Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, 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 "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 21, 2012, accompanied by a supporting memorandum ("Pet. Mem."). Respondent filed an Answer on March 1, 2013. Petitioner filed a "Traversal" on August 1, 2013.
BACKGROUND
In 2005, a jury found Petitioner guilty, in abstentia, of second degree robbery, and found true the allegation that Petitioner used a firearm in the commission of the offense (Reporter's Transcript ["R.T."] 1506; Clerk's Transcript ["C.T."] 112). Following Petitioner's reappearance over three years later, the court denied Petitioner's motion for a new trial and sentenced Petitioner to a twelve year prison term (R.T. 2159-60; C.T. 180-81, 194).
During the presentation of the prosecution's case, Petitioner, who was free on bond, disappeared (R.T. 1206; C.T. 65). Petitioner's counsel told the court that Petitioner had not called counsel, that Petitioner's mother had said she did not know Petitioner's whereabouts, and that counsel did not know how to reach Petitioner (R.T. 1232-33). The court ordered Petitioner's bail forfeited and proceeded with the trial in Petitioner's absence (R.T. 1233).
The California Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Borges, 2011 WL 2028554 (Cal.App. May 25, 2011)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).
FACTUAL BACKGROUND
I. Testimony of Jose Carrillo
At the preliminary hearing, Jose Carrillo testified that two men kidnapped Carrillo at an ATM at gunpoint and compelled Carrillo to go to a hotel room, where they took Carrillo's money and ATM card and obtained his ATM pin number (C.T. 13-27). Carrillo told a somewhat different story at trial, testifying as follows:
A. Direct Examination
At approximately 5:20 a.m. on August 1, 2005, Carrillo withdrew $100 from an ATM machine and went to a nearby hotel (R.T. 659-62, 680). Carrillo met a woman outside the hotel and agreed to have sex with her (R.T. 662-66). The two went to a room in the hotel (R.T. 666). The woman refused to enter the room, went downstairs and made a phone call (R.T. 668). When Carrillo followed her and saw her on the phone, the woman signaled Carrillo to go back upstairs (R.T. 668-69). The two returned to the room, where the woman told Carrillo that she did not have a condom and that someone was going to bring her one (R.T. 670-71).
Two men then entered the room (R.T. 671). One man pulled out a gun, pointed it at Carrillo's head and demanded money from Carrillo (R.T. 672, 674-75). When Carrillo did not give the man money, the man pushed Carrillo down onto the bed (R.T. 672, 675-76). From Carrillo's wallet, the man took $100, papers and an ATM card (R.T. 675-77, 679-80). The man demanded Carrillo's ATM pin number at gunpoint (R.T. 680-81). Carrillo complied with this demand (R.T. 681).
The other man used a towel to wipe things down (R.T. 682). The man with the gun told Carrillo not to leave for fifteen minutes, after which the two men and the woman left (R.T. 682-83).
After approximately five minutes, Carrillo left, went back to the ATM, notified a security guard, and called the police (R.T. 683-85). Carrillo later identified Petitioner in a photo lineup as the man with the gun (R.T. 693-95, 1215-16). Carrillo also identified Petitioner at trial as the man with the gun (R.T. 695, 910). Carrillo said the gun the police had recovered from Petitioner's residence looked like the gun used in the incident (R.T. 905). Carrillo said he had not made a $200 ATM withdrawal recorded on his bank statement as having been made on August 1, 2005 (R.T. 907).
Carrillo admitted he falsely told the police that he had been kidnapped at the ATM, saying he did so because he did not want his wife to find out he had been with a prostitute (R.T. 686-87). Carrillo admitted lying at the preliminary hearing, also because he did not want his wife to find out he had been with a prostitute (R.T. 663). Carrillo admitted he was testifying at trial under a grant of use immunity regarding his testimony at the preliminary hearing (R.T. 662-63).
After the preliminary hearing, on November 16, 2005, Carrillo met with Los Angeles Police Detective Kukaua because Carrillo wanted to tell the truth (R.T. 688). Carrillo told Kukaua Carrillo had not been kidnapped (R.T. 689). Carrillo said he told some of the truth to a defense investigator, but did not tell the whole truth until he talked to Detective Kukaua (R.T. 909).
B. Cross-Examination
Petitioner's counsel questioned Carrillo extensively concerning Carrillo's false preliminary hearing testimony, eliciting many admissions that Carrillo had lied under oath at the preliminary hearing (R.T. 913-37, 966-68). Carrillo admitted learning from a defense investigator that store surveillance videotape showed Carrillo driving past a female several times, and that the ATM surveillance videotape did not show anyone at the ATM other than Carrillo, and Carrillo admitted what the tapes depicted "could be true" (R.T. 941-42). Carrillo admitted telling the defense investigator that no one approached Carrillo at the ATM machine or in the bank parking lot (R.T. 950).
Later, Carrillo said he did not recall the investigator making these statements (R.T. 945-46).
Carrillo said that he did not recall the woman telling Carrillo that before he had sex with her he would have to pay (R.T. 954-55). Carrillo said the woman never mentioned that Carrillo would have to pay Petitioner, and denied giving the $100 to Petitioner (R.T. 955). Carrillo said the man did not demand another $100 while the woman was undressing (R.T. 956). Carrillo denied telling Petitioner that Carrillo would go get some more money at an ATM machine (R.T. 956). Carrillo denied giving Petitioner Carrillo's ATM card to get more money (R.T. 956-57).
Carrillo admitted initially lying to the police (R.T. 961-62). Carrillo admitted he did not use his cell phone to call the police from the room and did not inform the hotel manager about the robbery or ask the manager to call the police (R.T. 968-69, 971).
C. Redirect Examination
On redirect, Carrillo testified that, prior to the time Carrillo spoke to the defense investigator, Carrillo had called and left a message for Detective Kukaua because Carrillo wanted to tell Kukaua the truth (R.T. 988-89). Carrillo admitted lying at the preliminary hearing, but also said that at the preliminary hearing he told the truth about the robbery (R.T. 988).
II. Testimony of Ashtok Patel
The hotel manager, Ashtok Patel, testified that on the morning of August 1, 2005, he rented a room to a man who gave the name "Roni Corado" and whose photo Patel took as part of the registration process (R.T. 1005-07). This man provided a driver's license to Patel (R.T. 1007-10).
