Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a form "Petition for Writ of Habeas Corpus By a Person in State Custody" on June 26, 2012, to which is attached a typed petition ("Pet. Attach"). Respondent filed an Answer on December 6, 2012. Petitioner filed a Traverse on January 30, 2013, alleging additional claims not raised in the Petition.
On April 26, 2013, the Court issued an "Order re Exhaustion, " deeming the new claims raised in the Traverse to be unexhausted, and ordering Petitioner to file either: (1) a document stating Petitioner's intent to delete and abandon all of his unexhausted claims; (2) a document requesting dismissal of this entire proceeding without prejudice; or (3) a motion for a stay.
On June 4, 2013, Petitioner filed "Petitioner's Motion to Stay and Abeyance, etc." On June 28, 2013, the Court denied this Motion and ordered Petitioner to file either a "Notice of Voluntary Dismissal of Entire Action" or a "Notice of Voluntary Dismissal of Unexhausted Claims." On July 22, 2013, Petitioner filed a "Notice of Voluntary Dismissal of Unexhausted Claims."
BACKGROUND
A jury found Petitioner guilty of: (a) assault with a firearm on M.W. (Count 2); (b) assault by means of force likely to produce great bodily injury on M.W. (Count 3); (c) kidnapping of M.W. (Count 4); (d) second degree robbery of M.W. (Count 5); (e) kidnapping for ransom of E.C. (Count 6); (f) kidnapping for robbery of E.C. (Count 7); (g) forcible oral copulation (Count 8); and (h) second degree robbery of E.C. (Count 9) (R.T. 3306-13; C.T. 206-11). The jury acquitted Petitioner of the attempted murder of M.W. (R.T. 3910). The jury found true the allegations that: (1) with respect to Count 2, Petitioner personally used a firearm and personally inflicted great bodily injury; (2) with respect to Count 3, Petitioner personally inflicted great bodily injury; (3) with respect to Count 5, Petitioner personally used a firearm, personally and intentionally discharged a firearm causing great bodily injury, and personally inflicted great bodily injury; and (4) with respect to Counts 6, 7, 8 and 9, Petitioner personally used a deadly and dangerous weapon, a box cutter knife (R.T. 3306-13; C.T. 206-11). The court found true the allegations that Petitioner had suffered six prior serious felony convictions within the meaning of California Penal Code section 667(a)(1), which also qualified as strikes under California's Three Strikes Law, California Penal Code sections 667(b) - (I) and 1170.12(a) - (d) (R.T. 3907; C.T. 97-98, 236).
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). The State charged Petitioner under both versions (C.T. 70g).
The court sentenced Petitioner to consecutive terms of 25-years-to-life on Counts 2, 4, 5, 7, 8 and 9, and stayed sentence on Counts 3 and 6 (R.T. 3908-11; C.T. 236-41). The court added ten years based on various enhancements, and also added six five-year prior serious felony conviction enhancements on Count 7, for a total prison term of 190 years to life (R.T. 3910; C.T. 236-41).
The California Court of Appeal ruled that the sentencing court had erred in two ways: (1) by imposing six five-year section 667(a) enhancements on Count 7; and (2) by failing to apply two five-year section 667(a) enhancements on each of the five consecutive non-stayed counts (Respondent's Lodgment 12, pp. 8-12; see People v. Alexander, 2011 WL 10043, at *4-8 (Cal.App. Jan. 4, 2011). The Court of Appeal recognized that correction of these errors would result in a net addition of 30 years to Petitioner's sentence (Respondent's Lodgment 12, p. 12; see People v. Alexander, 2011 WL 10043, at *7). The Court of Appeal remanded for correction of the sentence and the abstract of judgment, but otherwise affirmed the judgment (Respondent's Lodgment 12, pp. 12-13; see People v. Alexander, 2011 WL 10043 at * 8). On remand, the sentencing court added the net 30 years to Petitioner's sentence, for a total term of 220 years to life (see Respondent's Lodgment 20).
The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 14). The Los Angeles County Superior Court, the California Court of Appeal and the California Supreme Court denied Petitioner's habeas corpus petitions filed in those courts (Petition, Ex. F, p. 39; Respondent's Lodgments 15, 16, 17, 18, 19).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Alexander, 2011 WL 10043 (Cal.App. Jan. 4, 2011). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
Each of the two groups of crimes was committed against a different victim; the first against M.W. on October 27, 2007, and the second against E.C. on November 18, 2007. For each set of crimes, the principal issue at trial was identification: whether appellant was the perpetrator.
