Opinion
Case No. CV 14-1709-CJC (KK)
03-27-2015
RAJ CHRISTOPHER GUPTA, Petitioner, v. JEFFREY BEARD, Secretary of CA Dept of Corrections and Rehabilitation, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TABLE OF CONTENTS
Page I. SUMMARY OF RECOMMENDATION ........................... 1 II. PROCEDURAL HISTORY ..................................... 2 III. RELEVANT FACTS ........................................... 5
a. The People's Evidence................................ 6IV. CLAIMS FOR RELIEF........................................ 11 V. STANDARD OF REVIEW ..................................... 16 VI. DISCUSSION ............................................... 20
b. The Defense's Evidence .............................. 8
A. Claim One, subclaim(c) of Claim Ten, and Claims Thirteen, Fourteen, and Nineteen Do not Warrant Habeas Relief .......... 20
1. State Instructional Error Claims on Federal Habeas Review .......................................... 20
2. Claim One Does Not Warrant Habeas Relief ............. 21
a. Relevant Trial Court Proceedings ................ 22
b. The State Court Decision ....................... 22
c. Analysis .................................... 23
3. Subclaim (c) of Claim Ten Does Not Warrant Habeas Relief............................................ 25
a. Relevant Trial Court Proceedings ................ 26
b. Analysis .................................... 26
4. Claim Thirteen Does Not Warrant Habeas Relief ......... 27
a. Relevant Trial Court Proceedings ................ 27
b. Analysis .................................... 29
5. Claim Fourteen Does Not Warrant Habeas Relief ......... 32
a. Relevant Trial Court Proceedings ................ 32
b. Analysis .................................... 34
6. Claim Nineteen Does Not Warrant Habeas Relief ......... 36
a. Relevant Trial Court Proceedings ................ 36
b. Analysis .................................... 37
B. Claim Five Does not Warrant Habeas Relief .................. 39
1. Relevant Trial Court Proceedings ...................... 39
2. The State Court Decision ............................ 42
3. Analysis ......................................... 43
C. Claim Six Does not Warrant Habeas Relief ................... 45
1. Relevant Trial Court Proceedings ...................... 45
2. Analysis ......................................... 49
D. Claim Seven Does not Warrant Habeas Relief................. 52
E. Claim Eight Does not Warrant Habeas Relief ................. 54
1. Relevant Trial Court Proceedings ...................... 55
2. Preservation of Evidence Claims ...................... 56
3. Analysis ......................................... 56
F. Claim Nine Does not Warrant Habeas Relief .................. 58
1. Relevant Trial Court Proceedings ...................... 58
2. Analysis ......................................... 59
G. Subclaims (a) and (b) of Claim Ten, and subclaim (b) of Claim Seven, Do not Warrant Habeas Relief ....................... 61
1. Relevant Trial Court Proceedings ...................... 62
2. Exclusion of Evidence Claims ........................ 63
3. Analysis ......................................... 64
H. Claim Eleven Does not Warrant Habeas Relief ................ 66
1. Relevant Trial Court Proceedings ...................... 66
2. Judicial Bias Claims on Federal Habeas Review .......... 67
3. Analysis ......................................... 68
a. Alleged Biased Comments Subclaims ............. 68
b. Recusal Subclaims ............................ 69
I. Claim Twelve Does not Warrant Habeas Relief ................ 72
1. Relevant Trial Court Proceedings ...................... 73
2. Confrontation Clause Claims on Federal Habeas Review . . . 74
3. Analysis ......................................... 75
J. Claim Fifteen Does not Warrant Habeas Relief ................ 76
1. Relevant Trial Court Proceedings ...................... 77
2. Exclusion of Evidence Claims ........................ 77
3. Analysis ......................................... 77
K. Claim Sixteen Does not Warrant Habeas Relief ................ 78
1. Relevant Trial Court Proceedings ...................... 78
2. Analysis ......................................... 80
L. Claim Seventeen Does not Warrant Habeas Relief ............. 81
1. Relevant Trial Court Proceedings ...................... 82
2. Prosecutorial Misconduct Claims on Federal Habeas Review .......................................... 85
3. Analysis ......................................... 86
M. Claim Eighteen Does not Warrant Habeas Relief ............... 88
1. Sufficiency of the Evidence Challenges ................ 88
2. Applicable California Law ........................... 90
3. Analysis ......................................... 91
N. Claim Twenty Does not Warrant Habeas Relief ................ 93
1. Relevant Trial Court Proceedings ...................... 93
2. Analysis ......................................... 93
O. ClaimsTwo,Three,andFourDonotWarrantHabeasRelief ..... 94
1. Ineffective Assistance of Appellate Counsel Claims .......95
2. The State Court Decision ............................ 96
3. Analysis ......................................... 96
P. Claim Twenty-One Does not Warrant Habeas Relief ............ 98
Q. Claim Twenty-Two Does not Warrant Habeas Relief ........... 99 VII. RECOMMENDATION ....................................... 100
This Final Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
SUMMARY OF RECOMMENDATION
Raj Christopher Gupta ("Petitioner"), a California state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254(d), challenging his convictions for transportation of a controlled substance and possession for sale of a controlled substance, in Los Angeles County Superior Court. On habeas review, Petitioner sets forth 22 claims of alleged constitutional error. However, Petitioner's claims fail on their merits. Accordingly, the Court recommends the Petition be denied.
II.
PROCEDURAL HISTORY
On February 22, 2010, following a jury trial of Petitioner in California Superior Court for the County of Los Angeles, Petitioner was convicted of: (1) transportation of a controlled substance, in violation of California Health and Safety Code section 11379(a); and (2) possession for sale of a controlled substance, in violation of California Health and Safety Code section 11378. Lodgment ("lodg.") No. 1 (Clerk's Transcript on Appeal ("CT")) at 234-35. In a separate in rem proceeding, the jury also found that property, in the amount of $4,010, was subject to civil forfeiture under California Health and Safety Code section 11470. CT at 244, 252-54. The convictions and forfeiture arose from a traffic stop and search of Petitioner and his truck, where officers found money and individually wrapped bags of methamphetamine. Id. at 134-37 (Amended Information).
The Court's citations to Lodgments refer to the lodged documents filed by Respondent in support of its Answer. (ECF Docket No. 25). In addition to the CT, Respondent has filed three separate Augmented Clerk's Transcripts on Appeal ("ACT"). See Lodg. Nos. 4, 6-7. The ACTs will be referred to by their respective Lodgment numbers for clarity.
This was Petitioner's second trial for the same charges. The first trial resulted in a mistrial due to juror misconduct for talking about the case in the courthouse hall. CT 142-43.
Petitioner admitted he had served five prior prison terms, and that he had two prior convictions under California Health and Safety Code sections 11379 and 11351. CT 136, 237-38. Based on the prosecutor's statement that he would not pursue both of the prior strike convictions initially alleged against Petitioner under California's "Three Strikes" law (codified in California Penal Code sections 1170.12(a)-(d) and 667(b)-(i)), Petitioner admitted his 1985 burglary strike conviction, but not his 1993 involuntary manslaughter strike conviction. CT 136, 237-38; Lodg. No. 2 (Reporter's Transcript on Appeal ("RT")) at 1632-40. Hence, on August 20, 2010, the trial court sentenced Petitioner to prison for 12 years. CT at 444-45; RT at 2741-44. The court also ordered the funds previously found forfeited to be submitted. CT 449.
On May 31, 2012, on direct appeal, the California Court of Appeal affirmed Petitioner's convictions in a reasoned decision. Lodg. No. 13. On August 8, 2012, the California Supreme Court summarily denied review of the appeal. Lodg. No. 15.
On August 26, 2011, while his appeal was pending, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Lodg. No. 11. On October 5, 2011, the Court of Appeal denied the petition as premature. Lodg. No. 12.
On August 1, 2012, while his petition for review was pending before the California Supreme Court, Petitioner filed another petition for writ of habeas corpus in the California Court of Appeal. Lodg. No. 16. On August 9, 2012, the Court of Appeal denied the petition without prejudice to filing a petition for writ of habeas corpus in the Los Angeles County Superior Court. Lodg. No. 17.
On September 4, 2012, Petitioner filed a petition for writ of habeas corpus in the Los Angeles County Superior Court. Lodg. No. 18. On October 3, 2012, the Los Angeles County Superior Court denied the petition in a reasoned order. Lodg. No. 19.
On October 29, 2012, Petitioner filed a third petition for writ of habeas corpus in the California Court of Appeal. Lodg. No. 20. On November 28, 2012, the Court of Appeal denied the petition without prejudice to filing a new petition in that court with a copy of the October 3, 2012 Los Angeles County Superior Court order denying habeas relief, a declaration from appellate counsel, and a copy of the surveillance video Petitioner mentioned in his petition. Lodg. No. 21.
On January 30, 2013, Petitioner filed another petition for writ of habeas corpus in the Los Angeles County Superior Court. On February 26, 2013, the Los Angeles County Superior Court denied the petition in a reasoned order on the merits, and because some of the claims were raised and rejected by the California Court of Appeal on direct appeal and by the Superior Court on habeas corpus in previous orders. Lodg. No. 23.
The February 26, 2013 order mentions two prior orders denying habeas relief in the Superior Court. Lodg. No. 23 at 2. The first order, denied by Judge Daniel Feldstern on January 17, 2012, has not been provided to the Court by either party. The second order appears to be the October 3, 2012 order described above, although the Superior Court erroneously referred to its filing date as "October 13, 2012." Compare id. with Lodg. No. 19.
On June 10, 2013, Petitioner filed a fourth petition for writ of habeas corpus in the California Court of Appeal. Lodg. No. 24. On July 11, 2013, the Court of Appeal summarily denied the petition. Lodg. No. 25.
On August 2, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Lodg. No. 26. On February 11, 2014, the California Supreme Court summarily denied the petition. Lodg. No. 27.
On March 7, 2014, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") with this Court, raising 22 grounds along with a multitude of subclaims, in support of his claim to federal habeas relief. (ECF Docket No. ("dkt.") 1). Petitioner also filed an accompanying Memorandum of Points Authorities ("Petitioner's Mem.") (dkt. 2) and a "Table of Contents of Grounds Raised" (dkt. 3).