III. Testimony of Detective Gary Kukaua
Detective Kukaua testified that, on August 1, 2005, Kukaua spoke with Carrillo and searched the hotel room (R.T. 1208). Patel showed Kukaua the photo of the person who had rented the room, and gave Kukaua the registration card (R.T. 1209-10). Kukaua ran the driver's license number, which came back as belonging to a Mr. Welday, whose photo did not match Carrillo's description of the perpetrators (R.T. 1211-12). Kukaua ran the name on the registration card and obtained a different driver's license number, address and photo (R.T. 1212). Kukaua went to this address and left a business card (R.T. 1214). When the person whose name appeared on the registration card contacted Kukaua, Kukaua obtained the names of this person's ex-girlfriend, Melissa Teller, and Teller's new boyfriend, Petitioner (R.T. 1214-15). Kukaua then contacted Teller and Petitioner and searched their home (R.T. 1217). The search revealed a fanny pack containing a loaded gun (R.T. 1218-19).
Kukaua arrested Petitioner and Teller on September 8, 2005 (R.T. 1222-23). Kukaua later interviewed Petitioner in a jail cell at the police station (R.T. 1223, 1230-31). Kukaua advised Petitioner of his Miranda rights, memorializing on a written form the advisement and Petitioner's expressions of understanding (R.T. 1223-25). Petitioner and Kukaua conversed for approximately two hours during which Petitioner discussed his life and his alleged problems with Teller and with narcotics (R.T. 1225-26). Petitioner said he had gone to the hotel with Teller, met someone from Orange County, and entered a room where there was another male Hispanic who eventually left (R.T. 1226). Petitioner acknowledged that the gun recovered in the fanny pack was Petitioner's, and admitted that a photo from the hotel check-in was a photo of Petitioner (R.T. 1227-28). Petitioner did not mention getting into a fight with Carrillo (R.T. 1235-36).
See Miranda v. Arizona, 384 U.S. 436 (1966).
Approximately halfway through the conversation, Petitioner wrote on the Miranda form: "I, Marcus Borges, got in a fight in a hotel, out -" (R.T. 1228, 1234). Kukaua continued to converse with Petitioner, until a point in the conversation when Petitioner asked what would happen to Teller (R.T. 1235). Kukaua told Petitioner that Teller was under investigation for kidnapping for robbery, and that she would not be released and would go to court the next Monday (R.T. 1235). Petitioner then tore up the Miranda form, crumpled the pieces in a wad, and threw the wad toward the toilet but missed (R.T. 1236). Petitioner stood up to retrieve the wad but Kukaua restrained Petitioner, obtained the torn pieces and reassembled them (R.T. 1236).
IV. Other Evidence
Petitioner did not present any defense evidence. The parties stipulated that Petitioner's fingerprint was found on the doorknob of the hotel room (R.T. 1244-46).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The trial court allegedly violated Due Process by denying
Petitioner's motion for a new trial based on alleged new evidence in the form of Teller's testimony (Ground One);
2. The trial court allegedly erred by allowing Detective Kukaua to give his opinion that a robbery had occurred (Ground Two);
3. Detective Kakaua allegedly violated Miranda v. Arizona, 384 U.S. 436 (1966) ("Miranda"), by obtaining the note which Petitioner had ripped up and attempted to throw into the toilet (Ground Three);
4. The trial court allegedly erred by admitting evidence of Petitioner's alleged "physical assertion of his Miranda right" (Ground Four);
5. The trial court allegedly violated Due Process and the Confrontation Clause by assertedly restricting the cross-examination of Carrillo (Ground Five); and
6. The trial court allegedly violated the Constitution by failing to modify California's jury instruction concerning "wilfully false" witnesses, thereby assertedly reducing the prosecution's burden of proof (Ground Six).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), 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).
The Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Franklin v. Johnson, 290 F.3d 1223, 1229, 1232-33 (9th Cir. 2002); see also Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.), cert. denied, 528 U.S. 846 (1999) ("judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated").
I. Petitioner's Challenge to the Denial of the Motion for New Trial Based on "Newly Discovered Evidence" Does Not Merit Habeas Relief.
A. Background
California Penal Code section 1181 authorizes a court to grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." After the verdict, Petitioner's counsel moved for a new trial, and subsequently filed a supplemental motion for a new trial on the basis of purported newly discovered evidence consisting of the proposed testimony of Melissa Teller (C.T. 170-75). In a supporting declaration, Teller stated that she had accompanied Carrillo to a hotel room to commit an act of prostitution (C.T. 175). Teller stated that Carrillo paid her $200 to perform sex acts (C.T. 175). According to Teller, after she complied, she refused Carrillo's request for anal sex (C.T. 175). Teller stated that, when Carrillo allegedly became "physically assaultive, " Teller assertedly yelled for help (C.T. 175). Petitioner allegedly entered the room and pulled Carrillo off Teller (C.T. 175). Teller stated that she and Petitioner then left the room (C.T. 175).
At a hearing on the motion, Teller testified that, after the case against her was dismissed, but before Petitioner's trial, Teller contacted Petitioner's counsel to refer Petitioner's counsel to Petitioner (R.T. 2107-08). Teller said she refused to tell Petitioner's counsel about Petitioner's case at that time, saying she was afraid she could be the subject of new charges and lose custody of her daughter (R.T. 2109). She said she re-contacted Petitioner's attorney "a couple of months" prior to the hearing on the motion for new trial, after the statute of limitations supposedly had expired (R.T. 2110).
With respect to the 2005 incident, Teller testified that she had asked Petitioner to accompany her that evening because she had heard rumors of girls being raped and killed on the street (R.T. 2113). Teller testified that she was standing on the street when Carrillo, a "well-known client, " allegedly pulled over and asked what she would charge for oral sex and intercourse (R.T. 2110-11). After Teller quoted a price of $200, Carrillo left, then returned with the money (R.T. 2111-12). When Carrillo allegedly became violent and attempted to engage in anal sex, Teller assertedly screamed (R.T. 2113-14). Petitioner, who supposedly had been waiting in a parking lot next to the hotel, allegedly entered the room and told Carrillo to leave (R.T. 2113-15). Carrillo allegedly said he wanted his money back, and Petitioner assertedly told Teller to give Carrillo his money back (R.T. 2115). When Teller allegedly refused, Carrillo assertedly "went after" Petitioner (R.T. 2115). Teller said Carrillo "backed off" when Petitioner threatened to call the police, after which Teller and Petitioner allegedly left the room (R.T. 2115). Teller said Petitioner did not otherwise threaten Carrillo, did not show a gun inside the room, and did not take Carrillo's property (R.T. 2115-16).
