Opinion
No. C 99-4702 MMC (PR)
June 27, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Jesus Chavez Ceja ("petitioner"), a prisoner of the State of California, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review of the petition, the Court found three claims, liberally construed, to be cognizable, and ordered respondent to show cause why the petition should not be granted. Respondent filed an answer denying the petition, along with a memorandum and accompanying exhibits. After some delay due to petitioner's not receiving respondent's papers, petitioner filed a traverse.
BACKGROUND
In 1998, a jury in San Mateo County Superior Court convicted petitioner of possession of cocaine and heroin for sale, and found that petitioner had a prior conviction for transporting drugs. The trial court sentenced petitioner to seven years in state prison. In lieu of appealing the conviction, petitioner's appellate counsel filed a brief in the California Court of Appeal under People v. Wende, 25 Cal.3d 436 (1979), stating that no appealable issues had been found by counsel. On August 11, 1999, the Supreme Court of California denied a petition for direct review, which petition raised the same issues raised in the instant petition.
FACTUAL BACKGROUND
The California Court of Appeal summarized the factual background of this case as follows:
Defendant[] was observed by a police officer, while congregating with four other mates in a carport of an apartment complex located in an area known for a high level of drug dealing. As the officer approached, the group began to disperse and the defendant tossed or dropped an item. The officer retrieved it and detained defendant. The item contained a large bindle of cocaine and eight smaller bindles of heroin. Defendant was searched and a pager, money and an identification card (with a name other than the one defendant gave the police) was found.
At trial, defendant testified that another person in the group had actually tossed the drugs. He claimed to have never seen cocaine, heroin or methamphetamine before. He was impeached with prior conviction [for transporting a controlled substance].
The California Court of Appeal referred to petitioner as "defendant."
People v. Ceja, slip op. A083 839 at 1-2 (Cal Ct. App. May 28, 1999) (Respt. Exh. C) (hereinafter "Slip Op.").
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). When analyzing a claim that there has been an unreasonable application of federal law, a district court should first consider de novo whether the state court's decision was erroneous and then determine whether the error constituted an unreasonable application of controlling law under AEDPA. See Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir.), cert. denied, 121 S.Ct. 340 (2000). Habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.), cert. denied, 121 S.Ct. 627 (2000).
B. Legal Claims
Petitioner raises the following claims: (1) the prosecutor made improper remarks during closing argument; (2) he received ineffective assistance of counsel because trial counsel failed to move to bifurcate the trial on his prior convictions, failed to object to improper remarks by the prosecutor, and withdrew a motion objecting to the exclusion of jurors based on race' and (3) his appellate counsel was deficient in filing a "no merits brief under People v. Wende, 25 Cal.3d 436 (1979).
1. Prosecutorial Misconduct
Petitioner claims that his right to due process was violated when the prosecutor made improper remarks during closing argument. A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." See Darden v. Wainwright, 477 U.S. 168, 181 (1986). Claims of prosecutorial misconduct are reviewed "`on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.) (citation omitted), cert. denied, 516 U.S. 1017 (1995).
Petitioner objects to the following statement made by the prosecutor during closing argument regarding the evidence of petitioner's prior conviction for transporting drugs:
One of the things we look at in evaluating the credibility of the witnesses is whether he has a felony conviction. And the reason why a felony conviction becomes appropriate to consider sometimes is because the nature of certainly felony convictions suggests that a person has a readiness to deal . . .
Slip Op. at 3, n. 3; Reporter's Transcript ("RT") (Respt. Exh. B) at 253. The Court of Appeal interpreted the prosector's argument to be that the prior conviction showed petitioner's propensity to do "evil" in general, such as dealing drugs. See Slip Op. at 2. Based on this interpretation of the prosecutor's remarks, the Court of Appeal found the remarks proper because petitioner's propensity for evil is a permissible basis for evaluating his credibility. See id. Petitioner disputes the Court of Appeal's interpretation of the remarks. According to petitioner, the prosecutor was really arguing that the prior conviction showed a propensity to commit the charged crimes, namely to "deal" drugs, which is an impermissible use of the prior conviction.