1. M.W.
M.W. was a prostitute. She was picked up by a man who asked her for a "date." She accepted and got into the vehicle he was driving. They agreed to sex for $200, which the man paid. The vehicle was a white, box-shaped truck. The truck was divided into three compartments: one in front where the driver sat, a middle area and a rear cargo area. The interior of the truck was "junky." There were no windows in the middle compartment, and it was separated from the front by a board. There were many tools in the middle compartment, which also contained a bed. The man told M.W. that he did construction work.
M.W. described the clothes the man was wearing: a white undershirt, Dickies trousers, a tie, and tan boots. M.W. used a particular brand of condoms, which came in a blue wrapper.
The man drove to a location where the two engaged in the agreed-upon sex act. The man then paid M.W. $100 more for another sex act. He told her to lie on her stomach and, when she did, he placed her in a choke hold. M.W. struggled and almost lost consciousness. She hit the man with the "stiletto" heel of her shoe. The man then choked M.W. with one hand while hitting her with the other. He threatened to kill her. She suffered various scratches and bruises during this encounter.
At one point the man reached into the middle compartment to pick up a roll of duct tape. As he did so, M.W. saw a small gun in his pants pocket and tried to grab it. There was a struggle over the gun, during which the man fired it three times. One of the bullets entered M.W.'s pelvic area and exited the back of her leg. The man complained, "You dumb bitch. You're bleeding in my car." The man rejected M.W.'s repeated pleas to be released and ordered her into the middle compartment of the vehicle. He took back the $300 he had given her and rummaged through her purse, which was on the front seat. He also told her to take off her remaining shoe. He used her cell phone to call her pimp, after which he told her, "Yo' daddy don't care about you."
With M.W. in the middle compartment, the man drove some eight blocks, turned the vehicle around and stopped. He told her to get out of the vehicle, and she did. She had been with the man one to one and one-half hours.
M.W. ran down the street, where she encountered police officers who took her to a hospital where she was treated for her wound. She left the hospital after several days without signing discharge papers and went to a motel, where she stayed for several more days. She was afraid to call the police. Instead, she traveled to Oakland.
She was interviewed by officers there. During the interview she described the vehicle the man was driving, and gave the officers her jacket. Later, after appellant was arrested, officers prepared a photo array with six photographs and asked M.W. if she could identify the man who had attacked her. At first she said she was unable to do so but, when asked to eliminate persons who were pictured, she identified the photo of appellant as the one who most closely resembled her attacker. She said she was leaning toward that photograph the entire time but was very nervous. She later told a detective that she had selected appellant's photograph.
After appellant's arrest, and after he waived his right to remain silent, he told the interrogating officer that he had been carjacked and his vehicle taken. The vehicle was a 1990 white GMC Vandura.
Forensic evidence supported M.W.'s identification. A search of appellant's residence revealed a blue shirt, a pair of blue Dickies, and a pair of tan boots, all of which M.W. identified as similar to the clothes worn by the man who attacked her. Appellant's vehicle was located and examined. A shoe strap from one of M.W.'s shoes was found there, as were pieces of wood that fit together to make a platform. Police also found a condom and two blue torn wrappers of the brand M.W. used, and a bullet fragment.
Blood on M.W.'s jacket did not match appellant's DNA, although a swab from the jacket sleeve contained her blood and that of an unidentified person. Blood from the jacket pocket also matched M.W.'s DNA and at least one unidentified person.
At trial, M.W. was asked if she was sure that "the defendant was the man that did this to you"; she answered, "Yes."
2. E. C.
This person, also a prostitute, was picked up by a man at about 7:00 a.m. on November 14, 2007, at an area not far from where M.W. had been picked up. He was driving a van with white paint on the windows, and the interior was "junky." She and the man negotiated a $100 price for sex, then $100 more for an additional sex act, which the man paid. After that, the man demanded his money back and, when E.C. did not comply, he threatened her with a box cutter with an open blade. He placed E.C.'s purse on the front seat, emptied it, and retrieved the $200 he had paid her and searched her person for more. He also bound E.C.'s hands with plastic ties and gagged her with a T-shirt. During this time E.C.'s cell phone rang. The man answered it and spoke to Randy Wiggins, whom E.C. had arranged to meet that morning. The man demanded $3,000 from Wiggins for E.C.'s release and said that if it was not paid Wiggins would find her body in a ditch in San Diego. The man told Wiggins where to deliver the money. They met twice, but the man refused to release E.C.