On cross-examination, Teller admitted telling police that Petitioner had a gun, but denied knowing anything about the robbery (R.T. 2120). On redirect, Teller testified she told police Petitioner had "gotten rid" of the gun, although her testimony was unclear when Petitioner supposedly had done so (R.T. 2120, 2126).
The Superior Court ruled that the evidence was not "newly-discovered" because Petitioner's counsel had known of Teller at the time of trial (R.T. 2130). The Superior Court also ruled that Teller was not credible (R.T. 2132).
B. Discussion
Petitioner contends the trial court's denial of his motion for a new trial based on "newly discovered evidence" violated due process. The Court of Appeal rejected this claim, ruling: (1) the trial court reasonably concluded that Teller's evidence was not newly discovered; (2) the trial court reasonably concluded that Teller's evidence would not have rendered a different result probable on retrial; and (3) Petitioner had failed to demonstrate diligence (Respondent's Lodgment, pp. 4-6; see People v. Borges, 2011 WL 2028554, at *3).
Petitioner appears to devote much of his argument to his contention that the trial court violated state standards governing new trial motions (see, e.g., Pet. Mem. 12-19). To the extent Petitioner contends any state court violated state law, Petitioner is not entitled to federal habeas relief. A federal court may grant habeas corpus relief "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881 (1997) (habeas petitioner may not "transform a state law issue into a federal one merely by asserting a violation of due process").
To the extent Petitioner contends the state courts violated the Constitution by rejecting Petitioner's evidence of purported actual innocence, Petitioner has failed to demonstrate entitlement to federal habeas relief. The Supreme Court has never decided whether a habeas petitioner may obtain relief by asserting a freestanding claim of actual innocence. In Herrera v. Collins, 506 U.S. 390, 400 (1993) ("Herrera"), the Court recognized that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state proceeding." The Herrera Court assumed, without deciding, "that in a capital case a truly persuasive demonstration of actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal relief if there were no state avenue open to process such a claim, " but ruled that the petitioner in that case had not made such a showing. Id. at 417. Thus, whether a federal constitutional right to be released upon proof of "actual innocence" exists "is an open question." District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71 (2009); House v. Bell, 547 U.S. 518, 554-55 (2006) (expressly declining to decide whether federal habeas courts may entertain freestanding claims of actual innocence). In such circumstances, the state courts' rejection of Petitioner's actual innocence claim cannot have been contrary to, or an unreasonable application of, any clearly established Supreme Court law. See Murdoch v. Castro, 609 F.3d 983, 994 (9th Cir. 2010), cert. denied, 131 S.Ct. 2442 (2011) (law not clearly established where Supreme Court "explicitly stated" it was not deciding the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an open question, '" habeas relief unavailable); see generally Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) ("Because our cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established Federal law.") (citation, internal quotations and brackets omitted)); Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [regarding the petitioner's claim], it cannot be said that the state court unreasonably applied clearly established Federal law.") (citation, internal quotations and brackets omitted).
Although some Ninth Circuit cases appear to recognize a freestanding habeas claim of actual innocence, "circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court'" within the meaning of section 2254(d)(1). Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (citation omitted). The Supreme Court recently has made clear that a federal habeas court may not use circuit precedent to "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).
See, e.g., Boyde v. Brown, 404 F.3d 1159, 1168 (9th Cir. 2005), amended on other grounds, 421 F.3d 1154 (9th Cir. 2005); Turner v. Calderon, 281 F.3d 851, 872-73 (9th Cir. 2002); Jackson v. Calderon, 211 F.3d 1148, 1164-65 (9th Cir. 2000), cert. denied, 531 U.S. 1072 (2001); Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999), cert. denied, 531 U.S. 995 (2000); Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998). All of these cases applied the pre-AEDPA standard of review. Boyde v. Brown, 404 F.3d at 1163 n.4; Turner v. Calderon, 281 F.3d at 864; Jackson v. Calderon, 211 F.3d at 1153; Spivey v. Rocha, 194 F.3d at 974 n.3; Carriger v. Stewart, 132 F.3d at 473 n.3. Although in Carriger v. Stewart the Ninth Circuit suggested that a majority of the Justices in Herrera would have supported a freestanding claim of actual innocence, see Carriger v. Stewart, 132 F.3d at 476, that opinion predated the Supreme Court's clear statements in District Attorney's Office for Third Judicial Dist. v. Osborne and House v. Bell that the issue remained open.
The Supreme Court does permit a habeas petitioner to assert actual innocence as a "gateway" claim permitting consideration of an underlying procedurally defaulted constitutional claim. See Schlup v. Delo, 513 U.S. 298, 315 (1995) ("Schlup"). Under the Schlup standard, to show actual innocence sufficient to overcome a procedural default, a petitioner must furnish "new reliable evidence... that was not presented at trial.'" House v. Bell, 547 U.S. at 537 (quoting Schlup, 513 U.S. at 324; ellipses added); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004). The petitioner must "show that, in light of all available evidence, it is more likely than not that no reasonable juror would convict him of the relevant crime." Smith v. Baldwin, 510 F.3d 1127, 1140 (9th Cir. 2007) (en banc), cert. denied, 555 U.S. 830 (2008) (citation and footnote omitted); see House v. Bell, 547 U.S. at 538 ("A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt - or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt."). This standard "is demanding and permits review only in the extraordinary' case." House v. Bell, 547 U.S. at 538 (citing Schlup, 513 U.S. at 327). The showing required to establish a putative freestanding claim of actual innocence is greater than that required to establish a Schlup "gateway" claim. See House v. Bell, 547 U.S. at 554-55 (holding petitioner satisfied Schlup actual innocence standard but did not meet the "extraordinarily high" standard required for proof of a freestanding claim of actual innocence); see also Schlup, 513 U.S. at 316.
