Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RALPH ZAREFSKY, Magistrate Judge.
Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Report and Recommendation to the Honorable James V. Selna, United States District Judge. The undersigned recommends that the Court deny the Petition and dismiss the action with prejudice.
I.
A Los Angeles County Superior Court jury convicted Petitioner Crystal Kennedy of aggravated mayhem (CAL. PENAL CODE § 205). (Clerk's Transcript ["CT"] 118.) Petitioner was sentenced to life in state prison with the possibility of parole. ( Id. at
Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 21, 2014. The Court assesses the Petition pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C. § 2254. Under the AEDPA, a federal court shall presume that a determination of factual issues made by a State court is correct, and a petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Court must deny the Petition unless the state courts' resolution of Petitioner's clams is either contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
II.
The facts underlying Petitioner's conviction are set forth in the California Court of Appeal's unpublished opinion affirming her conviction. (Lodged Doc. No. 13 at 2-4.) The Court of Appeal's statement of facts, summarized below, is reasonably supported by the record.
On March 7, 2010, Leontinae Layton spent the night with Terry Williams at a house belonging to Aaron Owens. Owens was Petitioner's brother, and Williams was Petitioner's long-term boyfriend. In the morning, Owens woke Layton and Williams and urged Layton to leave in a hurry. Even though Layton did not have enough time to put on her shoes, Owens led her out the back door and then went back inside, leaving Layton alone in the backyard.
While Layton was putting on her shoes, she noticed Petitioner, who seemed "antsy or irritated" or "a little aggravated." Petitioner came out through the back door of the house and demanded to know what Layton was doing there. Having never seen Petitioner before, Layton answered that it did not matter who she was and demanded to know who Petitioner was.
Petitioner then went back into the house. For her part, Layton stayed outside because she was scared and did not want to escalate things. When Petitioner returned to the back yard, she had her hand behind her back and stated, "I'm going to ask you this one more time. Who are you and what are you doing here?" Layton responded that she was just "here kicking it with the homies." Unsatisfied with this response, Petitioner declared, "No you're not, you lying bitch. You here to fuck my nigger." Petitioner then took her hand from behind her back and hit Layton's head with a glass cup that she had been concealing. When the cup did not break, Petitioner broke it on a nearby pole. The two then began fighting. During the fight, Petitioner continually hit Layton with the broken glass cup. When Layton fell, Petitioner came from behind her and hit the back of Layton's head.
As she struggled to get up, Layton felt blood dripping down her face and she screamed for help. Owens pulled Petitioner off Layton, who went back inside the house and locked herself in the bathroom. Although Williams pleaded with Layton not to call the police, she nevertheless did so and reported that a "girl" "broke a glass" and cut her.
As a result of the attack, Layton sustained cuts to the back of her head, face, arm, back, and hand. Part of the skin from her face had been peeled off. Approximately two months after the incident, Petitioner was arrested. The arresting officer did not notice any injuries or scars on Petitioner's face or body.
This was not Petitioner's first run-in with the law. About six years before this incident, on November 21, 2003, she was involved in an altercation with her then boyfriend. At the time, Petitioner told the arresting officer, "I got mad because my man was talking with that bitch. So we started fighting and I bit him." In connection with that incident, Petitioner was convicted of misdemeanor battery.
At trial, Williams testified that he and Layton were at a party where they drank alcohol. They went to Owens's house, and Layton brought an overnight bag that had a drinking glass in it. The next morning, Owens told Williams that someone was at the door. Afraid it was his girlfriend, Petitioner, Williams told Layton to get dressed and go out the back door. When Layton left, she had her shoes on. Williams was putting his clothes on when Layton ran past him into the bathroom saying something about "some girl." He did not discourage her from calling the police.
Later that day, according to his testimony, Williams saw Petitioner, whose forehead was injured. Petitioner told Williams that had she gotten into a fight with a girl, who cut her with some glass. At Petitioner's defense counsel's instructions, Williams took photographs of Petitioner's injuries. Although Williams identified those photographs at trial, the photographs were cropped in such a way that the person's head is not in the picture.
Petitioner also testified. According to her testimony, she left a night club and needed to go to the bathroom. But instead of going to her home to use her bathroom, she decided to go to Owens's house. When there was no answer at Owens's front door, she went to the back. There, she saw Layton and asked her who she was and what she was doing there. According to Petitioner, Layton told her not to worry about who she was and then asked, "Who the fuck are you?" Petitioner again demanded to know what Layton was doing there. In response, Layton said that she was with her "boyfriend Terry, " to which Petitioner replied, "Your boyfriend Terry? That's my nigger, bitch."
