Opinion
No. C 01-3141 MMC (PR)
December 3, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted. In ruling on respondent's motion to dismiss the petition, the Court found petitioner's claim that the trial court erred in instructing the jury pursuant to CALJIC No. 2.11.5 had not been exhausted under 28 U.S.C. § 2254(b)-(c). The Court dismissed the petition with leave to amend, and petitioner filed an amended petition with the unexhausted claim deleted. Respondent was again ordered to show cause why the petition should not be granted, and respondent filed an answer accompanied by a memorandum and exhibits, contending that the petition should be denied. Petitioner has filed a traverse.
For the reasons stated, infra, the Court addresses this claim as well.
FACTUAL AND PROCEDURAL BACKGROUND
The California Court of Appeal summarized the facts as follows:
In July 1994, a large volume of marijuana sales was being conducted at the so called "One Way," an intersection of East 14th Street and 71st Avenue in Oakland. This area was particularly conducive to drug dealing. 71st Avenue was a narrow, one-way street bordered by a cinder block wall (the brick wall). Both the street and the brick wall featured numerous "cuts" or paths in which a drug dealer or purchaser could hide to avoid detection. These cuts enabled persons engaged in illicit drug sales to easily escape into other areas of Oakland.
Two groups competed with each other to sell marijuana at the One-Way — the "Goonies" and the "Dirty People." The Goonies consisted of leader Virginia Roberson, her brothers Corey Long and Greg Roberson, her boyfriend Kenzie Faulk, and her daughter's boyfriend Hodan Lyons known as "A.D."
Pewee McCullogh was the leader of the Dirty People. The Dirty People were trying to stop the Goonies from selling marijuana in areas they considered to be their turf. Appellant was the Dirty People's "bodyguard who took care of the group's business" on the street. He was commonly referred to as "Dirty Rob. When patrolling the One-Way, appellant often dressed in a long, dark trench coat. Underneath this coat, appellant typically carried an AK-47 assault rifle.
See generally 28 U.S.C. § 2254(e)(1) (requiring district court to presume correct state court's factual findings unless petitioner rebuts presumption of correctness by clear and convincing evidence).
A. Attempted Murder of Faulk
B. Murder of Long
Faulk and appellant had a long history of disputes. They had exchanged gunshots on at least two occasions. Prior to July 4, appellant had confided to his friend T. Salter that he was "having problems" with Faulk, and "just couldn't wait to see him so he could shoot him up."
In the late afternoon of July 4, 1994, appellant was standing on 71st Avenue behind a cut in the brick wall. He was armed with his AK-47. Later that day, Faulk drove down the One-Way. When he reached the spot where appellant was hiding, appellant fired approximately 12 rounds of ammunition at him. One of the millets hit Faulk in the back. Corey Long transported Faulk to the hospital where he was treated and released four days later.
After the shooting, appellant ran toward 69th Avenue, carrying his AK-47 assault rifle wrapped in a blanket. When he saw his friend T. Salter, appellant encouraged Salter to go behind an abandoned house where they could converse privately. Once behind the house, appellant showed Salter his rifle, and described how he shot at Faulk from behind the brick wall. Appellant told Salter, "I sprayed that fool [Faulk] up."
Approximately one week later, appellant had an angry confrontation with Virginia Roberson while she was sitting on the brick wall. Roberson reminded appellant she was not involved in the dispute between appellant and Faulk. She advised appellant that Faulk could still be found in the neighborhood of the One-Way. Appellant replied that he hoped to run into Faulk, warning that at their next meeting Faulk "better have something fat too." "Something fat" was street lingo for a big gun." Appellant then fired 10 rounds from his AK-47 into the air.
On the evening of July 20, 1994, Long, Lyons, and their friend Ken Forte were sitting on the brick wall. Appellant approached them, armed with his AK-47. He warned them to stay out of his conflict with Faulk. When Long and Lyons attempted to distance themselves from the dispute, appellant responded, Well, the [mother-fucker's] got to go, [mother-fucker's] got to go
Later that evening at approximately 11:20 p.m., Lyons and Forte were with Long in his trailer home on the One-Way. Appellant knocked on the front door, but refused to identify himself. When Long opened the door, appellant opened fire on him with his AK-47. Long died at the hospital several hours later.
