Opinion
Civil No. 04cv0647-L(AJB).
January 23, 2006
ORDER: (1) OVERRULING OBJECTIONS; (2) ADOPTING REPORT AND RECOMMENDATION; and (3) DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Gilbert Colmenero, a state prisoner, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The Honorable Anthony J. Battaglia issued a Report and Recommendation ("RR") in accordance with 28 U.S.C. § 636(b)(1) recommending the Petition be denied. Petitioner filed objections to the RR. For the reasons discussed below, the Court OVERRULES the objections and ADOPTS Judge Battaglia's RR in full.
FACTUAL BACKGROUND
As correctly noted by Judge Battaglia, federal courts generally defer to state court findings of fact and presume them to be true unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). However, in this case, Petitioner only appealed his sentence in his direct appeal and the California Supreme Court rejected his state habeas corpus petition without a reasoned decision. Accordingly, Judge Battaglia summarized the facts from testimony adduced at trial. Petitioner objects to Judge Battaglia's discussion of the factual background, and contends the RR omits material facts. This Court must therefore review the facts de novo. 28 U.S.C. § 636(b)(1).
On July 13, 1995, Susannah Espinoza went to a neighborhood park with her children and dog. (Lodgment Set 2, No. 2 at 59-64.) As they were walking to the park, a woman was standing outside a house with two pit bulls. Id. at 63-64. The woman said "that bitch" and other words in reference to Espinoza, and then went inside the house with the two dogs. Id. at 64. As Espinoza sat on a bench in the park, a man emerged from the house that the woman and pit bulls had entered. Id. at 64, 67. The man, who Espinoza identified as Petitioner, appeared very upset and began swearing at Espinoza, calling her a "wetback" and a "bitch," and told her to go back to Mexico. Id. at 64, 67-70. Petitioner also told Espinoza that he was going to shoot her dog, and she responded that if he got upset, that was his problem. Id. at 71. He then went back inside, and shortly thereafter came back out with a small silver gun. Id. Petitioner pointed the gun at Espinoza, and threatened to shoot her and her dog. Id. at 72. When Espinoza turned to her children and her dog, she heard a gunshot. Id. at 74. Espinoza said she was going to call the police. Id. Petitioner then stated, "If you rat, I know where you live." Id. at 75. Espinoza responded that she knew where Petitioner lived and was going to call the police because what he did was not right. Id. at 76. Petitioner returned to his house, and Espinoza returned to her home and called the police. Id. at 75-76.
Respondent submitted two sets of lodgments. The first set of lodgments was filed with Respondent's motion to dismiss the Petition, and the second set was filed in support of Respondent's Answer. ( See Doc. Nos. 9, 23.) In order to accurately refer to the lodged documents, Judge Battaglia referred to the lodged documents as Lodgment Set 1 and Lodgment Set 2. To ensure clarity of the record and avoid confusion, this Court will also refer to the documents as Lodgment Set 1 and Lodgment Set 2.
At around 1:30 p.m. on July 13, 1995, San Diego Police Officer David Highsmith received a call regarding the gunshot. Id. at 103-04. He and his partner, and several other police officers, went to Petitioner's house. Id. at 77-78, 103-06. Officer Highsmith spoke with Petitioner's wife, Sandra Colmenero, who allowed him to search the house. Id. at 106. When he entered the house, Officer Highsmith called out Petitioner's name, Gilbert. Id. at 114. Petitioner, who was in the southeast bedroom, responded. Id. When Petitioner exited the southeast bedroom, Officer Highsmith placed handcuffs on him and had Petitioner go outside with Officer Molinowski. Id. at 116. At a curbstone lineup, Espinoza identified Petitioner as the individual with whom she had the confrontation. Id. at 89, 116. Officer Highsmith and his partner, Officer Brown, then went to the bedroom from which Petitioner had emerged and searched the room. Id. at 116-17. Officer Highsmith found a small, chrome .22 caliber revolver with one spent round. Id. at 117-19.
After recovering the gun and completing the investigation, Officer Highsmith spoke with Petitioner, who waived his Miranda rights. Id. at 120-22. Petitioner stated a woman had been walking her dog in the park and he got angry when she refused to comply with his request she put her dog on a leash. Id. at 123. Petitioner stated he fired the gun in the air out of frustration. Id. Officer Highsmith did not swab Petitioner's hands to test for gunshot residue because Petitioner had admitted to firing the gun. Id. at 127.
Miranda v. Arizona, 384 U.S. 436 (1966).
