Opinion
Case No. CV-F-04-5271 AWI WMW HC.
August 16, 2006
FINDINGS AND RECOMMENDATIONS RE PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a state prisoner proceeding with counsel in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
PROCEDURAL HISTORY
On June 22, 2000, following a jury trial, Petitioner was convicted in Tulare County Superior Court of twenty-one sex-related felony counts. The court sentenced Petitioner to serve a term of thirty-three years and four months in prison.
Petitioner filed a direct appeal and the California Court of Appeal, Fifth Appellate District (Court of Appeal), affirmed his conviction and sentence on December 9, 2002, in an unpublished opinion in case number F037048. Petitioner filed a petition for review with the California Supreme Court, which the court denied on February 19, 2003.
STANDARD OF REVIEW
JURISDICTIONRelief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 120 S.Ct. 1495, 1504 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. In addition, the conviction challenged arises out of the Tulare County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 2241(d). Accordingly, the court has jurisdiction over the action.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997);Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed on February 11, 2004, after the enactment of the AEDPA, thus it is governed by its provisions.
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 AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000). Under the AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim "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 "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); Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003) (disapproving of the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, at 1174 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391-3392 (1983);Harris v. Nelson, 394 U.S. 286, 290, 89 S.Ct. 1082, 1086 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 1719 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769 (1995); Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997).
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991);Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982);Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).
When the California Supreme Court's opinion is summary in nature, however, this court "looks through" that decision and presumes it adopted the reasoning of the California Court of Appeal, the last state court to have issued a reasoned opinion.See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (establishing, on habeas review, "look through" presumption that higher court agrees with lower court's reasoning where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000) (holding federal courts look to last reasoned state court opinion in determining whether state court's rejection of petitioner's claims was contrary to or an unreasonable application of federal law under § 2254(d)(1)). In the present case, Respondent admits that Petitioner has exhausted his two stated grounds for relief.
DISCUSSION
USE OF EXPUNGED FELONY PRIORS
Petitioner contends that the use of expunged felony priors for impeaching him violated his Constitutional rights to due process and to compulsory process, and his privilege against compulsory incrimination. He claims that the prejudicial effect of the impeachment with the expunged priors infected his entire trial with errors of constitutional dimension. Respondent disputes this contention.
The Court of Appeal described the factual background as follows:
Appellant suffered two prior related felony convictions that the prosecutor wanted to use for impeachment purposes. The first conviction arose out of an incident in Contra Costa County in 1979. The second conviction was for sexual battery that occurred in 1984 in Alameda County. The victim in the Alameda County case was Brenda.
Both of the prior convictions were ultimately expunged pursuant to section 1203.4. As part of the plea agreement, the conviction in the Contra Costa County case was reduced to a misdemeanor pursuant to section 17, subdivision (b) before it was expunged. The Alameda County prior was not reduced to a misdemeanor before being expunged, although appellant asserted there had been a "contract" at the time of the felony plea that the charge would later be reduced to a misdemeanor.
Appellant's counsel argued that the prosecution was precluded from using these convictions since they had been reduced to misdemeanors before being expunged. The trial court held that a felony conviction was a basis to impeach appellant despite the fact it was expunged. However, the court also noted that a felony conviction reduced to a misdemeanor prior to dismissal could not be used to impeach appellant. As a result, the court allowed the prosecution to impeach appellant with the Alameda County conviction, but not the prior from Contra Costa County. The court also held appellant's plea in the Alameda County case constituted an admission and was admissible on that basis as well. Appellant was subsequently questioned at trial about the prior Alameda County conviction. Unpublished opinion in case number F037048, 14-15. In addressing the merits of Petitioner's contention, the Court of Appeal held as follows:
We reject appellant's claim that he has a right to give testimony immune from such challenge. The procedure of impeaching by proof of prior felony conviction originated at common law and has long been authorized by our Legislature. It is settled that such impeachment does not violate the due process and equal protection clauses of either the federal or the state Constitution ( People v. Roberts (1966) 65 Cal.2d 514, 522; People v. House (1970) 12 Cal.App.3d 756, 764; People v. Harris (1971) 20 Cal.App.3d 534, 538; People v. Stewart (1966) 240 Cal.App.2d 1, 7), the federal or California privilege against self-incrimination ( McGautha v. California (1971) 402 U.S. 183, 215; People v. Collins (1986) 42 Cal.3d 378, 388), nor the requirements of the Sixth Amendment ( People v. House, supra, at p. 764.)
