Ybarra v. Martel et al, No. 3:2009cv01188 - Document 41 (S.D. Cal. 2011)
Court Description: ORDER ADOPTING REPORT AND RECOMMENDATION 34 ; the R&R is modified to include the new citations to Swarthout and Harrington; court has reviewed de novo all portions of the R&R to which Ybarra objected, and overrules his objections; the Court has also reviewed the R&R more generally, and concludes its findings and recommendations are correct; Ybarra's objections are overruled and the Court adopts the R&R, as modified; all pending motions are denied as moot; the Petition is denied; the Certificate of Appealability is denied; Signed by Judge Larry Alan Burns on 2/10/11.(All non-registered users served via U.S. Mail Service)(kaj)
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Ybarra v. Martel et al Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD YBARRA, CASE NO. 09cv1188-LAB (AJB) 12 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION, AND DENYING PETITION FOR WRIT OF HABEAS CORPUS vs. 13 14 M MARTEL, Warden, Defendant. 15 16 Petitioner, a prisoner in state custody, filed his petition for writ of habeas corpus in this 17 Court. Pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72, the petition was referred to 18 Magistrate Judge Anthony Battaglia for a report and recommendation. After receiving 19 briefing, Judge Battaglia issued his report and recommendation (the “R&R”), in which he 20 recommended denying Ybarra’s request for an evidentiary hearing and denying the petition. 21 Judge Battaglia denied Ybarra’s request for an evidentiary hearing. Ybarra then filed lengthy 22 objections to the R&R. 23 I. Legal Standards 24 A. 25 A district court has jurisdiction to review a Magistrate Judge's report and 26 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must 27 determine de novo any part of the magistrate judge's disposition that has been properly 28 objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the Objections to R&R -1- 09cv1188 Dockets.Justia.com 1 findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The 2 Court reviews de novo those portions of the R&R to which specific written objection is made. 3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Courts are 4 not obligated to review vague or generalized objections to an R&R; a petitioner must provide 5 specific written objections to invoke the Court’s review. Dawson v. Ryan, 2009 WL 4730731 6 at *2 n.1 (D. Ariz., Dec. 7, 2009) (citations omitted); accord Sison v. Small, 2010 WL 7 4806888 at *2 –*3 & n.2 (S.D.Cal., Nov. 18, 2010). Conclusory objections are likewise 8 insufficient. Sison at n.2. 9 Ybarra filed 63 pages of objections to the 16-page R&R. Some effort was apparently 10 made to organize them so as to correspond to particular sections of the R&R, but they are 11 not in any very coherent order, and exhibits as well as other types of documents are included 12 in the objections. The 33-page body of the objections is followed by attached exhibits, which 13 Ybarra asks the Court to read through. Although the objections are disjointed and somewhat 14 difficult to follow, the Court construes them liberally. Karim-Panahi v. L. A. Police Dep’t, 839 15 F.2d 621, 623 (9th Cir. 1988). 16 As a preliminary matter, the Court notes that Ybarra has included a number of outside 17 documents. Including an exhibit or a copy of another document is not the same as making 18 a “specific written objection” as contemplated under Rule 72(b)(2). Exhibits or courtesy 19 copies of legal authority may support objections, but they are not themselves objections. 20 Ybarra has also included extensive but unexplained citations to or quotations of 21 records and legal authorities, and has copied the text of Westlaw headnotes into his 22 objections. It is not the Court’s role to serve as an advocate for any party, even one 23 proceeding pro se. The Court therefore does not review isolated, unexplained citations or 24 quotations for the purpose of creating or suggesting arguments. But to the extent possible, 25 the Court has given these citations and quotations a liberal construction and attempted to 26 discern the points Ybarra is trying to make. 27 /// 28 /// -2- 09cv1188 1 B. Federal Habeas Review 2 In addition to the federal habeas standards correctly noted in the R&R, the Supreme 3 Court has recently issued decisions emphasizing certain standards for federal habeas 4 review. The R&R is modified to include citations to these newly-available authorities. 