At trial, the defense presented testimony from Cathleen Garcia. Id. at 135. She testified that on July 13, 1995, she was at Petitioner's home where she and her boyfriend, Cesar Benito, were staying. Id. at 135, 137, 139. She stated that in the afternoon she was sleeping on the living room couch when she was awakened by a loud argument between a man and a woman outside of the house. Id. at 136. Garcia recognized the voice of the man in the argument as belonging to her boyfriend, Benito. Id. at 137. According to Garcia, Benito entered the house and went straight back into the southeast bedroom where they were staying. Id. at 138, 140, 144. Garcia described Benito as being angry. Id. at 138. Garcia could see that when Benito exited the house he had something in his hands, but she could not tell what it was. Id. at 146. After Benito left the house, Garcia heard him arguing with a woman, and then she heard a loud "pop" noise. Id. at 146-47. Garcia heard the woman yell she was going to call the police, and then Benito entered the home again, went straight to the southeast bedroom, grabbed Garcia's coat and purse, and told her, "Come on, let's go." Id. at 147-48. Benito also told Petitioner and his wife to leave. Id. at 148. Garcia testified that when Petitioner's wife asked what had occurred, Benito stated he had shot up in the air because he was pissed off. Id. at 148-50. Garcia and Benito left the residence before police arrived, but Petitioner and his wife stayed. Id. at 151-52. Garcia testified Benito looks like Petitioner, and on that day they were wearing similar clothing. Id. at 152.
Sometime around August 12, 1996, Petitioner's trial counsel, Cassandra Kinchen, learned that Espinoza recanted her identification of Petitioner as the man with whom she had argued and who had fired the gun. (Pet. Exs. B, C.) She claimed she had seen the true perpetrator in the neighborhood and is afraid of him. Id. Espinoza's recantation is documented in a declaration dated October 8, 1996. (Pet. Ex. B.)
PROCEDURAL BACKGROUND
An amended information filed on April 25, 1996 charged Petitioner with one count of possession of a firearm by a felon in violation of California Penal Code section 12021(a), and with failing to register as a sex offender in violation of California Penal Code section 290(a) and 290(g)(2). (Lodgment Set 2, No. 1 at 44.) The information further alleged that Petitioner had suffered two prior strike convictions as defined in California Penal Code sections 667(b) through (i). Id. at 45. Petitioner pleaded guilty to the charge of failing to register as a sex offender and proceeded to a bifurcated trial on the remaining counts. Id. at 46-47.
On April 30, 1996, the jury found Petitioner guilty as charged in count one. ( Id. at 90; Lodgment Set 2, No. 3 at 287-89.) After a bench trial, the court found true the prior strike allegations. (Lodgment Set 2, No. 3 at 270-86.) The court sentenced Petitioner to a term of 25 years to life. (Lodgment Set 2, No. 1 at 128; Lodgment Set 2, No. 3 at 303-04.) Petitioner filed a direct appeal with the California Court of Appeal, Fourth Appellate District, Division One that challenged only his sentence. (Lodgment Set 2, Nos. 4, 5.) The appellate court affirmed the sentence on April 8, 1997. (Lodgment Set 2, No. 6.) The California Supreme Court denied Petitioner's petition for review on June 18, 1997. (Lodgment Set 2, Nos. 7, 8.)
On September 12, 2001, Petitioner filed his first state habeas petition with the San Diego County Superior Court; it was denied on October 10, 2001. (Lodgment Set 1, No. 3.) Petitioner then filed a habeas corpus petition with the California appellate court that was denied on March 6, 2002. (Lodgment Set 1, No. 4.)
On May 7, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (Lodgment Set 1, No. 9; Lodgment Set 2, No. 10.) On February 18, 2004, the California Supreme Court denied the petition. (Lodgment Set 1, No. 10; Lodgment Set 2, No. 11.) On March 29, 2004, Petitioner filed the instant federal habeas corpus petition, raising the same claims set forth in his May 7, 2003 petition before the California Supreme Court.
Respondent filed a motion to dismiss on June 8, 2004, arguing Petitioner's claims are time-barred, and that his first claim is unexhausted. In an RR dated November 15, 2004, Judge Battaglia recommended the motion to dismiss be denied. This Court adopted the November 15, 2004 RR and denied Respondent's motion in an order dated January 20, 2005.
STANDARDS OF REVIEW
I. Standard of Review of an RR
The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has conducted a de novo review of the record and considered Petitioner's Objections to the RR.
