Dye v. Clark, No. 3:2009cv02483 - Document 15 (S.D. Cal. 2010)

Court Description: ORDER Denying (Doc. 1 ) Petition for Writ of Habeas Corpus and Denying (Doc. 13 ) Motion for Evidentiary Hearing. Signed by Magistrate Judge Barbara Lynn Major on 6/29/2010. (All non-registered users served via U.S. Mail Service)(cap) (av1).

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Dye v. Clark Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 THOMAS P. DYE, 11 Petitioner, 12 v. 13 KEN CLARK, Warden, 14 Respondent. ) ) ) ) ) ) ) ) ) Case No. 09cv2483-BLM ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION FOR AN EVIDENTIARY HEARING [Doc. No. 1, 13] 15 16 On November 4, 2009, Petitioner Thomas P. Dye, a state prisoner 17 proceeding pro se and in forma pauperis, filed the instant Petition for 18 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 (“Petition” and “Pet.’s Mem.”). Pursuant to the provisions of 28 U.S.C. 20 § 636(c) and Federal Rule of Civil Procedure 73, the parties consented 21 to the jurisdiction of a United States Magistrate Judge. 22 11; Doc. No. 8. 23 Petition.1 Doc. Nos. 1, 1-1 Petition at On February 19, 2010, Respondent filed an Answer to the Doc. Nos. 11, 11-1 (“Answer” and “Resp.’s Mem.”). On March 24 25 26 27 28 1 Petitioner named both the California Attorney General and Ken Clark, the warden of the facility where Petitioner is incarcerated, as respondents. Petition at 1. Rule 2 of the Rules following 28 U.S.C. § 2254 provides that the state officer having custody of petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254. The structure of the California penal system places prisoners in the custody of both the Secretary of the California Department of Corrections and Rehabilitation and the warden of the California prison where petitioner is incarcerated. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 895 (9th Cir. 1996). Thus, Ken Clark, the warden, is a proper respondent, whereas the Attorney General of the State of California, is not. 09cv2483-BLM Dockets.Justia.com 1 19, 2010, Petitioner filed a Reply to the Answer (“Reply”), a memorandum 2 of points and authorities in support thereof (“Reply Mem.”), and a 3 Motion for an Evidentiary hearing. 4 reasons set forth below, the Court DENIES Petitioner’s Petition for Writ 5 of Habeas Corpus and Motion for an Evidentiary Hearing. 6 See Doc. Nos. 13, 14. For the STATEMENT OF FACTS 7 The following facts are taken directly from the California Court of 8 Appeal’s opinion affirming Petitioner’s conviction in The People v. 9 Thomas P. Dye, Super. Ct. Nos. SCN172719, SCN147314. 10 1. 11 12 13 14 15 16 17 Emily Phillips-counts 8 (residential burglary), 9, 10 (grand theft of personal property and an automobile) and 11 (unlawful taking and driving a vehicle) In February 1999, Dye introduced himself to Phillips under a false name. Within a short period of time, Dye moved into her home and offered to help reduce her substantial credit card debt. Phillips gave Dye $4,700, believing his statement that he would give the money to an attorney friend to reduce her credit debt. Dye dropped Phillips off where she worked and borrowed her car to meet the attorney, but then failed to pick Phillips up as previously arranged. When Phillips returned home, she found that all of Dye's belongings were gone, as well as her car, social security card, passport, credit cards, driver's license, money and other items. Phillips immediately called the police and reported the theft. 18 19 20 21 The following month, Dye responded to an ad for a roommate in Denver, Colorado using the name Tommy Phillips. The female landlord contacted the police after Dye questioned her about her financial affairs. When the police arrived, they ran the license plate number of the vehicle that Dye had been seen driving and learned that it was registered to Phillips and had been reported stolen. 22 24 In August 1999, the People filed a felony complaint against Dye in San Diego for the crimes committed against Phillips (SCD147314). After the police arrested Dye in Denver, he bailed himself out of jail and then jumped bail. 25 . . . 23 26 3. Lilia Antillon-counts 1 (residential burglary), 2 (grant [sic] theft of personal property), 3 & 5 (forgery of 27 28 Accordingly, this Court sua sponte DISMISSES the allegations against the California Attorney General and TERMINATES him as a respondent in this case. 2 09cv2483-BLM 1 checks), 4 & 6 (burglary), and 7 (failure to appear while on bail) 2 3 4 5 6 7 8 9 10 11 12 13 14 In November 2002, while out on bail on the Phillips matter, Dye began dating Antillon in San Diego and, at some point, she moved enough clothing into Dye's room at the Island Inn to enable her to stay there for a couple of days at a time. As the relationship progressed, Dye started asking her lots of questions regarding her finances. In December 2002 and January 2003, Dye presented checks written from Antillon's account to the Island Inn for rent; the checks were written for more than the amount due and he received a total of $300 cash back. One day, Dye disappeared after stealing Antillon's driver's license and credit card. Although Antillon initially believed that Dye had also stolen her truck because he had the keys, she later found the truck but discovered that an expensive gold chain inside it was missing. After Dye's disappearance, Antillon discovered the earlier theft and forgery of her checks. On October 30, 2003, the People filed an information against Dye in San Diego for his crimes against Antillon (SCD172719). In August 2003, Chicago police arrested Dye for another offense and sent him back to San Diego for prosecution. Lodgment 7 at 2-3, 5-6. 15 PROCEDURAL BACKGROUND 16 In August 1999, the People of the State of California filed a 17 complaint in San Diego charging Petitioner with the crimes relating to 18 Phillips described above. 19 while Petitioner was in custody in Illinois and South Dakota on separate 20 charges, Petitioner filed a motion in San Diego seeking dismissal of the 21 pending San Diego charges on the basis that his Sixth Amendment right to 22 a speedy trial had been violated. 23 92. In December 2001, Petitioner arrived in San Diego, was arraigned on 24 the Phillips complaint, and renewed his motion to dismiss. 25 602-30. In January 2002, a superior court judge presided over a lengthy 26 evidentiary 27 Petitioner’s motion to dismiss. 28 14, 2002, the court issued a written order denying Petitioner’s motion hearing Lodgment 1 at 650-54. addressing In September 2001, Id. at 858-64, 866-72, 875-77, 581- the speedy trial issues Lodgment 3, Volumes 1-4. 3 Id. at 865, raised in On February 09cv2483-BLM 1 to dismiss the complaint. Lodgment 1 at 677-86. 2 In November 2002, Petitioner posted a $100,000 bond and was 3 released from custody. Id. at 900-901. On January 22, 2003, Petitioner 4 failed to appear for a court hearing and an arrest warrant was issued. 5 Id. at 907-8. 6 a new crime and returned to San Diego in September 2003. 7 6. 8 Petitioner with crimes committed against Antillon while he was out of 9 custody on bail during the criminal proceedings on the Phillips charges. 10 In August 2003, Petitioner was arrested in Illinois for Lodgment 7 at On October 30, 2003, the People filed a new information charging Id. 11 On July 14, 2004, the prosecution filed an amended information 12 joining the Phillips and Antillon cases after the trial court granted 13 its consolidation motion. 14 Volume 4 at 163-64. 15 the amended information alleged that Petitioner committed counts one 16 through seven while out on bail, and that he had sixteen probation 17 denial priors, five prison priors, three serious felony priors and three 18 strike priors. 19 jury trial and a bench trial commenced on July 20, 2004. 20 Volume 2 at 554-55; Lodgment 3, Volume 4 at 197-201; Lodgment 3, Volume 21 5 at 209. Lodgment 2 at 1-9; see also Lodgment 3, In addition to the above-mentioned eleven counts, Lodgment 2 at 1-9. Petitioner waived his right to a Lodgment 1, 22 On July 29, 2004, the trial court found Petitioner not guilty of 23 the residential burglary charge as to Antillon and its associated bail 24 violation allegation (count one), but guilty of all other charges 25 (counts two-eleven) and all associated allegations that he had committed 26 the crimes while out on bail (counts two-seven). 27 at 641-44; Lodgment 1, Volume 2 at 564. 28 the allegations that Petitioner had five prison priors, two serious 4 Lodgment 3, Volume 6 The trial court also found true 09cv2483-BLM 1 felony priors, and two strike priors. 2 Lodgment 1, Volume 2 at 564. 3 two strikes under California Penal Code section 1385 and then sentenced 4 Petitioner to a total of 23 years in prison. 5 672-73, 676-80; Lodgment 1, Volume 2 567-68. Lodgment 3, Volume 6 at 645-48; On October 12, 2004, the court dismissed Lodgment 3, Volume 6 at 6 The People appealed the court’s finding that Petitioner’s Illinois 7 attempted robbery conviction did not qualify as a serious felony prior 8 and a strike prior. 9 trial court abused its discretion when it struck two of Petitioner’s 10 prior strikes. Id. Petitioner also appealed the judgment, arguing that 11 the trial court (1) violated his rights to a speedy trial and due 12 process with respect to the Phillips convictions; (2) abused its 13 discretion in consolidating for trial the crimes against both victims; 14 (3) erred by admitting uncharged acts evidence; and (4) committed 15 judicial misconduct. Lodgment 5. Petitioner also asserted that (1) the 16 burglary convictions as to Antillon should be reversed because he had an 17 absolute right to enter the premises; (2) the judgment should be 18 reversed because he received ineffective assistance of counsel; and 19 (3) the cumulative effect of all errors warranted reversal. 20 Lodgment 6. The People further contended that the Id. The appellate court affirmed Petitioner’s conviction on April 14, 21 2006, 22 resentencing 23 Petitioner filed a petition for review with the California Supreme Court 24 on May 17, 2006, presenting only the claim directed at his right to a 25 speedy trial. 26 12, 2006. with the as exception of a a of the result Lodgment 8. partial reversal People’s and appeal. remand for Lodgment 7. His petition was summarily denied on July Lodgment 9. 27 On November 29, 2006, on remand for resentencing, the San Diego 28 Superior Court denied Petitioner’s motion to strike the three prior 5 09cv2483-BLM 1 strike allegations. 2 court sentenced Petitioner to a term of 150 years to life in prison 3 under the three strikes law, consisting of consecutive terms of twenty- 4 five years to life on counts two, three, five, seven, eight and ten. 5 Id. The court also imposed an additional seventeen years, consisting of 6 three consecutive serious felony prior enhancements (Cal. Penal Code 7 § 667 (a)), plus two years consecutive for an “on bail” enhancement 8 (Cal. Penal Code § 12022.1(b)). 9 were ordered stayed or stricken, pursuant to California Penal Code 10 Lodgment 2 at 120-21; Lodgment 4 at 39-42. Id. The All other counts and enhancements sections 654 and 1385, respectively. Id. 11 On January 2, 2008, Petitioner appealed his sentence, arguing that 12 the court erred by reconsidering his entire sentence, finding true a 13 prior strike conviction that previously had been stricken, and failing 14 to strike his prior strike convictions.2 15 argued that his sentence constituted cruel and unusual punishment. 16 On August 14, 2008, the appellate court affirmed the judgment. Lodgment 17 12. 