Unpublished opinion in case number F037048, 15.
In the present petition, Petitioner has failed to carry his burden of demonstrating that the adjudication of the claim "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." 28 U.S.C. § 2254(d). Specifically, Petitioner provides no citation to clearly established Federal law holding that the use of expunged felony convictions cannot be used for impeachment purposes. Accordingly, the court must find that this contention presents no basis for habeas corpus relief.
JUROR MISCONDUCT
Petitioner contends that juror misconduct in the form of introduction of extrinsic evidence into the deliberation process violated his rights under the Sixth and Fourteenth Amendments, necessitating a new trial. Petitioner argues that the alleged juror misconduct was evidenced by an affidavit from Juror No. 4, which read in part as follows:
During deliberations about one count involving the Porterville Fairgrounds parking lot, one of the female jurors (35) told the other jurors that she knew the parking lot well, described it and it was nothing like the defense was portraying it. A second juror (#11) concurred with her opinions.
"In all criminal prosecutions," state and federal, "the accused shall enjoy the right to . . . trial . . . by an impartial jury," U.S. Const., Amends. 6 and 14; see Duncan v. Louisiana, 391 U.S. 145 (1968). In reviewing a claim of juror misconduct, "[t]he test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial."United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835 (1974). Although it is generally preferred that a trial court hold an evidentiary hearing when allegations of juror misconduct arise, it is not always required, particularly when the court knows the exact scope and nature of the misconduct. See United States v. Halbert, 712 F.2d 388, 389 (9th Cir. 1983);United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977);see also United States v. McVeigh, 153 F.3d 1166, 1187 (10th Cir. 1998), cert. denied, 119 S.Ct. 1148 (1999). The Court is mindful of the fact that "it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Rushen v. Spain, 464 U.S. 114, 118 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217 (1982). When the alleged misconduct is intra-jury, it has been widely held that the trial court is entitled to greater deference in its review, because the misconduct is less serious than extra-jury influences. See Tanner v. United States, 483 U.S. 107, 117-21 (1987); Smith v. Phillips, 455 U.S. 209 (1982); Remmer v. United States, 347 U.S. 227, 228-30 (1954); Mattox v. United States, 146 U.S. 140, 149 (1892); United States v. Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994) ("[I]ntra-jury communications pose a less serious threat to a defendant's right to an impartial trial than do extra-jury influences, and therefore district courts are entitled to even greater deference in their responses to them than in responses to outside influences."). United States v. Ford, 840 F.2d 460, 465-66 (7th Cir. 1988);Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917 (1976); Fed.R.Evid. 606(b) (juror may only testify post-verdict on the question whether extraneous influence was brought to bear on jurors). Petitioner has the burden of showing that internal juror misconduct prejudiced him. See United States v. Dutkel, 192 F.3d 893, 895 (9th Cir. 1999).
The Court of Appeal addressed the issue, finding that the trial court did not abuse its discretion in determining no prejudicial juror misconduct occurred. It specifically found that the extraneous comments made by jurors relating to the parking lot were irrelevant and immaterial to Petitioner's guilt, and that any misconduct was not prejudicial to Petitioner.
Petitioner has presented this court with nothing showing that the state courts' adjudication of the juror misconduct claim "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 "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). Instead, Petitioner simply disagrees with the courts' conclusions. Accordingly, this court must find that Petitioner has failed to carry his burden and that this contention provides no basis for habeas corpus relief.
Based on the foregoing, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DENIED and that judgment be entered for Respondent.
These Findings and Recommendation are submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636(b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.