II. Standard of Review of a Habeas Corpus Petition
AEDPA governs this case because Petitioner filed this habeas petition after April 24, 1996. Gill v. Ayres, 342 F.3d 911, 917 (9th Cir. 2003). Under AEDPA, a federal court can grant habeas relief where a 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). A state court's decision can be "contrary to" federal law "if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002). "A state court's decision can involve an `unreasonable application' of federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled in part on other grounds in Lockyer v. Andrade, 538 U.S. 63 (2003); see Bell, 535 U.S. at 694.
AEDPA also requires deference to the state court's findings of fact, presuming them correct unless the petitioner rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Accordingly, a state court decision will be found to be "based on an unreasonable determination of the facts in light of the evidence presented" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir. 1997) ( en banc), overruled on other grounds in Lindh v. Murphy, 521 U.S. 320 (1997) (internal quotations omitted).
When there is no reasoned decision from the state's highest court, the federal court must "look through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the state court gives no reasoned explanation for its decision on a petitioner's federal claim, then the court must "review the record to determine whether the state court clearly erred in its application of Supreme Court law." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); see Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002) (holding that when the state court does not give a reason for its decision, "review of the record is the only means of deciding whether the state court's decision was objectively reasonable"). Thus, although independently reviewing the record, the federal court must defer to the state court's ultimate decision. Pirtle, 313 F.3d at 1167.
DISCUSSION
Petitioner raises eight claims: (1) new, credible evidence establishes his innocence; (2) the prosecution used false evidence to convict him; (3) he received ineffective assistance of trial counsel; (4) he received ineffective assistance of appellate counsel; (5) the prosecutor committed misconduct by presenting false testimony; (6) the prosecutor committed misconduct by suppressing exculpatory evidence; (7) use of his prior convictions to enhance his sentence violates his federal due process rights; and (8) his sentence of twenty-five years-to-life violates the Eighth Amendment's prohibition against cruel and unusual punishments.
I. Claim One: New Evidence
Petitioner's first claim is that new evidence supports his contention he is innocent of the charges. The new evidence Petitioner refers to is the declaration by Espinoza dated October 8, 1996 in which she states that she misidentified Petitioner as the shooter. (Pet. Ex. C.) She states she has repeatedly seen the real shooter in her neighborhood several times and he has gone to her house several times trying to make her calm down. Id. Espinoza states she left the United States and went to Mexico in order to avoid contact with the real perpetrator of the July 13, 1995 incident. Id.
Petitioner raised this claim in his habeas corpus petition filed before the California Supreme Court, which denied the claim without a reasoned opinion, citing In re Robbins, 18 Cal. 4th 770, 780 (1998); In re Clark, 5 Cal. 4th 750 (1993); People v. Duvall, 9 Cal. 4th 464, 474 (1995). The Court must therefore conduct an independent review of the record to determine whether the state court clearly erred in its application of federal law. See Pirtle, 313 F.3d at 1167.
Under clearly established Supreme Court law, "[n]ewly discovered evidence is a ground for habeas relief only when it bears on the constitutionality of an appellant's conviction and would probably produce an acquittal." Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999); Herrera v. Collins, 506 U.S. 390, 400 (1993). Judge Battaglia concluded Petitioner has not established a constitutional violation occurred in his trial, nor has he shown the evidence would have probably produced an acquittal. Petitioner objects to these findings, claiming he properly asserted an independent constitutional violation. Specifically, he claims that Espinoza's declaration recanting her trial testimony identifying him as the shooter compels the conclusion that his conviction was based on his confession alone, thus violating the corpus delicti rule as set forth in Smith v. United States, 348 U.S. 147, 152 (1954); Opper v. United States, 348 U.S. 84, 93 (1954).
Judge Battaglia also determined Espinoza's declaration was not "newly discovered" evidence because Petitioner submitted it as part of his state habeas petition and the declaration was considered by the California Supreme Court when it rejected Petitioner's claim. Petitioner objects to this finding. The Court finds it unnecessary to address this objection because it concludes, infra, that Petitioner has not shown a constitutional violation nor established that the Espinoza declaration would probably have produced an acquittal.
As Petitioner points out, "[a]lthough the government may rely on a defendant's confession to meet its burden of proof, it has nevertheless been long established that, in order to serve as the basis for conviction, the government must also adduce some independent and corroborating evidence." United States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000); Smith, 348 U.S. at 152; Opper, 348 U.S. at 93. The Ninth Circuit has summarized this corroboration requirement as set forth in Opper:
[F]irst, although the state need not introduce independent evidence of the corpus delicti in conformance with the traditional test, it must introduce sufficient evidence to establish that the criminal conduct at the core of the offense has occurred. Second, it must introduce independent evidence tending to establish the trustworthiness of the admissions, unless the confession is, by virtue of special circumstances, inherently reliable. Only when both these prongs are satisfied will a jury be "sufficiently justified" in believing the truth of a criminal admission; only then will the evidence be deemed sufficient in a case in which the conviction depends in part on such admission.United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992); accord Corona-Garcia, 210 F.3d at 978. The corpus delicti rule is set forth in California jury instruction ("CALJIC") 2.72.