18 Court on September 15, 2008 (Lodgment 13), which was summarily denied on 19 October 22, 2008 (Lodgment 14). Lodgment 10. Petitioner also Id. Petitioner filed a petition for review with the California Supreme 20 Petitioner filed a petition for writ of habeas corpus in the 21 California Supreme Court on April 29, 2009, arguing that the trial court 22 erred by allowing evidence of uncharged acts and trial and appellate 23 counsel provided ineffective assistance. Lodgment 15. On September 23, 24 2009, the California Supreme Court summarily denied the petition. 25 Lodgment 16. 26 petition for writ of habeas corpus. On November 4, 2009, Petitioner filed the instant Petition. 27 28 2 In his opening brief, Petitioner also argued that the People’s appeal was untimely; however, with permission of the court, he withdrew this argument in a supplemental letter. See Lodgment 12 at 1. 6 09cv2483-BLM 1 Legal Standard 2 3 Title 28 of the United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims: 4 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 5 6 7 28 U.S.C. § 2254(a). 8 The Petition was filed after enactment of the Anti-terrorism and 9 Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 10 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA: 11 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— 12 13 14 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 15 16 17 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 18 19 20 28 U.S.C. § 2254(d). 21 merits. 22 there is no reasoned decision from the state's highest court, the Court 23 "looks through" to the underlying appellate court decision. 24 Nunnemaker, 501 U.S. 797, 801-06 (1991). Summary denials constitute adjudications on the See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002). Where Ylst v. 25 A state court's decision is "contrary to" clearly established 26 federal law if the state court: (1) "arrives at a conclusion opposite to 27 that 28 (2) "confronts facts that are materially indistinguishable from a reached" by the Supreme Court 7 on a question of law; or 09cv2483-BLM 1 relevant Supreme Court precedent and arrives at a result opposite to 2 [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000). 3 A state court's decision is an "unreasonable application" of 4 clearly established federal law where the state court "identifies the 5 correct governing legal principle from this Court's decisions but 6 unreasonably applies that principle to the facts of the prisoner's 7 case." 8 habeas court may not issue a writ simply because the court concludes in 9 its independent judgment that the relevant state-court decision applied 10 clearly established federal law erroneously or incorrectly . . . . 11 Rather, 12 (emphasis added) (internal quotation marks and citations omitted). 13 Clearly established federal law "refers to the holdings, as opposed to 14 the dicta, of [the United States Supreme] Court's decisions." Williams, 15 529 U.S. at 412. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). that application must be objectively "[A] federal unreasonable." Id. 16 Finally, habeas relief also is available if the state court's 17 adjudication of a claim "resulted in a decision that was based on an 18 unreasonable determination of the facts in light of the evidence 19 presented in the State court proceeding." 20 v. Allen, __ U.S. __, 2010 WL 173369, *2 (U.S. Jan. 20, 2010). 21 court's decision will not be overturned on factual grounds unless this 22 Court 23 objectively unreasonable in light of the evidence presented in state 24 court. 25 Rice 26 "[r]easonable minds reviewing the record might disagree" does not render 27 a decision objectively unreasonable). 28 state court's factual findings are correct, and Petitioner may overcome finds that the state court's 28 U.S.C. § 2254(d)(2); Wood factual A state determinations were See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also v. Collins, 546 U.S. 333, 8 341-42 (2006) (the fact that This Court will presume that the 09cv2483-BLM 1 that presumption only by clear and convincing evidence. 2 § 2254(e)(1). 3 4 28 U.S.C. Discussion Petitioner raises three grounds for relief. Petition. He argues 5 that this Court should reverse his conviction because (1) his right to 6 a speedy trial was violated, (2) his trial and appellate counsel 7 provided ineffective assistance of counsel, and (3) his due process 8 rights were violated by the admission of “prior bad act evidence.” 9 Respondent argues that this Court should deny the instant petition 10 11 12 13 Id. because Petitioner has failed to demonstrate that the decision by the California state courts rejecting [Petitioner’s] claims on the merits was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts as presented in the state court proceeding. 14 15 Resp.’s Mem. at 1. 16 A. Speedy Trial Claim 17 Petitioner complains that his constitutional right to a speedy 18 trial was violated by the California state courts. 19 He explains that although his right to a speedy trial with respect to 20 the crimes he committed against Phillips (counts eight-eleven) attached 21 on November 24, 1999, he was not brought to California to face the 22 charges until December 19, 2001, over two years later. 23 argues that this substantial delay prejudiced him in that his defense 24 was “impaired” and he “remained in prison past his scheduled release 25 date.” 26 “meritless.” 27 28 Id. at 12. Pet.’s Mem. at 4. Id. at 6. He Respondent asserts that Petitioner’s claim is Resp.’s Mem. at 14. [1]. Facts Relating to the Speedy Trial Claim On November 24, 1999, while in custody in Illinois on 9 09cv2483-BLM 1 2 3 4 5 local charges, Dye was arraigned on a fugitive complaint regarding his crimes against Phillips, demanded a trial and refused to waive extradition to California. In December 1999, Dye pleaded guilty to the Illinois charges and was sentenced to prison. On January 5, 2000, the San Diego District Attorney's Office lodged a detainer against Dye seeking his temporary custody under the Agreement. (§ 1389, Art. IV(a).) Dye refused to waive extradition and refused to sign the “request for final disposition of charges” form that would have allowed his transfer to California. 6 7 8 9 10 11 12 13 14 15 Between January and June 2000, the San Diego District Attorney's Office telephoned the Illinois Department of Corrections to check on the status of its transfer request, but corrections personnel initially indicated that they were not sure where Dye was being housed and then advised that he had been transferred to a prison in South Dakota to serve the rest of his Illinois prison term. In July 2000, the San Diego District Attorney's Office learned that the Illinois Department of Corrections had lost the request for temporary custody and was looking for it. During this time period, the San Diego District Attorney's Office made more telephone calls to the Illinois Department of Corrections to check on Dye's status. In August 2000, the San Diego District Attorney's Office received a letter from the Governor of Illinois indicating he “authorized” the transfer. The San Diego District Attorney asserted, however, that the letter did not give San Diego the authority to take custody of Dye and it was not the equivalent of an offer of temporary custody under the Agreement. 16 17 18 19 20 Dye was unsure whether he or his attorney had requested a hearing under Cuyler v. Adams (1981) 449 U.S. 433 (Cuyler) to oppose the proposed transfer; nonetheless, as of September 2000, the Illinois Department of Corrections knew that such a hearing was to be held, but did not know whether it would occur in Illinois or South Dakota. Four months later, the San Diego District Attorney's Office learned that South Dakota would hold the Cuyler hearing once it obtained the necessary papers. 21 27 In March 2001, Dye again refused to waive extradition, claiming prison personnel only provided him with a blank form without the required information regarding what charges he was facing in California. During this time period, Dye learned that he had a right to demand trial in California under the Agreement and filed a “federal enjoinment action.” Dye also testified that he hired an attorney to contact officials in South Dakota and Illinois to ascertain if the necessary paperwork had come in under Article IV of the Agreement, discovered there was no detainer against him and did not learn about the detainer until just before his scheduled August 2001 release date. 28 The Cuyler hearing was held in October 2001 and Dye 22 23 24 25 26 10 09cv2483-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 appealed the resulting transfer order. On November 13, 2001, the Illinois and South Dakota Departments of Corrections issued offers “to deliver temporary custody” of Dye. On December 6, 2001, the San Diego District Attorney's Office accepted temporary custody and Dye appeared in San Diego the following week to answer the charges against him relating to Phillips. The Honorable Ronald L. Styn held a hearing on Dye's motion to dismiss and issued a ten-page order denying the motion. The trial court assumed that Dye had been subject to continuous restraint since November 1999, and that his right to a speedy trial triggered at that point. After evaluating the factors articulated in Barker v. Wingo (1972) 407 U.S. 514 (Barker), the trial court concluded that the delay was presumptively prejudicial, but was justifiable insofar as California was concerned because the negligence of Illinois could not be imputed to the California prosecutor. It also concluded that Dye's actions reduced the weight that should be given to his request for a speedy trial and that he failed to show actual prejudice. After Dye's reconsideration motion was denied, he waived statutory time for trial and time under the Agreement process. Lodgment 7 at 3-5. 14 2. The California Court of Appeal’s Decision 15 In evaluating the merits of Petitioner’s claims, this Court must 16 “look through” to the last reasoned state court decision. See Ylst, 501 17 U.S. at 801-06. 18 appeal to the California Court of Appeal and the California Supreme 19 Court. 20 summarily denied his petition for review (Lodgment 9), the last reasoned 21 state court decision came from the California Court of Appeal, Fourth 22 Appellate District. 23 court found that Petitioner’s constitutional right to a speedy trial was 24 not violated. 25 26 27 28 Petitioner presented his speedy trial claim on direct See Lodgments 5, 8. Because the California Supreme Court See Lodgment 7. Id. at 7-13. In its opinion, the appellate The court reasoned: Here, the trial court assumed that Dye's right to a speedy trial attached in November 1999 when, while in custody in Illinois, he was arraigned on a fugitive complaint regarding this case and demanded a trial. For purposes of analysis, we also assume that Dye's right to a speedy trial attached at this point and examine the remaining Barker factors in light of the approximately two-year delay between 11 09cv2483-BLM 1 his demand for a trial and appearance in San Diego. 2 As to the reasons for the delay, there is nothing in the record suggesting that the prosecution deliberately failed to extradite Dye in order to hamper his defense and any delay engendered by negligence is weighed “less heavily” against the government. (Barker, supra, 407 U.S. at p. 531.) In reviewing whether the prosecution was negligent, we must examine the procedure it used to transfer Dye to California. Here, the prosecution lodged a detainer against Dye seeking his temporary custody under Article IV(a) of the Agreement in January 2000. The Agreement, codified by section 1389, establishes procedures for resolution of one jurisdiction's outstanding criminal charges against another jurisdiction's prisoner. (§ 1389, Art. I.) Once a detainer is lodged, the warden of the correctional institution in which the prisoner is incarcerated is required to inform the prisoner of all outstanding detainers and his or her right to request final disposition of the criminal charges underlying those detainers. (§ 1389, Art. III(c).) If the prisoner requests final disposition, then the receiving state is required to bring the prisoner to trial within 180 days of the request or dismissal will result, unless the receiving state moves for a continuance. (§ 1389, Art. III(a).) