-POR George v. Almager et al, No. 3:2007cv02215 - Document 31 (S.D. Cal. 2009)
Court Description: ORDER granting in part 28 Petitioner's Application for Certificate of Appealability; granting 29 Motion for Leave to Appeal in forma pauperis. The Court GRANTS Petitioner's Application as to Claim 1. The Court DENIES Petitioner's Application as to Claims 2, 3, 4, and 5. Additionally, the Court GRANTS Petitioner's Motion for Leave to Appeal in Forma Pauperis. Signed by Judge Irma E. Gonzalez on 12/10/2009. (USCA Case No. 09-56835. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)
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-POR George v. Almager et al Doc. 31 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 RICHARD EARL GEORGE 10 11 Petitioner, v. 12 13 14 15 V.M. ALMAGER, Warden, et al., Respondent. ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 07cv2215 J (POR) ORDER: (1) GRANTING IN PART PETITIONER’S APPLICATION FOR CERTIFICATE OF APPEALABILITY (2) GRANTING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS 16 17 Petitioner Richard Earl George (“Petitioner”), a state prisoner, filed a Petition for Writ of 18 Habeas Corpus with this Court, challenging his conviction pursuant to 28 U.S.C. § 2254 on 19 November 19, 2007. (Pet. 1.) On November 7, 2008, pursuant to 28 U.S.C. § 636(b)(1) and 20 Fed. R. Civ. P. 72(b)(3), Magistrate Judge Louisa S. Porter submitted a Report and Recommen- 21 dation (“R&R”), recommending that this Court deny the Petition in its entirety. [Doc. No. 15.] 22 Petitioner timely filed objections to the R&R. (Objection 1.) On February 4, 2009, Petitioner 23 made a request for appointment of counsel, pursuant to 18 U.S.C. § 3006A. [Doc. No. 23.] The 24 Court subsequently overruled Petitioner’s objections, denied Petitioner’s motion for request for 25 appointment of counsel, adopted the R&R, and denied the Petition. (Order 26.) Petitioner now 26 seeks a certificate of appealability pursuant to 28 U.S.C. § 2253 and Fed. R. App. P. 22(b). 27 [Doc. No. 28.] Additionally, he seeks leave to proceed in forma pauperis. [Id.] For the reasons 28 set forth below, the Court GRANTS Petitioner’s Application as to Claim 1. The Court DENIES 1 07cv2215 J (POR) Dockets.Justia.com 1 Petitioner’s Application as to Claims 2, 3, 4, and 5. Additionally, the Court GRANTS Peti- 2 tioner’s Motion for Leave to Appeal in Forma Pauperis. 3 Legal Standard 4 A state prisoner may not appeal the denial of a § 2254 habeas petition unless he obtains a 5 certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(A); see also 6 United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997). In deciding whether to grant a 7 certificate of appealability, a court must either indicate the specific issues supporting a certificate 8 or state reasons why a certificate is not warranted. See Asrar, 116 F.3d at 1270. A certificate of 9 appealability is authorized “if the applicant has made a substantial showing of the denial of a 10 constitutional right.” 28 U.S.C. § 2253 (c)(2). To meet this standard, Petitioner must show that: 11 (1) the issues are debatable among jurists of reason; (2) a court could resolve the issues in a 12 different manner; or (3) the questions are adequate to deserve encouragement to proceed further. 13 Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 14 U.S. 473 (2000) and Barefoot v. Estelle, 463 U.S. 880 (1983)). Petitioner does not have to show 15 “that he should prevail on the merits. He has already failed in that endeavor.” Lambright, 220 16 F.3d at 1025 (citing Barefoot, 463 U.S. at 893 n.4). 17 18 Discussion Petitioner seeks a Certificate of Appealability on five issues: 1) whether the trial court 19 improperly admitted evidence of a prior choking incident; 2) whether the trial court improperly 20 admitted evidence of an unduly suggestive photo lineup; 3) whether the trial court improperly 21 admitted unreliable DNA evidence; 4) whether insufficient evidence corroborated Petitioner’s 22 accomplice’s testimony; and 5) whether the cumulative effect of the errors at Petitioner’s trial 23 deprived him of due process. The Court will discuss each issue in turn. 24 A. Claim One - Improper Evidence of a Prior Choking Incident 25 Petitioner first argues the trial court improperly admitted evidence of a prior choking 26 incident, violating his right to due process. (Application 6.) In order for the Court to certify an 27 appeal on this issue, Petitioner must establish that reasonable jurists