CALJIC 2.72 states,
No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial.
The identity of the person who is alleged to have committed a crime is not an element of the crime [nor is the degree of the crime]. The identity [or degree of the crime] may be established by [a] [an] [confession] [or] [admission]. CALJIC 2.72.
Cases following Smith and Opper "do not require that the identity of the accused be established independently of any admission he has made, except in cases where the corpus delicti is inseparably bound up with the identity of the accused; for example, in tax evasion cases." United States v. Leavitt, 608 F.2d 1290, 1292 (9th Cir. 1979) (citing cases); see, e.g., United States v. Vega-Limon, 548 F.2d 1390, 1391 (9th Cir. 1977) (holding appellant's confession adequately linked him to a conspiracy to smuggle, transport, conceal, harbor, and shield illegal aliens). As a general rule, "once the corpus delicti has been established, the defendant's admission is enough to link him to the crime." Id.; see Wong Sun v. United States, 371 U.S. 471, 491 n. 15 (1963) ("Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. . . . There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it."). Similarly, CALJIC 2.72 states that identity of the perpetrator can be established by confession alone. CALJIC 2.72.
Having reviewed the corpus delicti rule, the Court is not persuaded the Espinoza declaration bears on the constitutionality of Petitioner's conviction or would probably produce an acquittal. As an initial matter, Petitioner has not presented any authority indicating the corpus delicti requirement under California and United States Supreme Court law is constitutionally mandated under Jackson v. Virginia, 443 U.S. 307, 324 (1979). At least some circuits have held it is not. See, e.g., United States v. Dickerson, 163 F.3d 639 (D.C. Cir. 1999); Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir. 1998); West v. Johnson, 92 F.3d 1385, 1393-94 (5th Cir. 1996); Autry v. Estelle, 706 F.2d 1394, 1407 (5th Cir. 1983). But even if it were constitutionally mandated, Petitioner's claim fails on the merits.
Jackson held that when determining whether habeas relief under 28 U.S.C. § 2254 is warranted on a claim of insufficient evidence "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319.
In this case, the corpus delicti can be established independently of the identity of the shooter. Espinoza's declaration only recants the identity of the perpetrator; it does not retract her testimony that a man confronted her in the park and fired a gun. Further, Garcia testified that she heard a man and a woman arguing and a loud "pop" noise. Although Garcia's testimony is that it was her boyfriend who had the altercation with Espinoza, her testimony corroborates the fact a crime had occurred. In addition, as Judge Battaglia pointed out, there was circumstantial evidence that a gun had been fired, as Officer Highsmith recovered a .22 caliber revolver with one spent round in the bedroom Petitioner was seen exiting. Accordingly, Petitioner's confession is sufficient to link him to the crime. Cf. Leavitt, 608 F.2d at 1292 (finding there was evidence that an accident had occurred because of careless driving and therefore the defendant's admission he was the driver of the car did not need corroboration). In addition, there is nothing in the record suggesting Petitioner's confession was involuntary or unreliable or that he had any reason to make a false admission.
In conclusion, Espinoza's declaration did not create an absence of evidence such that Petitioner's conviction violates the corpus delicti rule because it is solely based on his confession. There is adequate evidence in the record establishing a crime occurred; Petitioner's admission he was the shooter does not need corroboration. For this reason also, Petitioner cannot establish the second part of the test for obtaining habeas relief because of newly discovered evidence. That is, Espinoza's declaration would not "probably produce an acquittal." See Spivey, 194 F.3d at 979. Accordingly, the California Supreme Court's rejection of this claim is neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
II. Claim 2: Conviction Based on False Evidence
Petitioner's second claim is that his conviction violates his due process rights because his conviction is based on false evidence, namely, Espinoza's testimony. Petitioner raised this claim in his habeas corpus petition filed before the California Supreme Court, which denied the claim without a reasoned opinion, citing In re Robbins, 18 Cal. 4th at 780; In re Clark, 5 Cal. 4th 750; Duvall, 9 Cal. 4th at 474. The Court must therefore conduct an independent review of the record to determine whether the state court clearly erred in its application of federal law. See Pirtle, 313 F.3d at 1167.