Even if the jury had interpreted the prosecutor's comments to mean that the jury was permitted to infer from petitioner's prior conviction that he had a propensity to deal drugs, this did not render the trial fundamentally unfair. The trial judge instructed the jury that the prior conviction could only be used to evaluate petitioner's credibility and not as evidence of his propensity to commit the crimes charged. See RT at 223, 323.
This instruction from the trial court would outweigh any potential adverse impact from the prosecutors comments and served to correct any misunderstanding by the jury that they could consider the prior conviction as evidence of a propensity to deal drugs. See Boyde v. California, 494 U.S. 370, 384-85 (1989) ("[A]rguments of counsel generally carry less weight with a jury than do instructions from the court. The former are not evidence, and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.") (citations omitted); cf. Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987) (noting when a curative instruction is issued, a court presumes the jury has disregarded inadmissible evidence and that no due process violation has occurred). Under these circumstances, the prosecutor's comments, even if understood in the manner petitioner urges, did not render the trial so unfair as to violate his right to due process. Accordingly, habeas relief is not available on this claim.
2. Ineffective Assistance of Counsel
Petitioner claims his trial counsel was ineffective because he withdrew a motion challenging the selection of the jury, failed to move to bifurcate the trial, and failed to object to the prosecutor's comments regarding his prior conviction during closing argument. A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner must show that counsel's performance fell below an objective standard of reasonableness, and that the deficient performance was prejudicial. See id. at 688-693. To establish prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickland, 466 U.S. at 694.
Petitioner complains that his counsel withdrew a motion under People v. Wheeler, 22 Cal.3d 258, 280 (1978), which prohibits, on equal protection grounds, the exclusion of jurors on the basis of race or ethnicity. At the conclusion of jury selection, defense counsel told the trial court:
My initial motion was pursuant to Wheeler that the prosecution was using racial — apparently racial criteria in excluding jurors in that Miss Burkett was black and Mr. Hernandez was Hispanic. Having chosen a jury at this time and not having exhausted the peremptory challenges, I think the motion is not well made and I will withdraw it at this time.
RT at 14. A lawyer need not file a motion that he knows to be meritless on the facts and the law. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999). To show prejudice under Strickland, based on failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him. See id. The California Court of Appeal concluded, but did not explain, that counsel's withdrawal of the motion was not deficient because the motion would have been without merit. Slip Op. at 2. Petitioner does not explain how the motion might have had merit. Petitioner makes no showing, nor does the record indicate that there was, for example, an under representation of blacks or Hispanics on the jury, see United States v. Cannady, 54 F.3d 544, 547 (9th Cir. 1995) (finding no prima facie case of an equal protection violation in jury selection absent showing of statistical under representation), that the selection procedure procedure was not racially neutral, see Castaneda v. Partida, 430 U.S. 482, 494 (1977) (holding that a prima facie case may be established by selection procedure that is not racially neutral), or that the prosecutor had discriminatory intent, see Thomas v. Borg, 159 F.3d 1147, 1150 (9th Cir. 1998) (finding prima facie equal protection violation requires showing of discriminatory intent). In the absence of any showing by petitioner or in the record that the Wheeler motion might have had merit, petitioner has not established that he was prejudiced by defense counsel's withdrawal of the motion.
Similarly, petitioner cannot show prejudice based on trial counsel's failure to seek a bifurcation of the guilt phase from the sentencing phase, for purposes of the jury's determination on the allegation that petitioner had sustained a prior felony conviction for a drug offense. The prior conviction was introduced in the guilt phase to impeach petitioner when he testified. Therefore, bifurcation would not have prevented the jury from learning about the prior conviction during the guilt phase. As a result, petitioner cannot establish prejudice from counsel's failure to seek bifurcation.