Petitioner also filed two motions with his Petition. The first motion requested the Court to take judicial notice of the state record in Petitioner's criminal case pursuant to various provisions of the California Evidence Code. (Dkt. 4). The second motion sought discovery and an evidentiary hearing. (Dkt. 5). On March 12, 2014, the previously assigned Magistrate Judge denied the request for judicial notice because the California Evidence Code is inapplicable to this federal habeas action, and because the Court considers the state record as it does in every Section 2254 habeas action. (Dkt. 7). The previously assigned Magistrate Judge denied the second motion because the discovery and/or evidentiary hearing sought by Petitioner was related to claims denied on the merits by the state courts, and thus review was limited to the record before those state courts under Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). (Dkt. 7).
On September 30, 2014, Respondent filed an Answer to the Petition, with an accompanying Memorandum of Points and Authorities ("Respondent's Mem."). (Dkt. 24). Petitioner's Traverse was due on October 30, 2014, but Petitioner did not constructively file a request for an extension of time until November 25, 2012 - nearly one month late. (Dkt. 27). Nonetheless, the Court granted Petitioner an extension of time to file a Traverse. (Dkt. 28). On December 18, 2014, Petitioner filed his Traverse to Respondent's Answer. (Dkt. 29). The matter thus stands submitted and ready for decision.
III.
RELEVANT FACTS
For a summary of the facts, this Court relies on the California Court of Appeal's opinion:
Because this factual summary is drawn from the California Court of Appeal's opinion, "it is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence." Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2008) (citations omitted). In his Objections to the original Report and Recommendation, Petitioner alleges the summary is inaccurate. Objections at 2. The Court has independently reviewed the trial record and finds the summary accurate.
a. The People's Evidence
About 8:30 p.m. on January 15, 2009, Los Angeles County Sheriff Deputies Derek Scharlin and Christopher Craft were in a parked patrol car monitoring an intersection in Santa Clarita due to complaints that drivers had been failing to obey the stop signs. They observed a gray Mazda pickup truck travel through the intersection without stopping at the posted sign and then initiated a traffic stop.
Deputy Craft approached the vehicle on the driver's side and smelled a strong odor of marijuana emitting from the truck. He asked the driver, identified as Gupta, for his driver's license and registration, which Gupta provided to the deputy. Gupta acted extremely nervous, as his hands were shaking and he was stuttering as he spoke to the deputy. Deputy Craft asked Gupta to exit the vehicle, which he did. The deputy searched Gupta's person and found two tightly wound bindles of cash in the front right pocket of Gupta's pants. Each bindle contained $1,320 in mixed denominations.
Deputy Craft did not believe that Gupta was under the influence of a controlled substance, nor did he find on Gupta's person items commonly possessed by users of a controlled substance, such as a glass smoking pipe, needle, syringe or razor blade.
Deputy Scharlin searched the truck after Gupta had exited it. In the rear portion of the cab of the truck, within arm's reach of the driver, Deputy Scharlin recovered a nylon bag containing four large Ziploc bags in which there were 23 individually wrapped, small bags. Each small bag contained a white substance, resembling methamphetamine. Six empty, large Ziploc bags were in the nylon bag as well. In the front part of the truck on the passenger side, Deputy Scharlin found a tightly wound bindle of cash, containing $1,370 in mixed denominations, "underneath quite a bit of papers and napkins and various debris that were strewn on the seat." During the search, Deputy Scharlin noticed "the distinct smell of freshly burnt marijuana." No marijuana was in the vehicle, nor did Deputy Scharlin find any paraphernalia commonly used by people who ingest or smoke narcotics. Deputies Craft and Scharlin were the only deputies present at the stop at the time the narcotics were found in Gupta's vehicle.
Testing determined that the white substance in the small bags found in Gupta's truck was methamphetamine. The total amount of
methamphetamine recovered was approximately nine ounces.
Detective John Skikas testified as a narcotics expert, opining that the methamphetamine found in Gupta's vehicle was possessed for sale. Detective Skikas based his opinion on the large quantity of the drug found in the vehicle, the packaging of the methamphetamine in small bags then placed in larger bags, the amount of cash recovered and the lack of any paraphernalia in the vehicle indicating that Gupta was using the drug or signs that Gupta was under the influence. According to Detective Skikas, the wholesale value of an ounce of methamphetamine for purchase by a seller is $1,200 to $1,400 per ounce, a price consistent with the three bindles of cash found during the search, two containing $1,320 and one containing $1,370. The small bags were typical of those used to sell narcotics in amounts ranging from a quarter of a gram to an eighth of an ounce. In addition, the quantity of methamphetamine found in the vehicle would yield approximately 12,500 individual doses of the drug, which far exceeds the amount that a user would possess, and has a street value of approximately $25,000.
b. The Defense's Evidence
Richard Kovacs testified that he had met Gupta at a job site in November or December 2008 and lived in Santa Clarita, not far from the intersection where the
deputies had stopped Gupta. In December 2008 or January 2009, Kovacs met with Gupta to show him work that Kovacs had done at his in-laws' house. The next time Kovacs saw Gupta was in jail about a week before Gupta's trial, where Kovacs was awaiting transfer after pleading no contest to forgery, possession of a stolen handgun and possession of methamphetamine and being sentenced to two years in state prison. Gupta told Kovacs about the incident with the deputies, and Kovacs reported that he had a similar story. According to Kovacs, the charges against him stemmed from an incident during which Deputy Craft had stopped him while driving because he did not have a front license plate. During the stop, Kovacs showed Deputy Craft that the license plate was inside of his truck. Deputy Craft asked Kovacs to exit the truck and for permission to search the vehicle, but Kovacs refused. Deputy Craft opened the truck's door, pulled Kovacs out and searched the vehicle. The deputy found four counterfeit bills and a stolen handgun. Deputy Craft then went to Kovacs's house, entered the home office and had the safe opened. Inside the safe was a "little bit" of marijuana, but Deputy Craft said the marijuana had come from Kovacs's vehicle and that he had smelled marijuana emitting from the cab of the truck. Kovacs maintained that, after the search, a cellular telephone and $1,500 cash were missing from the
safe. He denied smoking marijuana, but admitted to having some in his house.
Gupta's father testified that Gupta lived with him on January 15, 2009, and that he had rented rooms in his house and his daughter's house to Brazilians, who spoke both English and Portuguese. Gupta's father saw Brazilians drive Gupta's truck.
Gupta testified, stating that the money found by the deputies had been earned by him working as a day laborer. Although he had some paycheck stubs, he did not have any for the period from August 2008 to January 2009. According to Gupta, he had the cash bindles with him on January 15, 2009 because he had gone to an auction that day hoping to buy a new car, and the money was separated into three bindles because he wanted to buy three cars. When the deputies stopped him, he was coming from a meeting he had with Kovacs to discuss the possibility of Kovacs's helping him with work at his father's homes. Gupta was unaware that narcotics were in his vehicle. He loaned his truck to others, including the Brazilians. The nylon bag containing the drugs had Portuguese writing on the outside of it, and Gupta did not know that it was in his vehicle. Gupta said that he had found items that were not his in his truck on prior occasions and then thrown them away, and if he found methamphetamine worth $25,000 in his truck he would have thrown it away. Gupta said a deputy in plain
clothes, in addition to Deputies Craft and Scharlin, who were in uniform, was present at the scene of his stop and that deputy had asked him whether he would consent to a search of the vehicle. Gupta explained that he had told the deputy in plain clothes that he would not consent to a search, yet Deputy Craft had searched his person and Deputy Scharlin, along with the deputy in plain clothes, had searched his truck. After the deputy in plain clothes asked Gupta for consent to search and Gupta refused, Deputy Craft said that if Gupta were refusing the search then he must have something to hide. There was no marijuana odor in his truck, and no marijuana or anything relating to it was found in the vehicle. Gupta admitted prior convictions for first degree burglary in 1985, possession for sale of a controlled substance and involuntary manslaughter in 1992 and offering to sell methamphetamine in 1997. He was in prison from 1997 to 2005.Lodg. No. 13 at 3-6.
IV.
CLAIMS FOR RELIEF
Petitioner's 22 claims, as presented in his Petition and accompanying Memorandum of Points Authorities, are as follows:
(1) Claim One: The trial court erred by failing to sua sponte instruct the jury on the lesser included offense of simple possession because the jury could have found Petitioner possessed the methamphetamine without the intent to sell. Pet. at 7; Pet. Part 1 at 1-13; Traverse at 4-5.
The Petition and supporting Memorandum consist of over 500 pages of background, argument, and exhibits supporting Petitioner's claims. For ease of reference and consistency, the Court adopts the numbering system suggested by Respondent when making paginated references, which tracks this Court's ECF numbering and division of the Petition into 11 parts and the Memorandum into four parts. See Respondent's Mem. at 8 n.4.
(2) Claim Two: Petitioner's appellate counsel was ineffective by failing to raise all the issues Petitioner raised on state habeas corpus and because counsel "intentionally, deliberately & recklessly, frustrated and sabotaged [P]etititoner's attempt to comply with the Court of Appeals' November 28, 2012 Order." Pet. at 7; Pet. Part 1 at 15-30; Pet. Part 9 at 7-13; Traverse at 5-6.
Petitioner, in a confusing manner, explains some issues counsel allegedly should have raised on appeal and merely references others in list format or by citation to other parts of the Petition. See, e.g., Pet. Part 1 at 21-22. Out of an abundance of caution, the Court considers whether appellate counsel was ineffective by failing to raise all the claims Petitioner alleged on state habeas corpus.
(3) Claim Three: Appellate counsel was ineffective by failing to challenge the denial of Petitioner's search and seizure motion. Pet. at 7; Pet. Part 9 at 15; Pet. Part 10 at 1-2; Traverse at 5-6.
(4) Claim Four: Appellate counsel was ineffective by failing to obtain a complete and adequate appellate record. Pet. at 8; Pet. Part 10 at 3-14; Traverse at 5-6.
(5) Claim Five: Petitioner was denied his Sixth Amendment right to counsel when he expressed a desire for an attorney to take over but was compelled by the trial court to proceed without an attorney. Pet. at 8; Pet. Part 11 at 15-22; Traverse at 6.