Judge Battaglia found this claim merely restated Petitioner's first claim that he is actually innocent of the charges, and concluded he was not entitled to habeas relief. Petitioner objects to Judge Battaglia's finding, arguing the second claim is different from the first claim because it rests on California Penal Code section 1473. Petitioner's objection is unpersuasive.
California Penal Code section 1473 provides state habeas procedures for state prisoners. See Cal. Pen. Code § 1473. Petitioner's claim that his conviction violates that penal code section is thus effectively asserting a state law claim. Such a claim is therefore not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (federal habeas corpus relief does not lie for errors of state law, and federal courts may not reexamine state court determinations on state law issues). Accordingly, the Court agrees with Judge Battaglia that Petitioner's second claim is a reiteration of his claim newly discovered evidence establishes his actual innocence, and fails for the same reasons. The California Supreme Court's rejection of this claim is therefore neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
III. Claim 3: Ineffective Assistance of Trial Counsel
Petitioner's third claim is that his trial counsel was ineffective for failing to make a motion for a new trial based on Espinoza's declaration. Petitioner raised this claim in his habeas corpus petition filed before the California Supreme Court, which denied the claim without a reasoned opinion, citing In re Robbins, 18 Cal. 4th at 780; In re Clark, 5 Cal. 4th 750; Duvall, 9 Cal. 4th at 474. The Court must therefore conduct an independent review of the record to determine whether the state court clearly erred in its application of federal law. See Pirtle, 313 F.3d at 1167.
Under clearly established Supreme Court law, a petitioner alleging ineffective assistance of counsel must show (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong, there is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making decisions. Id. at 690. A petitioner must rebut this presumption by showing that counsel's performance was "outside the wide range of professionally competent assistance." Id. The court must evaluate the reasonableness of counsel's performance "from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) ( citing Strickland, 466 U.S. at 689). In showing prejudice, the petitioner bears the burden of showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; accord Vansickel v. White, 166 F.3d 953, 958 (9th Cir. 1999). A reasonable probability is one that undermines confidence in the proceeding's outcome. Strickland, 466 U.S. at 694; Vansickel, 166 F.3d at 958.
The RR found the record is unclear as to when Petitioner's trial attorney, Kinchen, became aware Espinoza was recanting her trial testimony, but found from the exhibits submitted with the Petition that it appears it was sometime around August 12, 1996. (RR at 10.) The RR noted that Petitioner was sentenced on June 11, 1996, and thus the judgment in his case was entered on that date. Id. Under California Penal Code section 1181, a motion for new trial would have to have been filed prior to June 11, 1996. Id. (citing Cal. Pen. Code § 1181) Because Kinchen did not become aware of Espinoza's recantation of her trial testimony until after that date, she was unable to timely file a motion for new trial. Id. In addition, Kinchen had filed a Notice of Appeal on July 23, 1996, which divested the trial court of jurisdiction over Petitioner's case. Id. For these reasons, the RR found Kinchen's decision not to file a motion for a new trial was not objectively unreasonable. Id.
Petitioner objects to the RR's findings, arguing the record does not disclose when Kinchen became aware Espinoza was recanting her trial testimony, nor does the record disclose why Kinchen wrote in her investigation request that the trial court still had jurisdiction over the case for one and one-half months. Petitioner argues an evidentiary hearing regarding these issues is necessary before the Court can render a decision as to his ineffective assistance of counsel claim. The Court disagrees.
Even assuming Kinchen's failure to file a motion for a new trial based on Espinoza's recantation was unreasonable, Petitioner has not persuasively shown he was prejudiced by that inaction. Under California Penal Code section 1181, a trial court may grant a motion for new trial based on newly discovered evidence. Cal. Pen. Code § 1181(8); People v. Delgado, 5 Cal. 4th 312, 328 (1993). When ruling, the court considers five factors:
1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.Delgado, 5 Cal. 4th at 328 (internal quotations omitted).