Wiggins went to a police station, where he activated the speaker function on his cell phone and called E.C. With E.C. crying in the background, a man's voice said he had seen Wiggins pull into a police station. That evening the man demanded another sex act from E.C. and threatened her with the box cutter if she refused; she complied. At about 9:00 p.m. that evening, the man released E.C. He returned her clothing and purse but kept a prepaid phone card. The man then called E.C.'s cell phone, whose speaker function was still activated, and said where he had dropped off E.C.
Appellant was identified through a license plate number Wiggins had supplied. The van was located at his residence; appellant was the registered owner. The license plates were missing, and the windows were painted white. Among other items recovered from the van were a box cutter and plastic ties of the kind used to tie up E.C. Samples collected from items in the van contained E.C.'s DNA and that of an unidentified man (not the same person as the unidentified man whose sample was taken from M.W.'s jacket). Appellant was found in possession of E.C.'s cell phone, which he said was his property. He said he bought it on the street and did not know its number. He also told police he owned the vehicle and no one else drove it.
Officers presented E.C. with a photo array. Before viewing it she said she did not think she could identify the perpetrator because it was too dark. But when she looked at the array she vomited and began to cry. She circled appellant's picture.
At trial E.C. was asked if she was positive that appellant was the person who committed the crimes against her. She answered, "Yes, I'm positive."
Appellant did not present a case-in-chief.
(Respondent's Lodgment 12, pp. 2-5; see People v. Alexander, 2011 WL 10043 (Cal.App. Jan. 4, 2011).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The trial court allegedly violated due process by instructing the jury that the extent to which an eyewitness is "certain" is a factor in assessing eyewitness identification evidence (Pet. Attach., Ground One, pp. 8-11);
2. The trial court allegedly erred in failing to recognize its discretion to impose concurrent terms (Ground Two, Pet. Attach, pp. 11-12);
3. The Court of Appeal allegedly violated Double Jeopardy by increasing Petitioner's sentence on appeal (Ground Three, Pet. Attach., pp. 12-13); and
4. Petitioner's trial counsel allegedly rendered ineffective assistance by assertedly: (a) failing to call "important defense witnesses" and to use phone records to impeach E.C.; and (b) failing to secure DNA testing on the condom found in the truck (Ground Four, Pet. Attach., pp. 14-16).
STANDARD OF REVIEW
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id . (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
I. Petitioner's Claim of Instructional Error Does Not Merit Habeas Relief.
A. Background
The trial court instructed the jury concerning eyewitness identification testimony using CALCRIM 315, telling the jury that it could consider, among other things, how "certain" the witness was when he or she made an identification (R.T. 2120-21; C.T. 154). Petitioner argues that authorizing jurors to consider a witness' level of certainty violated due process (Pet. Attach, p. 8-11).
The Court of Appeal rejected this claim, observing that the instruction traced back to Neil v. Biggers, 409 U.S. 188 (1972) (Respondent's Lodgment 12, p. 7; see People v. Alexander, 2011 WL 10043, at *4). The Court of Appeal also observed that the "overwhelming evidence" of Petitioner's guilt rendered any alleged error harmless (Respondent's Lodgment 12, p. 7; see People v. Alexander, 2011 WL 10043, at *4).
B. Discussion
"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
In Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the United States Supreme Court recognized that a jury properly may consider "the level of certainty demonstrated by the witness at the confrontation" as a factor in evaluating the reliability of an identification. Neil v. Biggers, 409 U.S. at 199-200; see also Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (the "factors to be considered" in evaluating the reliability of identification testimony include "the level of certainty demonstrated at the confrontation") (citing Neil v. Biggers ). "Neil [v. Biggers] is clearly established Supreme Court law that governs on the certainty factor regarding eyewitness testimony." Santoyo v. Hedpath, 2009 WL 3226516, at *7 (C.D. Cal. Oct. 5, 2009).