Petitioner testified in order to present his defense that it was one of the other men who had tossed aside the bundle of drugs.
There is no question as to the sufficiency of the evidence to prove petitioner's prior conviction at the sentencing phase, whether or not bifurcated from the guilt phase. See Clerk's Transcript (Respt. Exh. A) at 164-66 (abstract of judgment showing petitioner's 1995 prior drug conviction from Mendocino County).
Finally, petitioner cannot establish a constitutional violation based on counsel's failure to object to the prosecutor's closing comments regarding petitioner's prior conviction. For the reasons described in the previous section, the prosecutor's comments were not damaging. Moreover, the evidence of guilt in this case was strong. There was percipient testimony by the police officer that he saw petitioner toss aside the drugs; the drugs were found near petitioner; petitioner offered some resistance to the initial apprehension by the officer and gave a different name than that on his identification card; and petitioner's own credibility was impeached by his prior conviction. Under these circumstances, there is not a reasonable probability that, but for defense counsel's failure to object to the testimony, the jury's verdict would have been different.
As petitioner has failed to establish that he received constitutionally ineffective assistance of trial counsel, habeas relief is not available on this claim.
3. Ineffective Assistance of Appellate Counsel
Petitioner claims that appellate counsel was ineffective because he used California's procedure, established in People v. Wende, 25 Cal.3d 436 (1979), for filing a "no merits" appeal on behalf of an indigent defendant. The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as a matter of right. See Evitts v. Lucey, 469 U.S. 387, 391-14 405 (1985).
Under the Wende procedure, counsel, upon concluding that an appeal would be frivolous, files a brief with the appellate court that summarizes the procedural and factual history of the case. Smith v. Robbins, 120 S.Ct. 746, 753 (2000) (citing Wende). Counsel also attests that he has reviewed the record, explained his evaluation of the case to his client, provided the client with a copy of the brief, and informed the client of his right to file a pro se supplemental brief. U. Counsel further requests that the appellate court independently examine the record for arguable issues. 14. The appellate court, upon receiving a "Wende brief," conducts a review of the entire record and if, as was the case here, it finds the appeal to be frivolous, affirms the conviction. Slip Op. at 2-3. A California prisoner cannot state a constitutional claim simply because the Wende procedure was used. See id. at 763. However, he may state a claim for ineffective assistance of counsel if counsel was ineffective in neglecting to file a merits brief. See Delgado v. Lewis, 223 F.3d 976, 980-81 (9th Cir. 2000). The proper standard for reviewing such a claim is that enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Smith, 120 S.Ct. at 763. The prisoner must first show that his counsel was objectively unreasonable in failing to find arguable issues to appeal — that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If he succeeds in that showing, he then must demonstrate prejudice — that is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal. See id.
After the Court issued its Order to Show Cause in this case, the United States Supreme Court, in Smith v. Robbins, 120 S.Ct. 746 (2000), reversed the Ninth Circuit's judgment in Robbins v. Smith, 152 F.3d 1062, 1066 (9th Cir. 1998), which had held the procedure approved in Wende failed to comply with the procedure set forth in Anders v. California, 386 U.S. 738 (1967). Under Smith, California's Wende procedure does not violate the Fourteenth Amendment because it "reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Id. at 759-60.
Here, petitioner argues that appellate counsel should have argued the merits of the prosecutorial misconduct and ineffective assistance of trial counsel claims that petitioner raises in the instant petition. Although counsel did not argue the merits of these claims, the California Court of Appeal nonetheless considered and rejected them on their merits. Slip Op. at 1-3. As a result, there is not a reasonable probability that petitioner would have prevailed on the claims had counsel specifically raised them on appeal. Accordingly, petitioner's claim based on ineffective assistance of appellate counsel fails as well.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are TERMINATED and the clerk shall close the file.
IT IS SO ORDERED.
JUDGEMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED
the petition for a writ of habeas corpus is DENIED. All pending motions are TERMINATED and the clerk shall close the file.