Petitioner does not essay a Schlup gateway claim. In any event, Petitioner has not made the requisite showing. Under circuit precedent, to show actual innocence a petitioner must make a "stronger showing than the insufficiency of the evidence to convict" showing adopted by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1133 (1998); see also House v. Bell, 547 U.S. at 538 ("the gateway actual-innocence standard is by no means equivalent to the standard of Jackson v. Virginia, [citation], ' which governs claims of insufficient evidence") (citing Schlup, 513 U.S. at 330). The required showing "must go beyond demonstrating doubt about [the petitioner's] guilt, and must affirmatively prove that he is probably innocent.'" Boyde v. Brown, 404 F.3d 1159, 1168 (9th Cir. 2005), amended on other grounds, 421 F.3d 1154 (9th Cir. 2005) (quoting Carriger v. Stewart, 132 F.3d at 476; footnote omitted). Post-conviction evidence serving only to "undercut the evidence presented at trial" does not suffice to meet this standard. Carriger v. Stewart, 132 F.3d at 477; see also Spivey v. Rocha, 194 F.3d at 971, 979 (9th Cir. 1999), cert. denied, 531 U.S. 995 (2000) (habeas relief unavailable where "the totality of the new evidence does not undermine the structure of the prosecution's case"). In considering a claim of actual innocence, the Court's analysis is not limited to the allegedly new evidence. See House v. Bell, 547 U.S. at 537-38; Carriger v. Stewart, 132 F.3d at 478. Rather, the Court "must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it necessarily would be admitted under rules of admissibility that would govern at trial." House v. Bell, 537-38 (citations and internal quotations omitted).
Here, Petitioner's purported new evidence, Teller's testimony, is insufficient to prove his "actual innocence." Both the Superior Court and the Court of Appeal deemed Teller to be not credible, a finding entitled to a presumption of correctness under 28 U.S.C. section 2254(e)(1). See Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (credibility findings made after postconviction evidentiary hearing entitled to presumption of correctness). Petitioner has produced no "clear and convincing" evidence to rebut this presumption. See 28 U.S.C. § 2254(e)(1).
Moreover, even without the presumption of non-credibility, Teller's declaration and testimony would not prove Petitioner's "actual innocence" under the standards set forth above. This supposedly new evidence corroborated the prosecution's evidence that Petitioner was in the room with Carrillo, but contradicted Carrillo's account of the robbery. See Carriger v. Stewart, 132 F.3d at 477 (rejecting freestanding claim of actual innocence where nearly all of alleged new evidence "serve[d] only to undercut the evidence presented at trial, not affirmatively to prove Carriger's innocence"). Teller allegedly was Petitioner's girlfriend, and thus her story was rendered suspect not only by the delayed timing but also by the evident self-interest of her supposed revelations. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) (in assessing actual innocence claim under the Schlup standard, "unjustifiable delay... [is] a factor in determining whether actual innocence has been reliably shown"); Smith v. McEwen, 2012 WL 4107806, at *8 (C.D. Cal. July 30, 2012), adopted, 2012 WL 4107812 (C.D. Cal. Sept. 17, 2012) (declarations of petitioner's friends and relatives stating that petitioner supposedly was at a party at the time of the crimes too untrustworthy to show actual innocence, where witnesses did not offer their statements until years after petitioner's trial had begun). A reasonable juror confronted with Teller's testimony still could believe Carrillo's contrary testimony and still could find Petitioner guilty beyond a reasonable doubt. Indeed, Petitioner's "new" evidence is much weaker than that which the Supreme Court recently ruled insufficient to show actual innocence under the Schlup standard in McQuiggin v. Perkins, 133 S.Ct. at 1929-30, 1936 (deeming "hardly adequate" evidence consisting witness affidavits stating that: (1) another man, Jones, had admitted killing the victim; (2) on the night of the murder Jones was wearing bloodstained clothing; and (3) Jones took bloodstained clothing to the cleaners).
For the foregoing reasons, the state courts' rejection of this claim was not contrary to, or an objectively 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. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground One of the Petition.
II. The Admission of Detective Kukaua's Opinion That Petitioner Had Committed Robbery Does Not Merit Habeas Relief.
A. Background
On cross-examination of Detective Kukaua, Petitioner's counsel asked whether the Detective had any personal knowledge whether certain evidence related to "a robbery of Mr. Carrillo" (R.T. 1237). Counsel asked: "... the only way you would have to determine this is part of a robbery case, is because Mr. Carrillo says, I was robbed? If you don't have Mr. Carrillo's statements, then all of this does not sum up to a robbery, right?" Detective Kukaua answered: "True." (R.T. 1238). Counsel said: "Okay. When you were talking with Mr. Borges, one thing he did do was adamantly deny that he had committed a robbery, correct" (id.). Detective Kukaua answered: "Correct." (R.T. 1238-39).
On redirect, the prosecutor asked Detective Kukaua: "After you recovered all of the evidence as the investigating officer, what role did you think that the evidence that you recovered had in your investigation?" (R.T. 1241). The court overruled a relevance objection (id.). Petitioner's counsel then objected on the ground of speculation (id.). The court said: "Well - she's asking him an expert opinion as a detective in this case. I will allow it for that." The detective answered: "That Mr. Carrillo had been robbed and that Mr. Borges was the robber." (id.).
On recross, Petitioner's counsel asked: "Sir, once again, that's accepting Mr. Carrillo's statement as true, correct?" (R.T. 1241). The witness replied: "And based on all the other evidence, correct." (id.). Petitioner's counsel elicited the detective's testimony that, without Carrillo's statement, "we don't have a crime report so we don't have a crime." (R.T. 1243). Petitioner's counsel also elicited the witness' agreement that his role in the case from different from that of a jury (id.).
Petitioner contends the admission of Detective Kukaua's testimony that a robbery occurred and Petitioner was the robber improperly usurped the jury's role as trier of fact (Pet. Mem., pp. 20-23). The Court of Appeal rejected this contention, ruling that an objection other than speculation had been waived, and that in any event any alleged error was not prejudicial (Respondent's Lodgment 6, pp. 6-7; see People v. Borges 2011 WL 2028554, at *4).