Some courts have suggested that the level of certainty is not an appropriate factor for a jury to consider, in light of studies impugning the correlation between a witness' level of certainty and the reliability of the identification. However, the AEDPA standard of review confines this Court to determining whether the Court of Appeal's decision upholding the challenged instruction was contrary to, or an objectively unreasonable application of, clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). In light of Neil v. Biggers and Manson v. Brathwaite, Petitioner's claim plainly fails under the AEDPA standard of review. See Arroyo v. Biter, 2012 WL 6645203, at *5 (C.D. Cal. June 22, 2012), adopted, 2012 WL 6643129 (C.D. Cal. Dec. 19, 2012) ("Petitioner has pointed to no United States Supreme Court case holding that due process is violated when, in assessing the reliability of a witness's identification of a defendant, the jury considers the witness's level of certainty in making the identification. On the contrary, the existing Supreme Court precedent appears to approve of such considerations.") (citing Neil v. Biggers and Manson v. Brathwaite ); Jordan v. Hedgpeth, 2011 WL 2160357, at *9 (C.D. Cal. May 27, 2011), adopted, 2011 WL 2149930 (C.D. Cal. May 31, 2011) ("Thus, as the certainty factor listed in CALJIC No. 2.92 [the predecessor to CALCRIM 315] appears compatible with the factors sanctioned by the Supreme Court in Neil [v. Biggers], the Court cannot find that the use of the challenged instruction in petitioner's trial amounted to a due process violation."); Nelson v. Yates, 2010 WL 3952866, at *4 (C.D. Cal. Aug. 17, 2010), adopted, 2010 WL 3952863 (C.D. Cal. Oct. 7, 2010) ("Although Petitioner takes issue with the factors listed in [CALCRIM 315], they are compatible with those sanctioned by the Supreme Court [in Neil v. Biggers ].... Therefore, it was a reasonable application of Supreme Court authority to find no error in instructing the jury with Calcrim 315.") (citations omitted).
See Brodes v. State, 279 Ga. 435, 439-42, 614 S.E.2d 766 (2005); Commonwealth v. Santoli, 424 Mass. 837, 845-46, 680 N.E.2d 1116 (1997); see also United States v. Greene, 704 F.3d 298, 309 n.4 (4th Cir. 2013), pet. for cert. filed (April 19, 2103) (No. 12-9965) ("While acknowledging that under current law an eyewitness's level of certainty in his identification remains a relevant factor in assessing reliability, many courts question its usefulness in light of considerable research showing that an eyewitness's confidence and accuracy have little correlation.") (citations omitted); Haliym v. Mitchell, 492 F.3d 680, 705 n.15 (6th Cir. 2007) ("As a matter of law, we acknowledge that the witness' degree of certainty is a relevant factor to consider in determining reliability. We note, however, that empirical evidence on eyewitness identification undercuts the hypothesis that there is a strong correlation between certainty and accuracy.") (citations omitted).
For the foregoing reasons, Petitioner has not shown that the Court of Appeal's rejection of this claim was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground One of the Petition.
II. Petitioner's Claim of Sentencing Error Does Not Merit Habeas Relief.
A. Background
Under California's Three Strikes Law, a court must impose consecutive sentences on current convictions for offenses "not committed on the same occasion, and not arising from the same set of operative facts...." Cal. Penal Code § 667(c)(6), 1170.12(a)(6); People v. Hendrix, 16 Cal.4th 508, 513, 66 Cal.Rptr.2d 431, 941 P.2d 64 (1997). With respect to offenses committed on the same occasion, a court retains discretion to sentence either concurrently or consecutively. Id . The term "same occasion" "refers at least to a close temporal and spatial proximity between the acts underlying the current convictions." People v. Deloza, 18 Cal.4th 585, 595, 76 Cal.Rptr.2d 255, 957 P.2d 945 (1998). In determining whether to impose consecutive sentences, the court may consider, among other things, the defendant's prior criminal history. See Cal. R. Ct. 4.421(b) (circumstances in aggravation include whether the defendant's prior convictions were numerous or of increasing seriousness and whether defendant had served a prior prison term); Cal. R. Ct. 4.425(b). One circumstance in aggravation is sufficient to support a consecutive sentence. See People v. King, 183 Cal.App.4th 1281, 1324, 108 Cal.Rptr.3d 333 (2010) (citation omitted).
In People v. Deloza, the California Supreme Court clarified that the analysis for determining whether offenses occurred on the "same occasion" as used in section 667(c)(6) was not coextensive with the test for determining whether a court may impose multiple punishment under California Penal Code section 654 for offenses allegedly arising out of a single act or omission or an indivisible course of conduct. People v. Deloza, 18 Cal.4th at 594-95.