could debate whether the 28 2 07cv2215 J (POR) 1 omission of the written instruction violated his due process rights. Lambright v. Stewart, 220 2 F.3d 1022, 1025 (9th Cir. 2000). The trial court admitted a letter in which Petitioner’s accomplice wrote Petitioner choked 3 4 her, attempting to kill her, in the past. (Application 6.) In his Application, Petitioner contends 5 the letter is highly prejudicial, of limited probative value, and admitted as propensity evidence in 6 violation of Cal. Evid. Code § 352 and Cal. Evid. Code § 1101(a). The Court held the choking 7 evidence supported at least one permissible inference unrelated to Petitioner’s bad character or 8 propensity to commit the charged crimes. (Order 11.) Specifically, the Court noted the choking 9 evidence was relevant to show Petitioner’s accomplice’s motive to initially lie to the police. 10 11 (Id.) Cal. Evid. Code § 352 grants courts discretion to exclude evidence if its probative value is 12 substantially outweighed by the probability that its admission will: (1) necessitate undue 13 consumption of time; or (2) create substantial danger of undue prejudice, of confusing the issues, 14 or of misleading the jury. Cal. Evid. Code § 1101(a) generally prohibits introducing evidence a 15 defendant committed acts, other than those charged, to prove he or she is a person of bad 16 character or has a criminal disposition. Cal. Evid. Code § 1101(b), however, allows introduction 17 of such evidence to prove issues such as identity, intent, motive, and lack of mistake or accident. 18 Reasonable jurists could debate whether the evidence of the choking incident was introduced to 19 show Petitioner is of bad character or has a criminal disposition, prohibited by § 1101(a), or 20 whether it was introduced to prove issues such as identity, intent, motive and lack of mistake or 21 accident, permissive under § 1101(b). Accordingly, the Court GRANTS a certificate of 22 appealability in regard to Petitioner’s Claim One. 23 B. Claim Two - Photo Lineup 24 Petitioner claims the trial court improperly admitted evidence of an unduly suggestive 25 photo lineup, violating his right to due process. (Application 6.) Specifically, he argues the 26 photograph had a green background while the other photographs had a blue background, and 27 therefore the photo lineup was unduly suggestive. (Id.) The Court found the photo lineup was 28 not suggestive. (Order 15.) Even assuming arguendo the photo lineup was suggestive, the 3 07cv2215 J (POR) 1 Court determined Petitioner failed to show there was a substantial likelihood of misidentifica- 2 tion. (Id.) 3 Petitioner can support his claim if he can establish that reasonable jurists could disagree 4 as to whether the photo lineup was unduly suggestive. See Lambright, 220 F.3d at 1025. The 5 Ninth Circuit has determined that while variant background hues arguably amount to an 6 identifiable difference in appearance, these “[i]nsubstantial differences . . . do not in themselves 7 create an impermissible suggestion that the defendant is the offender.” United States v. 8 Burdeau, 168 F.3d 352, 357 (9th Cir. 1999). This is not an issue debatable among jurists of 9 reason. As such, the Court DENIES a certificate of appealability as to this issue. 10 11 C. Claim Three - DNA Evidence Petitioner next contends the trial court improperly admitted unreliable DNA evidence. 12 (Application 6.) Specifically, he argues the statistical calculations used by the criminalist did not 13 take into account a genetic combination that excluded Petitioner. (Application 6-7.) 14 As the California Court of Appeal noted, (1) the police department used a conservative 15 approach and sets a higher threshold than some other laboratories; (2) had the police used a 16 lower threshold, it might have been more damaging to the defense than the expert opinion 17 offered; (3) the statistical analysis was relevant to show the percentage of the population that 18 could be excluded for not possessing a 14 allele; and (4) the prejudicial effect was minimized 19 because (a) “it was clearly presented to the jury that this was a limited DNA analysis, compli- 20 cated by the low levels of DNA and the multiple contributors;” and (b) “the jury was fully 21 apprised that it was not possible to determine whether the 14 allele had been contributed by a 22 homozygote and that it was possible the DNA had been contributed by heterozygotes with 13, 23 14, and 15 alleles, a situation that would exclude George as a donor.” (Lodgment No. 8 at 14- 24 19.) Given this information, reasonable jurists could not disagree the DNA evidence was 25 properly admitted. Thus, the Court DENIES a certificate of appealability for this claim. 