Opinion
No. C 02-0739 MMC (PR)
December 9, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's cognizable claims. Respondent filed an answer accompanied by a memorandum and exhibits contending that the petition should be denied. Petitioner has filed a traverse.
FACTUAL AND PROCEDURAL BACKGROUND
Alex Bermudez ("Bermudez"), an informant for the San Mateo County Narcotics Task Force ("NTF"), engaged in transactions for methamphetamine and cocaine on November 3, 4, and 5, 1997. Bermudez was participating in an ongoing undercover "buy-bust" operation by the NTF.
While working as a limousine driver in the spring of 1997, Bermudez met a man named "Chava." Chava introduced Bermudez to a 17-year-old named Jose Torres, known as "Chato," who agreed to meet Bermudez for the sale of half an ounce of methamphetamine. On November 3, 1997, Bermudez drove to the meeting location, a parking lot near Las Carretas taqueria in East Palo Alto. He was wearing an audio transmitter, and nearby NTF offices were recording his conversations and videotaping the area. A blue Pontiac registered to petitioner's wife drove by twice and then parked nearby. Chavo approached Bermudez's car with Chato, whom he introduced to Bermudez. Chavo then joined petitioner in the vicinity of the taqueria, at which point Chavo and petitioner engaged in conversation. Chato got into Bermudez's car and sold Bermudez half an ounce of methamphetamine. Chato and Bermudez discussed sales of larger quantities, and Chato told Bermudez that he worked with a partner named "Ray," whose telephone number he gave to Bermudez. Chato then got back into the blue Pontiac and left the scene.
The evidence of the following transactions was presented to the jury by way of translations of audio recordings of Bermudez's conversations with Chato and petitioner (the tapes themselves were in Spanish), surveillance videotapes of the transactions, and the testimony of Bermudez.
Robert Hagberg, the NTF videotape operator, was called as a witness at trial and identified petitioner as the man speaking to Chavo.
On November 4, 1997, Chato and Bermudez arranged another drug deal at a K-Mart parking lot in Redwood City. Chato and petitioner arrived in the blue Pontiac. Bermudez was wearing the transmitter, and was driving an NTF car that had been outfitted with hidden devices to make audio and video recordings of conversations inside the car. NTF officers were again hidden nearby, eavesdropping and recording petitioner's conversations, and also videotaping the general scene. Chato got into Bermudez's car and quoted Bermudez a price of $17,500 for a kilo of cocaine and $5,000 for a pound of methamphetamine. Chato again said he worked with "Ray," whom he would send over; after Chato left, petitioner got into the car.
Bermudez tore off part of a newspaper containing car advertisements, wrote something on it and gave it to petitioner. Petitioner said that he had a "white car" for the price of "19." When Bermudez asked why the price was higher than what Chato had just quoted him, petitioner explained that Chato was confused. Petitioner explained that he had some friends working out of Sacramento who had special offers for a "used car" and for a "new car." He also said that they would sell "half-cars," explaining this meant either just the body or just the engine and that he needed to know exactly what petitioner wanted. Petitioner did not mention any make, model, mileage or accessories. Bermudez said that he wanted it by the next night and agreed to talk to petitioner further by phone. Before leaving, petitioner said that "the kid" would bring him something now and quote a price, after which Chato got back into Bermudez's car. Chato had half a pound of methamphetamine and sold Bermudez an ounce. Chato said he could get Bermudez cocaine or crank, and again quoted a price of $5,000 per pound of methamphetamine. Chato then left with petitioner in the Pontiac.