Having reviewed the record, the Court finds it unlikely that the Espinoza declaration would have rendered a different result probable on retrial. As discussed earlier, Espinoza's declaration only addresses her identification of Petitioner as the individual who fired the gun, and does not impeach the rest of her testimony. Specifically, that a man confronted her, threatened to shoot her and her dog, and fired a gun. Officer Highsmith testified that he saw Petitioner exiting the southeast bedroom where the gun was found with one spent round. Significantly, Officer Highsmith also testified Petitioner admitted to confronting Espinoza and firing the gun into the air out of frustration. This evidence is sufficient to support the jury's guilty verdict, and thus Petitioner has not been prejudiced by Kinchen's failure to raise Espinoza's recantation before the trial court. Because Petitioner cannot establish a claim for ineffective assistance of trial counsel, it is unnecessary to conduct an evidentiary hearing regarding when Kinchen learned Espinoza was recanting her identification of Petitioner, or why Kinchen believed, on August 12, 1996, that the trial court still retained jurisdiction over the case. See Townsend v. Sain, 372 U.S. 293, 313 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The California Supreme Court's disposition of this claim is therefore neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
IV: Claim 4: Ineffective Assistance of Appellate Counsel
Petitioner's fourth claim asserts his appellate counsel, Kevin McLean, was ineffective for failing to argue for reversal of Petitioner's conviction based on Espinoza's recantation of her identification of Petitioner as the shooter. Petitioner raised this claim in his habeas corpus petition filed before the California Supreme Court, which denied the claim without a reasoned opinion, citing In re Robbins, 18 Cal. 4th at 780; In re Clark, 5 Cal. 4th 750; Duvall, 9 Cal. 4th at 474. The Court must therefore conduct an independent review of the record to determine whether the state court clearly erred in its application of federal law. See Pirtle, 313 F.3d at 1167.
The standard for assessing the performance of appellate counsel is the same as that for trial counsel. Morrison v. Estelle, 981 F.2d 425, 427 (9th Cir. 1992). To establish prejudice, a petitioner must show he would have prevailed on appeal absent counsel's errors. Smith v. Robbins, 528 U.S. 259, 285 (2000). Judge Battaglia found the record indicates McClean was not aware of Espinoza's October 8, 1996 declaration and thus could not have acted unreasonably by failing to raise a claim related to the declaration on appeal. (RR at 11.) The RR further concludes that even if McLean was aware of Espinoza's recantation, Petitioner has not established he was prejudiced by such an omission because there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Petitioner was the individual who confronted Espinoza and shot the gun in the air. Id.
Petitioner objects to the RR's findings, contending the Court must hold an evidentiary hearing as to whether McLean received the Espinoza declaration. Petitioner also objects to the RR's conclusion that no prejudice resulted from McClean's failure to raise the Espinoza declaration on appeal. The Court finds it unnecessary to analyze whether an evidentiary hearing is required on whether McLean received the Espinoza declaration. The Court agrees with Judge Battaglia's analysis that Petitioner was not prejudiced and finds Petitioner's objections on that matter unpersuasive.
Petitioner argues that under California law, he was entitled to relief from conviction he needed only to show that evidence presented by the prosecution at trial was false and the false evidence is substantially material or probative on the issue of guilt. The case Petitioner cites in support for this legal proposition further states that "[f]alse evidence is `substantially material or probative' if it is of such significance that it may have affected the outcome,' in the sense that ` with reasonable probability it could have affected the outcome'" In re Sassounian, 9 Cal. 4th at 546 (quoting In re Wright, 78 Cal. App. 3d 788, 814 (1978)) (emphasis in original).
Petitioner cites In re Sassounian, 9 Cal. 4th 535 (1995) and In re Carpenter, 9 Cal. 4th 634 (1995). In re Carpenter is inapplicable to this case as it concerns juror misconduct.
For the reasons discussed above, the Court is not persuaded an appeal based on the Espinoza declaration would have been successful. Espinoza's declaration only addresses her identification of Petitioner as the individual who fired the gun, and does not impeach the rest of her testimony. Specifically, that a man confronted her, threatened to shoot her and her dog, and fired a gun. Officer Highsmith testified that he saw Petitioner exiting the southeast bedroom where the gun was found with one spent round. Significantly, Officer Highsmith also testified Petitioner admitted to confronting Espinoza and firing the gun into the air out of frustration. Accordingly, McLean, even if he was aware of the Espinoza declaration, was not ineffective for failing to raise it on direct appeal of Petitioner's conviction. The California Supreme Court's disposition of this claim was therefore neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
V. Claims 5 and 6: Prosecutorial Misconduct
Petitioner's fifth and sixth claims allege prosecutorial misconduct. In particular, Petitioner contends the prosecutor committed misconduct by: (1) presenting false evidence at trial; and (2) suppressing Espinoza's recantation. Petitioner raised this claim in his habeas corpus petition filed before the California Supreme Court, which denied the claim without a reasoned opinion, citing In re Robbins, 18 Cal. 4th at 780; In re Clark, 5 Cal. 4th 750; Duvall, 9 Cal. 4th at 474. The Court must therefore conduct an independent review of the record to determine whether the state court clearly erred in its application of federal law. See Pirtle, 313 F.3d at 1167.