In Petitioner's case, prior to sentencing, the prosecution filed a memorandum requesting imposition of consecutive sentences on all counts, citing California Penal Code section 1170.12(a)(6), the initiative version of the Three Strikes Law governing consecutive sentencing for multiple current felony convictions (C.T. 215-21). The prosecutor's sentencing memorandum conceded that the court should stay Counts 3 and 6 pursuant to California Penal Code section 654 (C.T. 218-19). At the sentencing hearing, the prosecutor requested imposition of a term of 190 years to life (R.T. 3907). The court asked defense counsel to comment, to which defense counsel responded: "I would simply urge the court to not sentence consecutively as the prosecution has requested. [¶] It does appear there are two separate incidents, but within each incident a number of crimes were charged and he was convicted of those crimes, but to go [sic] consecutive as to the two separate incidents rather than consecutive within each incident." (R.T. 3907-08). The following occurred:
THE COURT: All right. There are a couple charges that I think we're going to stay.
Would that be the right avenue or vehicle to legally -
[PROSECUTOR]: I believe so pursuant to 654 as I set forth in my sentencing memo. [¶] I do concede there are a few counts that are - I wouldn't argue the defendant necessarily had a separate criminal intent, but the ones that I didn't request the court to stay I think that it's clear that the intent and purpose of committing the crime was not identical and, therefore, given the three strikes law, I think the court is required to impose the consecutive sentence for those crimes.
THE COURT: I agree with that. So I will sentence accordingly.
And the court does find a basis for consecutive sentence in addition to what I just said, the prior criminal history.
(R.T. 3908).
Petitioner contends the sentencing court erroneously believed that it lacked the discretion to impose concurrent sentences "within each incident" (see Pet. Attach., pp. 11-12). The Court of Appeal rejected this contention, ruling that the colloquy quoted above showed that the sentencing court understood that consecutive sentencing would be required for some, but not all, of the counts, and that, to the degree consecutive sentences were not required, the court had discretion to impose such sentences in light of Petitioner's serious criminal history (see Respondent's Lodgment 12, p. 10; People v. Alexander, 2011 WL 10043, at *6).
B. Discussion
To the extent Petitioner contends his sentence violated state law, Petitioner is not entitled to habeas relief. Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995) ("The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus.") (citation omitted); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (rejecting as not cognizable petitioner's contention the California court violated section 654 by imposing two consecutive terms for rape in concert based on petitioner's single act of standing guard while others raped the victim); see also Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) (per curiam) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.") (original emphasis).
Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id . (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."). Petitioner has shown no such fundamental unfairness. The Court of Appeal reasonably interpreted the record to suggest that the sentencing court understood its discretion with respect to concurrent sentencing. See Wainwright v. Goode, 464 U.S. 78, 85 (1983) (state court of appeal's reasonable interpretation of an ambiguous record merits deference in a federal habeas proceeding); accord Neuschafer v. McKay, 807 F.2d 839, 841 (9th Cir. 1987). The sentencing court did not state that it lacked the power to grant the defense request for concurrent sentences on the charges involving each individual victim. Furthermore, the court expressly mentioned Petitioner's criminal history as an aggravating factor supporting consecutive sentences. The mention of Petitioner's criminal history in that context would have served no purpose if the court truly believed it lacked the discretion to impose concurrent sentences on the charges involving each individual victim.
For the foregoing reasons, Petitioner has not shown that the Court of Appeal's rejection of this claim was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Two of the Petition.
III. Petitioner's Double Jeopardy Claim Does Not Merit Habeas Relief.
Petitioner contends the imposition of an increased sentence following Petitioner's appeal assertedly violated the Double Jeopardy Clause, relying on People v. Henderson, 60 Cal. 2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963) ("Henderson") (Pet. Attach., pp. 12-13). In Henderson, the California Supreme Court ruled that California's double jeopardy principles prohibited a court from imposing a greater sentence following reversal on appeal. Henderson, 60 Cal. 2d at 496-97. Subsequently, in North Carolina v. Pearce, 395 U.S. 711, 719 (1969), the United States Supreme Court declined to adopt Henderson as a matter of federal constitutional law, observing that "[a]t least since 1896... it has been settled that [the federal Double Jeopardy Clause] imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside." Id. at 719 (footnote omitted). The California Supreme Court since has recognized Henderson as an "instance in which [the California Supreme Court] has interpreted the state double jeopardy clause more broadly than the federal clause." People v. Monge, 16 Cal.4th 826, 843, 66 Cal.Rptr.2d 853, 941 P.2d 1121 (1997), aff'd, 524 U.S. 721 (1998) (citation omitted).