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 If the prisoner does not initiate procedures leading to transfer and disposition of the charges under Article III, the prosecutor may do so under Article IV and trial must then be commenced within 120 days of the arrival of the prisoner in the receiving state. (§ 1389, Art. IV(c).) Prisoners also have the right to a judicial hearing in which they can bring a limited challenge to the receiving state's custody request. (Cuyler, supra, 449 U.S. at p. 449.) The detainer lodged by the prosecution properly noticed its source and the charges against Dye. Dye acknowledged that in January 2000 and March 2001, he received forms whereby he could make a request for final disposition, but complained that he never received any information about the charges against him and refused to sign the forms for that reason. Assuming the veracity of Dye's assertions, this would have resulted only from negligence by the Illinois and South Dakota officials in failing to inform him of the contents of the detainer. However, negligent compliance with the Agreement by out of state officials generally does not preclude prosecution in another state. (Fex v. Michigan (1993) 507 U.S. 43, 51-52.) 24 25 26 27 28 Nonetheless, Illinois and South Dakota officials were negligent in other respects. In 2000, the San Diego District Attorney's Office telephoned the Illinois Department of Corrections on numerous occasions to check on the status of Dye's transfer request, but the out of state personnel initially did not know Dye's location, lost the request for temporary custody and did not know where the Cuyler hearing would be held. In 2001, the San Diego District Attorney's 12 09cv2483-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 Office made over 20 phone calls to South Dakota or Illinois checking on the status of its transfer request. Inexplicably, the Cuyler hearing was not held until October 2001. After Dye appealed the resulting transfer order, the Illinois and South Dakota Departments of Corrections issued offers “to deliver temporary custody” of Dye the following month. Within four weeks, the San Diego District Attorney's Office had accepted temporary custody and Dye appeared in San Diego to answer the charges. The issue is whether the negligence of these out of state officials can be imputed to California for the purposes of analyzing whether the prosecution caused the delay. In People v. Hill (1994) 37 Cal.3d 491, 497 (Hill), our high court concluded that the risk of negligence by the California Department of Corrections should be borne by the prosecution and not the defendant for speedy trial purposes. Hill, however, did not address the instant situation where another state, over which the prosecutor had no control, caused the delay. Significantly, the Sixth Amendment right to a speedy trial requires a state to make a diligent, good faith effort to bring a prisoner serving a prison term in another state to trial. (Smith v. Hooey (1969) 393 U.S. 374, 383.) Thus, the primary question is whether the prosecution here made a diligent, good faith effort to transfer Dye to California for trial. 14 15 16 17 18 19 20 21 22 After considering all the evidence, the trial court specifically found that the prosecution acted in good faith and with due diligence and this implied finding of no negligence is reviewed with deference. (Doggett, supra, 505 U.S. at p. 652.) Dye complains that the prosecution did nothing besides making telephone calls and sending e-mails to enforce compliance with the Agreement and failed to use other means to secure his transfer. The specific purpose of the Agreement, however, is to expedite proceedings to secure speedy trials for defendants facing charges in one jurisdiction and already incarcerated in another. (§ 1389, Art. I.) Illinois did not know Dye's location for a period of time and Dye was incarcerated in both Illinois and South Dakota. Given these circumstances, Dye does not explain how a writ of habeas corpus ad prosequendum, governor's warrant, federal action or an executive agreement to obtain custody would have expedited his transfer. 23 24 25 26 27 28 We must also examine Dye's desire for a speedy trial in light of his other conduct. (United States v. Loud Hawk (1986) 474 U.S. 302, 314.) Notably, after Dye's arraignment on the fugitive warrant and request for trial in November 1999, he never requested a prompt disposition of the California charges against him. Dye's failure to assert his right to a speedy trial indicates he might have believed that the delay was to his benefit, in which case he cannot now complain that his right to a speedy trial has been violated. (Barker, supra, 407 U.S. at pp. 521, 528-529, 531-532.) Had Dye truly been 13 09cv2483-BLM 1 2 interested in a speedy trial on the California charges, he could have asserted his rights under Article III of the Agreement to start the 180-day clock for dismissal of his charges or waived the Cuyler hearing. 3 4 5 6 7 8 9 10 11 12 13 Critically, over a year passed from the time that the Illinois Department of Corrections knew about the Cuyler hearing and the commencement of the hearing. Dye admitted that in March or April 2001, he learned of his right to demand trial in California under the Agreement and he knew “a lot” about the Agreement process when he refused to waive extradition in March 2001. Dye also admitted that he refused to waive extradition or his rights under the Agreement, refused to be transferred to California and appealed the results of the Cuyler hearing. Although Dye claimed he never attempted to delay his transfer to California and was unsure whether he or his attorney had requested the Cuyler hearing, the trial court disbelieved these assertions, concluding that Dye had insisted on the hearing and that his actions contributed to the delay of his prosecution. The trial court is in the best position to judge the credibility of the evidence and we give considerable deference to its findings. (See Doggett, supra, 505 U.S. at p. 653.) Moreover, Dye's actions after his return to San Diego (jumping bail and then committing crimes against Antillon) strongly show that proceeding to trial was the last thing he wanted. 14 15 16 17 18 19 20 Where, as here, the prosecution proceeded with reasonable diligence, the defendant must show specific prejudice for his speedy trial claim to succeed. (Doggett, supra, 505 U.S. at p. 656; United States v. Aguirre (9th Cir.1993) 994 F.2d 1454, 1457, cert. denied, 510 U.S. 1029.) Prejudice is assessed in the light of the interests that the speedy trial right is designed to protect, including: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. (Barker, supra, 407 U.S. at p. 532.) Of these subfactors, “the most serious is the last, because the inability of a defendant [to] adequately ... prepare his case skews the fairness of the entire system.” (Ibid.) 21 22 23 24 25 26 27 28 Dye does not argue that he suffered anxiety and concern regarding the unresolved California charges and it is important to note that he was serving an Illinois sentence for all but the last three months of his incarceration before his transfer to San Diego. Although Dye was not released in August 2001 as he had expected because of the detainer against him, he does not argue that the additional three months of incarceration was oppressive. Dye asserts that the delay impaired his defense because his own ability to recall facts that occurred in 1999 was hampered and because he could not locate witnesses who could have testified that he did not return to Phillips's home on the day in question and that Phillips had financial troubles. Phillips, however, admitted she was a student with little or no money and $20,000 in 14 09cv2483-BLM 1 2 3 credit card debt and testified that she gave Dye her money and allowed him to use her car for the sole purpose of reducing her debt. Although Dye complains that the passage of time prevented him from locating witnesses, he does not explain how these witnesses were critical to his defense against these charges. 4 5 6 7 8 9 10 In summary, the conduct of Illinois and South Dakota personnel is insufficient to tip the scales in Dye's favor given the diligent actions of the prosecution in pursuing Dye under the Agreement. Dye also failed to assert a speedy trial right until after his transfer to San Diego, undertook actions that delayed any possibility of trial and suffered little or no prejudice resulting from the delay. After balancing all four factors, we conclude the trial court did not err in holding that Dye was not denied a speedy trial under the federal constitution. Id. at 8-13. 11 3. Federal Law and Analysis 12 “The Sixth Amendment guarantees that, ‘[i]n all criminal 13 prosecutions, 14 speedy...trial....’” Doggett v. United States, 505 U.S. 654, 651 (1992) 15 (citing the Sixth Amendment of the United States Constitution); see also 16 United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). 17 right is “fundamental” and imposed by the Due Process Clause of the 18 Fourteenth Amendment on the states. Klopfer v. North Carolina, 386 U.S. 19 213, 222-23 (1967). The Sixth Amendment Speedy Trial Clause is broad on 20 its face; however, its breadth has been qualified by case law which 21 recognizes the weight of four factors: (1) the length of the delay; 22 (2) the reason for the delay; (3) the defendant’s assertion of his 23 right; and (4) prejudice to defendant. 24 also Barker v. Wingo, 407 U.S. 514, 530-32 (1972). 25 factors are either a necessary or sufficient condition for finding a 26 speedy trial deprivation. 27 factors and must be considered together with such other circumstances as 28 may be relevant.” the accused shall enjoy the right to a This Doggett, 505 U.S. at 651; see Barker, 407 U.S. at 533. None of the four They are “related Id. 15 09cv2483-BLM 1 However, the first factor, the length of delay, is a threshold 2 question and Doggett breaks this inquiry into two steps. Doggett, 505 3 U.S. at 651-52; Beamon, 992 F.2d at 1012. 4 inquiry, an accused must show that the period between indictment and 5 trial passes a threshold point of “presumptively prejudicial” delay. 6 Barker, 407 U.S. at 530; Beamon, 992 F.2d at 1012. 7 is presumed if the delay in bringing the defendant to trial has exceeded 8 one year. 9 the court does not proceed with the other Barker factors. Doggett, 505 U.S. at 652, n.1. To trigger a speedy trial Prejudice normally If this threshold is not met, Id. at 651- 10 52; Barker, 407 U.S. 530; Beamon, 992 F.2d at 1012. 11 threshold showing is made, “the court considers the extent to which the 12 delay exceeds the threshold point in light of the degree of diligence by 13 the government and acquiescence by the defendant to determine whether 14 sufficient prejudice exists to warrant relief.” 15 1012. If, however, the Beamon, 992 F.2d at 16 The Interstate Agreement on Detainers (“IAD”), codified under 17 California statutory law by § 1389, is “an agreement between California, 18 47 19 resolution of detainers, based on untried indictments, informations or 20 complaints filed in one jurisdiction, against defendants who have been 21 imprisoned in another jurisdiction. 