A. Presentation of False Evidence
"`[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Hayes v. Woodford, 301 F.3d 1054, 1072 (9th Cir. 2002) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)) (alteration in original); Napue v. Ill., 360 U.S. 264, 269 (1959); United States v. Young, 17 F.3d 1201, 1203 (9th Cir. 1994). To warrant habeas relief, a petitioner must show that: (1) the witness's testimony was false; (2) the prosecutor knew that the witness's testimony was false; and (3) there is a reasonable likelihood that the witness's testimony affected the verdict. See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993). "[E]ven if the government unwittingly presents false evidence, a defendant is entitled to a new trial `if there is a reasonable probability that [without the evidence] the result of the proceeding would have been different.'" Young, 17 F.3d at 1204 (quoting United States v. Endicott, 869 F.2d 452, 454 (9th Cir. 1989)) (alteration in original); accord Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002).
Judge Battaglia denied this claim on the basis the record neither establishes nor suggests the prosecutor knowingly presented false testimony at trial. Petitioner does not raise a specific objection to this finding. Having reviewed the record, the Court concurs with Judge Battaglia's analysis of this claim. There is no evidence indicating the prosecution was aware, during the trial, that Espinoza was recanting her identification of Petitioner as the perpetrator; indeed, the Petition itself maintains Espinoza did not inform the prosecutor she was mistaken in her testimony until after the trial ended. ( See Pet. at 9.2-9.3 (stating Espinoza recanted her testimony while the trial court still retained jurisdiction over the case).)
Further, having reviewed the record, the Court finds Petitioner cannot establish a reasonable probability that the result of the trial would have been different. As discussed above, even without Espinoza's identification of Petitioner, there was other evidence in the record establishing his identity as the perpetrator. Accordingly, the California Supreme Court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
B. Suppression of Exculpatory Evidence
Petitioner contends that when the prosecution learned of Espinoza's recantation, its only response was to threaten the witness with prosecution for perjury, and that the prosecution's failure to turn over evidence of Espinoza's recantation resulted in a significant delay in the defense's discovery of this information. "The prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with [the Supreme] Court's decision in Brady v. Maryland, 373 U.S. 83 (1963)." Kyles v. Whitley, 514 U.S. 419, 432 (1995). Brady "requires that the prosecution disclose exculpatory evidence on its own motion and without request if suppression of the evidence would deprive the defendant of a fair trial." Hayes, 301 F.3d at 1075; Kyles, 514 U.S. at 432; United States v. Bagley, 473 U.S. 667, 682 (1985). This Court, like Judge Battaglia, has not found Supreme Court authority holding that Brady applies to evidence a prosecutor learns of after a trial has ended. Nevertheless, there is authority indicating a prosecutor has a continuing duty to disclose: "after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction." See Imbler v. Pachtman, 424 U.S. 409, 427 n. 25 (1976).
To establish a Brady violation, a defendant must show: (1) "the evidence at issue must be favorable to the accused, because it is either exculpatory or impeachment material"; (2) "the evidence must have been suppressed by the State, either willfully or inadvertently;" and (3) "prejudice must result from the failure to disclose the evidence." Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002). Evidence is prejudicial, or material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682; accord Hayes, 301 F.3d at 1075. This "reasonable probability" standard is violated when the failure to disclose "`undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678); accord Barker v. Fleming, 423 F.3d 1085, 1096 (9th Cir. 2005).
The RR determined Petitioner is not entitled to habeas relief on this claim because the record does not establish the prosecutor's office was aware of Espinoza's recantation. The RR further held that Petitioner became aware of Espinoza's recantation shortly after the prosecution did and therefore, because the exculpatory information was equally available to the defense as well as the prosecution, the prosecutor did not suppress the recantation in violation of Brady. Petitioner objects to these findings, arguing the Court should conduct an evidentiary hearing regarding when the prosecution learned of Espinoza's recantation. He maintains that the materiality standard for a Brady violation is met because Espinoza's recantation undermines confidence in the verdict. The Court disagrees.