The next morning, appellant gave his friend Fred Johnson a detailed description of how he and his accomplices had "downed" Long. Several days after Long's murder, appellant described the Long killing to Deon Butler, a 12-year old neighborhood boy. Appellant cautioned Deon not to tell anyone about their conversation.
After the shootings, appellant fled to Fairfield, Alabama. He was arrested by the Fairfield Police Department in December 1994. At the time of his arrest, he was carrying an Oakland Tribune article that described the Faulk and Long shootings.People v. Ellis
Lyons testified that appellant was accompanied by Salter during this altercation.
A jury convicted petitioner in Alameda County Superior Court of attempted murder of Kenzie Faulk ("Faulk"), first degree murder of Corey Long ("Long"), and two counts of possession of a firearm. The trial court imposed sentences of twenty-five years to life for the first degree murder, life imprisonment with the possibility of parole for the attempted murder, and two concurrent terms of two years for firearms possession. Petitioner's appeals to the California Court of Appeal and the Supreme Court of California were denied.
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). 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.'" Penry v. Johnson, 121 S.Ct. 1910, 1920(2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
1. Sufficiency of the Evidence
Petitioner claims that his convictions for murder of Long and attempted murder of Faulk were not supported by sufficient evidence, in violation of his right to due process. A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324. A federal court reviewing collaterally a state court conviction does not determine whether the federal court is itself satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Rather, the federal court "determines only 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.1" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324.
Petitioner argues that there was insufficient evidence because various prosecution witnesses who made statements to the police, incriminating petitioner, recanted those statements at trial, and that other prosecution witnesses who testified against petitioner had previously made inconsistent statements to the police. With respect to the Faulk shooting, Virginia Roberson ("Roberson") testified at trial that she was present at the shooting and saw petitioner shoot Faulk. Deon Butler ("Butler") testified at the preliminary hearing, which testimony was admitted at trial, that he was present at the shooting and saw petitioner shoot Faulk. Faulk himself and Fred Johnson ("Johnson"), made statements to the police before trial, which statements were admitted at trial, that they had seen the shooting and petitioner was the shooter. Another witness, T. Salter ("Salter"), testified that petitioner had told him a couple of days before the shooting that he wanted to shoot Faulk. Salter further testified that at the time of the shooting Salter was nearby, heard gunshots, saw petitioner run past him with a gun, and then went behind a house with petitioner where petitioner confessed that he had shot Faulk. Hodari Lyons ("Lyons") testified that petitioner had told him a couple of days after the shooting that he was having problems with Faulk and that Faulk has "got to go." Petitioner argues that this evidence was insufficient because Roberson and Butler had initially told the police that they saw nothing; at trial, Faulk and Johnson recanted their statements to the police that petitioner was the shooter; and prior to trial, Salter had given three statements to the police, stating that petitioner was not the shooter.
"There was also evidence that prior to trial Lyons had refused to give his name to the police.
Most of these witnesses also provided evidence regarding the Long murder. Salter testified at trial that he saw petitioner firing his gun into the doorway of Long's house at the time of Long's murder. Faulk made a statement to the police before trial, which statement was admitted at trial, that he saw petitioner firing his gun into the doorway of Long's house at the time of Long's murder. Johnson told the police before trial, and his statement was admitted at trial, that petitioner told him shortly after the Long murder that he "down[ed]" Long, and that he had wanted to shoot Long in the head. Butler testified at the preliminary hearing, which testimony was admitted at trial, that petitioner told him in detail about killing Long. Again, petitioner points to inconsistent statements made by these witnesses. Salter initially told the police that Johnson and petitioner were together when Long was shot, with Johnson actually holding and firing the AK-47. At trial, Faulk and Johnson recanted their earlier statements to the police. Butler did not tell the police what he saw when the police interviewed him in their investigation.