5 A federal writ of habeas corpus is not available to correct errors of state law. 6 Swarthout v. Cooke, ___ S.Ct. ___, 2011 WL 197627 at *2 (Jan. 24, 2011) (citations 7 omitted). And an error of state law is not a denial of due process. Id. at *3 (citation omitted). 8 State courts are intended to be the principal forum for litigating constitutional 9 challenges to state convictions. Harrington v. Richter, ___ S.Ct. ___, 2011 WL 148587 at 10 *12 (Jan. 11, 2011). “A state court's determination that a claim lacks merit precludes federal 11 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state 12 court's decision.” Id. at *11 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 13 Federal habeas review is a “‘guard against extreme malfunctions in the state criminal justice 14 systems,’ not a substitute for ordinary error correction through appeal.” Id. at *12 (quoting 15 Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). 16 In view of the nature of Ybarra’s objections, it is also appropriate to add that the Court 17 must assume the state court findings of fact are correct, and Ybarra has the burden of 18 rebutting this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 19 II. Discussion 20 Ybarra was convicted in California state court of vandalism, battery, making a criminal 21 threat, and attempting to prevent a witness from testifying. Based in part on his criminal 22 history, the state court sentenced him to a term of 61 years to life. 23 The R&R sets forth the state court’s findings in detail. It describes his conduct 24 towards his victim over the course of about a year. Among other things, the evidence 25 showed he pushed and slapped his victim; he repeatedly called and came to the trailer 26 where she lived, refusing to leave when asked; he went through her belongings secretly and 27 without permission; he called and told her he had her panties; he yelled at her and called her 28 foul names; he burned her bedding; he broke three windows of her trailer and ran away; he -3- 09cv1188 1 telephoned her three times on the same day, threatening to kill her and people she was with, 2 and he sent her a menacing letter before she was to testify at his trial. The R&R concluded 3 the evidence against him was “overwhelming.” 4 Ybarra brings four exhausted claims: ineffective assistance of trial counsel, ineffective 5 assistance of appellate counsel, prejudicial trial court error, and prosecutorial misconduct. 6 In his objections, Ybarra also spends a good deal of time raising unexhausted claims, such 7 as arguing he should have been allowed to put on more evidence that his victim had 8 hepatitis C and used intravenous drugs,1 arguing California’s “three strikes” law is 9 unconstitutional. He takes exception to various other aspects of his trial counsel’s strategy, 10 which he didn’t raise in his state court habeas petitions. Finally, in large part his objections 11 constitute a re-argument of the evidence. Apparently, he is asking this Court to review and 12 re-weigh all the evidence and order that he be given a new trial. (Obj. to R&R, 27 (arguing 13 federal district court has discretion to grant a new trial, if the verdict was against the weight 14 of the evidence)). 15 A. Ineffective Assistance of Trial Counsel 16 In his objections, Ybarra cites multiple pages of trial transcript, then points to various 17 things that happened at trial. He argues that his attorney was ineffective for failing to 18 introduce certain pieces of evidence and for failing to follow the trial strategy Ybarra urged 19 him to. (Obj. to R&R, 17–25.) He also points to a letter his appellate counsel sent, which 20 he thinks said his trial counsel was ineffective.2 (Id. at 6–7.) 21 1 22 23 24 25 26 27 28 Evidence of this type was introduced at trial, but apparently Ybarra is now arguing that more evidence should have been introduced. 