Assuming that Brady applies to this case, Espinoza's recantation does not undermine confidence in the trial's outcome. Espinoza recanted only her identification of Petitioner as the individual who fired the gun. Nothing in the record indicates she recanted the remainder of her testimony. Thus, the record establishes that a man confronted her, threatened to shoot her and her dog, and fired a gun. Officer Highsmith testified that he saw Petitioner exiting the southeast bedroom where the gun was found with one spent round. Significantly, Officer Highsmith also testified Petitioner admitted to confronting Espinoza and firing the gun into the air out of frustration. Accordingly, an evidentiary hearing is not required because even assuming the prosecution learned of Espinoza's recantation and should have disclosed it to defense counsel, the evidence is not material. See Townsend v. Sain, 372 U.S. 293, 313 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The California Supreme Court's disposition of this claim was therefore neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
VI. Claim 7: Use of Prior Convictions to Enhance Sentence
Petitioner's seventh claim is that he was denied his due process rights when the trial court considered his prior convictions for rape and kidnapping when sentencing. According to Petitioner, because these prior convictions occurred before the enactment of California's Three Strikes law, they should not have counted as "strikes" under California Penal Code section 667(d)(1). Petitioner raised this claim in his direct appeal and in his state habeas petitions. The last reasoned decision regarding this claim comes from the California Court of Appeal's March 6, 2002 order denying Petitioner's habeas claim. (Lodgment Set 2, No. 4 at 2.) The appellate court held that application of the Three Strikes Law to prior convictions suffered before the law was enacted does not violate due process or ex post facto principles. Id.
This Court is bound by a state's construction of its own penal statutes unless it is "`untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.'" Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1993) (quoting Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989)). California courts have held that California's Three Strikes law applies to felonies committed before the law was enacted, and that such application does not violate due process. See, e.g., Gonzales v. Superior Court, 37 Cal. App. 4th 1302, 1306-08 (1995); People v. Brady, 34 Cal. App. 4th 65, 71-72 (1995). Judge Battaglia found Petitioner is not entitled to habeas relief on this claim because the California courts' ruling on the issue "is neither `untenable' nor does it `amount to a subterfuge to avoid federal review of a constitutional violation.'" (RR at 16-17 (quoting Aponte, 993 F.2d at 707)). Petitioner has not raised specific objections to the RR's analysis of this claim. Having reviewed the record, the Court agrees with Judge Battaglia's analysis, finding the caselaw is an appropriate interpretation of the language and intent of the Three Strikes law. The California appellate court's disposition of this claim was therefore neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
VII. Claim 8: Eighth Amendment Violation
Petitioner's final claim is that his sentence of 25-years-to-life violates the Eighth Amendment's prohibition against cruel and unusual punishments. Petitioner raised this claim in his habeas corpus petition filed before the California Supreme Court, which denied the claim without a reasoned opinion, citing In re Robbins, 18 Cal. 4th at 780; In re Clark, 5 Cal. 4th 750; Duvall, 9 Cal. 4th at 474. The Court must therefore conduct an independent review of the record to determine whether the state court clearly erred in its application of federal law. See Pirtle, 313 F.3d at 1167.
"The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) ( quoting Solem v. Helm, 463 U.S. 277, 288 (1983)). The "gross disproportionality principle, the precise contours of which are unclear, [is] applicable only in the `exceedingly rare' and `extreme' case" in noncapital sentences. Lockyer v. Andrade, 538 U.S. 63, 72 (2003) (quoting Harmelin, 510 U.S. at 1001) (Kennedy, J., concurring); Ramirez v. Castro, 365 F.3d 755, 762-63 (9th Cir. 2004).
The Supreme Court has traditionally deferred to state legislatures to determine the length of sentences for crimes classifiable as felonies. Rummel v. Estelle, 445 U.S. 263, 274 (1980). Federal caselaw is also well established that legislatures may punish rescidivists more severely than first-time offenders. Rummel, 445 U.S. at 276; Bartlett, 262 F. Supp. 2d at 1063. In addition, the Supreme Court has deferred to state legislation concerning rescidivist sentencing such as California's Three Strikes Law, and found that such statutes serve the legitimate goal of deterring and incapacitating repeat offenders. Ewing v. California, 538 U.S. 11, 20-28 (2003). For example, in Ewing, the Supreme Court found that a sentence of 25 years-to-life under California's Three Strikes for grand theft of three golf clubs was not grossly disproportionate. Id. at 28-31.
Judge Battaglia reviewed Rummel, Solem, and Andrade, and held that Petitioner's sentence was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Petitioner has not articulated specific objections to Judge Battaglia's disposition of this claim. Having reviewed the record, the Court agrees with Judge Battaglia's analysis and accordingly adopts the RR discussion and rejection of this claim. Accordingly, the California Supreme Court's rejection of this claim is neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.
CONCLUSION
For the foregoing reasons, having carefully considered the record and applicable law, IT IS HEREBY ORDERED:
1. Petitioner's objections are OVERRULED.
2. Judge Battaglia's RR is ADOPTED IN ITS ENTIRETY.
3. The Petition is DENIED.
The Clerk of the Court is directed to close this file.
IT IS SO ORDERED.