The fact that these witnesses had provided statements or testimony contradicting the statements and testimony implicating petitioner does not mean that there was insufficient evidence for the jury to find petitioner guilty beyond a reasonable doubt. The reviewing federal court "faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992) (internal quotation and citation omitted). The prosecution introduced expert testimony about the code among drug dealers against "snitching" and cooperating with the police. Indeed, there was specific evidence indicating that this was the reason for the witnesses' inconsistent statements in this case. Roberson testified that she did not tell the police what she knew initially because she feared retaliation for "snitching." Butler explained that he feared retaliation, and that petitioner had warned him not to tell the police. Salter repudiated his prior statements to the police that petitioner was not the shooter, explaining that he was afraid of retaliation from petitioner, who had confronted him. Lyons testified that he had not originally provided his name to the police because he was afraid of retaliation. Additionally, the prosecution introduced a letter from Johnson to petitioner, asking for forgiveness and stating, "I' m not a rat snitch"; a police inspector testified that just prior to trial, Faulk told him that he did not want to cooperate and if he was forced to testify, he would recant his earlier statement that petitioner was the shooter. Based on this evidence, the jury reasonably could have concluded that the witnesses' inconsistent statements were not true, but rather were made because of the stigma of "snitching" and the fear of retaliation for cooperating with the police. Consequently, the jury could reasonably have chosen to believe the portion of these witnesses' testimony and statements to the police that implicated petitioner.
Also, at the preliminary hearing, petitioner yelled out a threat to him.
Assuming, as this Court must, that the jury believed the portion of the witnesses' testimony and other statements implicating petitioner, there was abundant evidence from which the jury could find beyond a reasonable doubt that petitioner was guilty of murdering Long and attempting to murder Faulk. Six eyewitnesses, four to the Faulk shooting and two to the Long murder, identified petitioner as the shooter. Additional evidence was provided by other witnesses who either observed petitioner close to the time of the shooting and/or heard petitioner admit to being the shooter. Added to the above was the evidence of petitioner's history of disputes with Faulk, the turf dispute between the gangs, and petitioner's flight to Alabama. This evidence was more than sufficient evidence from which a jury reasonably could conclude beyond a reasonable doubt that petitioner shot Faulk and Lyons. Accordingly, habeas relief is not available on petitioner's claim of insufficient evidence.
2. Confrontation Clause
Petitioner further claims that the trial court, by admitting various hearsay statements, violated his right to confront adverse witnesses, under the Confrontation Clause of the Sixth Amendment.
a. Peon Butler's Preliminary Hearing Testimony
Butler did not testify in person at the trial. Petitioner claims that the admission of Butler's preliminary hearing testimony at trial violated his rights under the Confrontation Clause.
Under California law, there is an exception to the hearsay rule for prior testimony if, inter alia, the declarant is unavailable to testify at trial. See Cal. Evid. Code § 1291. To establish unavailability, the proponent of the witness must be unable to procure the witness's attendance by the court's process despite "reasonable diligence." Cal. Evid. Code § 240(a)(5). Here, the trial court, at a pretrial hearing, found that the prosecutor had exercised "reasonable diligence" in attempting to procure Butler's attendance, concluded that Butler was unavailable, and thereafter admitted his preliminary hearing testimony under § 1291 of the California Evidence Code. The California Court of Appeal affirmed the admission of this testimony under California law, but did not address the question of whether the admission of the testimony violated the Confrontation Clause.
The Confrontation Clause and hearsay rules are not coextensive and involve different standards of admissibility. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993). The Confrontation Clause does not necessarily bar the admission of hearsay statements. It may, however, prohibit the introduction of evidence that otherwise would be admissible under a hearsay exception.See Idaho v. Wright, 497 U.S. 805, 813, 814 (1990). InOhio v. Roberts, 448 U.S. 56 (1980), the Supreme Court established a general framework for determining whether incriminating hearsay statements meet the requirements of the Confrontation Clause.See id. at 65; see also Wright, 497 U.S. at 814 (noting Roberts provides general framework for determining whether incriminating statements admissible under exception to hearsay rule also meet requirements of Confrontation Clause). First, the government must show that the witness is "unavailable." Second, the testimony must bear adequate "indicia of reliability." Roberts, 448 U.S. at 65-66.
A prosecutor establishes a witness's unavailability only by showing the witness cannot be produced after the prosecutor has made a good faith effort to obtain the witness's presence. See Barber v. Page, 390 U.S. 719, 724-25 (1968). "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness."California v. Green, 399 U.S. at 189 n. 2; see also Roberts, 448 U.S. at 74.