B. Discussion
"The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id . Furthermore, the United States Supreme Court has not held "that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact." Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009); see also Briceno v. Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009). Accordingly, Petitioner has not shown that the state court'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).
Additionally, and in any event, the challenged testimony did not render Petitioner's trial fundamentally unfair. Petitioner's counsel initiated the exchange by asking the witness whether, without Carrillo's testimony, there was evidence of a "robbery." The witness' statement of opinion that, based on Carrillo's statement, a "robbery" occurred, and the witness' subsequent testimony on recross that without Carrillo's statement "we don't have a crime, " made the essential point Petitioner's counsel was attempting to make: if the jury did not believe Carrillo, no robbery occurred. Additionally, the detective testified that his role was not that of the jury, i.e., it would be up to the jury to decide whether to believe Carrillo. In such circumstances, Petitioner has not shown that the admission of the challenged testimony violated due process. See Holley v. Yarborough, 568 F.3d at 1101.
For all of the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Two of the Petition.
III. Petitioner's Challenge to the Admission of the Note Petitioner Wrote During the Police Interview Does Not Merit Habeas Relief.
A. Background
Prior to trial, Petitioner's counsel sought to exclude evidence of the note Petitioner wrote on the Miranda form during the interview with Detective Kukaua (R.T. 2). Conceding that the interrogation of Petitioner occurred after a Miranda waiver, Petitioner's counsel argued that the act of tearing up the form showed Petitioner had withdrawn his Miranda waiver (R.T. 5). Counsel argued the seizure of the torn form was the equivalent of forcing an involuntary statement from Petitioner (R.T. 7). The court responded that, after Petitioner finished writing on the form, the statement was "out there, " and was "just like an unfinished sentence" (id.). The court said: "[I]f the officer comes and says that he beat it out of your client, you know, then that's not voluntary. But just the mere fact that he wrote it and recovered that, that is not involuntary. We'll get to that when the officer comes." (id.).
Detective Kukaua testified at a subsequent hearing out of the presence of the jury pursuant to California Evidence Code section 402 (R.T. 624). After testifying concerning Petitioner's Miranda waiver, the detective said Petitioner tore up the Miranda form bearing the handwritten note near the end of the two-hour interview, after Kukaua told Petitioner that Teller's case was still ongoing (R.T. 631). At that point, Petitioner allegedly said, "I'm not telling you any more, " tore up the form, and tossed it towards the cell toilet, but missed (id.). Kukaua said he stopped Petitioner from retrieving the torn form (id.).
On cross-examination, the following occurred:
[Petitioner's counsel]: He went to get the piece of paper?
A. Yes.
Q. Because it appeared to you that what he was going to do is further make it impossible for you to see what was on the paper?
A. Correct.
Q. And so in order for you to see what was on the paper, it was necessary for you to prevent him from destroying it?
A. Yes.
Q. And so therefore, you physically apprehended him; you guys got into some kind of a tussle where you had to subdue him in order to prevent him from preventing you from seeing what it was that he had said "I'm not telling you any more" about?
A. Right.
(R.T. 633-34).
On redirect, the following occurred:
[The prosecutor]: Sir, had you seen the writing on the paper prior to the Defendant tearing it up and throwing it?
A. Yeah, I saw the writing. I didn't remember what was written at the time. I mean, I see it now. But I saw there was writing on the paper, yes.
Q. Okay. Had you read the writing prior to it being torn up and thrown?
A. I looked at it at some point, yes.
[Petitioner's counsel]: Move to strike as nonresponsive. The question is had he read it. The response was "I looked."
The Court: Sustained.
[The prosecutor]: Did you read it prior to the defendant tearing it up and throwing it?
A. Yes.
Q. How long after the defendant wrote it did he tear it up and throw it?
A. It was there for quite some time. It wasn't done immediately. You know, I would have to approximate 30 to 45 minutes. Because we stood there, and it was just left there, and we continued to talk.
(R.T. 634-35).
On recross, the following occurred:
[Petitioner's counsel]: And you saw at some point that he was writing something?
A. Yes, because he was writing it on my notebook. So he had my notebook with him, too.
Q. But you didn't actually see what words he was writing until after you retrieved your paper, which is why in your report you talk about the need to retrieve what he was writing?
A. No. I saw the word "fight" in there, and I saw - I remember sitting reading it at some point because we were sitting approximately, almost right next to each other. When he had written it out, I looked at it at some point. Yes, I did.
Q. He didn't offer it to you so you could read it, did he?
A. No. He held the book to write on.
Q. That's as much privacy as he was afforded in making his note, is that correct?
A. I don't understand.
Q. In other words, this note that was going to be a statement to you had not yet been handed to you; it was in his possession, and it was never offered to you by Mr. Borges at all?
A. He had it with him.
Q. But it wasn't offered to you?
A. I guess formally, no.
(R.T. 637-38).
The trial court ruled as follows:
All right. The statement will come in. I think we have enough on the record from before as to why the statement is coming in. He was properly Mirandized. He voluntarily answered questions and had a conversation with the officer. He wrote something down. He attempted to tear it up. But he had already written it. And as I explained earlier, the novel idea of him saying, "oh, by the way, I don't want you to have that, " it was before he indicated he wanted to discontinue the conversation, but explicitly and by his actions. So the statement will come in.
(R.T. 642).
The Court of Appeal upheld the trial court's ruling, stating that there was substantial evidence that Petitioner communicated the contents of the note to Kukaua before Petitioner said "I'm not telling you any more, " and that Kukaua did not interrogate Petitioner after Petitioner indicated his intent not to say anything more (Respondent's Lodgment 6, pp. 10-12; see People v. Borges, 2011 WL 2028554, at *7-8). The Court of Appeal rejected Petitioner's assertion that his attempt to dispose of the Miranda form bearing the note constituted an invocation of his Miranda rights (Respondent's Lodgment 6, p. 12; see People v. Borges, 2011 WL 2028554, at *7). The Court of Appeal also ruled that Kukaua's act of preventing Petitioner from destroying the document, and Kukaua's retrieval of the document, did not constitute interrogation, because those actions were not reasonably likely to elicit an incriminating response. Rather, those actions were intended to prevent the destruction of evidence Kukaua had elicited from Petitioner before Petitioner invoked his rights (Respondent's Lodgment 6, p. 12; see People v. Borges, 2011 WL 2028554 at *8).