Bermudez testified that thereafter, at approximately 10:00 p.m. on the night of November 4, he had an unrecorded telephone conversation with Chato and petitioner in which he asked for five to ten pounds of methamphetamine, and petitioner responded that they could get "it" in Sacramento. The next morning, November 5, 1997, Bermudez made a recorded phone call from the NTF office to petitioner, in which petitioner said he would try to "put together the five pounds" and call Bermudez back. Bermudez testified as to further unrecorded telephone conversations made that day in which he arranged with petitioner to buy five pounds of methamphetamine for $25,000. Bermudez testified that petitioner said he would send Chato "with the dope" to meet Bermudez at the K-Mart parking lot, and that petitioner would be nearby. Bermudez and the NTF officers went to the lot, using the same surveillance methods as the day before. Chato got into Bermudez's car, and Bermudez showed him the money. Chato told Bermudez that the methamphetamine was in a car parked in the lot across the street, after which Bermudez accompanied Chato across the street. Chato opened the door to a Chrysler, and showed Bermudez the methamphetamine inside. Bermudez asked for petitioner, who eventually appeared and gave Chato the keys to the Chrysler. Bermudez. Five pounds of methamphetamine were found in the car, and sunglasses similar to those worn by petitioner on the previous two days were in the glove compartment. The Chrysler had been rented by petitioner's sister. She told the police that she had let petitioner use it for a few days, but testified at trial that she had loaned it to Chato, not petitioner, for a week.
An NTF agent testified that Bermudez had three prior drug convictions, including one after he became an informant. Bermudez avoided going to prison on his last conviction because of his services as an informant, and was paid $2200 for petitioner's case. Bermudez further testified that the larger the quantity of drugs seized, the more he was paid for being an informant.
Petitioner did not testify in his defense. His uncle testified that he was the owner of Las Carretas taqueria, which petitioner frequented, and that petitioner sold cars at a gas station around the corner. Petitioner's sister testified that Chato was a friend of her son's and that petitioner, who was friendly with Chato, sold Chato the blue Pontiac. Petitioner's theory of defense was that he thought he was selling Bermudez a car and did not know about the drug transactions.
Petitioner was convicted of one count of conspiracy to sell methamphetamine and cocaine between the dates of November 3 and November 5, 1997, and four counts of transportation, sale, or offer of sale of cocaine and methamphetamine. The jury also found true the allegation that, with respect to the conspiracy count, the amount of drugs exceeded three pounds. Petitioner's direct appeal to the California Court of Appeal was unsuccessful and the Supreme Court of California denied review. His subsequent habeas petitions in the state courts also failed.
DISCUSSION
A. Standard of Review
This Court may entertain a petition 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." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(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 (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." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
1. Prosecutorial Misconduct
Petitioner claims that the prosecutor violated his rights to compulsory process and due process by dissuading Chato from testifying on petitioner's behalf.
At the preliminary hearing, an NTF agent testified that Chato had told him that he was fourteen years old, although the agent believed him to be sixteen or seventeen. Petitioner was charged initially with using a minor to commit a drug offense (California Health Safety Code §§ 11380(a), 11380.1(a)(3)), but those charges eventually were dropped. Chato was prosecuted in juvenile court, and prior to petitioner's trial, petitioner's attorney requested a removal order so that Chato could appear and testify for petitioner. In support of this request, counsel stated on "information and belief that Chato had made statements "exonerating" petitioner at his juvenile proceedings. Following selection of the jury, Chato appeared with his attorney and, after being warned of his privilege against self-incrimination, stated that he wanted to testify on behalf of petitioner. The prosecutor then stated:
The record does not include, and petitioner does not describe, the nature of those statements or how they might exonerate petitioner.
I would like to advise the defense that should the witness testif[y] truthfully and state that he is an adult, I will be filing, I will be moving to nave him prosecuted as an adult in the adult court. If he should choose to testify that he is a minor, then I will be taking him — well, I am not sure if it is proven that he is a minor, then I will be reinstating the charges that were previously dismissed, which are using a minor to facilitate a drug deal.
Slip Op. at 10. Neither defense counsel nor Chato's counsel responded to this remark, and Chato did not testify at petitioner's trial. There is nothing in the state court record explaining Chato's reasons for not testifying. Petitioner argues that it was the prosecutor's remarks that prevented Chato from testifying.
Petitioner is not entitled to habeas relief on this claim because habeas relief is only available for a violation of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence."Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir. 2003) (noting that under Williams, AEDPA no longer allows habeas relief based on a rule of constitutional law set forth in the decisions of the circuit courts). Petitioner cites no Supreme Court authority, and this Court is aware of none, holding that a prosecutor's interference with a defense witness's testimony amounts to a violation of the defendant's rights to compulsory process or due process, or any other provision of federal law. Cf. Williams v. Woodford, 306 F.3d 665, 699-701 (9th Cir. 2002) (citing appellate court authority in addressing claim of undue interference in defense witness' decision not to testify). In the absence of such Supreme Court authority, habeas relief is not available on this claim under AEDPA. Moreover, even if Supreme Court authority existed applicable to petitioner's claim, he would not be entitled to habeas relief because any constitutional violation caused by the prosecutor's conduct did not cause petitioner sufficient prejudice.