2 Ybarra claims this letter was filed as exhibit 8 of 9 to his request for judicial notice, filed on June 15, 2009. He faults Judge Battaglia for failing to rely on it. That request for judicial notice attaches far more than nine exhibits, however, and they are not clearly numbered. The Court was only able to locate two letters, one at page 27 of docket number 13 and a second at page 97 of the same docket number. Neither letter has anything to do with ineffective assistance of trial counsel. The first letter expresses dismay at having received 250 pages of hand-written notes from Ybarra and at his insistence on directing her appellate strategy to focus on what she concluded were unfounded claims, and the second explains the limited nature of the appeal she was filing. Ybarra did attach a portion of the letter to his objections, however (see Obj. to R&R, 28), and it doesn’t say what Ybarra believes it does. Instead, the letter merely uses ineffective assistance of trial counsel as an example of a claim that would be outside the trial record. And even if Ybarra had a letter -4- 09cv1188 1 This is, in essence, a blanket disagreement with his counsel’s strategy. Ybarra 2 doesn’t show that his counsel’s strategy was at all unreasonable, much less that his 3 performance fell below the required level. His trial counsel was not ineffective for failing to 4 introduce evidence the trial court had excluded, for failing to cross-examine two police 5 officers who responded to the victim’s 911 call.3 6 In addition, the Court has reviewed the excerpt of a transcript of a hearing in the trial 7 court, which he included in his objections to show his counsel was ineffective. (Obj. to R&R, 8 17–22.) Far from showing his counsel was ineffective, they show Ybarra harbored highly 9 unrealistic expectations of his counsel and the course of action Ybarra thought was 10 appropriate was actually improper and would have been ineffective. That transcript shows 11 Ybarra retained control over whether to plead guilty and whether to testify at trial, but that 12 Ybarra’s attorney was appropriately in charge of other strategic decisions. The trial judge 13 attempted to explain to Ybarra that his attorney’s approach was correct,4 but Ybarra 14 persisted in his beliefs. 15 Elsewhere in his objections, Ybarra appears to be arguing that his trial counsel should 16 somehow have prevented the judge from allowing a 911 recording to be played in the jury 17 room. The actual ruling is discussed below, but as concerns his counsel’s performance it 18 is enough to point out that his counsel did do as much as he could have done, by objecting 19 and arguing it was improper. 20 Furthermore, Ybarra hasn’t shown he was prejudiced by anything his counsel did or 21 failed to do. Even if his attorneys had followed the strategy he urges, it is unlikely he would 22 23 24 25 26 from his appellate counsel saying his trial counsel had been ineffective, that wouldn’t suffice to show trial counsel was ineffective. 3 The 911 call is discussed in more detail in sections II.C and II.D, below. For reasons explained there, Ybarra’s trial counsel’s efforts to have the call excluded were futile and the officers’ testimony (even assuming they had testified as Ybarra now supposes they would) would have had little if any effect on the outcome. 4 27 28 By way of example, Ybarra thought his attorney should have written down Ybarra’s statement and introduced it as evidence at the preliminary hearing. The trial judge pointed out this would not have been admitted, and attempted to disabuse Ybarra of his misunderstandings. (Obj. to R&R, 18:21–19:27.) The trial court’s assessment of Ybarra’s approach was shared by Ybarra’s appellate counsel. See supra note 1. -5- 09cv1188 1 have been acquitted. As the state court found, the case against him was overwhelming, and 2 not weak as he now claims. 3 B. 4 Ybarra argues his appellate counsel was ineffective, that the prosecution’s case was 5 “weak” and should have been more effectively challenged on appeal. (Obj. to R&R, 25–26.) 6 He doesn’t rebut any of the state court’s factual findings, though. Rather, he merely 7 reiterates his arguments, urging the Court to reject the state court’s findings and interpret the 8 existing evidence differently. (See, e.g., Obj. to R&R, 30–31 (raising arguments about 9 omission of his last name from a police report, which was raised and rejected by the state 10 Ineffective Assistance of Appellate Counsel courts).) 11 As noted, the Court defers to the state court’s findings of fact unless Ybarra rebuts 12 them by clear and convincing evidence. He hasn’t rebutted them. The Court does not find 13 Ybarra’s appellate counsel was deficient, much less that she failed to provide effective 14 assistance. His counsel was not ineffective for failing to re-argue his entire case on appeal 15 and obtain a new trial. The state court has made clear a new trial would not have been 16 granted based on the weight of the evidence. His appellate counsel therefore appropriately 17 limited his appeal to one possibly winnable issue, and there is no showing that if she had 18 brought other claims (which, after talking with him, she concluded were unfounded) the result 19 would have been any different. 