Opinion
No. C 03-5577 CRB (PR).
July 13, 2005
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of possession of cocaine base for sale. In a bifurcated proceeding regarding thirteen prior convictions, petitioner waived his right to a jury trial and the court found nine of them true. He was sentenced on June 22, 2000 to 11 years in state prison.
On December 6, 2001, the California Court of Appeal affirmed the conviction and sentence. On January 2, 2002, the California Court of Appeal denied petitioner's petition for rehearing, and on February 20, 2002, the Supreme Court of California denied review.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on October 26, 2004, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
An information charged James Butler with possession for sale of cocaine base (Health Saf. Code, § 11351.5) and alleged 13 prior convictions. In a separate count, Valiente Moore was charged with a violation of the same statute on the same date, and two prior convictions were alleged against him. On the first day of the trial, Moore entered a negotiated no contest plea and was sentenced to three years in prison.
At Butler's trial, the following evidence was adduced: On the afternoon of July 8, 1999, a squad of police officers served a narcotics search warrant at an Oakland apartment. Upon knocking and announcing their presence, the officers heard movement away from the door and a voice yelling "5-0" (slang for "police"). They forced the door open and entered a studio apartment containing two mattresses and a table. They observed Butler backing toward the bathroom and tossing away a plastic bag that contained a lump of off-white material, which turned out to be almost an ounce of rock cocaine. Valiente Moore was seated in a wheelchair; Brenda McZeal sat on a bed. Moore had a plastic bag containing 11 pieces of rock cocaine in his shirt.
On the table were $120 in cash, an open box of sandwich bags, a razor blade, a rent receipt for $550 in Moore's name, and what appeared to be a "pay/owe sheet" with the names Charlie and Brenda and some numbers: 170, 100, total 270; 160, 20, 20, total 200. Officer Brown testified as an expert that all cocaine base was possessed for sale. The drugs in Moore's shirt pocket appeared to be $20 quarter-gram rocks, except for one $10 rock.
Brenda McZeal testified that the piece of paper found in the apartment with her name on it might refer to money she had borrowed; later she said it was money she "owed him," apparently referring to Butler. On the afternoon in question, McZeal and Butler had been in Moore's apartment a few minutes before police arrived. Butler was going to open the door when the police forced it open, causing him to back up. She had not seen Butler with a baggie of cocaine, nor had she seen him toss anything away.
Two of the arresting officers had previously arrested Butler for heroin possession, but released him after he agreed to become an informant. He was later rearrested after having failed to provide information.People v. Butler, No. A091777, slip op at 1-5 (Cal.Ct.App. Dec. 6, 2001) (footnotes omitted)
DISCUSSION
A. Standard of Review
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court on a set of materially indistinguishable acts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. section 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner raises two claims of relief under § 2254: (1) the trial court erred in refusing to compel the testimony of former codefendant Valiente Moore; and (2) the trial court erred in refusing to disclose former codefendant Valiente Moore's guilty plea to the jury.
1. Refusal to Compel Testimony
Petitioner claims that the trial court's refusal to compel the testimony of former codefendant Valiente Moore deprived him of his due process right to a fair trial. He argues that as a result of the court's refusal, the trial was left open to speculation.
At trial, defense counsel wanted to call former codefendant Moore as a witness; however, Moore invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The court ruled that Moore retained his Fifth Amendment privilege, and subsequently refused to grant him use immunity. The trial court reasoned that Moore still had the right to appeal, and was also subject to prosecution on additional charges related to the charge he pleaded to.
The California Court of Appeal affirmed, stating "a convicted defendant retains his Fifth Amendment privilege as to subsequent proceedings against other defendants at least until the time he no longer retains the right to file a timely notice of appeal."People v. Butler, No. A091777, slip op at 4 (Cal.Ct.App. Dec. 6, 2001) (citing People v. Fonseca, 36 Cal. App. 4th 631, 633 (1995)).
There is no Supreme Court precedent granting power to any court to compel the appearance and testimony of a potential witness who has invoked his Fifth Amendment privilege against self-incrimination. United States v. Moussaoui, 382 F.3d. 453, 466-67 (4th Cir. 2004). Furthermore, the circuits are divided as to whether a district court can ever compel the government, on pain of dismissal, to grant immunity to a potential defense witness. See id. at 467 (citing cases).
Because there was no clearly established Supreme Court precedent for the state courts to follow, the state courts' refusal to compel the testimony of petitioner's codefendant was neither contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent.See 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on this claim.
2. Refusal to Disclose Codefendant's Plea to Jury
Petitioner claims that the trial court's refusal to disclose codefendant Moore's guilty plea to the jury deprived him of his Sixth Amendment right to present a defense. He specifically argues that he was not allowed to present his version of the facts to the jury, i.e. Moore's plea established that he (Moore) was a drug dealer and thus all the drugs in the apartment belonged to him, not Butler.
It is well-settled that an erroneous exclusion of evidence that is relevant and material to the defense violates one's Sixth Amendment right to present a defense. Washington v. Texas, 388 U.S. 14, 18-19 (1967). In deciding whether the exclusion of evidence violates the Sixth Amendment right to present a defense, the court balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004).
In affirming the trial court's refusal to disclose codefendant Moore's guilty plea to the jury, the California Court of Appeal stated:
[A]s the trial court noted, "the only thing Mr. Moore did, when he entered a plea of guilty, is accepted legal consequences for himself. That's all he did, and that only relates to himself, doesn't relate to the defense of Mr. Butler." Any speculative inference from Moore's plea did not rise to the level of Evidence Code section 210's test for relevancy to require the requested instruction. The case was tried on proof of individual responsibility, not guilt by association. The jury was properly instructed regarding Moore's absence from the proceedings (CALJIC Nos. 2.11 2.11.5), and given the standard definition of "possession" (CALJIC No. 1.24). Nothing prevented Butler from arguing the cocaine was solely Moore's.People v. Butler, No. A091777, slip op. at 5.
The California Court of Appeal's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent.See 28 U.S.C. § 2254(d). The court reasonably determined that codefendant Moore's plea was not relevant or material to Butler's case as Moore only took responsibility for his actions and possession of the drugs, with little implication as to the petitioner's possession. And importantly, nothing prevented Butler from arguing that all the cocaine belonged to Moore. Cf. Washington v. Texas, 388 U.S. at 18-19 (Sixth Amendment right to present defense implicated only by exclusion of critical defense evidence).
The exclusion of Moore's guilty plea is also supported by a balancing of the five factors set out in Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004). If Moore's guilty plea had been disclosed to the jury, the evidence would not have exonerated petitioner as he was on trial for his individual possession of the cocaine, not that of Moore's. The evidence would not have had a high probative value on Butler's defense. Moore's guilty plea is both reliable and capable of being evaluated by the trier of fact; however, it was not the sole evidence on the issue of the petitioner's possession for personal use or for sale. Furthermore, Moore's guilty plea did not constitute a major part of the attempted defense as the defense did not make an effort to introduce Moore's sole possession of the cocaine into evidence themselves. See id..
Petitioner is not entitled to federal habeas relief on this claim.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. IT IS SO ORDERED.