22 609, 612 (2001) (internal quotations omitted). 23 detainer is a notification filed with the institution in which a 24 prisoner is serving a sentence, advising that he is wanted to face 25 pending criminal charges in another jurisdiction.’ ” Id. 26 United States v. Mauro, 436 U.S. 340, 359 (1978)). 27 be read in light of Barker v. Wingo, which sets forth the guidelines for 28 properly determining the speedy trial issue. other states, and the federal 16 government,” facilitating the People v. Lavin, 88 Cal.App.4th Under the IAD, “‘[a] (quoting Section 1389 should People v. MacDonald, 27 09cv2483-BLM 1 Cal.App.3d 508, 511 (1972). 2 The IAD establishes a procedure under which a prisoner, against 3 whom a detainer has been lodged, may demand trial within 180 days of a 4 written 5 prosecutor and appropriate court of the prosecutor's jurisdiction. 6 § 1389, Art. III, subd. (a); Lavin, 88 Cal.App.4th at 612. 7 prisoner's only requirement under the IAD “is to advise the warden of 8 his request for final disposition of the charges on which the detainer 9 is based.” request for final disposition properly delivered to the The People v. Wilson, 69 Cal.App.3d 631, 636 (1977). 10 Here, Petitioner’s right to a speedy trial with respect to the 11 crimes he committed against Phillips (counts eight-eleven) attached on 12 November 24, 1999; yet, he was not brought to California to face the 13 charges until December 2001. 14 at 1-2. 15 delay was “presumptively prejudicial” and that the Court therefore must 16 consider the remaining Barker factors. Lodgment 7 at 3, 5; see Doggett, 17 505 U.S. at 652, n.1. Lodgment 7 at 3, 5; Lodgment 1, Volume 1 The appellate court correctly determined that this two year 18 With regard to the second factor, the “reasons for the delay,” the 19 appellate court determined that the California “prosecution acted in 20 good faith and with due diligence” and that the delay was not due to the 21 California prosecution’s negligence but rather to the negligence of 22 officials in Illinois and South Dakota. 23 finds that this was a reasonable determination of the facts in light of 24 the evidence presented in the state court proceeding. 25 presided over a four-day hearing that included lengthy testimony from 26 several 27 extensive arguments by counsel. 28 evidence showed that the California prosecutors made numerous attempts witnesses, including Lodgment 7 at 8-10. Petitioner, The judge exhibits, and Lodgment 3, Volumes 1-4 at 1-403. The 17 numerous This Court 09cv2483-BLM 1 to transfer Petitioner to California, including lodging a detainer 2 against Petitioner pursuant to Article IV(a) of the IAD and telephoning 3 officials in Illinois or South Dakota on more than twenty occasions to 4 check on the status of the transfer. 5 that 6 Petitioner of the contents of the detainer, were unaware of Petitioner’s 7 location, lost the request for temporary custody, and inexplicably 8 delayed the Cuyler hearing.3 9 supporting the state court’s findings and this Court finds the state 10 11 officials in Illinois and/or Id. Id. The evidence also established South Dakota failed to inform Accordingly, there was ample evidence court’s findings and analysis on this point to be reasonable.4 Third, the court properly examined “[Petitioner’s] desire for a 12 speedy trial in light of his other conduct.” 13 United States v. Loud Hawk, 474 U.S. 302, 314 (1986). 14 that Petitioner, although admittedly aware of his rights under the IAD, 15 failed to assert his right to a speedy trial after his November 1999 Lodgment 7 at 11 (citing The court found 16 17 18 19 20 21 22 23 24 25 26 27 28 3 In Cuyler v. Adams, 449 U.S. 433 (1981), the United States Supreme Court held that prisoners facing transfer by detainer pursuant to the IAD were entitled to a pretransfer hearing to challenge the charging state’s custody request. 4 Petitioner also argues, as he did to the court of appeal, that the California prosecution should have used “other means,” including a writ of habeas corpus ad prosequendum, governor’s warrant, federal action or an executive agreement, to secure his transfer. Pet.’s Mem. at 7-10; Reply Mem. at 1-2. He cites a United States Supreme Court opinion, Smith v. Hooey, 393 U.S. 374 (1969), in support of this argument. Pet.’s Mem. at 7; Reply Mem. at 2. As the court of appeal noted, given the circumstances outlined above, there is no indication that any of these proposed “other means” would have expedited his transfer. Lodgment 7 at 10-11. Moreover, in Hooey, the petitioner was imprisoned in a federal penitentiary in Kansas when he was indicted in Harris County, Texas, on a charge of theft. Hooey, 393 U.S. at 375. He repeatedly asked to be brought to trial on the state charges; however, the state took no action. Id. The Court held that upon demand of a person incarcerated in a federal penitentiary who is charged with a state crime, the charging state is required to make a diligent, good faith effort to obtain the accused for trial on the pending state charge. Id. at 383. Unlike in Hooey, where the state “took no steps to obtain the petitioner’s appearance...in the trial court,” here, as detailed above, California made a diligent, good faith effort to secure Petitioner’s transfer. Id. at 375. Accordingly, the Court finds that the court of appeal’s decision is consistent with the Supreme Court’s decision in Hooey. 18 09cv2483-BLM 1 arraignment, failed to assert his rights under Article III of the IAD, 2 and failed to waive the Cuyler hearing. 3 refused to waive extradition or his rights under the IAD, refused to be 4 transferred to California, and appealed the results of the Cuyler 5 hearing. 6 Petitioner’s own admissions, supporting the court’s finding. 7 3, Volumes 1-4. 8 truly been interested in a speedy trial on the California charges,” he 9 would have taken actions in furtherance, not in contravention, of that Id. Id. Additionally, Petitioner The record contains extensive evidence, including Lodgment As the court of appeal stated, “[h]ad [Petitioner] 10 interest. 11 more of these actions, Petitioner contributed to his delay and he 12 “cannot 13 violated.” 14 Accordingly, this Court finds that the state court’s findings and 15 analysis on this point also were reasonable.5 16 Lodgment 7 at 11. now complain that Essentially, by failing to take one or his right to a speedy trial has been Id. (citing Barker, 407 U.S. at 521, 528-29, 531-32). Finally, the court determined that Petitioner did not suffer 17 “specific prejudice” as a result of the delay. 18 analyzing 19 protected by the speedy trial rights: (1) preventing oppressive pretrial 20 incarceration, (2) minimizing anxiety and concern, and (3) limiting the 21 possibility that delay will impair the defense. Barker, 407 U.S. at 22 532-33. 23 because the inability of a defendant [to] adequately...prepare his case 24 skews the fairness of the entire system.” the prejudice factor, Barker Lodgment 7 at 12-13. identified three In interests Of these three subfactors, “the most serious is the last, Lodgment 7 at 12 (quoting id. 25 26 5 27 28 The Court also notes, as did the court of appeal, that Petitioner’s actions after he returned to California to face the Phillips charges (jumping bail and then committing similar crimes against Antillon) “strongly show that proceeding to trial was the last thing he wanted.” Lodgment 7 at 12. 19 09cv2483-BLM 1 at 532). 2 Petitioner did not establish any significant prejudice on either of the 3 first two subfactors. 4 charges, Petitioner was serving an Illinois sentence for all but the 5 last three months of his incarceration before his transfer to San Diego. 6 Lodgment 3, Volumes 1-4. 7 suffered anxiety and concern regarding the unresolved California charges 8 nor did he establish that the additional three months of incarceration 9 was oppressive. 10 11 The court of appeal applied these factors and found that Id. Id. Regardless of the pending California Petitioner did not present evidence that he Therefore, the Court finds that the state court’s analysis of these two subfactors was reasonable. With respect to the third subfactor, the court of appeal found that 12 the delay did not impair Petitioner’s defense. 13 Petitioner argues, as he did to the court of appeal, that the delay 14 prejudiced his defense because his “own ability to recall the facts and 15 circumstances surrounding the events of that period of time in 1999 16 [was] hampered” and because he could not locate witnesses who could have 17 testified that he did not return to Phillips’ home on the day in 18 question and that Phillips had financial troubles. 19 Yet, with respect to “witnesses who could have verified that he did not 20 go back to Phillips’ house on the day in question,” Petitioner did not 21 identify any particular witness who could no longer be found.6 22 did he present evidence of efforts to find such witnesses. 23 Moreover, with respect to witnesses who could have testified “that Ms. Lodgment 7 at 12-13. Pet.’s Mem. at 12. Id. Nor Id. 24 25 26 27 28 6 In a pretrial hearing, Petitioner’s trial counsel generally alluded to “neighbors” who, “if they could be found and called as witnesses,” would testify that Petitioner did not go back to Phillips’ house on the day in question. Pet.’s Appendix 31. However, this speculative and conclusory statement is insufficient to demonstrate that Petitioner was prejudiced by the delay in bringing him to trial. Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (vague speculation or mere conclusions unsupported by record are not sufficient to state claim). 20 09cv2483-BLM 1 Phillips was financially in trouble,” Petitioner does not explain, nor 2 can this Court discern, how these witnesses were crucial to his defense. 3 Id. 4 financial troubles would have added little or no value as Phillips 5 herself testified that she was a student in serious credit card debt and 6 that she gave Petitioner her money for the sole purpose of reducing her 7 debt. 8 23. 9 impact on the outcome of the case. As the court of appeal stated, the testimony regarding Phillips’ Lodgement 7 at 12-13; see also Lodgment 3, Volume 5 at 218, 220Therefore, it is not likely that the testimony would have had an Finally, Petitioner’s claim that he 10 was unable to recall facts that incurred in 1999 is conclusory as he 11 fails to explain exactly what facts were forgotten or how these facts 12 would have aided in his defense. 13 determination that Petitioner did not suffer prejudice as a result of 14 the delay was reasonable. Accordingly, the state courts' 15 The California Court of Appeal properly balanced the four Barker 16 factors and reasonably concluded that Petitioner was not denied a speedy 17 trial under the United States Constitution. 18 finds that the court of appeal’s determination was not contrary to or an 19 unreasonable application of clearly established law, nor was it an 20 unreasonable determination of the facts in light of the evidence 21 presented 22 Therefore, the Court DENIES habeas relief on this claim. 23 B. Ineffective Assistance of Counsel Claim in the state court proceeding. Accordingly, this Court 28 U.S.C. § 2254(d). 