20 Furthermore, Ybarra hasn’t shown he was prejudiced by anything his appellate 21 counsel did or failed to do. Indeed, for both trial and appellate counsel, the record strongly 22 suggests Ybarra’s views about how the trial or appeal should be conducted were 23 unreasonable, and his counsel properly attempted to counsel him and rein him in while at 24 the same time advocating effectively for him. 25 C. Court Misconduct 26 The victim’s state of mind was relevant at Ybarra’s trial. The prosecution offered a 27 recording of a 911 call the victim made, in which she said she was afraid of Ybarra in part 28 because he was a criminal and had killed people. This evidence was admitted, with a -6- 09cv1188 1 limiting instruction being given several times, explaining it was only relevant and could only 2 be considered for the purpose of showing the victim’s state of mind. The judge told the jury 3 that statements in the call about Ybarra shouldn’t be accepted as true, and that Ybarra 4 “hasn’t been convicted of murder or anything like that.” ((R&R at 10n.1 (quoting 8 RT 324)). 5 After admitting the evidence over Ybarra’s counsel’s objection, the judge later allowed it to 6 be played in the jury room. 7 This cannot support habeas relief. Ybarra’s trial in state court was governed by state 8 rules of procedure and evidence, and not federal rules as he now argues.5 If the trial court 9 committed any error, it was an error of state law. Errors of state law do not give rise to 10 federal habeas relief. See Swarthout, 2011 WL 197627 at *2. 11 Playing the recording did not deprive Ybarra of his confrontation rights or other due 12 process rights. The trial court’s instructions effectively prevented the recording from being 13 misused by the jury, and in any event the victim testified and was cross-examined about 14 what she said. 15 D. 16 The alleged misconduct here consists of introducing perjured testimony and failing 17 to withdraw or correct it. Ybarra points to a police report made after two police responded 18 to a 911 call at his victim’s trailer home. The police report omitted his last name. Ybarra 19 alleges the victim testified falsely when she said the police told her about Ybarra’s criminal 20 record, which made her more afraid of him. This evidence was offered to show the victim’s 21 state of mind, an element of the crime. Ybarra has argued they could not have told the 22 victim about his record, since the police report omitted his last name. This, he believes, 23 shows they couldn’t have known about his criminal record and therefore couldn’t have told 24 /// Prosecutorial Misconduct 25 5 26 27 28 In his objections, Ybarra bases his arguments on federal rules. He cites federal authority for the principle that the 911 recording shouldn’t have been played in the jury room. (Obj. to R&R, 27–28.) He also argues evidence of other crimes he may have committed was inadmissible under the Federal Rules of Evidence. (Id., 3–4.) The R&R cited United States v. DeCoito, 764 F.2d 690, 695 (9th Cir. 1985) for the principle that sending properly admitted exhibits into the jury room was permitted. This citation is intended to show, not that federal practice rules govern state court proceedings, but that a practice that is acceptable in federal court cannot violate clearly established federal law. 09cv1188 -7- 1 the victim about it. He concludes that the victim must have been lying. Ybarra has asked 2 for an evidentiary hearing so that he can obtain the testimony of the two officers. 3 For several reasons, this claim must fail. First, the testimony was at best unsure. 