(6) Claim Six: The prosecution failed to disclose the identity of the plainclothes "Asian/Filipino/Pacific Islander" involved in the search of Petitioner's truck in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and the trial court erred by (a) denying Petitioner's motion for new trial based on the alleged Brady violation and perjured testimony of witnesses Deputy Craft and Deputy Scharlin, (b) quashing the subpoena served on Detective B. Thompson, and (c) denying Petitioner's motion for post-conviction discovery. Pet. Mem. at 25-56; Traverse at 6-10.
Petitioner numbered the claims in the Memorandum as "I" through "XVI." The Court renumbers these claims, beginning with Claim Six, to maintain numerical consistency with the Petition.
(7) Claim Seven: Petitioner's Fourth Amendment right against unreasonable searches and seizures was violated when Petitioner and his truck were searched, and the trial court erred by (a) denying Petitioner's motion to suppress under California Penal Code § 1538.5, (b) denying Petitioner's request for judicial notice of a "Police Code-of-Silence" at the suppression hearing, (c) failing to provide a cogently expressed or logically reasoned ruling, (d) not allowing Petitioner to be fully heard at the suppression hearing, and (e) denying Petitioner's request to reopen the suppression hearing. Pet. Mem. at 57-63; Pet. Mem. Part 1 at 1-44; Traverse at 10-12.
(8) Claim Eight: Petitioner was deprived of his rights to due process and a fair trial because the police failed to retain the name of a ride-along witness present at the scene of Petitioner's arrest who could have identified the "Asian-looking" detective involved in the search, and the trial court erred by (a) quashing Petitioner's related subpoena served upon Deputy Jensen, and (b) denying Petitioner's "motion to dismiss or to produce material witness ride-along identity." Pet. Mem. Part 1 at 45-53; Pet. Mem. Part 2 at 1-11; Traverse at 12-14.
(9) Claim Nine: Petitioner's court-appointed investigator performed an "ineffective/inadequate" investigation because he failed to obtain video surveillance from the In & Out Burger restaurant showing the Asian detective, thus warranting (a) a new trial, (b) an evidentiary hearing, (c) dismissal of the case, or (d) timely disclosure of the video surveillance from the prosecution. Pet. Mem. Part 2 at 12-42; Traverse at 14-17.
(10) Claim Ten: Petitioner's rights to a fair trial and to present a defense were violated when the trial court failed to (a) grant Petitioner's request for judicial notice of "police code-of-silence," (b) appoint a "police code-of-silence" expert to testify at trial, and (c) instruct the jury on "police code of silence." Pet. Mem. Part 2 at 43-55; Pet. Mem. Part 3 at 1-8; Traverse at 17-19.
(11) Claim Eleven: Petitioner's right to due process was violated because the trial judge was biased. Pet. Mem. Part 3 at 9-33; Traverse at 19-22.
(12) Claim Twelve: The trial court violated Petitioner's right to a fair trial and to confront witnesses by restricting and then admonishing the jury to disregard Petitioner's cross examination of Deputy Craft. Pet. Mem. Part 3 at 34-37; Traverse at 22-23.
(13) Claim Thirteen: The trial court violated Petitioner's right to due process and a fair trial by rejecting Petitioner's proposed instruction on a defendant's refusal to consent to search, and refusing to sua sponte instruct on how the jury should view a judge's comment on the evidence. Pet. Mem. Part 3 at 38-41; Traverse at 23-24.
(14) Claim Fourteen: The trial court violated Petitioner's right to a fair trial by instructing the jury that Petitioner's case was not a Three Strikes case under California's Three Strikes Law. Pet. Mem. Part 3 at 42-46; Traverse at 24-25.
(15) Claim Fifteen: The trial court violated Petitioner's rights to a fair trial and to present a defense when it quashed Petitioner's subpoena of a toxicologist who drafted a report indicating a hair follicle test showed Petitioner tested negative for marijuana intoxication. Pet. Mem. Part 3 at 47-49; Traverse at 25-26.
(16) Claim Sixteen: The trial court violated Petitioner's due process rights by erroneously denying his foundational objection to the admission of chain of custody evidence. Pet. Mem. Part 3 at 50; Pet. Mem. Part 4 at 1-2; Traverse at 26-27.
(17) Claim Seventeen: The prosecutor committed misconduct during closing argument by intentionally lying to the jury that Petitioner had already been convicted of the exact same counts for which he was on trial. Pet. Mem. Part 4 at 3-8; Traverse at 27-29.
(18) Claim Eighteen: There was insufficient evidence to support a finding that Petitioner "had knowledge of the presence" of the controlled substance. Pet. Mem. Part 4 at 9-15; Traverse at 29-33.
(19) Claim Nineteen: The trial court violated Petitioner's rights to due process and a fair trial when it instructed the jury that (a) in evaluating testimony it could consider whether a witness had been convicted of a felony, and (b) it must reach its verdict without any consideration of punishment. Pet. Mem. Part 4 at 16-17; Traverse at 33.
(20) Claim Twenty: The trial court erroneously denied Petitioner's motion for production of trial transcripts for the purpose of preparing a motion for new trial, thereby making Petitioner "ineffective as pro. per. counsel." Pet. Mem. Part 4 at 18-23.
(21) Claim Twenty-One: The cumulative effect of the errors in Petitioner's case resulted in a denial of due process. Pet. Mem. Part 4 at 23-24; Traverse at 33.
(22) Claim Twenty-Two: There was insufficient evidence to support the civil forfeiture of $4,010 because there was no nexus between the seized funds and some illegal transaction. Pet. Mem. Part 4 at 25-28; Traverse at 34-37.
In Respondent's Answer, Respondent contends all of Petitioner's claims fail on their merits. Respondent also contends Claim Five is procedurally defaulted and Claims One, Five, and part of Six, are barred by the non-retroactivity doctrine set forth in Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
Respondent contends Claim Five is procedurally barred in light of the Los Angeles County Superior Court's denial of the claim on the ground that Petitioner could have raised it on direct appeal, in addition to its denial of the claim on the merits. Respondent's Mem. at 41-43; see also Lodg. No. 23 at 3-4. Because the Court necessarily reviews the underlying merits of Claim Five as part of its consideration of Petitioner's allegation in Claim Two that appellate counsel was ineffective by failing to raise the claim (see Pet. Part 1 at 21), in the interest of judicial economy, this Court considers the claim on its merits rather than addressing the procedural default issue. See 28 U.S.C. § 2254 (b)(2) (district court has authority to deny unexhausted claims on their merits); see also Lambrix v. Singletary, 520 U.S. 518, 525, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997) ("We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be."); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same.").
V.
STANDARD OF REVIEW
Petitioner's claims are subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, federal courts may grant habeas relief to a state prisoner "with respect to any claim that was adjudicated on the merits in State court proceedings" only if that adjudication:
(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). "'[C]learly established Federal law' for purposes of § 2254(d)(1) includes only 'the holdings, as opposed to the dicta, of th[e] [U.S. Supreme] Court's decisions'" in existence at the time of the state court adjudication. White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702, 1706, 188 L. Ed. 2d 698 (2014) (quoting Howes v. Fields, ___ U.S. ___, 132 S. Ct. 1181, 1187, 182 L. Ed. 2d 17 (2012)). Additionally, however, "circuit court precedent may be persuasive in demonstrating what law is clearly established and whether a state court applied that law unreasonably." Maxwell v. Roe, 628 F.3d 486, 494 (9th Cir. 2010) (internal quotation marks omitted).
Overall, AEDPA presents "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. ___, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013). The federal statute presents "a difficult to meet . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Pinholster, 131 S. Ct. at 1398 (internal citation and quotation marks omitted). On habeas review, AEDPA places on petitioners the burden to show that the state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011). Put another way, a state court determination that a claim lacks merit "precludes federal habeas relief so long as fairminded jurists could disagree" on the correctness of that ruling. Id. at 786. Federal habeas corpus review therefore serves as "a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. (internal citation and quotation marks omitted).
Where the last state court disposition of a claim is a summary denial, this Court must review the last reasoned state court decision addressing the merits of the claim under AEDPA's deferential standard of review. Maxwell, 628 F.3d at 495. See also Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (when a state supreme court denies discretionary review of a decision on direct appeal, the appellate court's decision is the relevant state-court decision for purposes of AEDPA's standard of review); Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) (holding that California Supreme Court, by silently denying petition for review over appellate decision, presumably did not intend to change the California Court of Appeal's analysis).
Contrarily, when a state court "does not supply reasoning for its decision [on a petitioner's claims]," the court must "engage in an 'independent review of the record' and ascertain whether the state court's decision was 'objectively unreasonable.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir.), cert. denied, 134 S. Ct. 514 (2013) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). Notably, this does not operate as "de novo review." Id. (quoting Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)). That is, it "remains the petitioner's burden to demonstrate that 'there was no reasonable basis for the state court to deny relief.'" Id. (quoting Richter, 131 S. Ct. at 786).
Here, the California Court of Appeal's reasoned opinion disposing of Petitioner's direct appeal, see Lodg. No. 13, stands as the last reasoned decision on the merits of Claim One. Hence, Claim One must be reviewed under AEDPA's deferential standard of review.
The Los Angeles County Superior Court denied Claims Two through Five, in reasoned orders. Lodg. Nos. 18-23. These claims were summarily denied by the California Court of Appeal and California Supreme Court. Lodg. Nos. 24-27. As such, the Court "looks through" the unexplained decisions to the Superior Court's orders denying relief as the last reasoned decisions on the merits of Claims Two through Five. See Cannedy v. Adams, 706 F.3d 1148, 1157-59 (9th Cir.) (holding that "look through" practice continues to apply on AEDPA review when California Supreme Court has summarily denied either direct or collateral review of claim previously adjudicated by lower court), as amended, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S. Ct. 1001 (2014). Hence, Claims Two through Five must be reviewed under AEDPA's deferential standard of review.