24 Petitioner alleges that he was denied his Sixth Amendment right to 25 effective assistance of counsel because his trial attorney (1) failed to 26 investigate and prepare for trial, (2) failed to adequately cross- 27 examine Phillips and Antillon, (3) failed to file a written response to 28 the prosecution’s motion to admit evidence pursuant to California 21 09cv2483-BLM 1 Evidence Code § 1101(b), and (4) delivered an inadequate closing 2 argument.7 3 appellate attorney provided inadequate representation because he failed 4 to cite federal law in connection with the improper admission of prior 5 bad 6 Petitioner “has not shown that trial counsel’s purported deficiencies 7 resulted in prejudice.” act Pet.’s Mem. at 14-20. evidence claim. Id. at Petitioner also argues that his 20-21. Respondent argues that Resp.’s Mem. at 23. 8 1. The California Court of Appeal’s Decision 9 In its opinion, the California Court of Appeal concluded that 10 Petitioner was not denied effective assistance of counsel. 11 at 23-28. 12 13 14 15 16 17 18 Lodgment 7 The court of appeal explained: In arguing for a continuance, Dye's prior counsel noted that the prosecution's motions were “no-brainers.” After noting how old the case was, the trial court stated that defense counsel was “very capable [and] competent” and could immediately respond to the motions. Despite its comments, the trial court moved the hearing date a couple of weeks and told defense counsel that oral responses were “perfectly acceptable.” On the date set for the hearing on the motions, defense counsel sought to withdraw based on a conflict. After granting the motion to withdraw, the trial court informed new counsel (noted to be the fourteenth or fifteenth counsel for Dye) that it would accept oral responses to the motions. Defense counsel later orally argued that consolidation would be unduly prejudicial and the uncharged acts evidence should 19 20 21 22 23 24 25 26 27 28 7 Petitioner also argues that trial counsel failed to contact prior counsel and investigators. Pet.’s Mem. at 17-18. However, as Respondent points out, this claim is not properly before this Court, as it was not fairly presented to the California Supreme Court. Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008); see Resp.’s Mem. at 27-28; Lodgments 8, 13, 15. In any event, the Court reviewed the record and finds that Petitioner’s claim also fails on the merits. The record clearly reflects that trial counsel contacted Petitioner’s previous attorneys. Lodgment 4, Volume 4C at 134. Trial counsel also contacted prior investigators, including Miriam Pasas, Tara Glasford, and Shannon Lodder. Id.; Pet. Mem. at 18; Lodgment 3, Volume 6 at 584. In fact, Ms. Lodder, ultimately testified in Petitioner’s defense at trial. Lodgment 3, Volume 6 at 584-597. As Petitioner’s fifteenth attorney (see Lodgment 3, Volume 4C at 142), it would have been unrealistic and unproductive to require him to contact all those who preceded him. For the above reasons, the Court finds that trial counsel’s actions fell well within the wide range of reasonable representation. Hensley v. Crist, 67 F.3d 181, 184 (9th Cir. 1995). Moreover, Petitioner has not shown that counsel’s conduct prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Therefore, Petitioner’s claim fails. 22 09cv2483-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 not be admitted. Although the trial court granted the consolidation motion, it did not admit all of the uncharged acts evidence. The record gives us no reason to believe that the trial court would have ruled differently had defense counsel filed written opposition or made longer arguments at the hearing and we reject Dye's suggestion that counsel was ineffective. Moreover, we examined the rulings regarding consolidation and the admission of uncharged acts evidence and found no error. Thus, Dye has not established that he was prejudiced by counsel's failure to file written opposition. (Supra, at parts IB & C.) Dye contends that counsel did not adequately prepare for trial because he failed to investigate potential exculpatory witnesses in the Antillon case, specifically individuals that would testify as to her bipolar attacks and lying and another individual that saw Dye and Antillon together nine weeks after he allegedly disappeared. Defense counsel indicated that the individuals Dye had listed could not assist the defense because they were not present during the time period in question. Regardless, defense counsel indicated he would have an investigator interview the witnesses on the Antillon case. On this record, there is no reasonable probability that the omission of these unnamed witnesses adversely affected the trial outcome. Finally, Dye contends that defense counsel failed to adequately cross-examine Antillon because he did not include any questions regarding a “jilted lover defense” and gave only a one-page closing argument. Decisions regarding the scope of cross-examination and closing argument are tactical in nature and where, as here, the record sheds no light regarding the reason for counsel's actions a claim of ineffective assistance must be rejected as we will not “second-guess” defense counsel's tactical decisions. (People v. Stewart (2004) 33 Cal.4th 425, 459.) 20 21 Id. at 27-28. 22 2. Federal Law and Analysis 23 For ineffective assistance of counsel to provide a basis for habeas 24 relief, Petitioner must successfully meet a two-prong test. 25 must show that counsel’s performance was deficient. 26 Washington, 466 U.S. 668, 687 (1984). 27 counsel made errors so serious that counsel was not functioning as the 28 ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 23 First, he Strickland v. “This requires a showing that Id. The 09cv2483-BLM 1 “[r]eview of counsel’s conduct is highly deferential and there is a 2 strong presumption that counsel’s conduct fell within the wide range of 3 reasonable representation.” 4 Cir. 1995); Strickland, 466 U.S. at 689. 5 establish 6 Strickland, 466 U.S. at 687. 7 errors were so serious they deprived Petitioner “of a fair trial, a 8 trial whose result is reliable.” 9 prong, Petitioner must show a reasonable probability that the result of counsel’s Hensley v. Crist, 67 F.3d 181, 184 (9th deficient Second, Petitioner must performance prejudiced the defense. This requires a showing that counsel’s Id. To satisfy the test’s second 10 the proceeding would have been different but for the error. 11 529 U.S. at 406; Strickland, 466 U.S. at 694. 12 not decide whether counsel’s performance was deficient when the claim of 13 ineffectiveness may be rejected for lack of prejudice.” 14 Calderon, 211 F.3d 1148, n.3 (9th Cir. 2000) (citing Strickland, 466 15 U.S. at 697). 16 Williams, A reviewing court “need Jackson v. a. Failure to Investigate 17 Petitioner complains that trial counsel failed to investigate 18 potential exculpatory or impeaching witnesses. Pet.’s Mem. at 14-17. 19 For counsel 20 investigated “potential witnesses in the Antillon case who could have 21 testified as to her bipolar attacks and lying.” 22 specifically identifies Milagro Morrow-Lezama, “a friend of Petitioner 23 and cousin to Antillon whom [sic] introduced Petitioner and Antillon,” 24 as 25 forgetfulness and problems.” Id. 26 including Rena Kastris, Andrew Scianemea, and Peter Morales, employees 27 at the restaurant where Petitioner worked, “could have put Petitioner 28 with Mrs. Antillon nine weeks after the alleged incident, refuting her example, a witness Petitioner who “would argues have that trial testified as to should have Id. at 15. Antillon’s He lying, He also states that other witnesses, 24 09cv2483-BLM 1 claim of his disappearing [sic].” 2 the testimony of a jewelry store owner and Maria De Los Reyes could have 3 been used to impeach both Antillon and Gary Cates on several points.8 4 Id. at 15-16. 5 Id. Finally, Petitioner argues that Petitioner’s arguments are not supported by the record. As the 6 court of appeal stated, trial counsel knew about the potential witnesses 7 and determined that the they “could not assist the defense because they 8 were not present during the time period in question.” 9 see also Lodgment 3, Volume 4C at 136-37. Lodgment 7 at 28; He also determined that 10 “these are not the type of witnesses that can really help [Petitioner] 11 in any fashion.” 12 counsel indicated that he intended to hire an investigator to interview 13 the witnesses. 14 116. 15 office to do some investigation.” 16 trial, counsel further stated that he had investigators “beating the 17 bushes for [Petitioner] to find witnesses he’s told us would be of 18 assistance for him.” 19 although trial counsel may not have independently interviewed witnesses, 20 interview statements taken by Petitioner’s previous trial attorneys and 21 investigators were made available to him. 22 101, 103; see also Pet.’s Appendix 44 (Declaration of Stephen G. Cline). 23 Counsel’s decision not to investigate further was not objectively Lodgment 3, Volume 4C at 136-37. Regardless, trial Id. at 149; Lodgment 7 at 28; Lodgment 3, Volume 4 at In fact, trial counsel later stated that he hired “Dennis Sesma’s Lodgment 3, Volume 4 at 201. Lodgment 3, Volume 6 at 542. During Additionally, Lodgment 3, Volume 4 at 87, 24 25 26 27 28 8 Gary Cates testified about facts relating to Petitioner’s bail jumping charge and his efforts to locate Petitioner after Petitioner failed to appear on the Phillips case on January 23, 2003. Lodgment 3, Volume 5 at 406-424. Maria De La Reyes cosigned Petitioner’s bond application and described herself as his girlfriend. Id. at 409-11. Ms. De La Reyes was contacted by Mr. Cates “by telephone in April 2003, three months after Mr. Dye failed to appear for a court hearing.” Lodgment 1, Volume 2 at 484; see also Lodgment 3, Volume 5 at 411. 25 09cv2483-BLM 1 unreasonable. 2 make reasonable investigations or to make a reasonable decision that 3 makes particular investigations unnecessary.”). See Strickland, 466 U.S. at 691 (“Counsel has a duty to 4 As Respondent states, “[i]t is still unclear as to what efforts 5 were ultimately made by trial counsel and to where those endeavors may 6 have ultimately led.” 7 fails to present declarations by 8 Andrew Scianemea, Peter Morales and the jewelry store owner that would 9 substantiate their purported testimony, availability, and willingness to Resp.’s Mem. at 25. In any event, Petitioner Milagro Morrow-Lezama, Rena Kastris, 10 testify.9 11 counsel's failure to call witnesses, Petitioner must identify the 12 witness, United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985), 13 show that the witness was available and willing to testify, United 14 States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988), and show that 15 the witness' testimony would have been sufficient to create a reasonable In presenting a claim of ineffective assistance based on 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Petitioner attaches a declaration by Ms. De La Reyes regarding Mr. Cates’ trial testimony. Pet.’s Appendix 42; see also Lodgment 1, Volume 2 at 483-88. The declaration was filed in superior court on August 26, 2004. Lodgment 1, Volume 2 at 483. In her declaration, Ms. De La Reyes states that Mr. Cates fabricated numerous events, including a discussion “relating to Mr. Dye stalking [her], following [her], and trailing [her].” Id. at 485. Ms. De La Reyes maintains that such a discussion never occurred. Id. Her declaration conflicts with Mr. Cates’ trial testimony on other small points as well. See id. at 483-87. The trial judge was made aware of Ms. De La Reyes’ declaration and found that “it has absolutely nothing to do with his guilt or innocence in this case” and that “it doesn’t change the testimony of the two primary victims....” Lodgment 3, Volume 6 at 655, 667. This Court agrees. Although Ms. De La Reyes’ testimony may have been used to impeach Mr. Cates testimony on small points, the result of the trial would have been the same. As stated above, Mr. Cates testified regarding Petitioner’s bail jumping charge and his efforts to locate Petitioner after he failed to appear on the Phillips case on January 23, 2003. Lodgment 3, Volume 5 at 406-424. He did not testify to the facts underlying the Phillips charges or the Antillon charges. See id. As to the bail jumping charge, Petitioner admitted that he skipped bail. Lodgment 3, Volume 4C at 129, 143. Moreover, Mr. Cates’ testimony regarding Petitioner’s whereabouts after he skipped bail was corroborated by numerous witnesses, including Susan Baddor, Lennie Bironne, Katherine Speaks and John Duffy. Lodgment 3, Volume 6 at 452-525. Therefore, the Court finds that it is not reasonably likely that the outcome of the trial would have been different had trial counsel called Ms. De La Reyes to testify. 