B. Discussion
Miranda generally bars the use of statements elicited by custodial interrogation unless the defendant first was informed of his or her constitutional rights. Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam); Miranda, 384 U.S. at 444. "Any waiver [of Miranda rights], express or implied, may be contradicted by an invocation [of the right to remain silent] at any time." Berghuis v. Thompkins, 130 S.Ct. 2250, 2263 (2010). Once a defendant who has received Miranda advisements unequivocally invokes his or her right to remain silent, "further interrogation must cease." Id. at 2263-64; Miranda, 384 U.S. at 474. However, "a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent." Anderson v. Charles, 447 U.S. 404, 408 (1980); see also United States v. Pino-Noriega, 189 F.3d 1089, 1098 (9th Cir.), cert. denied, 528 U.S. 989 (1999) ("[a] defendant who voluntarily waives his right to remain silent after being informed of his rights cannot prevent the introduction at trial of statements he makes afer he waives that right") (citation omitted).
Here, Petitioner received his Miranda advisements and thereafter waived his Miranda rights and spoke to Detective Kukaua. Petitioner contends that his statement "I'm not telling you any more" constituted an invocation of his right to remain silent, after which Detective Kukaua allegedly took the Miranda form containing Petitioner's note from Petitioner by force (Pet. Mem., p. 25). Petitioner argues that his act of ripping up the document and attempting to throw it in the toilet constituted an invocation of his right to remain silent (id., p. 26).
The Court of Appeal's rejection of Petitioner's claim was not unreasonable. As Petitioner correctly contends, his statement "I'm not telling you any more" did constitute an invocation of his right to remain silent. See Anderson v. Terhune, 516 F.3d 781, 784, 787-88 (9th Cir.) (en banc), cert. denied, 555 U.S. 818 (2008) ("I don't even wanna talk about this no more, " "Ugh! I'm through with this" and "I plead the Fifth" constituted unequivocal invocation of right to remain silent); Arnold v. Runnels, 421 F.3d 859, 864-66 (9th Cir. 2005) (where, during police interview, interviewer stated he was going to tape record the remainder of the interview, to which petitioner responded that he did not want to talk on tape, petitioner sufficiently invoked his right to remain silent); People v. Owens, 17 Misc.3d 1110(A), 851 N.Y.S.2d 65, 2007 WL 2937131, at *7 (N.Y. Sup. July 24, 2007) ("I'm not telling you anything" an unequivocal invocation). However, after waiving his Miranda rights, and prior to invoking his right to remain silent by making the statement "I'm not telling you any more, " Petitioner wrote the note on the Miranda form on Kukaua's notebook, sitting so close to Kukaua that Kukaua could see and read the note. "Once an individual chooses voluntarily to prepare a written account, the act of preparation serves as an effective waiver of the Fifth Amendment protections." United States v. Feldman, 83 F.3d 9, 14 (1st Cir. 1996). Petitioner did not write anything after he invoked his right to remain silent. What Petitioner did after he invoked his right to remain silent was to attempt to destroy the writing which he had created some 30 to 45 minutes earlier. Petitioner did not have any constitutional right to destroy previously created evidence. See Segura v. United States, 468 U.S. 796, 816 (1984) (allegation that defendant had a constitutional right to destroy evidence "defies both logic and common sense"; United States v. Feldman, 83 F.3d at 14-15 (rejecting argument that privilege against self-incrimination includes a right to destroy voluntarily prepared documents). The Constitution does not "compel the unedifying spectacle of law enforcement officers naively standing by while the evidence of a criminal offense is being flushed down a toilet." Defino Martone v. United States, 396 F.2d 229, 232 (1st Cir. 1968) (Fourth Amendment case). "There is no constitutional right to destroy evidence before the very eyes of government agents." Id.
Furthermore, the Court of Appeal reasonably rejected Petitioner's assertion that Kukaua's act of recovering the document constituted an "interrogation." "Interrogation" under Miranda "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innes, 446 U.S. 291, 301-02 (1980); Kemp v. Ryan, 638 F.3d 1245, 1255 (9th Cir.), cert. denied, 132 S.Ct. 553 (2011). The Court of Appeal reasonably concluded that Kukaua's recovery of evidence Petitioner voluntarily created at least a half an hour prior to the invocation did not constitute an "interrogation" under these standards.
Moreover, the Fifth Amendment plainly did not protect from disclosure the note Petitioner voluntarily created. The Fifth Amendment privilege "protects a person only against being incriminated by his own compelled testimonial communications." Fisher v. United States, 425 U.S. 391, 409 (1976). "If the party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of the document are not privileged." United States v. Doe, 465 U.S. 605, 612 n.10 (1984); In re M.H., 648 F.3d 1067, 1071 (9th Cir. 2011) ("where documents are voluntarily created and kept, compelling their disclosure does not implicate the privilege against self-incrimination") (citations omitted; original emphasis); see United States v. Hogan, 539 F.3d 916 (8th Cir. 2008) (Fifth Amendment did not protect papers defendant created and stored in his jail cell); Webb v. Griffin, 2011 WL 3738974, at *5 (W.D.N.Y. Aug. 24, 2011) (Fifth Amendment did not protect inculpatory letters petitioner voluntarily wrote to his girlfriend).
In any event, any alleged error was harmless under the harmless error standard for federal habeas corpus cases set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case. Id. at 637-38.
Petitioner was not charged with assaulting Carrillo. The note was incomplete, and there was no evidence concerning any fight between Petitioner and Carrillo. Indeed, on cross-examination, Detective Kakaua admitted he had no information whether or not the content of the note on the Miranda form related to a robbery of Carrillo (R.T. 1237). Thus, if the note had any probative value on the issues before the jury, that probative value was scant. In such circumstances, this Court cannot conclude that introduction of the note had a "substantial and injurious" effect upon the verdict. See Cunningham v. Wong, 704 F.3d 1143, 1165 (9th Cir. 2013), pet. for cert. filed (June 10, 2013) (No. 12-10762) (admission of petitioner's statement obtained in violation of Miranda harmless, where statement did not contain a confession and record contained "damaging" evidence of guilt); McKenna v. McDaniel, 65 F.3d 1483, 1492 (9th Cir. 1995), cert. denied, 517 U.S. 1150 (1996) (Miranda violation harmless where challenged statement did not contain "any sort of admission of guilt"); Tran v. Cate, 2013 WL 3989416, at *26 (C.D. Cal. Aug. 2, 2013) (Miranda violation harmless, where challenged statements concerned a "tangential" issue only "marginally" reflecting on petitioner's credibility).