Petitioner testified that Layton then punched her face. After Petitioner fought back, Layton took a glass from her bag, broke it, and cut Petitioners's back. They "tussl[ed]" for the glass, but Petitioner was never able to get the glass from Layton. Petitioner never intended to break a glass cup and cut or deface Layton, but that happened while they were fighting. Once the fighting ceased, Petitioner left. She did not see a doctor that day, nor did she call the police. She did, however, she call a defense attorney and have Williams photograph her injuries.
About two weeks after her altercation with Layton, Petitioner asked Dr. David Kim to assess her injuries and to document them. According to Dr. Kim, Petitioner had seven healing wounds on her back, face, and chest. Petitioner told Dr. Kim that she was injured during an altercation at a club. Although Dr. Kim was shown one of the pictures taken by Williams of what purported to be a cut on Petitioner's back, Dr. Kim did not recognize the cut. He explained that such a cut would have required sutures.
III.
Petitioner asserts several claims for relief in which she challenges the trial court's evidentiary decisions. Two of those claims involve the trial court's decision to allow the prosecutor to introduce evidence regarding Petitioner's 2003 conviction for misdemeanor battery. As set forth above, the conviction arose from an incident where Petitioner attacked her boyfriend because she suspected he was cheating on her. In both of her claims pertaining to this evidence, Petitioner maintains that the evidence regarding her 2003 conviction was inadmissible as propensity evidence and that it should have been excluded because of its unduly prejudicial and inflammatory nature.
In another evidentiary challenge, Petitioner contends that the trial court violated her right to a fair trial by allowing the victim to make unfounded, defamatory statements about Petitioner. Specifically, Petitioner faults the prosecutor for overruling defense counsel's objection when Layton testified that Williams should have known that Petitioner was "crazy" and could "flip." Layton made these statements while testifying about the attack. The gist of her testimony was that, as Petitioner's long-term boyfriend, Williams should have known that Petitioner might attack anyone she suspected of having any sort of sexual relations with Williams. In making these statements, Layton did not refer to Petitioner's prior 2003 misdemeanor battery conviction, nor is there any evidence in the record that Layton was even aware of that conviction. According to Petitioner, Layton's testimony tainted the jury's opinion of Petitioner, and thereby deprived her of her right to a fair trial.
The Court of Appeal reasonably rejected each of these claims. The Court of Appeal did not commit constitutional error in rejecting Petitioner's challenges to the admission of her prior misdemeanor conviction. The Court of Appeal held that admission of the prior conviction did not violate California law, and this Court is bound by the Court of Appeal's interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) ( per curiam ). And, in any event, a claim of wrongful admission of evidence under state law is not cognizable on a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Nor is there merit to Petitioner's claim that the admission of the prior conviction violated her right to due process. The United States Supreme Court has never held that the introduction of prior bad act evidence to show propensity to commit the current crime violates due process. On the contrary, the Supreme Court has expressly declined to offer an opinion on the issue. Estelle, 502 U.S. at 75 n.5 ("[W]e 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").
Moreover, Petitioner's contention that the evidence pertaining to her prior conviction and to Layton's testimony was unduly prejudicial does not warrant habeas relief. Although the Supreme Court has said that habeas relief is warranted "when constitutional errors have rendered the trial fundamentally unfair, " the Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Consequently, even assuming that the challenged evidence was unduly prejudicial, its admission into evidence would not justify habeas relief. See Lopez v. Smith, ___ U.S. ___, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014); Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (where Supreme Court precedent gives no clear answer to question presented, "it cannot be said that the state court unreasonab[ly] appli[ed] clearly established Federal law.").
IV.
In her next claim for relief, Petitioner maintains that the trial court erred in instructing the jury on the elements of aggravated mayhem. According to Petitioner, the trial court's instructions misstated the elements of aggravated mayhem and, as a result, lowered the prosecutor's burden of proof. At trial, the court instructed the jury on both mayhem and aggravated mayhem. As to the latter, the court instructed the jury as follows:
To prove the defendant is guilty of this crime the prosecution must prove that, one, the defendant unlawfully and maliciously disfigured someone permanently. [¶] Two, when the defendant acted[, ] she intended to permanently disfigure the other person. [¶] And, three, under the circumstances the defendant's act showed extreme indifference to the physical or psychological wellbeing of the other person. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical procedures.