The Los Angeles County Superior Court denied Claims Six through Twenty-Two because "Petitioner has failed to establish a prima facie case for relief" and because "[t]he burden is on Petitioner to establish grounds for his release" with citations to In re Crow, 4 Cal. 3d 613, 624 (1971) and People v. Duvall, 9 Cal. 4th 464, 474 (1995). Lodg. No. 19. These claims were summarily denied by the California Court of Appeal and California Supreme Court. Lodg. Nos. 24-27. Despite the brevity of the Superior Court's order, the Court presumes that these claims were adjudicated on the merits. See Johnson v. Williams, ___ U.S. ___, 133 S. Ct. 1088, 1096, 185 L. Ed. 2d 105 (2013) ("When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits-but that presumption can in some limited circumstances be rebutted."); Ramsey v. Perez, No. CV 13-1421-DSF (DTB), 2014 WL 2511093, at *5 (C.D. Cal. June 2, 2014) (presuming nearly identical superior court order adjudicated claim on the merits). However, because the Superior Court did explain its reasons for finding that Petitioner had not presented a prima facie case for relief, the Court must "engage in an 'independent review of the record'" to determine whether the denial of Claims Six through Twenty-Two were "objectively unreasonable." Walker, 709 F.3d at 939 (quoting Delgado, 223 F.3d at 982); Ramsey v. Yearwood, 231 F. App'x 623, 625 (9th Cir. 2007) (independently reviewing claim denied by the superior court for failing to "state a prima facie claim"); McShane v. Cate, No. ED CV 09-1243-GW (PJW), 2014 WL 3752030, at *9 (C.D. Cal. July 30, 2014) (same).
VI.
DISCUSSION
A. Claim One , subclaim(c) of Claim Ten, and Claims Thirteen, Fourteen, and Nineteen Do not Warrant Habeas Relief
The Court addresses the claims in an order different from that suggested by the parties for clarity and to avoid repetition.
In Claim One, subclaim (c) of Claim Ten, and Claims Thirteen, Fourteen, and Nineteen, Petitioner argues that the trial court erred in instructing the jury.
1. State Instructional Error Claims on Federal Habeas Review
The content of jury instructions is generally a matter of state law for which federal habeas relief is not available. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). When assessing a claim of instructional error on federal habeas review, "[t]he only question . . . is 'whether [a jury] instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Id. at 72 (internal citation omitted); see Waddington v. Sarausad, 555 U.S. 179, 191, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009). More specifically, when reviewing a purportedly "ambiguous instruction," the Court must determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." McGuire, 502 U.S. at 72 (internal quotation marks and citations omitted).
"The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977). To meet this burden, a habeas petitioner must show that the instructional error "had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); see Hedgpeth v. Pulido, 555 U.S. 57, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008) (applying Brecht harmless-error analysis to instructional-error claim on federal habeas review). In assessing such prejudice, "[t]he jury 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." McGuire, 502 U.S. at 72 (internal citation and quotation marks omitted). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some [constitutional right]." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) (internal quotation marks omitted).
2. Claim One Does Not Warrant Habeas Relief
Petitioner first argues the trial court erred by failing to sua sponte instruct the jury on the lesser included offense of simple possession because the jury could have found that he possessed the methamphetamine without the intent to sell. See Pet. at 7; Pet. Part 1 at 1-13; Traverse at 4-5. In its reasoned decision disposing of Petitioner's direct appeal on May 31, 2012, the California Court of Appeal rejected Petitioner's instructional error claim on its merits. See Lodg. No. 13 at 7-9. Accordingly, the Court reviews the Court of Appeal's reasoned disposition of Petitioner's claim as an "adjudication on the merits" subject to deference under AEDPA. See 28 U.S.C. § 2254(d).
a. Relevant Trial Court Proceedings
During a hearing on jury instructions, the trial court asked the parties whether there were any objections to the proposed instructions and the following dialogue ensued:
[Prosecutor]: Sorry. I did have one concern. When I submitted the instructions to you, I included a lesser included, which I though[t] was sua sponte.RT 1511. Accordingly, the trial court did not instruct the jury that simple possession of a controlled substance is a lesser included offense of possession for sale of a controlled substance.
The Court: It's only sua sponte if there's any evidence whatsoever.
[Prosecutor]: That was a concern. I would agree with the court.
The Court: Mr. Gupta is not making any claim that he possessed these items at all. In fact, his defense is th[at] he didn't even know it was there. So there's no rational evidentiary basis to include a lesser.
b. The State Court Decision
On direct appeal, Petitioner argued he was entitled to a jury instruction on the lesser included offense of simple possession because the only direct evidence in the record was that Petitioner had constructive or actual possession of the methamphetamine by virtue of it being found in his truck, whereas the only evidence of intent to sell was the circumstantial evidence of the detective's opinion. Lodg. No. 8 at 17-23. The jury could have reasonably inferred from the evidence that the drugs belonged to the Brazilians, and that Petitioner merely possessed the drugs because the Brazilians had left the bag in Petitioner's work truck. Id. at 23. Accordingly, without the alternative possession instruction, Petitioner argued, the jury was more inclined to find guilt of possession for sale. Id. at 23-26.
The Court of Appeal rejected Petitioner's instructional error claim, reasoning the evidence did not support an inference that Petitioner possessed the methamphetamine and knew of its presence and nature, but did not intend to sell it. Lodg. No. 13 at 8. Further, even assuming instructional error, the Court of Appeal concluded Petitioner was not prejudiced in light of the evidence against him, including the large quantity of methamphetamine found in Petitioner's vehicle, the packaging, cash, and lack of evidence that Petitioner was under the influence, personally used the drug, or possessed it but did not intent to sell it. Lodg. No. 13 at 9. Consequently, the Court of Appeal rejected Petitioner's instructional error claim.
c. Analysis
As a general matter, the U.S. Supreme Court has never required a trial court to instruct a jury on lesser-included offenses in a non-capital case on due process grounds. See Beck v. Alabama, 447 U.S. 625, 638 n.14, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) ("We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case."). Hence, the Ninth Circuit has held that instructional error claims based on the failure of a state court to instruct on lesser-included offenses do not implicate "clearly established federal law" and do not merit habeas relief. United States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009); Solis v. Garcia; 219 F.3d 922, 929 (9th Cir. 2000) (failure of state court to instruct on lesser-included offense does not alone present a federal constitutional question cognizable in a federal habeas corpus proceeding).
For this Court to find a constitutional right to a lesser included offense instruction in this non-capital case, it would require the application of a new rule of law. This Court may not undertake such an exercise in a habeas corpus proceeding. Teague, 489 U.S. 288; Solis v. Garcia; 219 F.3d 922, 929 (9th Cir. 2000) (per curiam) (habeas relief for failure to instruct on lesser included offense in non-capital case barred by Teague).
However, the Ninth Circuit has recognized a cognizable federal constitutional claim may be stated where a state court has refused a requested lesser offense instruction which is consistent with the defendant's theory of defense. See Solis, 219 F.3d at 929 (stating "the defendant's right to adequate jury instructions on his or her theory of the case might, in some cases, constitute an exception to the general rule") (citing Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984)). At the same time, as the Ninth Circuit made clear in Solis, this exception does not apply if there is insufficient evidence supporting the proffered lesser offense instruction. Id. at 929-30 (finding no constitutional error in refusal to give lesser-included voluntary manslaughter instruction where there was no "substantial evidence" supporting the instruction under state law); see also Cervantez v. Pliler, 360 F. App'x 737, 739 (9th Cir. 2009).
Even assuming Petitioner's claim is cognizable, the Court holds the Court of Appeal's decision was not unreasonable. As the Court of Appeal recognized, the evidence did not support a lesser included offense instruction on simple possession. The methamphetamine found in Petitioner's truck was packaged for sale in 23 individually-wrapped small bags placed within four larger Ziplock bags, and it was found with other packaging materials. RT 336-37, 339, 345, 426-32, 910. The sheer amount was so large that it would yield almost 12,500 individual doses of methamphetamine, and had a street value of $25,000. Id. at 917-20. Petitioner had three bindles of cash (two in the amount of $1,320 on his person and one in the amount of $1,370 in his truck), which were all within the range of the wholesale value for an ounce of methamphetamine. Id. at 337-38, 342-43, 428-32. There was no evidence Petitioner was under the influence of methamphetamine, and no paraphernalia used to ingest the drug were found on Petitioner or in his truck. Id. at 342-44, 1299. Further, although Petitioner attempted to shift blame to the alleged Brazilians, who he claimed had driven his truck, there was no evidence that any of those people were users or sellers of methamphetamine. Id. at 1288-90. Finally, Petitioner denied he possessed the bag that contained the methamphetamine. Id. at 1284, 1289-90, 1299. Because there was insufficient evidence supporting a simple possession instruction, Petitioner's instructional error claim is meritless. See Solis, 219 F.3d at 929-30; Cervantez, 360 F. App'x at 739 (rejecting instructional error claim based on failure to give lesser-included offense instruction because "the factual record was utterly devoid of any evidence that would have supported [the instruction]"). Hence, the Court concludes the Court of Appeal's decision was not "contrary to" or an "unreasonable application" of "clearly established federal law." 28 U.S. C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim One.
3. Subclaim (c) of Claim Ten Does Not Warrant Habeas Relief
Petitioner argues in subclaim (c) of Claim Ten that his right to a fair trial was violated because the trial court failed to instruct the jury on "police code of silence." Pet. Mem. Part 3 at 7-8; Traverse at 18-19. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 148-69; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
a. Relevant Trial Court Proceedings
At the hearing on jury instructions, Petitioner proposed the following handwritten instruction:
CT 112, 120, 115; RT 1517. The trial court declined to give the instruction. RT 1517.
POLICE CODE-OF-SILENCE
There exists a police code-of-silence which "consists of one simple rule, an officer does not provide adverse information against a fellow officer." (Citation omitted.)
Police code-of-silence forces some good officers to commit crimes or lie or cover up the abuses of their coworkers, and where officers will refuse to speak candidly about the misdeeds of their colleagues. (Citation omitted.)
b. Analysis
As discussed in further detail below in subclaims (a) and (b) of Claim Ten, the trial court denied Petitioner's request for judicial notice of a police code of silence and appointment of a police code of silence expert. Thus, no direct evidence of a police code of silence was admitted at trial. Accordingly, as with Claim One, Petitioner's subclaim lacks merit because there was no evidence warranting the instruction. See Solis, 219 F.3d at 929-30; Cervantez, 360 F. App'x at 739.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's subclaim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on subclaim (c) of Claim Ten.