26 09cv2483-BLM 1 doubt as to guilt. 2 see also United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1989) 3 (holding that where defendant did not indicate what witness would have 4 testified to and how such testimony would have changed the outcome of 5 the 6 Generally, this requires submission of affidavits from the uncalled 7 witnesses. 8 denied, 531 U.S. 908 (2000); see also Bragg v. Galaza, 242 F.3d 1082, 9 1088 (9th Cir. 2001), amended by 253 F.3d 1150 (9th Cir. 2001) (mere 10 speculation of possible helpful information from potential witnesses is 11 not sufficient to show ineffective assistance of counsel); Howard v. 12 O'Sullivan, 185 F.3d 721, 724 (7th Cir. 1999) ("failure to submit 13 supporting affidavits from [the] potential witnesses would severely 14 hobble [the petitioner's] case."). 15 witnesses could have provided potentially exculpatory or impeaching 16 testimony is merely speculation and without evidentiary support. trial, there Tinsley v. Borg, 895 F.2d 520, 532 (9th Cir. 1990); can be no ineffective assistance of counsel). Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000), cert. Thus, Petitioner's claim that these 17 Moreover, as the Court of Appeal reasonably found based on the 18 record before it, there is no evidence that the omission of these 19 witnesses adversely affected the trial outcome. 20 There was overwhelming evidence of Petitioner’s guilt on counts two, 21 three, four, five and six.10 22 Cir. 2005), cert. denied, 546 U.S. 858 (2005) (“[T]o the extent that any 23 claim of error ... might be meritorious, we would reject that error as 24 harmless 25 overwhelming.”). In particular, the trial judge found Antillon to be “a because the Lodgment 7 at 28. Allen v. Woodford, 395 F.3d 979, 992 (9th evidence of [petitioner's] guilt is 26 27 10 28 As stated above, Petitioner was acquitted on count one. Lodgment 3, Volume 6 at 641. 27 09cv2483-BLM 1 very credible witness.” 2 testimony was corroborated by several witnesses, including John Reese, 3 Richard Metz, Deborah Walker, Christopher McGilvary, Jeffrey Bricker, 4 Randy Gibson and Phil Sowers. 5 Lodgment 3, Volume 6 at 527–32, 609-19. 6 physical evidence, including the receipt for the purchase of the gold 7 chain, showing that it cost $3,000. 8 The prosecution also introduced the two forged checks as well as 9 testimony that handwriting analysis could not eliminate Petitioner as Lodgment 3, Volume 6 at 643. And, Antillon’s Lodgment 3, Volume 5 at 288-323, 333-88; It also was corroborated by the Lodgment 3, Volume 5 at 303-04. 10 the person who wrote the checks. 11 527-32. 12 there is no indication that the outcome would have been different had 13 these witnesses testified. Accordingly, the state court’s determination 14 that counsel did not provide ineffective assistance of counsel in this 15 respect was not an unreasonable decision. Id. at 308-09; Lodgment 3, Volume 6 at In light of the overwhelming evidence of Petitioner’s guilt, 16 b. 17 Petitioner’s Failure to File Written Opposition claim that trial counsel provided ineffective 18 assistance of counsel when he failed to file a written opposition to the 19 prosecution’s motion for admission of uncharged acts evidence is without 20 merit. 21 that oral responses were “perfectly acceptable.” 22 at 38, 103, 162. 23 court’s instruction and orally opposed the motion. 24 4 at 179-181. 25 in that the judge prohibited the government from using some of the 26 requested uncharged acts evidence. 27 Petitioner has not and cannot establish that counsel’s actions were 28 “outside the wide range of professionally competent assistance” or that Pet.’s Mem. at 20. The trial judge specifically told counsel Lodgment 3, Volume 4 The record indicates that trial counsel followed the Lodgment 3, Volume And, counsel’s oral opposition was partially successful 28 Id. at 181-185. Accordingly, 09cv2483-BLM 1 the alleged failure impacted the judge’s ruling. 2 at 689; see Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he 3 failure to take futile action can never be deficient performance”). 4 Moreover, as discussed below, this Court has determined that no federal 5 or constitutional error occurred as a result of the trial court’s 6 admission of the uncharged acts testimony. See infra Discussion section 7 C(3). Accordingly, this claim fails. 8 c. Inadequate Cross-Examination 9 i. Phillips 10 Strickland, 466 U.S. Petitioner also argues that trial counsel conducted an insufficient 11 cross-examination of Phillips. 12 cross-examination was “astonishingly brief” and “irrational in light of 13 the available impeachment evidence.” 14 cross-examination of Phillips was relatively short compared to the 15 prosecution’s direct-examination, the Court finds that it was not 16 deficient. Trial counsel focused on counts eight (residential burglary) 17 and nine (grand theft of personal property) and attempted to discount 18 Phillips’ account of the events in question. 19 240-42, 20 contention 21 identification in her possession on the day in question. Id. at 241-42. 22 He also examined Phillips about her living arrangement with Petitioner 23 in an attempt to establish that Petitioner was a renter and therefore 24 legally entitled to enter Phillips’ house on the day in question. 25 at 26 potential cross-examination and impeachment available to counsel, the 27 ones 28 performance. 245. 245-46. that While utilized For she example, did not Petitioner by Pet.’s Mem. at 18. counsel Id. trial have argues Although trial counsel’s Lodgment 3, Volume 5 at counsel her there constituted He argues that the credit were an questioned cards Phillips’ and additional objectively personal lines Id. of reasonable See Dows v. Woods, 211 F.3d 480, 487 (9th Cir. 2000) 29 09cv2483-BLM 1 (“[C]ounsel’s tactical decisions at trial, such as refraining from 2 cross-examining a particular witness or from asking a particular line of 3 questions, are given great deference and must similarly meet only 4 objectively reasonable standards.”) 5 Petitioner specifically argues that counsel failed to utilize 6 potential impeachment evidence. 7 position, he submits declarations from a witness and a former attorney. 8 Id.; Pet.’s Appendix 40, 44. 9 illegal drugs, made positive statements about Petitioner and the fact 10 that he took care of her financially, and asked the witness to lie for 11 her by stating that Petitioner returned to the building and took things 12 from the apartment. 13 indicates that his file, which he gave to trial counsel, contained notes 14 about another witness who had been to Phillip’s home and would testify 15 that Phillips used illegal drugs and Petitioner appeared to financially 16 support Phillips. 17 the information was provided to trial counsel. As such, it appears that 18 counsel made a strategic decision not to cross-examine Phillips with 19 this impeachment information. 20 counsel should have used the impeachment information during his cross- 21 examination, this Court cannot say that it was unreasonable not to do 22 so, especially since the trier of fact was a judge. 23 U.S. 24 reasonable”, not flawless or ideal). 25 at 688-89 Even Pet.’s Mem at 18. The witness states that Phillips used Pet’s Appendix 40. Pet.’s Appendix 44. (counsel’s assuming In support of his The attorney’s declaration Both declarations indicate that While an argument can be made that representation Petitioner’s trial must counsel’s Strickland, 466 be “objectively cross-examination 26 constituted 27 prejudice, i.e., that the outcome of his trial would have been different 28 had his deficient trial counsel performance, questioned 30 Petitioner Phillips about cannot the establish impeachment 09cv2483-BLM 1 information or presented it via the other witnesses. 2 found Phillips to be “an exceptionally credible witness” (lodgment 3, 3 volume 6 at 643) and her testimony was corroborated by numerous witness, 4 including Tito Voitel, Henry Taylor, James Stewart, Jolee McKowen and 5 John Duffy (lodgment 3, volume 5 at 249-82; lodgment 3, volume 6 at 436- 6 52; 490-505). 7 evidence presented at trial, including an altered copy of her California 8 driver’s license that Petitioner used when he attempted to rent a room 9 from Ms. McKowen in Denver. The trial judge Her testimony also was consistent with the physical Lodgment 3, Volume 5 at 234-35; Lodgment 3, 10 Volume 6 at 443-44. 11 impacted 12 invalidated the substance of her testimony, given the peripheral nature 13 of the impeachment11 and the strength of the corroborating evidence. 14 Because there was overwhelming evidence of Petitioner’s guilt on the 15 Phillips charges, Petitioner cannot establish that the outcome of those 16 charges would have been different had counsel asked different questions 17 or called other impeachment witnesses. the 18 19 While the potential impeachment evidence may have court’s assessment of Phillips, it would not have ii. Antillon Petitioner further argues that trial counsel failed to adequately 20 cross-examine 21 regarding a “jilted lover defense.” 22 that although Petitioner may take issue with counsel’s strategy in Antillon because he did not include Pet.’s Mem. at 19. any questions The Court finds 23 24 25 26 27 28 11 The fact that during her romantic relationship with Petitioner, Phillips may have bragged to other women that Petitioner was supporting her financially or that other women believed that to be the case has little, if any, bearing on the charged crimes. Similarly, even if Phillips did use illegal drugs, there is no reason to believe that fact would have changed the trial judge’s determinations of guilt. 31 09cv2483-BLM 1 hindsight12, counsel made 2 performance in regard 3 reasonable professional assistance.” 4 Through cross-examination of Antillon and direct-examination of defense 5 witnesses, trial counsel attacked Antillon’s credibility. Specifically, 6 trial counsel challenged whether Antillon’s testimony was consistent 7 with previous statements she had made to a defense investigator, Shannon 8 Lodder-Pollard. 9 Ms. Lodder-Pollard to testify about Antillon’s previous statements, 10 which revealed numerous inconsistences with Antillon’s trial testimony. 11 Lodgment 3, Volume 6 at 584-597. 12 this a reasonable fell well tactical within decision “the wide and his range of See Strickland, 466 U.S. at 689. Lodgment 3, Volume 5 at 317-18, 320. He also called In any event, Petitioner cannot establish prejudice. The 13 evidence against him on counts two, three, four, five and six was 14 strong. 15 Lodgment 3, Volume 5 at 288-323. 