Here, the California Court of Appeal summarized the efforts by the prosecutor as follows:
The prosecution served both Deon and Francine [Deon Butler's mother, who was subpoenaed to accompany her minor son, Deon] with two subpoenas, requiring them to attend trial proceedings scheduled for August 18 and September 2. When the trial did not go forward on either of these dates, the prosecution essentially placed Deon and Francine on telephone standby status so they would not nave to make unnecessary appearances at the trial. Deon and Francine voiced no objections to this arrangement, and expressed their understanding that the original subpoenas were still in effect.
Between the time that the prosecution first served Deon and Francine with a subpoena until Deon's testimony was required on September 23, the prosecution stayed in close contact with Deon and Francine. Inspectors Painter and Gandsey met with them several times for interviews, and frequently telephoned Deon and Francine to advise them of how the trial was progressing. Although Deon, Francine and Deon's father expressed concern for Deon's safety at various times, they maintained a cooperative attitude regarding Deon's upcoming testimony. Indeed, even when Deon was "scared and running," he telephoned Investigator Painter the day before his scheduled testimony to assure him that he was "more than willing to cooperate. . . .
It was not until Inspector Painter arrived at the residence to transport peon to court on September 17 that he learned Deon had fled for good and his whereabouts were unknown. After Deon's disappearance, the prosecution diligently attempted to locate him until September 23. Inspectors Painter and Gandsey obtained a body attachment order, attended Deon s Hayward municipal court proceedings, contacted Deon's probation officer, followed up on a tip from Lyons, regularly checked with Francine to see if Deon had returned to the residence, searched Francine's residence for Deon, contacted five hospitals and checked to see if Deon was in county custody.
At that point, Deon Butler's testimony was scheduled for September 17; ultimately, it was not needed until September 23. Slip Op. at 13-14.
Slip op. at 16-17. These efforts demonstrate sufficient good faith effort by the prosecution to obtain Butler's presence at the trial.
Petitioner contends that the prosecutor should have subpoenaed Butler anew on each occasion that the time and date for his testimony changed. This argument is not persuasive. The date for Deon's testimony, originally scheduled for August 18, was postponed numerous times, and his testimony ultimately was not required until September 23. Slip Op. at 12-16. After issuing and serving two subpoenas, the prosecutor managed the ever-changing dates that Butler would be needed by putting him on telephone standby rather than continuing to issue a subpoena every time the anticipated date for his testimony changed. It is undisputed that Butler and his parents remained cooperative. Butler and his mother complied with the first subpoena and met with the prosecutor on August 18. Butler and his mother continued to meet with the Inspectors and stayed in touch by telephone on a regular basis. Even when Butler's parents did not know where Butler was, Butler himself contacted the Inspector and arranged an appointment the next day to be picked up to testify. Under such circumstances, it was reasonable for the prosecutor to believe that Butler and his parents were cooperative and that telephone standby was sufficient to secure Butler's presence.
Petitioner complains that Inspector Painter arrived about 30 minutes late to pick up Butler for court on the morning of September 17. As Painter explained at the pretrial hearing, however, he had called Butler's house the day before and left a message that he would be 30 minutes later than had been scheduled. The person with whom Painter left the message told him this would be no problem and that the message would be delivered to Butler. As soon as it became clear that Butler had fled, the police, over the following week, demonstrated exceptional diligence in investigating Butler's whereabouts, continuing to check Butler's house and with his parents, obtaining a body attachment, going to the municipal court on the date of Butler's court appearance in his own case, searching Butler's house, following up on tips regarding his whereabouts, and checking local hospitals and county custodial facilities. These actions are sufficient to establish that the prosecution made a reasonable and good faith effort to procure Butler's attendance. See, e.g., Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir. 1998) (finding prosecutor made good-faith effort to locate witness where he subpoenaed witness, met with witness to discuss proposed testimony after issuing subpoena, tried to call witness three times as trial date approached, contacted witness' parole officer, had bench warrant issued for witness' arrest, and assigned a criminal investigator to locate witness). Accordingly, Butler was "unavailable" as required by the first element of the Roberts framework for analyzing petitioner's Confrontation Clause claim.