Claims that a petitioner's rights to compulsory process or due process were violated based on prosecutorial misconduct generally require a showing of prejudice under Brecht. See Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998) (requiring prejudice showing under Brecht where due process violation has resulted from prosecutorial misconduct); LaGrand v. Stewart, 133 F.3d 1253, 1267 (9th Cir. 1998) (requiring prejudice showing under Brecht for a compulsory process violation). Although the Court is aware of no cases that discuss whether Brecht applies to the specific claim that a prosecutor interfered with a defense witness, the Brecht prejudice analysis applies to all claims for habeas relief based on a "trial error." Brecht, 507 U.S. at 637-38. A "trial error" is any error that occurs during the presentation of the case to the jury, and is amenable to harmless-error analysis because it may be assessed qualitatively in the context of other evidence presented. Id. at 629. The specific error asserted here, that the prosecutor prevented a defense witness from testifying, occurred during the presentation of the case to the jury, and the Court can evaluate its impact on the jury by reference to the other evidence presented. As a consequence, the Court treats this claim as asserting a "trial" error, which only warrants habeas relief if it prejudiced petitioner under the Brecht standard. Accordingly, even if petitioner could show that the prosecution violated his constitutional rights by dissuading Chato from testifying, he may only obtain habeas relief if he could show that such violation had a "substantial and injurious effect" on the jury's verdict. See id. at 637-38.
As an initial matter, the Court notes that petitioner does not describe what testimony Chato would have provided, let alone how it would have exonerated him. Even assuming Chato's testimony would have been favorable, however, it would have had little effect on the verdict. First, Chato's credibility as a witness was minimal. His friendship with petitioner suggests he is biased in favor of petitioner, and he was caught on both videotape and audiotape dealing drugs. Second, any testimony by Chato that petitioner was not involved would be contradicted by all of the other evidence of petitioner's association with Chato and involvement in the drug transactions. In particular, the videotapes and audiotapes showed petitioner was with Chato at the second two drug transactions; the Pontiac Chato used in the first two transactions was registered to petitioner's wife; Chato referred to petitioner as his "partner"; on November 4, after petitioner told Bermudez that Chato would bring him something and quote a price, Chato brought Bermudez some methamphetamine and quoted him a price for it; and Bermudez testified that petitioner told him on the phone that petitioner would be sending Chato to meet Bermudez. Given all this evidence, it is likely the jury would have discarded any testimony by Chato exonerating petitioner as simply Chato's effort to take the blame for his friend and "partner." As a result, the absence of Chato's testimony did not have a substantial and injurious effect on the jury's verdict so as to entitle petitioner to habeas relief.
2. Ineffective Assistance of Counsel
Petitioner claims he is entitled to habeas relief because his trial counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel.
a. Cross-Examination
Petitioner's first claim that counsel was ineffective is based on counsel's cross-examination of Mark Scheffler ("Scheffler"), an inspector from the San Mateo County District Attorney's Office. Scheffler testified on cross-examination that he had received the address for petitioner's mother's house "through the Department of Corrections' parole, that was an address of record for Mr. Avila." Petitioner argues that counsel was ineffective in eliciting this testimony because of the damaging nature of the revelation that he was on parole.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See id. at 688. The relevant inquiry is not what defense counsel could have presented, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Petitioner's parole status was not helpful to the defense, and there is no apparent tactical reason for defense counsel's eliciting this information from Scheffler. Counsel, however, did not seek to elicit this testimony. Rather, counsel asked Scheffler, "What led you to that [petitioner's mother's] house?" Concededly, the question was open-ended, risking a damaging answer, and the record does not reflect what response counsel had hoped to obtain. Nevertheless, the nature of any error in posing the question is not so serious as to rise to the level of a constitutional violation. If every question asked as to which counsel was unsure of the response would support a claim of ineffective assistance simply because the response turned out to be damaging, a great many attorneys, at one time or another, would have to be considered constitutionally deficient. See Strickland, 466 U.S. at 687 (holding that in order to establish counsel's deficiency, the petitioner must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment). Moreover, as soon as the response was given, counsel here did everything he reasonably could have done to minimize its harm. He immediately requested a hearing outside the presence of the jury; he requested and obtained an admonishment from the trial court that no further mention of petitioner's parole status be made; he requested a mistrial; and he requested and obtained a curative instruction. Under such circumstances, the Court does not find counsel was constitutionally deficient.