(CT 95 (emphasis added).) Petitioner posits that the italicized portion of the instruction erroneously directed the jury to consider whether her act showed indifference to the well-being of another person. What the jury should have considered, according to Petitioner, was whether the circumstances in which she acted demonstrated such indifference. Petitioner contends that, had the jury been properly instructed, it would have concluded that the circumstances in which Petitioner acted showed that she was not deliberately indifferent to Layton's well-being. In support of this contention, she cites her own testimony establishing the following facts: (1) that Layton threw the first punch; (2) that Layton was the first person to use the glass as a weapon; (3) that Petitioner never had control of the glass; and (4) that Layton was injured as Petitioner struggled to wrestle the glass from Layton's hand. In light of this testimony, Petitioner believes that a properly instructed jury would have concluded that she and Layton merely engaged in a "spontaneous fight."
The Court of Appeal rejected this claim on the merits. In doing so, the Court of Appeal applied the proper legal standard for analyzing federal law challenges to allegedly defective jury instructions. ( See Lodged Doc. No. 13 at 11 (citing Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)).) Accordingly, the Court of Appeal's resolution of Petitioner's claim was not contrary to the Supreme Court's clearly established precedents. As such, the only avenue through which Petitioner can obtain habeas relief on her instructional error claim is by showing that the Court of Appeal's resolution of her claim constituted an "unreasonable application of" the Supreme Court's clearly established precedent - that is, she must show that the Court of Appeal unreasonably applied the governing legal standard to the facts of her case. See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). As explained below, Petitioner cannot make that showing.
Where, as here, a habeas claim rests on an alleged constitutional error arising from a jury instruction, the question is whether the alleged instructional error "by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 70-71, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The challenged instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp, 414 U.S. at 146-147. "If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) ( per curiam ) (citations and internal quotation marks omitted). Moreover, even if instructional error is found to rise to the level of a constitutional violation under this standard, federal habeas relief is unavailable unless "the error, in the whole context of the particular case, had a substantial and injurious effect or influence on the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619,
Under California law, an aggravated mayhem conviction requires proof that the defendant specifically intended to maim - that is, to cause a permanent disability or disfigurement. People v. Szadziewicz, 161 Cal.App.4th 823, 831, 74 Cal.Rptr.3d 416 (2008). The requisite specific intent to support an aggravated mayhem conviction cannot be established solely from evidence that the injury inflicted actually constitutes mayhem. Id. Rather, other facts and circumstances must exist that support an inference of intent to maim rather than to attack indiscriminately. Id. Accordingly, "a jury may infer a defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors." Id. Moreover, "evidence of a controlled and directed attack or an attack of focused or limited scope may provide substantial evidence of a specific intent to maim." Id.
Here, the Court of Appeal reasonably held that the allegedly offending instruction did not deprive Petitioner of her rights to due process and a fair trial. As the Court of Appeal observed, the jury would not have understood the challenged instruction as directing the jury to consider only whether Petitioner's act showed extreme indifference because such an interpretation would make the words "under the circumstances" in the preceding dependent clause superfluous. Indeed, the language to which Petitioner objects appears in a sentence that begins, "Under the circumstances...." Citing this fact, the Court of Appeal reasoned that, "the qualifying phrase, Under the circumstances, ' clearly tells the jury to consider the surrounding context in which the act occurred." This Court concurs.
In short, there is no reason to believe that the jury applied the challenged instruction in a way that violated the Constitution. Accordingly, the state courts did not commit constitutional error in rejecting this claim.
V.
In her next claim for relief, Petitioner maintains that the trial court, during voir dire, violated her right to due process by mischaracterizing the elements of aggravated mayhem. At the outset of voir dire, the trial court told the prospective jurors that Petitioner was charged with "what we call mayhem, " which the trial court explained was a crime akin to using a "piece of glass or a broken bottle" to "assault" another female. The court then set forth the order in which the evidence would be presented and noted that the prosecution had the burden of proof: "[The] prosecution always goes first[, ] so [the prosecutor] is going to call her witnesses. She has that burden of proof to go forward. She's saying that the defendant did this, you know, attack on another person with the glass, the broken glass, and they got to prove it. So they go first." (Lodged Doc. No. 13 at 14.) Later, the trial court again touched upon the crime of mayhem, stating "[Defendant is] charged with what we call mayhem. That's the technical name for it. The allegation is that she with, like, a broken glass bottle or some object like that attacked another female and slashed - made some slashes in that person's body or face area causing injury." ( Id. )
Petitioner contends that the trial court's outline of the charges against Petitioner deprived her of a fair trial because the jury in all likelihood took the court's brief summary outline of the crime of mayhem as the definitive statement on the elements of mayhem. Consequently, in Petitioner's view, the jury believed that it could find her guilty of mayhem provided that it concluded that she assaulted the victim with a bottle.