As explained above, Roberts also requires that Butler's preliminary hearing statements be reliable. `Reliability can be inferred where the evidence falls within a "firmly rooted" hearsay exception or there are particularized guarantees of trustworthiness. Wright, 497 U.S. at 815; Gray v. Klauser, 282 F.3d 633, 641 (9th Cir. 2002). Preliminary hearing testimony has sufficient guarantees of trustworthiness to satisfy the reliability prong of the Confrontation Clause analysis, provided the declarant was subject to cross-examination.See Roberts, 448 U.S. at 70-73; Green, 399 U.S. at 165-66 (holding where defendant had opportunity to cross-examine declarant at preliminary hearing, no Confrontation Clause violation in admitting statements of unavailable declarant at trial). Here, the record clearly reflects that Butler was cross-examined at the preliminary hearing. Consequently, under Roberts, his preliminary hearing testimony is sufficiently reliable.
For the above-stated reasons, the admission of Butler's preliminary hearing testimony meets the Roberts requirements and thus did not violate the Confrontation Clause.
b. Hearsay Admitted During Johnson's Testimony
Petitioner also complains that the admission of a tape-recorded prior statement given by Johnson to the police violated his rights under the Confrontation Clause. In the subject statement, Johnson describes a conversation he had with Salter in which Salter told him Salter fired his handgun at Long at the same time that petitioner fired the AK-47, although petitioner was the only one who hit Long. This statement was admissible as a prior inconsistent statement of both Johnson, who testified at trial that he did not know Salter or Long or anything about the murder, and as a prior inconsistent statement of Salter, who testified that he saw petitioner shoot Long while Salter was riding his bicycle in the area of the shooting. Slip. Op. at 19-20 (citing California Evidence Code §§ 1235 (providing hearsay exception for prior inconsistent statements), 1201 (allowing multiple hearsay where each layer of hearsay falls within hearsay exception)). The Confrontation Clause is not violated by the admission of a declarant's inconsistent out-of-court statement, "as long as the declarant is testifying as a witness and subject to full and effective cross-examination" at the trial itself. California v. Green, 399 U.S. 149, 158 (1970). Both Johnson and Salter testified at trial, and both were subject to cross-examination. Consequently, the admission of Johnson's statement did not violate the Confrontation Clause.
c. Testimony Regarding McCullough
The trial court admitted various references to out-of-court statements that Peewee McCullough ("McCullough"), the leader of the Dirty People, offered to pay Johnson to kill Roberson or one of her associates. To whatever extent the admission of any of these statements may have amounted to a Confrontation Clause violation, habeas relief would not be available because the admission of this evidence did not have a substantial and injurious effect on the jury's verdict. See Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Petitioner argues that the evidence was prejudicial because it established petitioner's motive for shooting Faulk and Lyon. The out-of-court statements, however, were to the effect that McCullough had offered to pay Johnson, not petitioner. For this evidence to have prejudiced petitioner, the jury would have had to speculate that because McCullough had offered Johnson money to kill, he must have offered petitioner money as well. Moreover, the evidence was cumulative of other, indisputably admissible, evidence that petitioner had a motive to shoot Faulk and Long based on the personal animosity he felt toward Faulk, as well as petitioner's membership in the Dirty People and their turf war with Roberson and her associates. In sum, the evidence that McCullogh had offered to pay Johnson to kill Roberson or one of her associates was at best speculative and, in any event, cumulative of other evidence of petitioner's motive in connection with the shootings of Faulk and Long. As such, this evidence did not have a substantial and injurious effect on the verdict, and any error resulting from its admission was not sufficiently prejudicial to warrant habeas relief.
These out-of-court statements were introduced when Roberson testified that Johnson had told her about this plot, when Sergeant Swisher testified that both Roberson and Lyons had told him about the plot, and when Sergeant Wallace testified that Lyons had told him about it.