Even if the Court were to find defense counsel performed deficiently, however, petitioner was not sufficiently prejudiced by the reference to parole such as to amount to a constitutional violation underStrickland. This was the only reference to petitioner's parole in the course of a nine-day trial. The witness was admonished not to make any further references to parole, and the witness complied. No details were provided as to the nature or seriousness of any crime or the length of any sentence. Most importantly, the jury was explicitly instructed by the trial court immediately after Scheffler's statement "not to consider any references to the Department of Corrections or parole as relating to the guilt or innocence of the defendant." See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997) (holding juries presumed to follow court's limiting instructions with respect to purposes for which evidence is admitted). Finally, the evidence against petitioner in this case very strong. He was present at two of the drug transactions; Chato, who was captured on videotape and audiotape selling drugs to petitioner, referred to petitioner as his "partner" and accompanied petitioner in the blue Pontiac; petitioner told Bermudez in a recorded phone conversation that he would try to "put together the five pounds"; and, the next day, when Bermudez met Chato, petitioner was present with the keys to a Chrysler that had been rented by petitioner's sister and contained five pounds of methamphetamine. Petitioner's defense that he was only selling a car to petitioner was not persuasive. In the recorded conversation with Bermudez on November 4, 1997, petitioner discussed with Bermudez the reason why he was charging Bermudez a higher price than Bermudez had been quoted by Chato; the quote by Chato likewise was recorded, and was expressly for drugs, not cars. Moreover, there was no discussion of the make, model, mileage or year of the "car" being sold, as would be expected in negotiations concerning the sale of a vehicle; and after petitioner told Bermudez that Chato would bring Bermudez something and would quote him a price, Chato brought Bermudez drugs and quoted him a price for drugs. Under these circumstances, there is no reasonable likelihood that a single, isolated reference to parole, which the jury was instructed to ignore, had an effect on the outcome of the trial. As a result, petitioner was not sufficiently prejudiced by counsel's cross-examination, and, for this reason as well, is not entitled to habeas relief on this claim.
b. Evidence Regarding Jose Torres ("Chato")
Petitioner claims that counsel was ineffective in failing to present Chato as a witness at trial, and to present evidence that Chato was in fact an adult. Petitioner argues that Chato's testimony would have been valuable because Chato "made statements exonerating" petitioner in Chato's juvenile court hearing. Petitioner does not describe Chato's testimony in any manner, or how it would have exonerated him. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. See Strickland, 466 U.S. at 697. Even assuming Chato would have been willing and able to provide "exonerating" testimony, for the reasons described above, there is no reasonable likelihood that the jury would have believed Chato or that his testimony would have altered the outcome of the case. As a result, petitioner cannot establish prejudice under Strickland from any failure by counsel to produce this testimony.
Petitioner also claims that counsel failed to pursue and present evidence that Chato was an adult. According to petitioner, this evidence would have prevented the jury from drawing the negative inference that petitioner was using a juvenile in drug transactions. Petitioner's concern is, at best, speculative. In any event, evidence that Chato was older than eighteen would have had no effect on the verdict, given the strong evidence, as discussed above, that petitioner engaged in multiple drug transactions. Consequently, there is no reasonable likelihood that the failure to present evidence that Chato was an adult, assuming arguendo he was an adult, had any effect on the jury's verdict.