To the extent Petitioner asserts that his sentence violated state double jeopardy principles, Petitioner is not entitled to federal habeas relief. As previously discussed, federal habeas relief is available only for violations of the Constitution, treaties or laws of the United States. See 28 U.S.C. § 2254(a); Wilson v. Corcoran, 131 S.Ct. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review).
To the extent Petitioner asserts a claim of purported federal constitutional error, Petitioner has shown no entitlement to habeas relief. "[T]he Double Jeopardy clause does not require that a sentence be given a degree of finality that prevents its later increase." United States v. DiFrancesco, 449 U.S. 117, 137 (1980) (statute permitting government to appeal sentence which omitted sentence enhancement did not violate Double Jeopardy Clause, even though statute exposed defendant to risk of higher sentence if appeal were successful); see also Knapp v. Cardwell, 667 F.2d 1253, 1263 (9th Cir.), cert. denied, 459 U.S. 1055 (1982) (Double Jeopardy Clause "does not absolutely prevent an increase in the original sentence on retrial following a reversal of a conviction").
The federal Double Jeopardy Clause does prohibit "additions to criminal sentences in a subsequent proceeding where the legitimate expectation of finality has attached to the sentence." Stone v. Godbehere, 894 F.2d 1131, 1135 (9th Cir. 1990). However, no expectation of finality attended Petitioner's original sentence. "[T]he Supreme Court's decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal." Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir. 2008) (citations omitted); see also United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995) ("a prisoner has no legitimate expectation of finality in the original sentence when he has placed [that sentence] in issue by direct appeal and has not completed serving a valid sentence") (citation and internal quotations omitted). The Double Jeopardy Clause does not bar the correction of a legally erroneous sentence; a defendant can have no legitimate expectation of finality in a legally erroneous sentence. See United States v. Contreras-Subias, 13 F.3d 1341, 1346 (9th Cir.), cert. denied, 511 U.S. 1109 (1994) ("there can be no expectation of finality as to sentences that are illegal") (citations, internal quotations and footnote omitted). The Supreme Court has stated:
This court has rejected the doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment because the court committed an error in passing the sentence. [citation]. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. [citation]. In this case the court only set aside what it had no authority to do, and substitute(d) directions required by the law to be done upon the conviction of the offender. [citation]. It did not twice put petitioner in jeopardy for the same offense. The sentence as corrected[] imposes a valid punishment for an offense instead of an invalid punishment for that offense.
Bozza v. United States, 330 U.S. 160, 166-67 (1947) (internal quotations and footnote omitted).
Here, the state courts corrected Petitioner's sentence to conform to state law. This Court is bound by the state courts' construction of state law. See Missouri v. Hunter, 459 U.S. 359 (1983) (in context of Double Jeopardy challenge, Supreme Court was "bound to accept the Missouri court's construction" of state statutes providing for cumulative punishment for both "armed criminal action" and robbery); Downs v. Vare, 443 Fed.App'x 312, 313 (9th Cir. 2011) (federal Court of Appeals "bound by the Nevada Supreme Court's determination that state law permitted conviction for both grand larceny and robbery within the context of a single trial"). Therefore, the increase in Petitioner's sentence following his appeal did not violate federal Double Jeopardy.
For the foregoing reasons, Petitioner has not shown that the Court of Appeal's rejection of this claim was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Three of the Petition.
IV. Petitioner's Claims of Ineffective Assistance of Counsel Do Not Merit Habeas Relief.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight...." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S.Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S.Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id . "Where the defendant claims ineffective assistance for failure to file a particular motion, he must not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome." Leavitt v. Arave, 646 F.3d 605, 613 (9th Cir. 2011), cert. denied, 132 S.Ct. 2379 (2012) (citation and internal quotations omitted).
B. Discussion
Petitioner raised his claims of ineffective assistance of trial counsel in his habeas corpus petition filed in the California Supreme Court, which that court denied summarily (see Respondent's Lodgments 18, 19). Therefore, this Court "must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
For the following reasons, Petitioner has not met this standard.
1. Alleged Failure to Call "Important Defense Witnesses" and to Use Phone Records to Impeach E.C.'s Testimony
Petitioner contends counsel failed to call "important defense witnesses, " specifically Petitioner's wife and Petitioner's alleged business partner, Kevin Williams (Pet. Attach., pp. 14-16). Petitioner contends these witnesses would have supported Petitioner's defense that a person other than Petitioner committed the crimes (id.).