4. Claim Thirteen Does Not Warrant Habeas Relief
Petitioner argues in Claim Thirteen that his right to due process and a fair trial was violated when the trial court rejected his proposed instruction on a defendant's refusal to consent to search, and by not sua sponte instructing on how the jury should view a judge's comment on the evidence. Pet. Mem. Part 3 at 38-41; Traverse at 23-24. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 198-201; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
a. Relevant Trial Court Proceedings
Petitioner testified in his own defense that an alleged Asian plain-clothes officer asked to search his truck, and he responded "No, I'd like to go home, get something to eat, and go to sleep." RT 1256.
Later, the following exchange occurred during the prosecutor's cross-examination of Petitioner:
[Prosecutor]: And they wanted to search your car, and you said no, right?
[Petitioner]: Correct.
[Prosecutor]: You said no, because you had $4,000 in three separate bindles on you and $25,000 worth of methamphetamine in your car and extra packaging materials for food; is that right?
[Petitioner]: That's false. I said no because I know every person has a right to say no and refuse a search, unless maybe they have a search warrant or unless you go in some area like a courthouse or a jail facility, then you're subject to search. But out in society, every person has a right to say no and refuse a search.RT 1308.
[Prosecutor]: Your honor, object. It's misstating, foundation.
The Court: The witness' last statement is stricken. The objection is sustained.
At the hearing on jury instructions, Petitioner proposed the following handwritten instruction:
CT 112, 115; RT 1513. The trial court declined to give the instruction, explaining to Petitioner that the instruction might have been warranted had the prosecutor presented in his case-in-chief that Petitioner did not consent to search and then argued that it showed a consciousness of guilt. RT 1514. However, the court further explained, Petitioner had placed his state of mind into issue by testifying that he did not want the police to search his vehicle. Id. at 1513-14. Because Petitioner had placed his state of mind into issue regarding whether he actually consented, the prosecutor was allowed to impeach him, and no instruction was warranted. Id. at 1513-14.
REFUSAL OF CONSENT TO SEARCH
Evidence of refusal to consent to search cannot be used to prove guilt. [¶] (See People v. Wood (2002) 103 Cal. App. 4th 803, 809; People v. May (1988) 44 Cal. 3d 309, 315; except as rebuttal or impeachment evidence[.])
Petitioner also listed CALCRIM No. 3530 on his "Index and Disposition Table" of proposed instructions, but did not ask for it during the hearing on jury instructions. CT 112; RT 1511-17. CALCRIM No. 3530 reads as follows:
Do not take anything I said or did during the trial as an indication of what I think about the evidence, the witnesses, or what your verdict should be.Judicial Council of Cal. Crim. Jury Instruction No. 3530.
Now, I will comment on the evidence only to help you decide the issues in this case.
However, it is not my role to tell you what your verdict should be. You are the sole judges of the evidence and believability of witnesses. It is up to you and you alone to decide the issues in this case. You may disregard any or all of my comments about the evidence or give them whatever weight you believe is appropriate.
b. Analysis
Several circuit courts of appeals, including the Ninth Circuit, have suggested that a prosecutor's comment that a suspect refused to allow a warrantless search cannot be used as evidence of guilt. See United States v. Prescott, 581 F.2d 1343, 1351-52 (9th Cir. 1978) (noting "refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing"); see also Gasho v. United States, 39 F.3d 1420, 1438-39 (9th Cir. 1994); Glazier v. Cate, No. CV 12-5692-JFW (PLA), 2014 WL 6769619, at *6 (C.D. Cal. Dec. 1, 2014) (collecting cases). However, Petitioner has not pointed to any Supreme Court authority holding that a prosecutor's comment on a suspect's refusal to consent to a search violates the Constitution. See United States v. Rios, 443 F. App'x 433 (11th Cir. 2011) ("We have no case law that squarely answers the question before us-whether it is a violation of the Fourth or Fifth Amendments for the government to comment at trial on a defendant's refusal to consent to a warrantless search"); Glazier, 2014 WL 6769619 at *6. Concomitantly, Petitioner has failed to point to any Supreme Court authority, and the Court is unaware of any, requiring an instruction when a prosecutor comments or otherwise raises through questioning a refusal to consent to search. Accordingly, because there is no clearly established federal law governing Petitioner's claim, the Court has no authority to grant relief on Petitioner's claim. See Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) ("Given the lack of holdings from [the Supreme] Court regarding [petitioner's claim], it cannot be said that the state court unreasonably applied clearly established Federal law.") (citation omitted) (internal quotation marks omitted).
Petitioner also claims his federal due process rights were violated when the trial court failed to sua sponte instruct on the judicial comment on evidence. Petitioner claims the California Constitution, Penal Code, and case law dictate that "[i]f the court comments on the evidence, the court has a sua sponte duty to give [CALCRIM No. 3530]," and the parties indicate that the bench notes for the instruction require such a sua sponte duty. Pet. Mem. Part 3 at 39-40; Answer at 87; Traverse at 24. Even assuming Petitioner's claim is cognizable, Petitioner has not explained what comments the judge made that warranted the instruction. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (conclusory allegations not supported by specific facts do not warrant habeas relief); Blackledge v. Allison, 431 U.S. 63, 75 n.7, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977) ("the petition is expected to state facts that point to a real possibility of constitutional error") (citation and internal quotation marks omitted).
To the extent Petitioner contends the "evidence" the trial court improperly commented on was his instruction to the jury that Petitioner's case was not a Three Strikes case, see Pet. Mem. at 45-46, that argument is addressed next in Claim Fourteen.
Moreover, viewing "the context of the instructions as a whole and the trial record," the instruction was sufficiently covered by other instructions. McGuire, 502 U.S. at 72 (internal citation and quotation marks omitted). The trial court instructed that the jury alone must decide what the facts are based on the evidence presented, and must judge the credibility and believability of the witnesses. See CT 225, 227. The court also instructed, in language nearly identical to CALCRIM No. 3530, that "[i]t is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." CT 232. Thus, even if there was error, the state court could have reasonably concluded the substance of CALCRIM No. 3530 was adequately covered by other instructions. See George v. Haviland, 506 F. App'x 583, 584 (9th Cir. 2013) (state court reasonably concluded that instructional error was harmless and thus did not violate due process because the substance of petitioner's proposed instruction was adequately covered by other instructions).
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Thirteen.
5. Claim Fourteen Does Not Warrant Habeas Relief
Petitioner argues in Claim Fourteen that the trial court violated his right to a fair trial by instructing the jury that his case was not a three strikes case under California's Three Strikes Law. Pet. Mem. Part 3 at 42-46; Traverse at 24-25. Petitioner contends that although he has only two strikes, he was still subject to the Three Strikes law, and therefore the trial judge "lied to . . . or mislead the jury" into believing the case was not a Three Strikes case. Pet. Mem. Part 3 at 42. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 202-06; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
a. Relevant Trial Court Proceedings
It was alleged by amended information that Petitioner's prior convictions for burglary in 1985 and involuntary manslaughter in 1993 were "strikes" within the meaning of California's Three Strikes Law. CT 136. However, before trial the prosecutor indicated he was pursuing the case as a "presumed second strike case." RT A-10. The court explained to Petitioner that even though he had three potential strikes which could have subjected him to an indeterminate life sentence, it was the policy of the district attorneys office in nonviolent drug cases such as Petitioner's to pursue the case only as a second strike case. Id. at A-11. Petitioner indicated he understood. Id.
Thus, had Petitioner admitted both strike convictions or had they both been found true by the court, Petitioner could have been subject to an indeterminate sentence of 25 years to life. See Cal. Penal Code §§ 667(e)(2)(A), 1170.12(c)(2)(A).
At another pre-trial hearing, the prosecutor requested the trial court to order Petitioner to not raise the issue of punishment before the jury. RT 21. The prosecutor indicated that Petitioner, in the previous trial, "had taken it upon himself to put in front of the jury that he . . . believed he was facing life and it was a three-strikes case." Id. The prosecutor emphasized they were not pursuing the case as "a life case," and, regardless of whether it was a life case or not, the issue of punishment was not for the jury to decide. Id. The court explained to Petitioner:
The jurors are not supposed to consider punishment in terms of making a decision. There's a good reason for that. They're to remain objective. If they consider what the punishment might be, it may influence their decision.Id. at 22. Petitioner said he understood, and the court indicated that if Petitioner decided to go into the area of punishment he would be admonished in front of the jury. Id. at 22-23.
Believe me, I did not wake up and was not born yesterday. I have seen three-strikers try to get in front of the jury for their sympathy of what might befall you if you were convicted. There's no way around the argument that there was some other reason for doing it, and I'll order you not to go into that area at any time during this trial.
During Petitioner's cross-examination of Deputy Craft, Petitioner asked "[i]n your report, you did write about me being a three-striker[?]" RT 415. The prosecutor's objection was sustained and the court then instructed the jury to disregard the question. Id.
Following Deputy Craft's testimony, the court then instructed the jury as follows:
Ladies and gentlemen, before we call the next witness, [Petitioner] did ask a question that contained the word "three-strikes" in it. This is not a "three-strikes" case. You, as jurors, regardless of what kind of case it is, are never supposed to consider what punishment might arise as a result of your decision. So punishment is not part of that. You are supposed to disregard that. I want just to make that point. There are some jurors who have opinions about the three-strikes law and so forth. This is not a three-strikes case.RT 421-22.
b. Analysis
"It is well established that when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed . . . . Information regarding the consequences of a verdict is therefore irrelevant to the jury's task." Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994) (citation, footnote and internal quotation marks omitted); see also United States v. Olano, 62 F.3d 1180, 1201 (9th Cir. 1995) ("[I]t is inappropriate for a jury to consider or be informed of the consequences of their verdict."). Under California law, "[a] defendant's possible punishment is not a proper matter for jury consideration." People v. Thomas, 51 Cal. 4th 449, 486 (Cal.) (citation and internal quotation marks omitted), cert. denied, 132 S. Ct. 136 (2011); see also People v. Nichols, 54 Cal. App. 4th 21, 24-26, 62 (Cal. Ct. App. 1997) (trial court was not required to inform jury of defendant's potential sentence in "three strikes" case, and properly instructed jury not to consider issue of punishment).