16 her to be “a very credible witness” (Lodgment 3, Volume 6 at 643) and 17 her testimony was corroborated by numerous witnesses as well as the 18 physical evidence (see supra Discussion section B(2)(a)). Therefore, it 19 is not reasonably likely that the outcome of the trial would have been 20 different had counsel included questions regarding a “jilted lover Antillon directly testified to the events in question. As stated above, the trial judge found 21 22 23 24 25 26 27 28 12 The Court notes that trial counsel repeatedly consulted with Petitioner throughout the cross-examination of Antillon (lodgment 3, volume 5, 381-21) and prior to concluding his cross-examination of Ms. Phillips (id. at 242) so Petitioner had the opportunity to assist in his defense and suggest topics for cross-examination. If Petitioner suggested those lines of cross-examination and counsel chose not to pursue them, that decision is a strategic trial decision entitled to great deference. Strickland, 466 U.S. at 689; Dows, 211 F.3d at 487. Petitioner presents no evidence to support his assertion that additional examination relating to a “jilted lover defense” would have convinced the judge to discount Antillon’s credibility, especially in light of the overwhelming evidence and the fact that the trial judge heard testimony that the Antillon and Petitioner were in a relationship and it ended with an allegation that Petitioner stole from Antillon. 32 09cv2483-BLM 1 defense.” 2 the counsel did not provide ineffective assistance in this respect. 3 Accordingly, the state court did not err in determining that d. Inadequate Closing Argument 4 Petitioner further argues that trial counsel delivered an 5 inadequate closing argument because it was “one page” and “mentioned 6 only one of eleven counts charged.” 7 that Petitioner’s allegation is without merit. 8 Supreme Court has emphasized the deference that must be accorded to 9 trial counsel in making closing argument: 10 Pet.’s Mem. at 20. The Court finds The United States 15 ... counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should “sharpen and clarify the issues for resolution by the trier of fact, but which issues to sharpen and how best to clarify them are questions with many reasonable answers ... Judicial review of a defense attorney's summation is therefore highly deferential-and doubly deferential when it is conducted through the lens of a federal habeas. 16 Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (internal citations 17 omitted). 11 12 13 14 18 In the present case, trial counsel focused his closing argument on 19 the residential burglary charges (counts one and eight). 20 Volume 6 at 640-41. 21 the “highly questionable” state of the evidence. 22 stressed that Antillon did not know “where her bracelet was” and that 23 she had made “several statements, both pro and con” regarding whether or 24 not Petitioner ever entered her son’s house. 25 eight, trial counsel stated that there were “no witnesses showing him 26 actually going ... in the Phillips house.” Id. In the alternative, 27 trial have picked 28 Phillips’ belongings as an “afterthought.” counsel With respect to count one, his attorney argued that Petitioner 33 Id. may Id. Lodgment 3, emphasized Id. at 640. He With respect to count up some of Given the overwhelming 09cv2483-BLM 1 evidence against Petitioner and the fact that a judge was the decision- 2 maker, the Court finds that it was not unreasonable for trial counsel to 3 limit his closing statement to making focused challenges to the two 4 “weakest” counts. 5 acquitted Petitioner of one of the crimes specifically challenged by 6 counsel during his closing argument. Yarborough, 540 U.S. at 5-6. In fact, the court Lodgment 3, Volume 6 at 641. 7 Even assuming the closing argument was inadequate, this Court finds 8 no “reasonable probability” that a “better” closing argument would have 9 made a significant difference. As mentioned throughout this order, the 10 evidence on 11 overwhelming. 12 (“[I]n cases with overwhelming evidence of guilt, it is especially 13 difficult to show prejudice from a claimed error on the part of trial 14 counsel.”) (internal quotations omitted). 15 Antillon, testified to the events in question. 16 210-46, 288-323. 17 other witnesses, as well as with the physical evidence presented at 18 trial. See Lodgment 3, Volume 5 at 249-82, 288-323, 333-88; Lodgment 3, 19 Volume 6 at 436-52, 490-505, 527–32, 609-19. 20 called 21 victimization, evidencing Petitioner’s intent and a common plan or 22 scheme. 23 at 436-90, 507-25; 550-67, 569-83. 24 seven, the bail jumping charge, Petitioner admitted that he skipped bail 25 and failed to appear in court on January 23, 2003. 26 4C at 129, 143. 27 factfinder was a judge, there is no reasonable probability that a 28 “better” or longer closing argument would have changed the result. In against Petitioner counts two through eleven was See Bonin v. Calderon, 59 F.3d 815, 836 (9th Cir. 1995) eight Both victims, Phillips and Lodgment 3, Volume 5 at Their testimony was consistent with the testimony of witnesses who testified to Moreover, the prosecution a similar pattern of Lodgement 3, Volume 5 at 324-32, 394-406; Lodgment 3, Volume 6 Finally, with respect to count Lodgment 3, Volume Given the overwhelming evidence of guilt and that the 34 09cv2483-BLM 1 sum, Petitioner fails to establish that counsel’s closing statement was 2 deficient and that he was prejudiced by the alleged error. Accordingly, 3 the state court did not err in concluding that Petitioner did not 4 receive ineffective assistance of counsel in this respect. 5 e. Inadequate Representation on Appeal 6 Finally, Petitioner argues that appellate counsel “failed to cite 7 Federal law in regards to Petitioner’s claim of the admittance of the 8 prior bad act evidence.” 9 failure “was objectively unreasonable and resulted in prejudice.” Pet.’s Mem. at 20. He argues that this Id. 10 at 21. 11 this Court has determined that no federal or constitutional error 12 occurred as a result of the trial court’s admission of the uncharged 13 acts 14 Petitioner’s failure to cite federal law was not deficient. 15 93 F.3d at 1445 (“[T]he failure to take futile action can never be 16 deficient performance”). 17 that appellate counsel’s failure resulted in prejudice as Petitioner 18 would not have achieved a more favorable outcome on appeal had appellate 19 counsel cited federal law. Petitioner’s claim lacks merit. testimony. See infra Discussion As discussed in detail below, section C(3). Therefore, See Rupe, For the same reason, Petitioner cannot show Accordingly, this claim also fails. 20 As discussed above, Petitioner has failed to establish that he 21 received ineffective assistance of counsel and the Court finds that the 22 court of appeal’s decision was not contrary to or an unreasonable 23 application of clearly established law, nor was it an unreasonable 24 determination of the facts. 25 DENIES habeas relief on this claim. 26 C. Due Process Claim 28 U.S.C. § 2254(d). There fore the Court 27 Petitioner argues that the superior court violated the Due Process 28 Clause of the Fourteenth Amendment by allowing the prosecution to 35 09cv2483-BLM 1 present evidence of his other “uncharged acts.” 2 maintains that this “emotionally charged evidence” was “used for nothing 3 more than to establish [his] propensity to commit certain crimes” and, 4 as such, rendered his trial “fundamentally unfair.” 5 Respondent counters that such evidence was properly admitted not as 6 propensity evidence, but to show a common plan, motive, or scheme. 7 Resp.’s Mem. at 40. 8 Process Cause and the court of appeal’s determination on that point was 9 not an unreasonable application of federal law or an unreasonable 10 Pet.’s Mem. at 23. He Id. at 23, 28. As a result, its admission did not violate the Due determination of the facts. Id. 11 1. Other Act Evidence Admitted at Trial 12 At trial, pursuant to California Evidence Code § 1101(b), the 13 prosecution presented evidence of the following uncharged acts involving 14 similar conduct by Petitioner: 15 16 17 18 19 20 21 22 23 24 25 26 27 In 1990, Sharon Halperin met Dye in a nightclub in Chicago, Illinois where he introduced himself under a false name. Halperin agreed to go out with Dye the next day and she gave him her telephone number, but not her address. The following day, Dye appeared at her house with flowers and asked her to dinner. After Halperin agreed, Dye suggested that she go upstairs to change her clothes, leaving her purse on a table. When Halperin returned, Dye had disappeared along with the flowers, some of her money and jewelry. In October 1995, Mary Ann Ryan and her friend Debbie met Dye in a Chicago restaurant where he introduced himself as “Tommy O'Shay.” Dye accompanied the women home, offering to move some furniture for them. At some point, Debbie asked Dye to leave after she found him looking through Ryan's wallet. The following morning, Ryan discovered that her car key and car were missing. Later that month, Nikki Main met Dye, who went by the name of “Tommy O'Shay,” after he answered an ad for a roommate in Chicago. Dye moved in and became involved with Main's female roommate. On three separate occasions, Main found money missing from her dresser and later discovered that her cell phone was missing, but did not realize that Dye had taken the items. After Main had given Dye her bank card PIN number to process a transaction for her, she discovered that her card 28 36 09cv2483-BLM 1 was missing, $550 had been taken from her account and Dye had disappeared. 2 3 4 5 6 7 8 9 10 11 In January 2003, Katherine Tomoko Speaks met Dye in a restaurant in Seattle where he worked as a waiter and used the name “David Nelsen.” They became romantically involved and Dye visited her condominium from time to time. While dating Dye, Speaks discovered money missing from her bank account, which Dye admitted taking after she confronted him about it. At some point, Dye visited the apartment of Speaks's landlord, Lennie Bironne, where Bironne had left several credit cards on a table. The following day, Bironne discovered that one of his credit cards was missing and had been used the previous night. After Bironne informed Speaks of the incident, Dye disappeared with some of her belongings. In July 2003, Dye introduced himself to Susan Baddour as “Tommy Taglia” when they met at a bar in Seattle, Washington. After dating Baddour for about a week, Dye took her car under the pretense that he would get it repaired for her; however, he did not return and she never heard from him again. 12 Lodgment 7 at 16-18. 13 2. The California Court of Appeal’s Decision 14 The California Court of Appeal determined that the uncharged acts 15 evidence was properly admitted. The court explained, 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the uncharged acts were sufficiently similar to the charged crimes and they were reasonably admitted as tending to show intent and common plan. The incidents involving Halperin, Ryan, and Bironne revealed that Dye gained the trust of his victims so he could obtain access to their homes and tended to show that he harbored the intent to steal when he entered the homes. With Main, Speaks and Baddour, Dye became romantically involved with the victim or another individual and again used his position of trust to gain access to banking information or a vehicle. Similarly here, Dye used his position of trust with Phillips and Antillon to obtain access to their homes, personal property, money or checks. We conclude that the trial court did not abuse its discretion in admitting this evidence. A trial court has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.Code, § 352.) Dye complains that the trial court failed to properly balance the probative value against the unduly prejudicial effect of the uncharged crimes evidence because it failed to mention these factors in its oral ruling 37 09cv2483-BLM 1 2 3 4 5 on the prosecution's in limine motion to admit this evidence. Our review of the record reveals that Dye objected to the uncharged crimes evidence solely on Evidence Code section 1101 grounds, specifically that the uncharged crimes were dissimilar and unnecessary to prove any element of the charged crimes. Dye did not challenge the evidence as unduly prejudicial under Evidence Code section 352 and he may not now complain that the evidence was inadmissible on this ground. (People v. Mickey (1991) 54 Cal.3d 612, 689; Evid.Code, § 353.) 