For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Three of the Petition.
IV. Petitioner's Claim of Doyle Error Lacks Merit.
Under Doyle v. Ohio, 426 U.S. 610 (1976) ("Doyle"), a prosecutor's comment for impeachment purposes on a defendant's post-Miranda silence violates Due Process. Doyle, 426 U.S. at 617-19; see Cook v. Schriro, 538 F.3d 1000, 1019 (9th Cir. 2008), cert. denied, 555 U.S. 1141 (2009). A prosecutor may not comment on a defendant's statement invoking his or her right to remain silent. Wainwright v. Greenfield, 474 U.S. 284, 295 n.13 (1986); United States v. Bushyhead, 270 F.3d 905, 913 (9th Cir. 2001), cert. denied, 535 U.S. 1008 (2002). Petitioner contends the prosecutor's presentation of evidence that Petitioner attempted to destroy the note violated Doyle. The Court of Appeal rejected this claim, reasoning (as mentioned above) that Petitioner already had invoked his rights prior to attempting to destroy the note, and that his attempt to destroy the note was not another invocation of his rights but rather an attempt to destroy evidence (Respondent's Lodgment 6, p. 12; People v. Borges, 2011 WL 2028554, at *7-8).
As discussed above, the Court of Appeal reasonably concluded Petitioner's act of attempting to destroy the note was not an invocation of his right to remain silent but rather an attempt to destroy previously-created evidence. The Court of Appeal's rejection of Petitioner's Doyle claim was not unreasonable. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 785-87 (2011).
Moreover, any error was harmless. See Brecht, 507 U.S. at 622, 629 (1993) (Doyle error subject to harmless error analysis). Accordingly, Petitioner is not entitled to habeas relief on Ground Four of the Petition.
V. Petitioner's Claim that the Trial Court Violated the Constitution By Restricting Defense Counsel's Cross-Examination of Carrillo Does Not Merit Habeas Relief.
Petitioner contends the trial court violated the Constitution by:
(1) restricting defense counsel's questioning concerning Carrillo's alleged lies at the preliminary hearing; and (2) preventing defense counsel's exploration of Carrillo's understanding of the use immunity pursuant to which Carrillo testified (Pet. Mem., p. 35). For the following reasons, Petitioner is not entitled to habeas relief on these claims.
A. Governing Legal Standards
The correctness of a state evidentiary ruling presenting only an issue of state law is not reviewable on federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In limited circumstances, however, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) ("Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.") (citations and internal quotations omitted); Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Ortiz v. Yates, 704 F.3d 1026, 1035 (9th Cir. 2012) (arbitrary or disproportionate restriction on a defendant's ability to cross-examine adverse witnesses as to the biases or motives for testifying can violate the Sixth Amendment). However, "well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina, 547 U.S. at 320 (citations omitted); see also Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). Thus, "the Constitution permits judges to exclude evidence that is repetitive..., only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues." Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).
B. Restriction on Cross-Examination Concerning Lies Carrillo Told at the Preliminary Hearing
Petitioner's counsel questioned Carrillo at length at trial concerning false statements Carrillo had made at the preliminary hearing (R.T. 913-37, 966-68). In response to specific and separate questions, Carrillo admitted testifying falsely at the preliminary hearing that: (1) his testimony would be the whole truth and nothing but the truth; (2) when Carrillo exited the building where the ATM was located two men were waiting for him; (3) the two men approached Carrillo and asked for money; (4) the man demanding money stood near Carrillo; (5) the man demanding money stood to one side of Carrillo; (6) the man stood approximately one meter away; (7) the second suspect was in front of Carrillo; (8) the second suspect was a little closer than the other man; (9) in response to the demand for money, Carrillo said "no"; (10) when Carrillo got a little violent with the man, the man took out a gun; (11) the man with whom Carrillo became violent was the one in front of Carrillo; (12) Carrillo pushed the man; (13) the man pointed the gun at Carrillo; (14) the man pointed the gun at Carrillo's right side; (15) Petitioner was the man who pointed a gun at Carrillo in the parking lot; (16) Petitioner said something to Carrillo; (17) Petitioner told Carrillo to walk; (18) Carrillo saw the gun and thought Petitioner was going to kill Carrillo; (19) Carrillo followed Petitioner's instructions; (20) Carrillo followed Petitioner's instructions because Carrillo was afraid Petitioner would do something to Carrillo; (21) Petitioner told Carrillo to go to the hotel; (22) Petitioner told Carrillo the location of the hotel; (23) Petitioner told Carrillo to walk to the hotel and enter; (24) Carrillo began to walk; (25) Petitioner was behind Carrillo; (26) the other suspect was there also; and (27) Carrillo was afraid and thought that if he made any movements, Petitioner would do something to Carrillo (R.T. 913-37).
After further cross-examination on other issues, Petitioner's counsel said he was returning to the subject of the preliminary hearing (R.T. 962). The court intervened and told Petitioner's counsel, out of the hearing of the jury, that it was "pretty well established that [Carrillo] lied about being kidnapped and having someone hold him up outside the store" (R.T. 963). The court precluded more questioning concerning Carrillo's preliminary hearing testimony under California Evidence Code section 352, deeming such questioning cumulative (R.T. 962). The court said it was unnecessary to go "by each line in the preliminary hearing, " that the court had given Petitioner's counsel "plenty of opportunity" to question Carrillo concerning Carrillo's lies at the preliminary hearing, and that the jury was "not stupid" and could "get it" (R.T. 964). The court stated that "further questioning line by line in the preliminary hearing is unnecessary and an undue consumption of time" (id.).