Although Petitioner's sentence was doubled within the meaning of Three Strikes Law because he had a prior strike conviction and was found guilty of a felony in the instant case (see RT 2742; Cal. Penal Code §§ 667(b)-(i), 1170.12(a)), he was never subject to an indeterminate "three strikes" life sentence because the prosecutor did not pursue the additional strike. But regardless of whether Petitioner's case could technically be considered a three strikes case, "petitioner had no constitutional right to advise the jury that he was being prosecuted under California's Three Strikes law." Lacy v. Lewis, 123 F. Supp. 2d 533, 552 (C.D. Cal. 2000); see also Barnes v. Yates, No. EDCV 08-0751-AG (RC), 2010 WL 3488233, at *17 (C.D. Cal. June 3, 2010), aff'd, 526 F. App'x 775 (9th Cir. 2013). Because the trial judge properly instructed under both federal and California law that the jury could not consider punishment, the state court reasonably denied Petitioner's claim. See Elmore v. Pillar, No. C 99-4276 TEH, 2000 WL 1006538, at *8 (N.D. Cal. July 12, 2000) (rejecting argument that prosecutor improperly said defendant's case was not a Three Strikes case even though defendant's sentence was doubled under Three Strikes Law for having two strikes because jury was instructed not to consider the penalty that might be imposed when it rendered its judgment).
Hence, reviewing the record independently, the Court concludes the Los Angeles Count Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Fourteen.
6. Claim Nineteen Does Not Warrant Habeas Relief
Petitioner argues in Claim Nineteen that the trial court violated his rights to due process and a fair trial when it instructed the jury that (a) in evaluating testimony it could consider whether a witness had been convicted of a felony, and (b) it must reach its verdict without any consideration of punishment. Pet. Mem. Part 4 at 16-17; Traverse at 33. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 223-24; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
a. Relevant Trial Court Proceedings
The prosecutor proposed CALCRIM No. 226, which states in relevant part that the jury "may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony" and lists factors the jury may consider. RT 1501; CT 227-28. Among the factors listed is "Has the witness been convicted of a felony?" CT 228. The prosecutor also proposed CALCRIM No. 316, which states:
If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.Id. at 229.
During the hearing on jury instructions, Petitioner objected to CALCRIM No. 226 because it "seems cumulative to instruction 316." RT 1506. The trial overruled the objection because the instructions were standard jury instructions and CALCRIM No. 316 simply added clarification to CALCRIM No. 226. Id. at 1506-07.
The prosecutor also proposed CALCRIM No. 3550, which provides the jury with a litany of standard pre-deliberation instructions. See CT 231-32. Part of that instruction reads: "You must reach your verdict without any consideration of punishment." Id. at 232. Petitioner objected to this part of the instruction because he "didn't see it in the original CALCRIM." RT 1510. The court indicated the sentence was part of the standard CALCRIM No. 3550, and did not remove it from the instruction given to the jury. Id. at 1510-11; CT 232.
b. Analysis
Regarding Petitioner's challenge to the instructions allowing the jury to consider whether a witness had been convicted of a felony, Petitioner makes no claim the instructions are wrong or otherwise improper under federal or California law. See People v. Harrison, 35 Cal. 4th 208, 254 (2005) ("a witness's prior conviction of a felony [was a] factor[ the jury] could consider in determining the believability of a witness"), cert. denied, 546 U.S. 890 (2005). Rather, he merely contends CALCRIM No. 226 is "cumulative to" CALCRIM No. 316 and this repetition had a prejudicial effect of putting too much emphasis on his prior felony convictions. See Pet. Mem. Part 4 at 16. Petitioner fails to cite any authority supporting his proposition that he was prejudiced by the trial court repeating a proper instruction. The fact that the jury was repeatedly instructed with correct statements of the law would tend to reduce any potential prejudice. See, e.g., Sanchez v. Jacquez, No. C 10-556 YGR (PR), 2012 WL 3647453, at *8 (N.D. Cal. Aug. 23, 2012) (finding no prejudice where "trial court repeatedly instructed the jurors as to how to regard expert witness testimony"); Lopez v. Salinas, No. 1:10-cv-02325-DLB (HC), 2011 WL 1743690, at *8-9 (E.D. Cal. May 6, 2011) (even if trial court erred in giving instruction, trial was not fundamentally unfair where jury was instructed on how to evaluate a witness's testimony, which was again re-stated in CALCRIM No. 226).
Regarding Petitioner's claim that the court improperly instructed the jury it must reach its verdict without any consideration of punishment, Petitioner contends the "sentence paragraph is not even in the CALCRIM jury instructions that [he] reviewed and researched into." Pet. Mem. Part 4 at 16. Petitioner adds that the trial judge "just threw that sentence paragraph into CALCRIM 3550 on his own" and "creat[ed] his own jury instruction." Id. Petitioner's claim wholly lacks merit because the standard CALCRIM No. 3550 jury instruction includes the statement "You must reach your verdict without any consideration of punishment." See Judicial Council of Cal. Crim. Jury Instruction No. 3530; see also Caddel v. Foulk, No. EDCV 13-2116-JSL(AJW), 2014 WL 2557836, at *10 (C.D. Cal. Apr. 4, 2014), accepted by, 2014 WL 2557851 (C.D. Cal. June 6, 2014). Petitioner fails to point to any prior versions of the CALCRIM or explain what he allegedly "reviewed and researched into" that supports his argument. See Greenway, 653 F.3d at 804; Blackledge, 431 U.S. at 75 n.7.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Nineteen. B. Claim Five Does not Warrant Habeas Relief
Petitioner argues in Claim Five that he was denied his Sixth Amendment right to counsel when, on February 8, 2010, he expressed a desire for an attorney to take over but was compelled by the trial court to proceed without one. Pet. at 8; Pet. Pt. 11 at 15-22; Traverse at 6. In its denial disposing of Petitioner's state habeas petition on February 26, 2013, the Los Angeles County Superior Court rejected Petitioner's claim on its merits. Lodg. Nos. 22, 23. Accordingly, the Court reviews the Superior Court's reasoned disposition of Petitioner's claim as an "adjudication on the merits" subject to deference under AEDPA. See 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
Sometime before February 24, 2009, Petitioner waived his right to counsel and elected to represent himself. CT 15, 17.
Petitioner indicates he began proceeding pro se on January 20, 2009. See Lodg. No. 7, ACT at 2. The transcript of the hearing in which Petitioner waived his right to counsel and executed waiver forms under Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), is not in the record. See CT 15. Petitioner makes no challenge to his initial Faretta waiver, but rather challenges only his alleged request for an attorney at the later, February 8, 2010 hearing.
On February 8, 2010, two days prior to the start of his trial, Petitioner's father appeared in court and asked the court "to consider . . . taking [Petitioner] off pro per status . . ." RT C17-C18. The trial court noted "no judge would ever say it was a good idea to represent yourself[,]" but confirmed with Petitioner that he had been warned "many times" about the problems with self representation and that he was choosing to proceed by himself despite "knowing that it is not the wisest course to take." Id. at C18. Petitioner explained he made the decision because he was present at the scene of his arrest and saw "how everything occurred," whereas an attorney was not there. Id. The trial court reiterated Petitioner had already been granted pro se status and again reminded him:
[W]hen you walk into a courtroom in trial, I'm going to treat you just like an attorney. If you fall all over yourself, trying to defend yourself, that's to your detriment, not to your benefit. A lawyer can generally do
a better job, even though they were not at the scene. And I would generally tell you that it's a big mistake to represent yourself, even if you were there, because you can pass this same information on to a competent, qualified lawyer.Id. at C19.
I would give you time if you wanted a lawyer to represent you, so that that person could become familiar. But, on the other hand, I can't take away your right to represent yourself. So if you want to walk into this buzz saw of a trial representing yourself, with all of the risks that go along with that, then I will allow you to do that.
The trial court then asked Petitioner whether he had "any thoughts in reconsidering representing yourself at this time," and Petitioner responded "not at this time, no." Id. at C20 (emphasis added). The trial court then warned Petitioner "once we get started, there's no time to change your mind. This is a good time to make that last decision . . . ." Id. The trial court indicated the matter was a "two strikes case" carrying significant penalties, and reminded Petitioner again "if you want to change your mind, not that your father says you should, but because you believe it's probably better that a skilled lawyer represent you, then you tell me and . . . I will appoint somebody to represent you." Id. at C21. The court further explained, "I just want you to make an intelligent choice before we get started, because once the jury is in here and you say oh, I'd like to have an attorney, it's too late." Id.
Petitioner replied: "I wouldn't mind giving up the pro per status for an attorney and if I can get the identity of the detective that was involved in the search and arrest, then I'll have no problem." Id. at C21 (emphasis added). The court responded that there was "no guarantee" Petitioner would receive the discovery he was seeking if an attorney was appointed. Id. at C21-C22. The court indicated it appeared Petitioner was on a "fishing expedition" regarding his discovery, and then said: "Let's get back to the main point. If you want to represent yourself . . . I'll keep it the way it is. If you are having second thoughts, this is the time to let me know . . . ." Id. at C22-C23. The court then said "I want you to be clear with me as to what your intentions are," to which Petitioner responded "I guess I'd like to proceed by myself." RT at C23 (emphasis added).
The trial court asked Petitioner yet again whether he wished to have counsel appointed, and Petitioner responded: "At this time I'd like to continue representing myself; but once I identify the detective, I'll go ahead and relinquish pro per status." Id. at C24-C25 (emphasis added). The following colloquy then ensued:
The Court: No. This is what I'm trying to tell you.
[Petitioner]: I understand.
The Court: Listen carefully. Once the trial begins, you're going to -- if you're your own attorney, that's the way it will be. And you're not going to be able to jump up and say, "I want an attorney," because it will be too late. That's why I'm talking to you about it now. You can't wait to see what happens and then change your mind once the trial is in progress. You need to make up your mind. You've been pro per all this time, and you actually started the other trial where you were representing yourself. You can do that again, or you can tell me that you want an attorney. But I need to know clearly, and I need to know today.
[Petitioner]: Yeah. I'll represent myself just because I'm trying to find out the detective involved.Id. at C25 (emphasis added).
2. The State Court Decision
In his state habeas corpus petition filed in the Los Angeles County Superior Court, Petitioner contended that at the February 8, 2010 hearing, he expressed a desire for an attorney to take over the case but was compelled by the trial judge to proceed by himself. Lodg. No. 22 at 3. Petitioner contended he clearly expressed his desire for an attorney when he said he "wouldn't mind giving up pro per status for an attorney and if I can get the identity of the detective that was involved in the search and arrest, then I'll have no problem" and when he stated ". . . I'll go ahead and relinquish pro per status." Id. (citing RT C21, C25).