6 7 8 9 10 To the extent that considering the prejudicial effect of uncharged crimes evidence is inherent in evaluating whether such evidence should be admitted under Evidence Code section 1101 (People v. Ewoldt, supra, 7 Cal.4th at p. 404), Dye's argument ignores the fact that he waived a jury trial. In a bench trial, factors such as the inflammatory nature of the crime, confusion of the issues, and the consumption of time involved in addressing the prior offenses are less significant than they would have been in a jury trial. 11 12 13 14 15 16 17 18 19 20 21 22 23 Dye also argues that the trial court improperly allowed the prosecutor to argue the uncharged crimes evidence for propensity purposes; however, he fails to explain how the prosecutor's argument prejudiced him. Dye cannot claim error based on this improper argument because the trial court is presumed to know and follow the law that such evidence may not be used to prove propensity. (People v. Mosley (1997) 53 Cal.App.4th 489, 496; Evid.Code, § 1101, subd. (a).) In fact, in ruling on the in limine motion to admit the uncharged crimes evidence, the trial court considered the arguments of counsel and allowed only some of the evidence proffered by the prosecution on the ground it was relevant to show plan, motive, intent or scheme. Finally, Dye argues that the trial court's comments show it improperly used the uncharged acts evidence for propensity purposes in finding him guilty. However, the portions of the record cited by Dye do not support this conclusion. The trial court noted that Phillips was an “exceptionally” credible witness and, in deciding the residential burglary charge as to her, commented that all it needed to do was look at how Dye operated, ingratiating himself with his victims and working his way into their lives through distortion and fraud. To the extent this comment reflects the uncharged crimes evidence, it appears that the trial court properly considered the evidence for purposes of showing a common plan, motive or scheme. 24 25 26 27 28 After making findings on all counts, the court summarized the guilt phase by stating Dye would scout out environments looking for items to steal and, after noting Speaks's testimony that Dye did not believe he was guilty of anything, stated: “That typifies you, Mr. Dye. You're a crook, a thief, a very sophisticated, but you're a crook.” These comments, however, do not affirmatively demonstrate that the court misunderstood the proper use of the uncharged crimes evidence, 38 09cv2483-BLM 1 particularly in light of the presumption that it knew and followed the law. 2 Lodgment 7 at 19-21. 3 3. Federal Law and Analysis 4 The question of whether evidence of prior bad acts was properly 5 admitted under California law is not cognizable on federal habeas 6 review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (mere errors in the 7 application of state law does not warrant the issuance of the federal 8 writ); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). 9 Therefore, the only question before this Court is whether the trial 10 court committed an error that rendered the trial so arbitrary and 11 fundamentally unfair that it violated federal due process. Estelle, 502 12 U.S. at 68, 70; Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998). 13 A writ of habeas corpus will be granted for an erroneous admission 14 of evidence “only where the ‘testimony is almost entirely unreliable and 15 ... the factfinder and the adversary system will not be competent to 16 uncover, recognize, and take due account of its shortcomings.’” Mancuso 17 v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v. 18 Estelle, 463 U.S. 880, 899 (1983)). Thus, the erroneous admission of 19 evidence violates due process when “there are no permissible inferences 20 the jury may draw [from the evidence].” Boyde v. Brown, 404 F.3d 1159, 21 1172 (9th Cir. 2005) (quoting Jammal, 926 F.2d at 920). Even then, 22 evidence must “be of such quality as necessarily prevents a fair trial.” 23 Jammal, 926 F.2d at 920 (quoting Kealohapauole v. Shimoda, 800 F.2d 24 1463, 1465 (9th Cir. 1986)). 25 Generally, “other acts” evidence may not be admitted for the 26 purpose of showing that the accused has bad character and therefore the 27 propensity to have committed the crime. See McKinney v. Rees, 993 F.2d 28 39 09cv2483-BLM 1 1378, 1380-81 (9th Cir. 1993).13 2 § 1101 provides for admission of such evidence when relevant to prove a 3 fact other than propensity, such as intent, plan, knowledge, or absence 4 of mistake or accident. 5 California appellate court properly found, the eight uncharged acts were 6 sufficiently similar to the charged crimes to show intent and common 7 plan or design. 8 bad acts comports with due process where such evidence is relevant to 9 any element of the charged offense, and it was not introduced to show However, California Evidence Code Cal. Evid.Code § 1101(b). Here, as the See McKinney, 993 F.2d at 1383-85 (admission of prior 10 defendant's predisposition to commit a crime). 11 admitted evidence supported the inference that Petitioner gained the 12 trust of Phillips and Antillon, and then, as he did with the other 13 victims, used his position of trust to access their homes, personal 14 property, 15 constitutionally-permissible inferences the jury could draw from the 16 evidence 17 evidenced a common design or plan), the admission of the challenged 18 evidence did not render the trial so arbitrary or fundamentally unfair money (i.e. and that checks. the Because uncharged acts In particular, the there and were the rational charged and offenses 19 13 20 21 22 23 24 25 26 27 The United States Supreme Court "has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes." Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001) (overruled on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003)). Instead, the Supreme Court has expressly left open this question. See Estelle, 502 U.S. at 75, n.5 ("Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime ."); see also Mejia v. Garcia, 534 F.3d 1036, 1047 (9th Cir. 2008) ("[T]he United States Supreme Court has never established the principle that introduction of evidence of uncharged offenses necessarily must offend due process."); Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006) (denying claim that the introduction of propensity evidence violated due process because "the right [petitioner] asserts has not been clearly established by the Supreme Court, as required by AEDPA"), cert. denied, 549 U.S. 1287, (2007). This analysis provides an independent basis to deny Petitioner’s claim. 28 40 09cv2483-BLM 1 as to violate Petitioner's right to due process. Boyde, 404 F.3d at 2 1172; 3 Therefore, the state court's rejection of this claim was not contrary to 4 or an unreasonable application of clearly established law, nor was it an 5 unreasonable determination of the facts in light of the evidence 6 presented in the state court proceeding. Jammal, 926 F.2d at 920; Kealohapauole, 800 F.2d at 1465. 28 U.S.C. § 2254(d). 7 Moreover, any prejudice flowing from the uncharged acts evidence 8 was mitigated by the fact that the case was tried to a judge, not a 9 jury. As the court of appeal stated, “the trial court is presumed to 10 know and follow the law that [other bad acts] evidence may not be used 11 to prove propensity.” 12 U.S. 13 routinely hear inadmissible evidence that they are presumed to ignore 14 when making decisions.”). 15 dependent on the other bad act evidence alone. 16 strong, direct evidence, separate and apart from the uncharged acts 17 evidence, that Petitioner committed the charged offenses. 18 as discussed above, both Phillips and Antillon testified to the events 19 that formed the basis of the charged crimes and their testimony was 20 corroborated by other witnesses as well as with the physical evidence 21 presented at trial. 22 333-88; Lodgment 3, Volume 6 at 436-52, 490-505, 527–32, 609-19. 23 these reasons, any alleged error in admitting the prior bad act evidence 24 did not have “a substantial and injurious effect or influence in 25 determining the jury's verdict.” 26 637 27 Accordingly, relief is DENIED on this claim. 28 D. Evidentiary Hearing 339, 346, (1993); see Lodgment 7 at 20; see also Harris v. Rivera, 454 346 (1981) (per curiam)(“In bench trials, judges Furthermore, the guilty verdict was not The prosecution put on For example, Lodgment 3, Volume 5 at 210-46, 249-82, 288-323, also Penry For Brecht v. Abrahamson, 507 U.S. 619, v. 41 Johnson, 532 U.S. 782 (2001). 09cv2483-BLM 1 Finally, Petitioner requests an evidentiary hearing on his speedy 2 trial and ineffective assistance of counsel claims. 3 22; doc. no. 13. 4 order 5 parties.” 6 Court to determine (1) whether the Martino and Cline affidavits present 7 new 8 California to obtain custody of Petitioner, (3) whether Petitioner 9 asserted to Petitioner alleges that such a hearing is necessary in resolve “substantial Doc. No. 13 at 3. evidence, his Pet.’s Mem. at 21- (2) right whether to a evidentiary conflicts between the Specifically, Petitioner would like the the Illinois speedy trial governor’s prior to letter his allowed extradition, 10 (4) whether the state attempted any “other means” to obtain Petitioner, 11 (5) whether prosecutor Locke’s testimony was competent, (6) whether 12 trial counsel actually conducted the promised investigation, (7) whether 13 the proposed witnesses had value, (8) whether trial counsel uncovered 14 anything of value, and (9) whether appellate counsel was ineffective for 15 failing to federalize Petitioner’s state claim. 16 “evidentiary hearing is not required on issues than can be resolved by 17 reference to the state court record.” 18 1176 (9th Cir. 1998); see also United States v. Birtle, 792 F.2d 846, 19 849 (9th Cir. 1986) (an evidentiary hearing is not required “if the 20 ‘motion and the files and the records of the case conclusively show that 21 Petitioner is entitled to no relief.’”). 22 the appendixes and attachments Petitioner affixed to his Petition and 23 Reply, contain all the facts necessary to resolve Petitioner’s claims. 24 Based on this record, the Court has conclusively determined that all of 25 Petitioner’s claims lack merit. Moreover, Petitioner has not shown that 26 his allegations, if proven at an evidentiary hearing, would entitle him 27 to habeas relief. Id. at 3-6. An Totten v. Merkle, 137 F.3d 1172, Here, the record, including See Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 28 42 09cv2483-BLM 1 2004). 2 warranted in this case. Accordingly, the Court finds that an evidentiary hearing is not Therefore, Petitioner’s request is DENIED. 3 4 CONCLUSION 5 For the foregoing reasons, the Court hereby DENIES Petitioner’s 6 Petition for Writ of Habeas Corpus and his request for an evidentiary 7 hearing. 8 accordingly. 9 The Clerk of Court is instructed to enter judgment IT IS SO ORDERED. 10 11 DATED: June 29, 2010 12 13 BARBARA L. MAJOR United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 09cv2483-BLM

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