3. Instructional Error
As set forth above, because the initial petition contained an unexhausted claim, that the instruction issued pursuant to CALJIC No. 2.11.5 was erroneous, the initial petition was dismissed as a "mixed" petition with leave to file an amended petition removing the unexhausted claim. The Ninth Circuit has since decided that it is error for a district court to dismiss a mixed petition without informing a pro se petitioner that he may obtain a stay of the petition while he exhausts his unexhausted claims. See Ford v. Hubbard, 330 F.3d 1086, 1099-1100 (9th Cir. 2003). Petitioner was not informed of the option of obtaining a stay in this case. Because the Court concludes petitioner's instructional error claim is without merit, however, there is no need to stay the petition while he exhausts that claim. See 28 U.S.C. § 2254(b)(2) (providing district court may deny an unexhausted claim on the merits).
The trial court instructed the jury pursuant to CALJIC No. 2.11.5 that it was not to consider whether or why other individuals who might appear to have been involved in its commission are not being prosecuted for the same crime as the defendant. Slip Op. at 23, n. 7. Petitioner argues that the evidence demonstrated that prosecution witnesses Salter and Johnson participated in the crime, and that the jury should have been instructed that CALJIC No. 2.11.5 does not preclude their consideration of whether Salter and Johnson were biased by a grant of immunity or other favorable treatment by the prosecution. Because the jury was expressly instructed elsewhere that they could consider any matter that may demonstrate the bias of a witness, however, the trial court's failure to specifically limit CALJIC No. 2.11.5 in the manner petitioner argues did not render the trial fundamentally unfair.
The instruction states: "There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which the defendant is on trial. There may be reasons why that person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether the has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of the defendant on trial."
Instructional error will justify habeas relief only if the challenged instruction by itself so infects the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). In that regard, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Id., (citations omitted). The instructions must be more than just erroneous; petitioner must show that there was a reasonable likelihood that in light of the instructions as a whole, the jury applied the challenged instruction in such a way that his constitutional rights were violated. See Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en bane); see also McGuire, 502 U.S. at 72.
In this case, the jury was instructed pursuant to CALJIC No. 2.20 to evaluate witness testimony as follows:
Every person who testifies under oath [or affirmation] is a witness. You are ths sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to . . . [t]he existence or nonexistence of a bias, interest or other motive. . . .
Clerk's Transcript ("CT") at 874-75 (attached as Respondent's Exh. A). Any rational juror would understand that " anything that has a tendency to prove" the existence of a witness's "bias, interest or other motive," would include any evidence that Salter or Johnson received immunity or other favorable treatment from the prosecution. Since the instructions already allowed the jury to consider these factors in evaluating the credibility of Salter and Johnson, as well as any other witnesses, there was no need for the court to instruct the jury again on this point. When read in conjunction with the other instructions regarding witness bias, CALJIC No. 2.11.5 can reasonably be understood to preclude speculation as to prosecution or non-prosecution of other participants, not to preclude consideration of evidence going to the question of witness bias. Given the trial court's clear instruction that the jury could consider the bias of any witness by reference to "anything" that "has a tendency" to show bias, there is no reasonable likelihood that CALJIC No. 2.11.5 would have precluded the jury from considering whether Salter and Johnson were biased by favorable treatment from the prosecution. Equally important, petitioner points to no evidence in the record as to any consideration or favorable treatment given any of the witnesses who testified to matters incriminating petitioner. For all of these reasons, the failure to instruct the jury not to apply CALJIC No. 2.11.5 in evaluating any bias on the part of Salter or Johnson did not render the trial fundamentally unfair such as to violate due process.
The jury was further instructed that they were to weigh the credibility of witnesses whose testimony is in conflict, who testify falsely in whole or part, who are outnumbered on a given point, who have committed felonies and misdemeanors, who refuse to testify based on privilege, and whose testimony is uncorroborated. CT at 876-84.
4. Ineffective Assistance of Counsel
Petitioner claims that he is entitled to habeas relief because his trial counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel. Specifically, petitioner claims that counsel elicited damaging testimony on cross-examination of prosecution witness Ken Forte ("Forte"). At the preliminary hearing, Forte testified that petitioner looked like a man he had seen carrying an AK-47 and wearing a gray, quarter-length coat on the One-Way the afternoon before the Long murder. On cross-examination at the preliminary hearing, defense counsel asked Forte: "The gentleman who is seated in court today, can you tell whether or not it was him?" CT at 424. Forte answered, "It looks like him. The only thing that throws me off a little bit is his hair is a little longer." CT at 424. At trial, Forte testified on direct examination:
Q: Well, when you looked back at 1995 and you thought about the day it happened, was there any difference in his appearance compared with the person you saw out on the street?