Petitioner contends his wife could have authenticated phone records purportedly reflecting phone calls from Petitioner's phone to E.C.'s cell phone prior to the incident (id., pp. 14-15). Petitioner contends the testimony and phone records would have impeached E.C.'s testimony that she had never met Petitioner before November 18, 2007 (id., p. 14).
E.C. testified that her first meeting with Petitioner occurred on November 18, 2007, and that prior to that date she had never seen Petitioner before (R.T. 1833). She did not testify that she had never before spoken with Petitioner on the phone. In any event, Petitioner's counsel reasonably could have determined that arguing E.C. knew Petitioner prior to the date of the offenses would have been counterproductive to Petitioner's defense of mistaken identity.
Petitioner contends Williams would have testified that others allegedly had access to the vehicles used in the offenses (Pet. Attach, pp. 15-16). Prior to trial, Petitioner's counsel made an offer of proof concerning alleged evidence of third-party culpability (R.T. 10-12). Counsel told the court that Williams, who allegedly owned a business with Petitioner, and another person, Robin Alexander, would testify that they both allegedly had keys to the truck used in the assault on M.W. (R.T. 10-12). Petitioner's counsel said he had not asked the witnesses whether either of them had the truck on the date of the incident (R.T. 12). Although the court apparently would have permitted the defense to introduce the requested testimony (R.T. 15), Petitioner's counsel did not call Williams to testify.
Assuming arguendo that counsel's failure to call Williams as a defense witness was unreasonable, the alleged error was harmless under the second prong of the Strickland standard. The record does not prove that, if called, Williams would have given the potentially self-incriminating testimony that Williams had access to the truck at the time of the assault on M.W. Moreover, the evidence incriminating Petitioner in the charged assault was compelling. At trial, M.W. identified Petitioner as the assailant in a pretrial identification procedure and at trial (R.T. 1219-20, 1287-88, 1295-98). M.W. identified the pants and shirt obtained in a search of Petitioner's residence, and the boots taken from Petitioner during the booking procedure following his arrest, as those of her assailant (R.T. 1272-74, 1302-05). The evidence showed that on November 3, 2007 (seven days after the incident), Petitioner assertedly reported to police that the truck supposedly had been carjacked, but there was no evidence Petitioner ever reported that, during the week after the assault on M.W. and before the alleged carjacking, Petitioner had noticed the blood, the bullet fragment, the condom, or the shoe strap in his truck (R.T. 1502-06, 1524-32). In light of the evidence, Petitioner has not shown a reasonable likelihood of a different result had Williams been called to testify.
A detective who participated in a search of the truck testified that there were blood drops in the truck, as well as a condom, condom wrappers and a shoe strap (R.T. 1318-27).
2. Alleged Failure to Secure DNA Testing on the Condom Found in Petitioner's Truck
Petitioner faults counsel for allegedly not causing a DNA test to be performed on the condom found in Petitioner's truck, apparently contending that such a test would have exonerated Petitioner (Pet. Attach, p. 15). Petitioner's counsel did not act unreasonably in this regard. Given the state of the evidence against Petitioner, counsel reasonably could have decided not to have the condom tested for fear the result would be inculpatory, not exculpatory. See Harrington v. Richter, 131 S.Ct. at 789-90 (counsel's decision not to call blood experts reasonable, where proposed evidence "carried its own serious risks" of demonstrating falsity of petitioner's account of the crime); Grisby v. Blodgett, 130 F.3d 365, 372-73 (9th Cir. 1997) (counsel made reasonable strategic decision not to test blood found at crime scene for fear the test results might inculpate petitioner); Mack v. Sisto, 2012 WL 3018205, at *13 (C.D. Cal. May 9, 2012), adopted, 2012 WL 3018159 (C.D. Ca. July 23, 2012) (counsel reasonably decided that performing blood and fingerprint tests on knife found at crime scene would be "too risky" "since petitioner's fingerprints or DNA might be found").
This reasonable tactical determination permitted Petitioner's counsel to argue vigorously in closing that the prosecution's failure to produce evidence of DNA testing on the condom supported the inference that another person had committed the crimes (see R.T. 2197-99, 2201-02).
RECOMMENDATION
For the foregoing reasons IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.