The Court of Appeal reasonably rejected this claim. Based on the trial court's informal description of the crime of mayhem, no reasonable juror possibly could have believed that the court was setting forth a definitive statement of law as to the elements of mayhem. On the contrary, the court simply noted that mayhem was "like" attacking someone, using "like" a piece of glass or a broken bottle on another. Moreover, the trial court specifically instructed the jury on the elements of mayhem. And, the jury was provided with a written copy of the instructions. Further, those instructions explicitly admonished the jury to "[o]nly consider the final version of the instructions" in its deliberations and to disregard all other instructions. (CT 74.) The jury was also admonished to "listen carefully" to the court's instructions and to "follow the definitions" as set forth in those instructions. ( Id. )
Finally, even assuming error, Petitioner can show no prejudice because the jury did not find her guilty of simple mayhem, but rather of the more serious crime of aggravated mayhem. The latter crime has elements beyond those necessary to support a conviction for simple mayhem. In other words, the jury considered the differences between the elements of mayhem and aggravated mayhem and, upon doing so, found that Petitioner's actions constituted aggravated mayhem. Considering that the jury had the option of finding Petitioner guilty of both crimes, but elected to find her guilty of the more serious crime, there is no reason to believe that the jury put any stock in the trial court's voir dire description of the less serious crime of mayhem.
Accordingly, the Court of Appeal's rejection of Petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court.
VI.
In her next claim for relief, Petitioner contends that the cumulative impact of the errors identified in the foregoing claims for relief violated her constitutional rights. The Ninth Circuit has held that the Supreme Court has "clearly established" that the cumulative effect of multiple trial-type constitutional errors may render a defendant's trial constitutionally infirm even if the errors, considered individually, are not considered harmful. Parle v. Runnels, 505 F.3d 922, 927-28 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). To justify habeas relief, the cumulative impact of multiple errors - judged "harmless" when viewed individually - must "render[ ] the resulting criminal trial fundamentally unfair." Id. at 927; see United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) ("A cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they [are not] harmless."). Here, as explained above, none of Petitioner's foregoing claims has merit. As such, Petitioner could not have been denied a fair trial by the collective weight of the purported errors underlying those claims. Consequently, habeas relief is unwarranted on this claim.
VII.
In her next claim for relief, Petitioner contends that the prosecutor violated Petitioner's right to due process and a fair trial by improperly arguing that Petitioner's decision to consult her defense attorney was inconsistent with the actions of someone who was innocent.
The following factual background is relevant to this claim. At trial, defense counsel questioned Williams about events that occurred on the same day as the altercation between Petitioner and Layton. Williams testified that, after the altercation, he took photographs of Petitioner's injuries. He did so, according to his testimony, at defense counsel's request. When questioning Petitioner, defense counsel returned to the topic of the photographs. He asked Petitioner if, at some point, she or Williams gave him the photographs. Petitioner answered that she gave defense counsel the photographs "[r]ight after the incident occurred." While cross-examining Petitioner, the prosecutor asked if, on the same day of the incident, she "didn't call the police, " "didn't go to the hospital, " and "didn't go to a doctor, " but "you got a defense attorney[?]"
During closing arguments, the prosecutor repeatedly referenced Petitioner's decision to concult an attorney after the altercation. In doing so, he argued that Petitioner's decision to consult an attorney, rather than contact police and seek medical treatment for her wounds, was inconsistent with the actions of someone who was innocent. The prosecutor also juxtaposed Petitioner's act of consulting an attorney with the actions of Layton, who immediately called the police and sought medical treatment for the wounds she sustained during the altercation. Viewed in their context, there is no question that the prosecutor forcefully and repeatedly urged the jury to infer Petitioner's guilt from the fact that she consulted an attorney in the aftermath of the altercation.
