Opinion
No. C 03-1458 WHA (PR) (formerly 99-2 1073)
December 8, 2003
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.
STATEMENT
Petitioner was convicted by a jury of first degree murder. He was sentenced to prison for twenty-five years to life. As grounds for habeas relief he asserts that: (1) His trial and appellate counsel were ineffective in not raising the issues presented here; (2) his due process rights were violated by failure to give a jury instruction on a defense supported by the evidence and by giving a general intent instruction; (3) his due process and jury trial rights were violated by the trial court's refusal to instruct on a lesser-included offense; (4) his trial counsel was ineffective by dissuading Petitioner from testifying; (5) his trial counsel was ineffective in failing to object to "prior bad acts" evidence and other objectionable evidence; and (6) there was insufficient evidence to support the conviction.
The California Court of Appeal summarized the facts as follows:
Appellant and his friend Leandro Torres were in business selling methamphetamine on Frisbie Court in Concord. They considered themselves, respectively, as "uncle" and "nephew." Their drug business had an account receivable of $25 from Duane Bracken, for methamphetamine received but not paid for. One evening in April 1997, at approximately 11 p.m., appellant and Torres drove to a Frisbie Court apartment, found Bracken, and demanded their money. Bracken was "nervous" and "tense." Torres put his arm around Bracken's shoulders and said, "Let's go outside." As appellant, Torres and Bracken left the apartment, a witness heard a sound like someone being hit.
The three walked to Torres' parked car, in which Jason Trujillo waited in the back seat. Appellant slapped Bracken "pretty hard." Bracken took off running, and appellant gave chase. After Bracken had run about 60 feet, appellant shouted "Get back here." In Trujillo's words, "I guess he [Bracken] was intimidated, and he came back." Appellant did not touch Bracken as he walked to the car, but stayed two and a half to four feet behind him.
Bracken got into the front seat of the car, between appellant in the driver's seat and Torres in the passenger seat. Trujillo remained in the back. Bracken was not pushed or pulled into the car, and did not try to get out. However, Trujillo testified that Torres "motioned" Bracken into the front seat of the car "because no normal person's going to get in the front with two guys." As he drove, appellant slapped Bracken twice with the back of his hand and told Bracken he should have paid appellant and Torres their money. Appellant and Torres dropped Trujillo off. Trujillo once again heard appellant asking Bracken for his money, and saying something about "going to take a ride."
Bracken's body was discovered by police around 3:45 the following morning, in a field in nearby Pittsburg. He had been shot in the head at a fairly close range. Several witnesses had heard a gunshot in the field sometime between 10:30 and 11:30 the previous evening — about the time appellant and Torres were "going to take a ride" with Bracken. Two of these witnesses heard three men arguing angrily at approximately 11 p.m., then a shot, then only two voices. Both appellant and Torres had been known to carry handguns. A tire track found at the field could have been made by Torres' car. About two hours after he drove off with Bracken, appellant encountered a Frisbie Court resident and told him that Torres "got carried away" and shot Bracken in the head in Pittsburg.
Appellant was convicted of first degree felony murder on the theory that Bracken was killed in the commission of a kidnaping.
Ex. A (California Court of Appeal opinion) at 1-3.
All citations to "ex." are to the exhibits lodged with the court by respondents.
DISCUSSION
A. Standard of reviewThe petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA 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). The first prong applies both to questions of law and to mixed questions of law and fact,Williams (Terry) v. Taylon 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations,Miller-El v. Cockrell 123 S.Ct. 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly."Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id at 409.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El, 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981);Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 123 S.Ct. at 1041; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
B. Issues Presented
1. Jury instructions
Petitioner contends that his due process rights were violated by two errors in instructing the jury.
a. Failure to give instruction on reasonable belief in consent
First, petitioner contends that the trial court's failure to give a requested instruction on reasonable belief in consent amounted to a failure to instruct on his theory of defense, a violation of due process.See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such an instruction was supported by the evidence).