26 D. Claim Four - Insufficient Evidence Corroborated Accomplice’s Testimony 27 28 Petitioner argues insufficient evidence corroborated Petitioner’s accomplice’s testimony and therefore could not be used to support the verdicts. (Application 7.) He further contends the 4 07cv2215 J (POR) 1 accomplice’s testimony was unreliable. (Id.) Additionally, Petitioner argues that without the 2 accomplice’s testimony, there was insufficient evidence to support a guilty verdict beyond a 3 reasonable doubt. (Id.) 4 The California Court of Appeal determined the accomplice’s testimony regarding the 5 Killpack robbery is supported by the following: (1) the accomplice testified that Petitioner 6 robbed and assaulted Killpack, and Killpack identified Petitioner in court as the person who 7 robbed and strangled him; (2) the accomplice testified she threw the car keys out of the window, 8 and the police located Killpack’s keys in the dirt near where his car was parked during the 9 robbery; (3) the accomplice testified she took everything of value out of Killpack’s wallet 10 including the Shell gas card, and Shell gas receipts were located in Petitioner’s car; and (4) the 11 transactions from after the robbery and before the card was cancelled occurred at gas stations 12 near the motel where Petitioner was staying and the location where Petitioner was working. 13 (Lodgment No. 8 at 21-24.) With regard to the Duray robbery and murder, the accomplice’s 14 testimony was supported by the following: (1) the accomplice testified she threw Duray’s keys 15 out of the window, and Duray’s car keys were located near where his car was parked; (2) the 16 accomplice testified she heard someone on Duray’s cell phone during the attack, and this was 17 corroborated both by phone records and the testimony of Duray’s daughter; (3) the accomplice 18 testified that Petitioner kept Duray’s wallet after the incident, which was supported in that 19 Petitioner had a new wallet on him when arrested, and Duray’s son testified that Duray had 20 recently purchased a new wallet. (Id.) 21 Based on the foregoing evidence, reasonable jurists would not disagree sufficient 22 evidence existed to support the accomplice’s testimony and indicate the reliability of the 23 testimony. Accordingly, this Court DENIES a certificate of appealability for this claim. 24 E. Claim Five - Cumulative Error 25 Petitioner contends the cumulative effect of the evidentiary errors warrants a reversal. 26 (Application 7.) The Ninth Circuit has explained, “Cumulative error applies where ‘although no 27 single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the 28 cumulative effect of multiple errors may still prejudice a defendant.’” Mancuso v. Olivarez, 292 5 07cv2215 J (POR) 1 F.3d 939, 957 (9th Cir. 2002) (quoting United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 2 1996). 3 Petitioner has only shown reasonable jurors might disagree in regard to Claim One, that 4 the trial court improperly admitted evidence of a prior choking incident, thereby violating his 5 right to due process. Because no “cumulative effect of multiple errors” exists, the Court 6 DENIES a certificate of appealability for this claim. 7 F. Motion for Leave to Proceed in Forma Pauperis 8 9 In any case where the petitioner has been granted leave to file the action in forma pauperis, pauper status automatically continues for the appeal from a subsequent order or 10 judgment, unless the district court certifies that the appeal is taken in bad faith or finds that the 11 party is not otherwise entitled to continuing pauper status. 28 U.S.C. § 1915(a)(3); Fed. R. App. 12 P. 24(a). The Court finds no reason to revoke pauper status and therefore GRANTS Petitioner’s 13 Motion for Leave to Appeal in Forma Pauperis. Conclusion 14 15 For the foregoing reasons, the Court GRANTS Petitioner’s Application as to Claim 1. 16 The Court DENIES Petitioner’s Application as to Claims 2, 3, 4, and 5. Additionally, the Court 17 GRANTS Petitioner’s Motion for Leave to Appeal in Forma Pauperis. 18 19 IT IS SO ORDERED. DATED: December 10, 2009 20 21 IRMA E. GONZALEZ, Chief Judge United States District Court 22 23 24 25 26 27 28 6 07cv2215 J (POR)
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