Petitioner maintains that the prosecutor's comments violated her right to due process and a fair trial. Specifically, Petitioner contends that the prosecutor effectively penalized her for exercising her Sixth Amendment right to counsel and by using her decision to exercise that right to show her guilt. The Court of Appeal rejected this claim on the merits. As explained below, the Court of Appeal's rejection of Petitioner's prosecutorial misconduct claim was reasonable in light of the existing Supreme Court precedent.
Prosecutorial misconduct does not rise to the level of a constitutional violation unless it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); see also Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) ("The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.").
Two Supreme Court cases provide the foundational framework for the Court's analysis of Petitioner's prosecutorial misconduct claim: Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). In Griffin, the Supreme Court held that the Fifth Amendment forbids both comment by the prosecution on the defendant's failure to testify at trial and the use of that silence as evidence of guilt. 380 U.S. at 615. Subsequently, in Doyle, the Supreme Court held that a prosecutor is likewise prohibited from calling attention to a defendant's post-arrest silence because doing so "does not comport with due process." 426 U.S. at 619.
By contrast, the Supreme Court has made clear that, if a defendant elects to testify, the prosecutor is free to cross-examine the defendant on his pre-arrest, pre- Miranda silence. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980). In Jenkins, the Supreme Court distinguished Doyle and explained that because the state had played no role in inducing the defendant's silence prior to his arrest and Miranda warnings, the prosecutor's use of the defendant's pre-arrest silence was not a violation of due process. Id. at 240. In a later case, the Supreme Court elaborated on this explanation: "[s]uch silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty." Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Subsequently, in Fletcher v. Weir, 455 U.S. 603, 606-07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Supreme Court extended its ruling in Jenkins to allow a prosecutor to cross-examine a defendant as to his post-arrest silence, as long as the questioning pertained to the period after arrest in which the defendant had not yet been advised of his Miranda rights. In so doing, the Supreme Court reasoned that it had "consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." Id. at 606.
As for using a defendant's pre-arrest silence as substantive evidence of guilt, the Supreme Court has expressed no opinion. In Jenkins, the Supreme Court expressly reserved judgment on the issue, stating that its opinion "[did] not consider whether or under what circumstances pre-arrest silence may be protected by the Fifth Amendment." 447 U.S. at 236 n.2. The Ninth Circuit, however, has affirmatively permitted the use of such evidence as substantive evidence of guilt. See United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002) ("The use of a defendant's pre-arrest, pre- Miranda silence is permissible as impeachment evidence and as evidence of substantive guilt.").
The Supreme Court also has never held that commenting on a defendant's post- Miranda warning decision to retain counsel offends due process. Notwithstanding this lack of clear precedent, several federal circuit courts, including the Ninth Circuit, have concluded that the reasoning of Doyle (and to some extent the reasoning of Griffin ) "extends to comments on a defendant's decision to retain counsel." United States v. Kallin, (1st Cir. 1984); United States v. McDonald, 620 F.2d 559, 562-63 (5th Cir. 1980); see also United States ex rel. Macon v. Yeager, 476 F.2d 613, 615 (3rd Cir. 1973) (relying on Griffin to hold that commenting on defendant's decision to contact counsel was unconstitutional). In explaining why Doyle extends to comments regarding the defendant's decision to retain counsel, the Ninth Circuit wrote that, like the right to silence, "[t]he right to counsel is included in the Miranda warnings, and as such is covered by the implicit assurance that invocation of the right will carry no penalty." Kallin, 50 F.3d at 693.
In accordance with this view, the cases finding constitutional error arising from a prosecutor's comments on the decision to retain counsel by and large involve situations where the prosecutor commented on the defendant's decision to retain counsel after the defendant had been advised of his Miranda rights. See, e.g., United States v. Ross, 123 F.3d 1181, 1187 (9th Cir. 1997); Daoud, 741 F.2d at 480-81. Although some cases have found that commenting on a defendant's pre- Miranda decision to contact counsel is unconstitutional, those cases generally pre-date Doyle and its progeny. See Macon, 476 F.2d at 615 (applying Griffin and holding that comment on defendant's pre-arrest, pre- Miranda call to defense attorney violated right to due process); United States v. Liddy, 509 F.2d 428, 445 (D.C. Cir. 1974) (same); but see Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990) ("A prosecutor may not imply that an accused's decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment, implies guilt.").