The Superior Court denied the claim in a reasoned order. The court noted that under California law, once pro per status has been granted, a defendant does not have a right to change that status and the matter is within the court's discretion to allow the defendant to change his mind. See Lodg. No. 23 at 2-3 (citing, inter alia, People v. Lawley, 27 Cal. 4th 102, 148-51 (2002)). The court concluded Petitioner's statement that he "wouldn't mind giving up pro per status . . ." was not a demand for an attorney, and found it was not unequivocal but conditional upon discovery issues already heard by the court. See id. The court further found that, because Petitioner's request was made two days before trial and after all the witnesses had been subpoenaed for trial, it was untimely. See id. at 3. Finally, the court denied the claim because it should have been raised on direct appeal, with citation to In re Harris, 5 Cal. 4th 813, 825, 829 (1993) and In re Dixon, 41 Cal. 2d 756, 759 (1953). See Lodg. No. 23 at 3-4.
3. Analysis
It is beyond dispute that "[t]he Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process." Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004); see Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). It is just as well settled, however, that a defendant also has the right to "proceed without counsel when he voluntarily and intelligently elects to do so." Faretta, 422 U.S. at 807.
"There can be some tension in these two principles." Marshall v. Rodgers, ___ U.S. ___, 133 S. Ct. 1446, 1449, 185 L. Ed. 2d 540 (2013). As the Supreme Court has explained, "'[t]here can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel.'" Id. at 1449-50 (quoting Faretta, 522 U.S. at 832). The Supreme Court has further explained that California resolved this tension by adopting a framework under which trial judges are afforded discretion when considering postwaiver requests for counsel; their decisions on such requests must be based on the totality of the circumstances, "includ[ing] the quality of [the defendant's] representation of [himself], the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay [that] might reasonably be expected to follow the granting of such a motion." Rodgers, 133 S. Ct. at 1450 (quoting Lawley, 27 Cal. 4th at 149) (internal quotation marks omitted; last alteration in original).
The Supreme Court has also directed that, upon being presented with a challenge to a trial judge's decision under California's discretionary frame work, all a federal habeas court is empowered to do under § 2254(d)(1) is:
to observe that, in light of the tension between the Sixth Amendment's guarantee of "the right to counsel at all critical stages of the criminal process," Tovar, supra, at 80-81[], and its concurrent promise of "a constitutional right to proceed without counsel when [a criminal defendant] voluntarily and intelligently elects to do so," Faretta, supra, at 807[], it cannot be said that California's approach is contrary to or an unreasonable application of the "general standard[s]" established by the [Supreme] Court's assistance-of-counsel cases.Rodgers, 133 S. Ct. at 1450.
The Court so observes. Accordingly, because there is no clearly established federal law governing Petitioner's claim, the Court has no authority to grant relief on Petitioner's claim. See id. at 1450-51; Musladin, 549 U.S. at 77. Hence, the Court concludes the Superior Court's decision was not "contrary to" or an "unreasonable application" of "clearly established federal law." 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Five. C. Claim Six Does not Warrant Habeas Relief
For this Court to find otherwise, it would require the application of a new rule of law. As explained, this Court may not undertake such an exercise in a habeas corpus proceeding. Teague, 489 U.S. 288; see Marshall, 133 S. Ct. at 1450 (finding that the Ninth Circuit improperly attempted to "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.")
Petitioner argues in Claim Six that the prosecution failed to disclose the identity of an alleged plain-clothes "Asian/Filipino/Pacific Islander" involved in the search of his truck in violation of Brady, 373 U.S. 83. Relatedly, Petitioner also contends the trial court erred by (a) denying Petitioner's motion for new trial based on the alleged Brady violation and perjured testimony of Deputy Craft and Scharlin, (b) quashing the subpoena served on Detective B. Thompson, and (c) denying Petitioner's motion for post-conviction discovery. Pet. Mem. at 25-56; Traverse at 6-10. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 18-48; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
At the hearing on Petitioner's motion to suppress the evidence discovered during the search of his truck, Deputy Craft testified he and Deputy Scharlin pulled Petitioner over for failing to stop at a stop sign. ART B4-B5. Deputy Craft testified he requested Petitioner's consent to search, and Petitioner said "Yeah, but I got to get home." Id. at B9. Deputy Craft also testified he and Deputy Scharlin were the only deputies present during the initial traffic stop and search. Id. at B18, B20. He further testified there was never a plain-clothes officer at the scene. Id. at B20. He believed there was a civilian ride-along with another unit on the date of the traffic stop. Id. at B-21; see also RT 418-19.
Deputy Scharlin testified to substantially the same details as Deputy Craft. However, Deputy Scharlin said he could not make out everything that was said in the conversation between Petitioner and Deputy Craft due to noise from the parking lot and nearby freeway, and because he was focusing on the safety of his partner and securing the scene. ART at B38. Deputy Scharlin also testified there was no one in plain clothes during the initial traffic stop and search. Id. at B43-B44.
Petitioner testified a plain-clothes individual asked him if the officers could search his truck, and Petitioner replied "no, I want to go home, get something to eat, go to sleep." Id. at B54-55. Petitioner also testified either Deputy Craft or Scharlin then stated "oh, he doesn't want us to search his car. He must have something to hide inside" and then searched the truck. Id. at B55. Petitioner argued at the suppression hearing that Deputy Scharlin lied that there was no plain-clothes individual in an effort to cover-up Deputy Craft's lies in the arrest report. Id. at B73-B74. Petitioner also requested judicial notice that the police were operating under a code of silence "which forces some good officers to lie or commit crimes to cover up abuses of their co-workers." Id.
In denying Petitioner's motion to suppress, the court acknowledged there are officers who lie, just like there are other witnesses who lie, and defendants who lie. Id. at B79. However, Petitioner had failed to show the officers knew in advance anything about Petitioner such that they would set him up and lie. Id. The court also ruled as follows:
With respect to this mystery plain-clothes person . . . I think your argument's a little inconsistent [with the request for judicial notice]. If all these officers are part of a code of silence and they are going to protect one another, then I don't see why this person's identity would not be revealed and he would just come in and lie too. According to your theory, even if there were no consent then, he would be prepared to say that there was to cover up the misconduct, whether it was directed by Craft or whose ever idea it was, although from your description it wounds like that plain-clothes officer was the one who instigated all of this.
So if I'm to believe that these officers will say whatever is necessary to sustain or support their actions and to cover up for one another, I don't see how concealing the identity of this other officer really advances that, since I would have to assume that he would be prepared to come in and lie as well.Id. at B80-B81.
Later, during trial, Petitioner indicated he intended to call Deputy Thompson, Deputy Jensen and others as defense witnesses. In his offer of proof as to the witnesses, Petitioner claimed there was a "ride-along . . . eyewitness [who could] identify the Asian Detective who may be a COBRA member," and Thompson "is currently working with the COBRA team, so he would have the roster in his possession to identify the Asian detective." RT 1003, 1008. The court commented "we have been through this" and that his offer of proof was "very speculative." Id. at 1004. Petitioner maintained "he was there," and the court responded "You say that. That's what you say. Okay? There's been no evidence whatsoever to establish that at this point." Id. The court also noted "from your offer of proof, you can find an Asian in almost every organization. You have so many rungs of the ladder to walk up in order to get to the point where it becomes relevant in this trial." Id. 1005; see also id. at 1009. The court further stated it was insufficient for Petitioner to "[j]ust establish that there happens to be somebody of Asian decent who happens to be an employee . . . in the COBRA Unit . . ." Id. at 1005-06. The court concluded the relevance of Thompson was not substantial enough to warrant his testimony at trial. Id. at 1008.
Petitioner refers to Thompson interchangeably as "Detective" and "Deputy." Petitioner also alleges his investigator and a third party served a subpoena on "B. Thompson." Pet. Mem. at 52.
Petitioner then attempted to make his showing of the existence of the alleged Asian officer at a California Evidence Code § 402 hearing. Id. at 1202-04. Petitioner called Officer John Leitelt who said he arrived at the In & Out Burger restaurant parking lot after Petitioner was arrested. Id. at 1203-04, 1206. He did not remember whether he had a ride-along with him but he checked his logs and they did not show a ride-along. Id. at 1203-04. Leitelt further testified there was no Asian detective at the scene. Id. He did not know if there was a Asian on the COBRA unit, and said that only one officer was close to the description given by Petitioner but that officer was Hispanic, not Asian. Id. at 1205-06. Based on this testimony, Petitioner decided not to call the officer. Id. at 1207.
California courts conduct 402 hearings outside the presence of the jury to decide preliminary questions of fact upon which the admissibility of evidence depends. People v. Superior Court (Blakely), 60 Cal. App. 4th 202, 209 n.6 (Cal. Ct. App. 1997); Cal. Evid. Code § 402(b).
After trial, Petitioner filed and argued a motion for post-conviction discovery and a motion for a new trial. Petitioner sought the identity of the Asian deputy who he "presumed" was a member of a seven-member Cobra Unit. Id. at 2409-10. He believed this deputy's name was "Pak," and contended there was "a high probability" he was the plain-clothes officer who was involved with the search. Id. at 2411.
The court pointed out that Petitioner did not identify the alleged deputy in his declaration supporting the motions, and, while Petitioner may "feel[] confident that Deputy Pak is the plain-clothed detective that was involved in the search of the vehicle," Petitioner never demonstrated he was able to identify the deputy. Id. at 2412, 2414; 2425-26.
2. Analysis
"In Brady, the Supreme Court held that '[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012) (quoting Brady, 373 U.S. at 87). "The elements of a claim for a Brady violation are that '[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Gonzalez v. Wong, 667 F.3d 965, 981 (9th Cir. 2011), cert. denied, 133 S. Ct. 155 (2012) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)).