There is no evidence in the record that Chato was an adult.
c. Tape Recordings
Petitioner claims that trial counsel was ineffective in failing to object, under California's "best evidence rule," to the admission of versions of the videotapes that had been edited by the prosecution, and in failing to secure his own translation of the audiotapes, which were in Spanish. Petitioner cites to no discrepancies between the edited versions of the videotapes and what actually occurred, nor does he describe how any such editing affected his defense. Similarly, petitioner does not identify any instances in which the translation presented by the prosecution was inaccurate, much less how any such inaccuracy had a reasonable likelihood of affecting the outcome of the trial. Consequently, there is no indication of any prejudice caused by counsel's failure to make a "best evidence" objection or to obtain an independent translation.
d. Entrapment Defense
Petitioner claims that counsel was ineffective in failing to properly present the affirmative defense of entrapment. Petitioner lists four things counsel should have done to show that petitioner was not a willing participant in the crime. Specifically, petitioner asserts counsel should have: presented the birth certificate and testimony of Chato exonerating petitioner; presented Bermudez's NTF file showing the money and leniency Bermudez received for his work; suppressed the audio and video recordings; and argued that petitioner's sister's testimony demonstrated petitioner's unwillingness to participate. These contentions lack merit. At the outset, it must be noted that a defense of entrapment under California law cannot be based solely on a showing that the defendant, as a subjective matter, was not a willing participant in the charged criminal conduct. Rather, as explained by the California Court of Appeal, to establish entrapment under California law, petitioner had to make the objective showing that under the circumstances presented, the police conduct was likely to induce a "normally law abiding person" to commit the offense. Slip Op. at 13. Here, no reasonable likelihood exists that petitioner could have made this showing even if counsel had taken the steps petitioner cites.
First, as explained above, it was unlikely that Chato's testimony "exonerating" petitioner would have been believed by the jury, and thus any such testimony would not have assisted petitioner in his entrapment defense. Nor would evidence that Chato was slightly older have shown that a normally law-abiding person in petitioner's position was thereby induced by the police into selling drugs. Second, counsel had already elicited the evidence of cash payments and leniency afforded Bermudez, as discussed above, making it unnecessary for counsel to seek this information from Bermudez's NTF file. Third, petitioner has not cited to any specific inaccuracies in the audio-visual tapes relevant to an entrapment defense. Fourth, it is unclear how petitioner's sister's testimony could have been used to establish that a normally law-abiding person would have been induced to participate in the drug sales. Counsel presented the testimony of petitioner's sister that she loaned Chato the Chrysler. Her credibility on this point was greatly undermined by the fact that she had previously told the police that she had actually loaned the Chrysler to petitioner. In any event, her loaning the car to Chato would have done nothing to induce a normally law-abiding person to accompany him and participate with him in the drug transactions.
3. Entrapment Instruction
Petitioner also argues that the trial court failed to instruct the jury on entrapment. Due process does not require that a proposed instruction on a defense theory be given unless there is evidence to support the theory. See Hopper v. Evans, 456 U.S. 605, 611 (1982);Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000). The evidence of police conduct in this case was that they used an informant who asked Chato and petitioner to sell him drugs. There was no evidence of any conduct by the police, or Bermudez, that would have prevented a normally law-abiding person from simply declining to do so. Petitioner points to the evidence that Bermudez had an incentive, in money and potential leniency, to obtain arrests for drug transactions. There was no evidence, however, that Bermudez was willing to obtain the arrests of normally law-abiding individuals. In any event, evidence regarding an incentive to entrap does not establish entrapment, in the absence of conduct by the police or Bermudez of the type that would induce a normally law-abiding person into selling drugs. In sum, the evidence in this case did not support an entrapment defense, and, consequently, the failure by the trial court to instruct the jury on entrapment did not violate due process.
4. Bermudez's NTF File
Petitioner claims that his constitutional rights were violated because the trial court denied his request that the prosecution provide him with the NTF's file regarding Bermudez. According to petitioner, the file might have disclosed information that could have been used to impeach Bermudez, including any fee arrangements Bermudez had with the NTF. Due process requires the prosecutor to disclose information that might create a reasonable doubt, see United States v. Agurs, 427 U.S. 97, 103-07 (1976), that is, information that might lead to discovery of favorable evidence "material either to guilt or to punishment." see Brady v. Maryland, 373 U.S. 83, 87 (1963): see also Agurs, 427 U.S. at 112 (holding constitutional standard of materiality imposes a higher burden on the defendant than the normal harmless error standard). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome."United States v. Bagley, 473 U.S. 667, 682 (1985).