Other cases, such as the Ninth Circuit's opinion in Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983) (per curiam), are too ambiguous in terms of their factual summary to determine whether the prosecutor's offending comments referred to a period before or after the defendant was issued a Miranda warning. Notably, however, in Bruno, the Ninth Circuit did not analyze whether the prosecutor's offending comments violated Doyle or Griffin. Instead, the Ninth Circuit in Bruno simply concluded that the prosecutor's insinuation that the defendant's act of hiring a lawyer was constitutionally impermissible because "lawyers in criminal cases are necessities not luxuries, and even the most innocent individuals do well to retain counsel." Id. at 1194-95 (citing to Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).
Regardless of the factual scenario underlying it, Bruno is of little precedential value here because it was decided before AEDPA and because neither Gideon nor Powell clearly established a prohibition on commenting on a defendant's decision to retain counsel. See Galdamez v. Montgomery, 2015 WL 127888, *15 (C.D. Cal. Jan. 5, 2015) (noting that Ninth Circuit did not cite any applicable Supreme Court holding to support decision in Bruno ). Indeed, other than one federal district court ( Savidge v. Ryan, 2010 WL 2822783 (E.D. Cal. July 15, 2010)), the Court is aware of no case applying the strict standard of review set forth in AEDPA to hold that a prosecutor's comments on a defendant's pre- Miranda decision to retain counsel violates the teachings of Doyle or Griffin.
Here, the Court of Appeal's conclusion that the prosecutor's comments were constitutionally permissible was reasonable in light of the existing Supreme Court precedent pertaining to this issue. First, the Court of Appeal's decision could not have been an unreasonable application of, or contrary to, clearly established federal law as determined by the Supreme Court because, as explained above, the Supreme Court has never held that commenting on a defendant's decision to retain counsel violates any constitutional right - let alone where that comment is directed at the defendant's pre-arrest, pre- Miranda act of contacting an attorney. Indeed, the Supreme Court has not even addressed the issue of whether a defendant's pre- Miranda silence can be used as substantive evidence of guilt. Given this lack of clear precedent, the Court of Appeal's decision here was reasonable. See Lopez, 135 S.Ct. at 4; Carey, 549 U.S. at 77 ( supra ).
Second, the existing Supreme Court precedent suggests that no due process violation occurred. To be sure, the prosecutor argued that, after her encounter with Layton, Petitioner's decision to contact a defense attorney, as opposed to reporting the attack to police, was inconsistent with her claims of innocence. But the decision to which the prosecutor referred occurred long before Petitioner was arrested or had been advised of her Miranda rights. Indeed, when she contacted her attorney, she had not yet been contacted by police. Because she was not issued a Miranda warning, she had no implied assurance that her decision to contact a defense attorney would not be used against her if she elected to testify. See Jenkins, 447 U.S. at 238.
Third, the prosecutor's comments on Petitioner's decision to contact counsel in this case could not have resulted in a fundamentally unfair trial because Petitioner invited the prosecutor's comments by using her decision to contact an attorney as evidence of her innocence. As set forth above, Petitioner's decision to contact her attorney came to light on questioning from defense counsel. That testimony showed that Petitioner contacted her attorney to establish her innocence; the testimony supported the inference that her counsel advised her to have pictures taken of her injuries in order to show that she, not Layton, was the true victim. Therefore, the prosecutor permissibly could argue that Petitioner's same act - that of contacting her attorney - was actually indicative of her guilt. See United States v. Abate, 302 Fed.App'x 99, 103 (3d Cir. 2008) (Third Circuit's prohibition on commenting on defendant's decision to consult with counsel not applicable where defendant "placed in issue his decision to consult with counsel"); compare with McDonald, 620 F.2d at 562-63 (prosecutor's comments about defendant's act of hiring attorney were unconstitutional where jury learned of defendant's act solely due to questioning on issue by prosecutor). Here, Petitioner testified about her decision to contact counsel; consequently, she was "subject to cross-examination impeaching h[er] credibility just like any other witness." Jenkins, 447 U.S. at 235-36. And, indeed, the prosecutor's arguments, which stemmed from the testimony elicited during his cross-examination of Petitioner and her boyfriend, were designed to show that Petitioner falsely testified that Layton was the aggressor. There is simply no binding precedent prohibiting a prosecutor under such circumstances from urging the jury to make reasonable inferences from the defendant's pre-arrest, pre- Miranda actions.