A: The only difference was his hair was a lot longer.
Q: When?
A: When I saw him first on the street his hair was a lot longer.
Q: You said something about cleaner?
A: Yeah, he was clean-shaven.
Q: At the preliminary hearing?
A: Yeah.
Q: Other than that did this person's height match that person you saw out on the street?
A: Yes.
Q: Did his build match?
A: Yeah.
Q: Did his complexion match?
A: Yes.
Q: Did his apparent weight match?
A: Yeah.
Q: And you say his height was — what's the difference in height?
A: There was no difference in height. The only thing I recognized when I saw him then and when I saw him at the pre-trial was he was a little taller than me. That's all.
Reporter's Transcript ("RT") (attached as Respondent's Exh. B) at 454-55. On cross-examination, Forte testified:
Q: I take it that you cannot identify this person here as the person you saw with an AK across the street?
A: I mean it might be him and might not be him. I can identify him. MR. MISFUD [prosecutor]: You can't — what did he say?
(RECORD READ)
BY MR LEVY [defense counsel]: So you're saying it is him?
A: It is him. The only difference is his hair is longer.
RT at 454-55.
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. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See id. at 688. The relevant inquiry is not what defense counsel could have presented, but rather whether the choices made by defense counsel were reasonable.See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Id.
Petitioner argues that counsel was ineffective because his cross-examination of Forte elicited more damaging testimony than had been given on direct examination. At the preliminary hearing, Forte could not positively identify petitioner. When asked if the man he saw was petitioner, Forte answered only that petitioner "looks like him," and explained that petitioner's hair was longer. At trial, on direct examination, Forte similarly failed to positively identify petitioner, and reiterated the uncertainties about hair length and facial hair. On cross-examination, petitioner's counsel sought to emphasize the fact that Forte had not positively identified petitioner. The fact that Forte then testified, unexpectedly, that he was able to identify petitioner does not render unreasonable counsel's decision to pursue what reasonably appeared to be a weakness in Forte's testimony. Indeed, as shown by the prosecutor's interjection, the identification came as a surprise to both sides. Consequently, under the circumstances presented, petitioner was not deprived of effective assistance of counsel by reason of counsel's reasonable tactical decision.
Accordingly, habeas relief is not available on petitioner's claim of ineffective assistance of counsel.
5. Cumulative Error
Petitioner claims that if the Court finds there was constitutional error on two or more of his claims, the cumulative prejudice of these errors warrants habeas relief. The Ninth Circuit has recognized that in some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may so severely prejudice a defendant that his conviction must be overturned. See Thomas v. Hubbard, 273 F.3d 1164, 1179-81 (9th Cir. 2002). This claim fails here because the Court has not found two or more constitutional errors arising out of petitioner's claims. In any event, petitioner has cited no Supreme Court decision, and the Court is not aware of any, that recognizes "cumulative error" as an independent constitutional violation. In the absence of Supreme Court authority, habeas relief is not available under 28 U.S.C. § 2254.See Williams v. Taylor 120 S.Ct. at 1523. Finally, to the extent such a claim has been recognized, cumulative error is most likely to be found when the government's case is weak. See, e.g., Walker v. Engle, 703 F.2d 959, 961-62, 968 (6th Cir. 1983). Here, the government's case was strong. Four eyewitnesses identified petitioner as Faulk's shooter; two eyewitnesses identified him as Long's shooter. Additional witnesses described in detail petitioner's incriminating statements and conduct at the time of the crimes, and there was evidence of petitioner's motive and attempt to flee. Although several of the prosecution witnesses had inconsistencies in their testimony, in the aggregate the evidence against petitioner was very strong. For these reasons, petitioner is not entitled to habeas relief based on his claim of cumulative error.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated.
The Clerk shall close the file.
IT IS SO ORDERED.