California Evidence Code 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Contrary to Petitioner's arguments in the "Traversal" (see "Traversal, " pp. 7-15), the court did not preclude cross-examination on the issues of whether Carrillo had lied to responding police and the detective. Indeed, both on direct examination and on cross-examination, Carrillo admitted telling lies to law enforcement (R.T. 685-87, 911, 961-62). and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Thereafter, Petitioner's counsel continued the cross-examination, among other things eliciting Carrillo's admissions that he made several other false statements at the preliminary hearing (R.T. 966-68, 978).
The Court of Appeal ruled that the trial court did not abuse its discretion under California Evidence Code section 352 or violate the Constitution by limiting cross-examination "line-by-line from the preliminary hearing transcript or otherwise" (Respondent's Lodgment 6, p. 14; see People v. Borges, 2011 WL 2028554, at *9).
This determination manifestly was not unreasonable. The cross-examination of Carrillo was more than sufficient to demonstrate to the jury that Carrillo had testified falsely at the preliminary hearing. The trial court did not act unreasonably or arbitrarily by eventually calling a halt to this repetitive and cumulative testimony. See Holmes v. South Carolina, 547 U.S. at 326-27.
C. Restriction on Cross-Examination Concerning Carrillo's Use Immunity
On cross-examination, Petitioner's counsel asked Carrillo, "if you did lie here in this courtroom today, nothing bad would happen to you, would it?" (R.T. 1003). The following occurred:
[The prosecutor]: Objection. Calls for speculation.
[Petitioner's counsel]: State of mind.
The Court: What do you mean, "nothing bad?"
[Petitioner's counsel]: Whatever he can imagine. I'm just - whatever it is. State of mind.
[The prosecutor]: Objection. Improper question.
The Court: Sustained.
[Petitioner's counsel]: Mr. Carrillo, do you think there's any negative consequences to you of any kind if you were to lie here in front of this jury?
A. That's not my decision. It's theirs.
(R.T. 1003-04).
The Court of Appeal upheld the trial court's ruling, reasoning that, as stated, defense counsel's questioning concerning Carrillo's understanding of use immunity was, inter alia, "too general, called for legal conclusions, and called for answers which were excludable under Evidence Code section 352" (Respondent's Lodgment 6, p. 14; see People v. Borges, 2011 WL 2028554, at *9). The Court of Appeal also ruled that, because Carrillo's response to the second question (as to which no objection was made) conveyed to the jury Carrillo's alleged understanding of his immunity, the trial court had not failed to allow Petitioner's counsel to explore this issue (Respondent's Lodgment 6, p. 14; see People v. Borges, 2011 WL 2028554, at *9).
The Court of Appeal's determination was not unreasonable. The question to which objection was made was vague and called for speculative testimony. In any event, through the very next question, Petitioner's counsel elicited a response tantamount to a response to the prohibited question: Carrillo's understanding that he could not control any "negative" consequences for testifying falsely, for those consequences would be in the hands of the prosecutor.
The jury knew that Carrillo was testifying under a grant of immunity (R.T. 662-63). In closing, Petitioner's counsel told the jury that Carrillo was testifying under a grant of immunity for perjury "which is a felony, " and that it was "hard to imagine a person is going to be less concerned about telling lies in court than someone who has been granted immunity for perjury" (R.T. 1299). Counsel also argued that Carrillo was "such a pathological liar" that counsel did not think the immunity was "especially important" to Carrillo, cataloging Carrillo's alleged lies before he was granted immunity (R.T. 1299-1300). In these circumstances, Petitioner has not shown that the trial court's ruling unconstitutionally limited the cross-examination of Carrillo or caused any prejudice to Petitioner within the meaning of Brecht.
For all of the foregoing reasons, Petitioner is not entitled to habeas relief on Ground Five of the Petition.
VI. Petitioner's Challenge to the Use of CALJIC 2.21.2 Does Not Merit Habeas Relief.
Over a defense objection, the trial court instructed the jury using the "witness willfully false" instruction contained in CALJIC 2.21.2:
A witness who is willfully false in one material part of his testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless, from all the evidence, you believe the probability of truth favors his testimony in other particulars.
(R.T. 1269; C.T. 86).
The trial court rejected Petitioner's argument that the last clause of the instruction lessened the prosecution's burden of proof (R.T. 1249-51). The Court of Appeal upheld this ruling on the basis of California Supreme Court authority rejecting similar challenges to the instruction (Respondent's Lodgment 6, p. 15; see People v. Borges, 2011 WL 2028554, at *10).
"[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)).
Petitioner's claim lacks merit. Both the United States Court of Appeals for the Ninth Circuit and the California Supreme Court have rejected the same claim of instructional error Petitioner argues herein. See Garnes v. Lamarque, 306 Fed.App'x 374, 377 (9th Cir. 2009); People v. Riel, 22 Cal.4th 1153, 1200, 96 Cal.Rptr.2d 1, 998 P.2d 969 (2000), cert. denied, 531 U.S. 1087 (2001); see also Turner v. Calderon, 281 F.3d 851, 865-66 (9th Cir. 2002) (rejecting claims that CALJIC 2.21.2 pinpointed the petitioner's testimony and lacked an evidentiary basis). The trial court instructed the jury on the presumption of innocence, the prosecution's burden of proof beyond a reasonable doubt, and the assessment of witness credibility, and specifically instructed the jury that "each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proved beyond a reasonable doubt" (see R.T. 1266, 1268-70, 1272-73; C.T. 78, 83, 85-88, 96). Petitioner has not shown a reasonable likelihood that the jury applied the challenged instruction in an unconstitutional manner. Hence, the Court of Appeal did not act unreasonably in rejecting this claim. See also Horton v. McWean, 2012 WL 6110488, at *29 (C.D. Cal. Nov. 5, 2012) (observing that "[n]umerous federal district courts" had ruled the instruction constitutional); Arellano v. Harrington, 2012 WL 4210297, at *55 (E.D. Cal. Sept. 18, 2012) (observing that "[m]ultiple federal district courts" had rejected claim that CALJIC 2.12.2 lessened the prosecution's burden of proof) (citations omitted).
For the foregoing reasons, the state courts' rejection of this claim was not contrary to, or an objectively 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. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground Six of the Petition.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report