The court of appeal summarized California law on this point:
Appellant claims the trial court erred by refusing to give CALJIC No. 9.58, a so-called Mayberry instruction ( People v. Mayberry (1975) 15 Cal.3d 143) on the reasonable belief of consent. CALJIC No. 9.58 provides that there is a complete defense to the crime of kidnaping" . . . if [the] defendant entertained a reasonable good faith belief that the person alleged to have been kidnaped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnaping." This defense has both a subjective and an objective component. The subjective component requires substantial evidence of equivocal conduct of the victim which could justify the defendant's reasonable and good faith belief in consent to the asportation. The objective component requires a showing that the good faith belief was formed under circumstances society would consider reasonable, [citation omitted]
Ex. A at 3. This holding as to California law is binding on this Court. See Hicks v. Feiock, 485 U.S. 624, 629-30(1988).
As to the subjective prong of the Mavberry test, the court of appeal concluded that there was no substantial evidence of equivocal conduct. Id. As to the objective prong, the court held that "we are not prepared to rule that society would consider reasonable any good faith belief on the part of an armed drug dealer that his frightened, physically intimidated customer would `consent' to violent debt collection efforts such as those in this case." Id. at 4.
The objective prong is dispositive here. That is, even assuming that there was substantial evidence of equivocal conduct from which petitioner could have honestly, but mistakenly, concluded that the victim consented to go with him (which there was not, as discussed below), this Court agrees with the court of appeal that any such belief, given the intimidation, physical violence, and the drug debt-collection context, was not reasonable or one which society would tolerate as reasonable.See People v. Williams, 4 Cal.4th 354, 361 (1992) (regardless of how strongly defendant may believe in consent, "that belief must be formed under circumstances society will tolerate as reasonable . . . for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction."). The California appellate courts' holding on this point certainly was not unreasonable.
Alternatively, there also was not substantial evidence of equivocal conduct by the victim that could to require giving the instruction. This is a closer question than on the objective prong. Petitioner points to evidence that the victim was not forced into the car; that the witness who said the victim returned from his attempt to flee because he was "intimidated" also said that he returned "willfully;" that although the car stopped three times, the victim never attempted to call out to people who were nearby; and that the victim did not attempt to flee when he was left in the car with Trujillo. These events need to be considered in context, which is set out in the quotation from the court of appeal opinion on page two, above. The victim had been hit several times, and was frightened. In this context, the evidence to which petitioner points is not substantial.
The decisions of the state appellate courts were not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority,
b. General intent instruction
Petitioner contends that the trial court's giving a general intent instruction violated his due process rights. The court of appeal agreed that giving the instruction was error, but concluded that it was harmless because there was no reasonable likelihood the jury was misled by the instruction. Ex. A at 4-5.
To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process.United States v. Frady, 456 U.S. 152, 169 (1982). Finally, the defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Estelle v. McGuire, 502 U.S. at 73.
The trial court instruction on the elements of felony murder correctly specified a specific intent of kidnaping or attempted kidnaping. Ex. 3 (reporter's transcript) at 917-28. The trial court also explained specific intent, id. at 918, and set out the elements of kidnaping, id. at 920. On the other hand, the defective general intent instruction read:
In the crime of kidnaping, which is a related crime here, there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he's acting with general criminal intent, even though he may not know that his act or conduct is unlawful.Id. at 920.
The holding of the court of appeal that giving this instruction was contrary to California law is binding on this court, but the nature of that instruction still informs the Court's analysis of whether the instructions as a whole adequately embodied the correct law. The instruction erroneously given requires general criminal intent for the crime of kidnaping, which itself was merely the predicate crime for felony murder. The specific intent required for felony murder is the specific intent to commit the predicate crime. The general intent required by the instruction was an intent to commit an act which the law considers to be kidnaping; and the specific intent required for felony murder in the course of a kidnaping is the intent to commit an act which the law considers to be kidnaping. Thus, although this Court must accept the conclusion of the California courts that giving this instruction was error, there nevertheless was no reasonable possibility that the jury would have misapplied the general intent instruction in such a way that giving it violated due process, particularly in light of the other instructions requiring the correct specific intent.