As such, the Court of Appeal's rejection of Petitioner's prosecutorial misconduct claim was neither an unreasonable application of, nor contrary to, clearly established federal law as determined by the Supreme Court.
VIII.
In her final claim for relief, Petitioner contends that her trial counsel's performance was sufficiently deficient and prejudicial to deprive Petitioner of her Sixth Amendment right to effective assistance of counsel. Specifically, Petitioner faults her counsel for failing to call two witnesses who were willing to testify on Petitioner's behalf: Shanisha Robinson and Aaron Owens, both of whom have submitted declarations supporting Petitioner's claim for relief. In her declaration, Robinson states that, on March 8, 2010, she saw Petitioner and noticed that Petitioner had cuts on her face, back, and shoulder. The cuts to Petitioner's back and shoulder, according to Robinson, were "fairly serious" and looked like they might have required stitches. Robinson declares that Petitioner stated that she had gotten the cuts from a fight with a girl. Robinson also states that she was often present at court during and before Petitioner's trial and that she spoke with Petitioner's trial counsel about Petitioner's injuries.
Owens, Petitioner's brother, in whose house the attack occurred, also submitted a declaration. Therein, he states that on the morning of the attack, he heard a knock at the door, and, in response, he told Layton, who was with Williams, to leave by the back door of the house. Several minutes later, according to Owens, Layton returned to the house and reported that she had been hurt. Owens maintains that he never saw Petitioner enter the house and take a glass cup. He further maintains that, had she done so, he would have noticed her. According to Owens, he did not witness or intervene in the fight. Owens asserts that he shared this information with Petitioner's trial counsel and that trial counsel indicated that he wanted Owens to testify. Notwithstanding this fact, trial counsel never actually called Owens as a witness.
Petitioner contends that the testimony of these two witnesses likely would have caused the jury to accept Petitioner's defense that Layton was the aggressor and that Layton - not Petitioner - was the one who wielded the broken glass cup as a weapon. Robinson's testimony, according to Petitioner, would have corroborated Petitioner's testimony that she was seriously injured as a result of Layton's purported attack. As for Owens's proposed testimony, Petitioner believes that it would have shown that Petitioner was not the person who initially used the broken glass cup as a weapon. Additionally, Petitioner believes that Owens's testimony would have called into question Layton's account of the altercation, as it would have shown that Petitioner never entered Owens's home before the attack.
The Court of Appeal rejected this claim on the merits. In doing so, the Court of Appeal applied the proper legal standard for analyzing federal law challenges based on ineffective assistance of trial counsel. ( See Lodged Doc. No. 13 at 22-23 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).) Accordingly, the Court of Appeal's resolution of Petitioner's claim was not contrary to the Supreme Court's clearly established precedents. As such, Petitioner cannot obtain habeas relief on her ineffective assistance of counsel claim unless she can show that the Court of Appeal's resolution of her claim constituted an "unreasonable application of" the Supreme Court's clearly established precedent - that is, she must show that the Court of Appeal unreasonably applied the governing legal standard to the facts of her case. See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). As explained below, Petitioner cannot make that showing.
Petitioner's ineffective assistance of trial counsel allegations are governed by the two-step analysis set forth in Strickland. At the first step, Petitioner must prove that her attorney's representation fell below an objective standard of reasonableness. Id. at 687-88, 690. To establish deficient performance, Petitioner must show that her counsel's acts and omissions, examined within the context of all the surrounding circumstances, were outside the "wide range" of professionally competent assistance. Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 690. At the second step, Petitioner must show that she was prejudiced by demonstrating a reasonable probability that, but for her counsel's errors, the result would have been different. Strickland, 466 U.S. at 694. Petitioner must prove both deficient performance and prejudice. A court need not, however, determine whether counsel's performance was deficient before determining whether the petitioner suffered prejudice as the result of the alleged deficiencies. Id. at 697.
Here, Petitioner's allegations of attorney error do not warrant habeas relief. Based on the record, it was reasonable to conclude that counsel made a strategic decision against calling both witnesses. See Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). Indeed, as both declarants concede, counsel was aware of their respective accounts, but elected not to call either of them as a witness.
