.e., that it fell below an “objective standard of 22 reasonableness” under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 23 687-88 (1984). Second, he must establish that he was prejudiced by counsel’s deficient 24 performance, i.e., that “there is a reasonable probability that, but for counsel’s unprofessional 25 errors, the result of the proceeding would have been different.” Id. at 694. A reasonable 26 probability is a probability sufficient to undermine confidence in the outcome. Id. 27 The California Court of Appeal rejected petitioner’s claim, concluding that it was a 28 reasonable decision for defense counsel to try to establish that petitioner did not actually threaten Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 13 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 2 Evans in order to undermine her testimony and credibility. (Resp. Ex. 6 at 18.) The California Court of Appeal’s decision was not contrary to, or an unreasonable 3 application of Strickland. See 28 U.S.C. § 2254(d)(1). After Evans’ direct testimony, in which 4 she did not affirmatively say that petitioner threatened her, it was reasonable for defense counsel 5 to make the strategic decision to try to clarify Evans’ responses. If, in fact, petitioner did not 6 threaten Evans, that evidence could undermine her credibility. Further, as stated above, even 7 with the admission of the rape testimony, there is not a reasonable probability that, but for 8 counsel’s alleged error, the result of the proceeding would have been different. Id. at 694. 9 Accordingly, petitioner is not entitled to federal habeas relief on this claim. 10 4. 11 Petitioner claims that there was insufficient evidence of premeditation or deliberation. Insufficient Evidence 12 Petitioner argues that the evidence was insufficient because Johnson was the only witness who 13 was present at the time of the shooting, and petitioner never discussed shooting or killing the 14 victim, there was no argument between petitioner and the victim, and nothing led Johnson to 15 believe that there would be a shooting. 16 The Due Process Clause “protects the accused against conviction except upon proof 17 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 18 charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the 19 evidence in support of his state conviction cannot be fairly characterized as sufficient to have led 20 a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional 21 claim. See Jackson v. Virginia, 443 U.S. 307, 321 (1979). Only if no rational trier of fact could 22 have found proof of guilt beyond a reasonable doubt, has there been a due process violation. Id. 23 at 324. Under Jackson’s standard of review, a jury’s credibility determinations are entitled to 24 near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). To grant relief, a 25 federal habeas court must conclude that “the state court’s determination that a rational jury could 26 have found that there was sufficient evidence of guilt, i.e., that each required element was proven 27 beyond a reasonable doubt, was objectively unreasonable.” Boyer v. Belleque, 659 F.3d 957, 28 965 (9th Cir. 2011). Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 14 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 The California Court of Appeal rejected this claim. Under California law, evidence of 2 planning activity, motive, and the manner of killing are helpful to support a finding of 3 premeditation and deliberation. (Resp. Ex. 6 at 20.) The appellate court concluded that there 4 was a considerable amount of evidence of planning. (Id.) It noted that Evans saw petitioner at 5 his grandmother’s house with a shotgun two days before the murder; on the night of the murder, 6 Johnson saw petitioner and the victim get out of the car, heard two gunshots, and saw petitioner 7 retrieve the shells from the sidewalk; and Johnson saw petitioner tuck the shotgun back into his 8 coat. (Id.) 9 In light of the evidence, the California Court of Appeal’s determination that there was 10 ample evidence of premeditation and deliberation was objectively reasonable. Petitioner is not 11 entitled to federal habeas relief on this claim. 12 5. 13 In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, Cumulative Evidence 14 the cumulative effect of several errors may still prejudice a defendant so much that his 15 conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) 16 (reversing conviction where multiple constitutional errors hindered defendant’s efforts to 17 challenge every important element of proof offered by prosecution). However, where there is no 18 single constitutional error existing, nothing can accumulate to the level of a constitutional 19 violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); Fuller v. Roe, 182 F.3d 20 699, 704 (9th Cir. 1999); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). Similarly, there 21 can be no cumulative error when there has not been more than one error. United States v. 22 Solorio, No. 10-10304, 2012 WL 161843, * 11 (9th Cir. Jan. 20, 2012). Here, because petitioner 23 has not identified any error, there is no cumulative error warranting federal habeas relief. 24 CONCLUSION 25 The petition for a writ of habeas corpus is DENIED. 26 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 27 rule on whether a petitioner is entitled to a certificate of appealability in the same order in which 28 the petition is denied. Reasonable jurists could find the court’s denial of petitioner’s claim that Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 15 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd 1 he was denied his right to self-representation debatable. See Slack v. McDaniel, 529 U.S. 473, 2 484 (2000). Thus, a certificate of appealability is GRANTED on that claim, and denied as to the 3 remaining claims. 4 The clerk shall enter judgment and close the file. 5 IT IS SO ORDERED. 6 DATED: _______________ 7 RONALD M. WHYTE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability 16 G:\PRO-SE\SJ.Rmw\HC.10\Colbert675denhc.wpd UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GREGORY COLBERT, Case Number: CV10-01675 RMW Plaintiff, CERTIFICATE OF SERVICE v. MICHAEL MARTELL et al, Defendant. / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 28, 2012, 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. Gregory Colbert F 70955 Mule Creek State Prison A3-117 Low Cell P.O. Box 409020 Ione, CA 95640 Dated: March 28, 2012 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk
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