The state appellate courts' rejection of this issue was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
2. Failure to give instruction on lesser-related offense
Petitioner asserts that the trial court should have instructed on the lesser-related offense of battery. There is not even a federal constitutional right to instructions on lesser-included offenses in non-capital cases such as this, see Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000), much less lesser-related offenses, see Hopkins v. Reeves, 524 U.S. 88, (1998) (Constitution does not require instructing on lesser-related offenses in capital cases if state does not allow them in any case; most states require instructions on only lesser-included offenses, and "we have never suggested that the Constitution requires anything more."). This claim is without merit.
In a decision after the conviction in this case, but while it was pending on appeal, the California Supreme Court held overruled an earlier decision and held that California law does not require a trial court to give lesser-related offense instruction upon request, and made that holding retroactive. People v. Birks, 19 Cal.4th 108, 112-13 (1998). For that reason petitioner conceded this issue on direct appeal. Ex. A at 5. That is, the failure to give the lesser-related offense instruction did not even violate state law.
3. Ineffective assistance in convincing petitioner not to testify
Petitioner contends that his counsel was ineffective when she talked him out of testifying.
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. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 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. Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. A difference of opinion as to trial tactics does not constitute denial of effective assistance, United States v. Mayo, 646 F.2d 369, 375 (9th Cir.), cert. denied, 454 U.S. 1127 (1981), and tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838 (1984).
Petitioner alleges that his counsel initially intended to call him, but after conferring with her colleagues, concluded that doing so would be too big a risk because it would expose him to cross-examination on his drug use and dealing. Although petitioner agreed at the time, now he says it was ineffective assistance. This is a quintessential disagreement about tactics, which as noted above is not sufficient to show ineffective assistance. Counsel was not ineffective, so the state courts' denial of this claim was not contrary to or an unreasonable application of, clearly established United States Supreme Court authority.
In his declaration in support of this issue, which the Court treats as true for purposes of this ruling, petitioner sets out what he would have said had he testified. He states repeatedly that he was high on drugs throughout the night's proceedings, something which might well have injured his cause.
4. Ineffective assistance in failing to object to evidence of other crimes
Petitioner contends that his attorney was ineffective in failing to object to testimony he believes was objectionable. Several of the questions to which petitioner contends his counsel should have objected were in fact objected to, so the factual basis for the claim as those questions is absent. Many of the remainder of the allegedly-objectionable questions related to petitioner's drug business and his enforcement of drug debts, questions which elicited admissible answers because they went to motive and intent. Failure to make meritless objections does not constitute ineffective assistance of counsel. United States v. Shah, 878 F.2d 1156, 1162 (9th Cir. 1989). Objections to those questions would have been denied, thus failure to make the objections could not have been ineffective.
Several others of the allegedly-objectionable questions were on minor matters, where counsel's decision not to object was a reasonable tactical decision — objecting to every possibly objectionable question is potentially counter-productive in a jury trial, as competent trial counsel know.
The Supreme Court has explained that the general presumption that counsel's assistance was objectively reasonable requires a petitioner to "overcome the presumption that, under all the circumstances, the challenged action 'might be considered sound trial strategy.'"Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quotingMichel v. Louisiana, 350 U.S. 91, 101 (1955)) (emphasis added). Petitioner has failed to overcome that presumption here. The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
5. Sufficiency of evidence of kidnaping
Petitioner contends that there was insufficient evidence that he forced the victim to come with him by means of force or fear. As discussed in section 1(a) above, the evidence was such that the jury could fairly infer that petitioner intimidated the victim into coming with him in the car, and intimidated him into staying there. This is sufficient to support the "force or fear" element of kidnaping. The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
6. Ineffective assistance — additional claims
In the prologue to his petition, petitioner contends that trial and appellate counsel were ineffective in failing to present the above issues. Issues 1 and 2 were in fact raised on appeal and rejected. Because none of petitioner's other issues above have merit, even under state law, counsel was not ineffective in failing to raise them.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.