There were a number of sound reasons not to call either witness. Robinson witnessed none of the relevant events, but rather only could relay Petitioner's self-serving account of how she was injured, and that account probably would have been barred by California's hearsay rule. Her account of the extent of Petitioner's injuries was cumulative of Williams's account of Petitioner's injuries and was inconsistent with that of Petitioner's doctor, who testified that two weeks after the attack, he had observed seven healing wounds on Petitioner's back, face, and chest that would not have required sutures. Given that the doctor was an objective witness with medical training, there is little reason to conclude that the jury would have credited Robinson's claim that the injuries were far more serious than those observed by the doctor.
There were equally persuasive, if not more persuasive, reasons to support counsel's decision not to call Owens as a witness. First, he was Petitioner's brother and, thus, was open to a credibility attack on that basis. See Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995) (testimony by defendant's family members is of "significantly less exculpatory value than the testimony of an objective witness"); see also Bergman v. Tansy, 65 F.3d 1372, 1380 (7th Cir. 1995) (counsel was not ineffective for failing to call family members who would have easily been impeached for bias).
Second, Owens's proposed testimony had the potential to harm Petitioner's case. He confirmed Layton's account that she was attacked in the backyard. And, his testimony would have shown that he believed Petitioner to be dangerous. Indeed, he would have had no other reason to attempt to hurry Layton out the back door unless he believed that Petitioner might initiate some sort of altercation. Although he claims that he would have testified that he did not see the fight and that Petitioner could not have grabbed a glass, that testimony directly would have conflicted with Layton's testimony, and a reasonable attorney could well have chosen not to undertake that credibility battle. And, in order to accept Owens's proposed testimony, the jury would have had to accept the proposition that he secreted Layton out of his house, while barring Petitioner from entering it. If, as he claims, he did not let Petitioner into the house and, presumably did not intend to do so at any point, he would have had no reason to urge Layton to sneak out the back, where she was more likely, rather than less likely, to be discovered by Petitioner.
Further, Owens's proposed testimony called into question the credibility of the testimony given by Williams. According to Owens, Petitioner arrived at his home and knocked on the door. Owens, in response, refused to allow her in and then urged Layton to leave. Had Owens testified to those facts, the jury would have had to have rejected out of hand Williams's testimony that he never saw Petitioner and was unsure if she was even at the house. Considering that he was the cause of the fight and that he was with Layton, it is simply implausible that he would be unaware that Petitioner - his girlfriend of seven years - was not only at the house, but that she was involved in a serious attack (either as the victim or the aggressor) with the woman with whom he had been linked.
Finally, assuming counsel erred in failing to call the two proposed witnesses, Petitioner can show no prejudice in light of the evidence showing her guilt. Layton described the attack in great detail, and, as explained above, Owens's testimony would have confirmed several crucial parts of that account. Moreover, Layton's actions comported with that of someone who had been attacked, as opposed to someone who had attacked someone else. She called the police immediately and reported what had occurred. Her injuries, documented by medical professionals, were consistent with having been attacked with a glass. She sustained cuts to the back of her head, face, arm, back, and hand, and part of the skin from her face had been peeled off. At the time of Petitioner's trial, Layton's face still had visible scars.
By contrast, Petitioner's actions did not comport with those of an attack victim. She did not contact police, but rather fled from the scene of the attack, even though the attack occurred at her brother's house. She started building a defense case. And the medical evidence belied her position. Further, Petitioner told the doctor whom she consulted that she had sustained the wounds he observed not in fight at her brother's house, but rather during an altercation at a nightclub. Additionally, Petitioner had a history of launching attacks due to jealousy, and had suffered a prior conviction after assaulting her former boyfriend whom she suspected of cheating on her. Owens's proposed testimony would have bolstered the impact of Petitioner's prior history. Indeed, attempting to sneak Layton out of the house and refusing to allow Petitioner entrance into his house would have supported a reasonable inference that Owens feared what his sister might do if she found her boyfriend with another woman. Even, according to her own testimony, Petitioner displayed jealousy. When Layton referred to Williams as her boyfriend, Petitioner testified that she responded, "Your boyfriend []? That's my nigger, bitch."
Given the overwhelming evidence against Petitioner, there is no reason to conclude that, but for counsel's failure to call the two proposed witnesses, the jury likely would have reached an outcome more favorable to Petitioner. Accordingly, the Court of Appeal's rejection of Petitioner's claim was not an unreasonable application of Strickland. Since the Court of Appeal also applied the correct law, habeas relief is unwarranted as to this claim.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation; and (2) directing that judgment be entered denying the Petition and dismissing the action with prejudice.