Here, there is no reasonable probability that disclosure of Bermudez's NTF file would have caused the result of the trial to be different. Petitioner did not need the file to obtain information about the fees paid to Bermudez because defense counsel obtained this information, including information that Bermudez was paid a larger sum for a larger seizure of drugs, when he cross-examined Bermudez and NTF agent Donald Hensley. Defense counsel also used Bermudez's three prior felony drug convictions for impeachment. These included a conviction obtained after Bermudez became an informant, and defense counsel elicited the fact that Bermudez avoided going to prison on that conviction by continuing his services as an informant. Additional impeachment information, if it existed in the NTF file, was not likely to have been more effective at impeaching Bermudez than the evidence before the jury that he was paid for his services, that he would be paid a greater sum where a larger amount of drugs was seized, that he had three prior felony convictions for drug offenses, and that he had received leniency, including avoiding prison, for his services as an informant. Further, much of the evidence Bermudez provided, implicating petitioner, did not depend on Bermudez's credibility because it was corroborated by the audio and video recordings. Given the other evidence demonstrating petitioner's guilt, and the evidence before the jury used to impeach Bermudez, a reasonable likelihood does not exist that petitioner's receipt of Bermudez's file would have led to a different outcome. Accordingly, habeas relief is not available on this claim.
For the same reasons, the failure to provide the file to petitioner did not have a substantial and injurious effect on the jury's verdict such as to cause sufficient prejudice to warrant habeas relief under Brecht.
5. Verdict
Petitioner claims that the trial court violated his constitutional right to have a jury determine whether the quantity of drugs exceeded three pounds. In Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Petitioner is not entitled to habeas relief on this basis, however, because Apprendi announced a new constitutional rule of criminal procedure that does not apply retroactively on habeas review. See United States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir. 2002). In any event, even if Apprendi did apply, the record here indicates that the jury, not the trial judge, actually decided the amount of drugs at issue. Under California law, a sentence for selling or conspiracy to sell drugs is enhanced where the amount of drugs sold exceeds three pounds.See Cal. Pen. Code § 11370.4(B)(1). The information charged petitioner with this enhancement as to Count One, the conspiracy charge, and Count Five, the November 5 methamphetamine sale. CT at 92, 94. The jury returned a verdict that specifically found true the allegation with respect to Count One, which stated, "in the commission of conspiracy to commit the crime of sales of controlled substance, the substance containing [methamphetamine] exceeds three (3) pounds. . . ." CT at 302. After the jury returned no finding as to the weight enhancement with respect to Count Five, the prosecutor dismissed the allegation as to that count. CT at 125. Thus, even if the rule set forth in Apprendi applied here, the record indicates that the jury, for purposes of petitioner's sentence enhancement on Count One, did in fact determine that the amount of drugs exceeded three pounds.
For these reasons, petitioner is not entitled to habeas relief on this claim.
6. Cumulative Error
Petitioner claims that he is entitled to habeas relief based on the cumulative prejudice arising from all of his claims of error. Petitioner has cited no Supreme Court decision, and the Court is not aware of any, that recognizes "cumulative error" as an independent constitutional violation. In the absence of Supreme Court authority, habeas relief is not available under 28 U.S.C. § 2254. See Williams v. Taylor, 120 S.Ct. at 1523. Finally, to the extent such a claim has been recognized, cumulative error is most likely to be found where the government's case is weak. See Thomas v. Hubbard, 273 F.3d 1164, 1179-81 (9th Cir. 2002); Walker v. Engle, 703 F.2d 959, 961-62, 968 (6th Cir. 1983). Here, the government's case was buttressed by audiotapes, videotaped surveillance, and the informant's testimony, all showing petitioner present at and participating in drug sales. In addition, petitioner presented a relatively weak defense based on an unpersuasive story that he thought he was selling the informant a car. For these reasons, petitioners claim for habeas relief based on cumulative error is denied.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated.
The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT is ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED. All pending motions are terminated.