4 (See, e.g., Pet., 72–73 (excerpt of transcript).) Second, even assuming the victim lied on 5 the stand, there is no evidence the prosecution knew this or discovered her testimony was 6 perjured and allowed it to go uncorrected, as would be required to establish a federal due 7 process claim. See Pavao v. Cardwell, 583 F.2d 1075, 1076–77 (9th Cir. 1978) (citing 8 Napue v. Illinois, 360 U.S. 264 (1959)). Third, materiality is an element of a due process 9 claim based on a prosecutorial misconduct, Smith v. Phillips, 455 U.S. 209, 220 n.10 (1982), 10 and the false testimony (if it was false) wasn’t material. Other unchallenged evidence 11 showed Ybarra’s victim had many reasons to fear him. He had violently struck her, verbally 12 abused her, broken her windows, burned her bedding, come to her home and refused to 13 leave, and threatened several times to kill her. She had twice called 911 when Ybarra was 14 menacing her. The victim had also been warned by Ybarra’s mother to hide and stay inside 15 her home, because Ybarra was on drugs, had a bat, and intended to kill the victim. In short, 16 there was ample other evidence Ybarra’s victim was afraid of him, and the allegedly false 17 testimony doesn’t meet the materiality standard set forth in Wood v. Bartholomew, 516 U.S. 18 1, 5 (1995). 19 No evidentiary hearing is required here, because the police officers Ybarra proposes 20 to call could not offer testimony showing that the prosecution knew the victim’s testimony 21 was perjury. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (giving standard for 22 granting an evidentiary hearing). Furthermore, the testimony Ybarra supposes the officers 23 would give would be vastly outweighed by other evidence showing the victim was afraid of 24 him. The record therefore precludes relief. See id. (explaining that no hearing is required 25 where the record precludes habeas relief). 26 E. Other Objections 27 Ybarra now raises numerous arguments and claims he didn’t raise in state court, or 28 even in his petition. Obviously, the R&R didn’t address claims not in his petition. But none -8- 09cv1188 1 of these are exhausted. To the extent Ybarra is now attempting to raise claims he didn’t 2 exhaust in state court, they are barred. And in any event, the Court in reviewing his 3 objections has determined they are meritless. 4 Ybarra raises one argument he could not have raised before, which is that the 5 California Supreme Court, in denying his petition, was required to issue a full, reasoned 6 opinion rather than a “post card” denial. (Obj. to R&R, 29.) He also seems to be arguing 7 that a “post card” denial is not entitled to deference. These arguments are frivolous; a state 8 court is not required to give its reasons for denying a habeas petition, and even if it does not 9 do so, its judgment is entitled to deference. Harrington, 2011 WL 148587 at *9. 10 Ybarra accuses Judge Battaglia of failing to read the pleadings, failing to review the 11 evidence, and making up falsehoods. (See, e.g., Obj. to R&R, 6, 30–31.) This isn’t an 12 adequate objection, and it is demonstrably untrue since the R&R cited to and quoted the 13 evidence. 14 specifically where it was wrong, and showing why it was wrong. See Fed. R. Civ. P. 72(b)(2). 15 Finally, Ybarra repeatedly asks this Court to review and reassess all the evidence, 16 effectively rehearing his entire case on the papers. He argues that because his trial lasted 17 three days and the jury deliberated for an hour and fifteen minutes, his 61-year sentence is 18 unreasonable. He concludes his objections by asking the Court to read through his entire 19 trial transcript. (Obj. to R&R, 33.) This is not the function of federal habeas review. 20 Harrington, 2011 WL 148587 at *12. Furthermore, Ybarra had a trial, a full appeal and state 21 habeas review, and the evidence was more than sufficient to convict him. The amount of 22 time it took to try and convict him is beside the point here. 23 III. If the R&R was incorrect, Ybarra should have responded by pointing out Conclusion and Order 24 The R&R is MODIFIED to include the new citations to Swarthout and Harrington. The 25 Court has reviewed de novo all portions of the R&R to which Ybarra objected, and 26 OVERRULES his objections. The Court has also reviewed the R&R more generally, and 27 concludes its findings and recommendations are correct. 28 /// -9- Ybarra’s objections are 09cv1188 1 OVERRULED, and the Court ADOPTS the R&R, as modified. All pending motions are 2 DENIED as moot. The Petition is DENIED. 3 For reasons set forth above, the standard for issuance of a certificate of appealability 4 is not met. See Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). The certificate 5 of appealability is therefore DENIED. 6 7 IT IS SO ORDERED. 8 DATED: February 10, 2011 9 10 HONORABLE LARRY ALAN BURNS United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - 09cv1188
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