While Petitioner maintained before the trial court that a plain-clothes officer was involved in the search, who was a member of a COBRA team and also of "Asian/Filipino/Pacific Islander" descent, he never established that the person actually existed. He attempted to establish identity before trial, during his defense, and in post-trial motions, but never made a showing sufficient to support his claim. Further, the only evidence before the court, besides Petitioner's own testimony, was that there was no such deputy. Both Deputy Craft and Deputy Scharlin testified they were the only deputies present during the initial traffic stop and search, and no plain-clothes deputy was there. ART B18, B20, B43. Officer Leitelt also testified at the 402 hearing that there was no Asian detective at the scene. RT 1203-04. Finally, as the trial court ruled, "there is nothing to indicate that this particular deputy . . . had anything to do with [Petitioner's] search and arrest in this case." Id. at 2420.
In the Petition, Petitioner presents nothing more than a long-winded summary of his attempts before the trial court to discover the identity of the alleged detective. Pet. Mem. at 25-56. Petitioner repeatedly cites "defendant's Trial Exhibit A" (see, e.g., id. at 32, 34, 36-37, 39, 41, 43), but this exhibit merely consists of pictures of the In & Out Burger restaurant parking lot and the vicinity. See Lodg. No. 7 ACT at 189-93. Petitioner appears to be referencing a different exhibit, because he describes it as the police duty roster for the night he was arrested. See, e.g., Pet. Mem. at 30-32. This exhibit was attached to one of his motions filed in the trial court. See CT 186. However, Petitioner admits the roster did not show the identity of the officer because it did not list the unmarked police cars for that night, and Petitioner claims the Asian detective arrived in an unmarked vehicle. See Pet. Mem. at 33. Finally, Petitioner cites his own declaration and trial testimony in support of his claim. See Pet. Mem. 38, 41 (citing CT 332); Traverse at 7 (Petitioner alleging he established the plain-clothes officer exists by his own "in-court testimony under oath"). Thus, outside of his own self serving statements and declaration, Petitioner has presented nothing showing the person actually exists. Without more, this is insufficient to warrant federal habeas relief. Philliphs v. Woodford, 267 F.3d 966, 987 (9th Cir. 2001) (rejecting Brady claim where petitioner failed to prove that a report existed); Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000) (rejecting Brady claim as too speculative). Because Petitioner has not shown the prosecutor was in possession of exculpatory or impeaching evidence and failed to disclose the evidence to the defense, Petitioner has not shown the prosecution violated Brady by suppressing evidence.
This exhibit also was not admitted into evidence because the trial court ruled it was not relevant. RT 1332-33, 1341.
Petitioner's remaining subclaims, see Pet. Mem. at 40-56, are also contingent on Petitioner being able to make some showing that the alleged Asian plain-clothes officer actually exists. Because he has not done so, the subclaims similarly lack merit. See Greenway, 653 F.3d at 804; Blackledge, 431 U.S. at 75 n.7.
Moreover, Petitioner's subclaim challenging the denial of his new trial motion fails for the additional reason that it does not state a cognizable claim. A "motion for new trial in a criminal case is a [California] statutory right[,]" People v. Dillard, 168 Cal. App. 2d 158, 167, 335 P.2d 702 (Cal. Ct. App. 1959), and violations of state procedural law do not give rise to claims cognizable on federal habeas review. See McGuire, 502 U.S. at 67-68; see also Herrera v. Collins, 506 U.S. 390, 408, 113 S. Ct. 853, 864, 122 L. Ed. 2d 203 (1993) ("The Constitution itself, of course, makes no mention of new trials."). Accordingly, Petitioner's subclaim challenging the trial court's denial of his new trial motion it is not cognizable in this proceeding. See Gilliam v. Hedgepeth, No. CV 08-1242 VAP (SS), 2014 WL 6750223, at *23 (C.D. Cal. Oct. 22, 2014) ("to the extent [claim] is premised on the trial court's denial of Petitioner's new trial motion, such as suggesting the trial court abused its discretion in denying the motion, it is not cognizable in this proceeding"), accepted by 2014 WL 6751488 (C.D. Cal. Nov. 25, 2014).
Similarly, Petitioner's subclaim challenging the denial of his discovery requests under California law are not cognizable. See McGuire, 502 U.S. at 67-68; Carrion v. McDonald, No. CV 11-8705-GHK (RNB), 2012 WL 6840585, at *28 (C.D. Cal. Aug. 24, 2012) (alleged violation of California criminal discovery statutes is not cognizable on federal habeas review), accepted by, 2012 WL 1988384 (C.D. Cal. June 4, 2012). Finally, the Supreme Court has held "[t]here is no general constitutional right to discovery in a criminal case." See Weatherford v. Bursey, 429 U.S. 545, 559, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996); see also Gray v. Netherland, 518 U.S. 152, 167-68, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996) (a defendant has no constitutional right to notice of the evidence the State plans to use against him).
For this Court to find otherwise, it would require the application of a new rule of law. As explained, this Court may not undertake such an exercise in a habeas corpus proceeding. Teague, 489 U.S. 288; see Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002); Haley v. Steward, No. CV-02-1087-PHX-DGC (CRP), 2006 WL 1980649, *15 (D. Ariz. July 11, 2006).
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Six. D. Claim Seven Does not Warrant Habeas Relief
Petitioner argues in Claim Seven that his Fourth Amendment right against an unreasonable search and seizure was violated when he and his truck were searched, and the trial court erred by (a) denying his motion to suppress under California Penal Code § 1538.5, (c) failing to provide a cogently expressed or logically reasoned ruling, (d) not allowing him to be fully heard at the suppression hearing, and (e) denying his request to reopen the suppression hearing. Pet. Mem. at 57-63; Pet. Mem. Part 1 at 1-44. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 49-63, 68-97; Lodg. No. 19; Traverse at 10-12. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
Subclaim (b) of Claim Seven, alleging the court erred in denying Petitioner's request for judicial notice of a police code-of-silence, is discussed below with subclaims (a) and (b) of Claim Ten.
If a petitioner has had a full and fair opportunity to litigate a Fourth Amendment claim in state court, the claim is not cognizable in a federal habeas proceeding. Stone v. Powell, 428 U.S. 465, 481-82, 96 S. Ct. 3037, 3045-46, 49 L. Ed. 2d 1067 (1976). In determining whether the petitioner had a full and fair opportunity in state court, "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). California provides criminal defendants with such a full and fair opportunity through the procedures of California Penal Code § 1538.5, which permits defendants to move to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990); see also Locks v. Sumner, 703 F.2d 403, 408 (9th Cir.), cert. denied, 464 U.S. 933 (1983).
Here, as summarized in the background section of Claim Five, Petitioner filed a motion to suppress the evidence under California Penal Code § 1538.5, challenging the search of his truck. Lodg. No. 7, ACT 1-43. The trial court conducted a one-day evidentiary hearing on the motion, taking testimony from Deputy Craft, Deputy Scharlin, and Petitioner, and hearing argument from both sides. See ART B1-B78. Further, Petitioner again raised aspects of his motion to suppress during trial, in his motion for a new trial, and his post-trial discovery motions. In particular, while ruling on one of Petitioner's last discovery motions, the trial court noted that the issue of the purported Asian detective - to whom Petitioner allegedly told could not search his truck - had been previously addressed by the court and "thoroughly argued before both trials and, at the very least, by two judges separately before your last trial" and it had "been addressed and addressed and addressed" and consistently resolved against Petitioner. RT 2416. Following trial, Petitioner again challenged the denial of his motion to suppress on habeas corpus before the trial court, and at each level of habeas review with substantial briefing in each petition. Lodg. No. 18 at 49-97; Lodg. No. 24, 49-97; Lodg. No. 26, 49.1-97. Thus, regardless of whether the motion to suppress was correctly decided, Petitioner's Fourth Amendment claim is not cognizable on federal habeas review because he had a full and fair opportunity to litigate it in state court. See Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir. 1981) (holding petitioner had full and fair opportunity to litigate Fourth Amendment claim when, among other things, claim had been considered and rejected by state courts at all levels of review). Accordingly, habeas relief is not warranted on Claim Seven. E. Claim Eight Does not Warrant Habeas Relief
The lodged copy of the habeas petition filed in the California Supreme Court is missing page 49. See Lodg. No. 26.
Petitioner argues in Claim Eight that he was deprived of his rights to due process and a fair trial because the police failed to retain the name of a ride-along witness present at the scene of Petitioner's arrest who could have identified the "Asian-looking" detective involved in the search, and the trial court erred by (a) quashing Petitioner's related subpoena served upon Deputy Jensen, and (b) denying Petitioner's "motion to dismiss or to produce material witness ride-along identity." Pet. Mem. Part 1 at 45-53; Pet. Mem. Part 2 at 1-11; Traverse at 12-14. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 98-116; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
As mentioned in the summary of the trial court proceedings relevant to Claim Six, Petitioner indicated he intended to call Deputy Jensen as a defense witness. In his offer of proof as to the witnesses, Petitioner alleged watch sergeants designate ride-alongs, and because Jensen was noted as a watch sergeant on a duty roster, he would be able to identify the ride-along. RT 1002-03. Petitioner further claimed the "ride-along . . . eyewitness [could in turn] identify the Asian Detective who may be a COBRA member." RT 1003, 1008. The court precluded the witness because "there was no evidence at all that the ride-along had anything to do with your investigation, [or] has anything to say . . . that would lead to any admissible evidence in the case," and therefore was not relevant. RT 1003, 1008; see also RT 1340. The court further commented that merely identifying Jensen as a watch sergeant on the night of the arrest was insufficient to establish his relevance. RT 1003.
Petitioner alleges his investigator and a third party served a subpoena on Deputy Jensen. See Pet. Mem. Part 1 at 52; Pet. Mem. Part 2 at 4, 6.
Petitioner also filed discovery motions attempting to obtain the identity of the ride-along, including a "motion to dismiss or to produce material witness ride-along identity," which were all denied by the trial court. See, e.g., CT 164, 174-75, 182, 197. In denying the "motion to dismiss or to produce material witness ride-along identity," the court noted "we have pretty much thoroughly thrashed this issue." RT C10. The court ruled that although Petitioner claims there was exculpatory evidence "out there" that the prosecutors and investigators did not disclose to him, "that has not been borne out by any of the hearings on this issue, which have been numerous, not just me, but I've gone through this file and I've seen that you've raised this issue on numerous occasions and have essentially gotten nowhere in getting to your ultimate conclusion as to what you believe." RT C10. The court also noted the prior testimony from Deputy Craft and Deputy Scharlin stating the ride-along was not part of the investigation in Petitioner's case. Id. at C11. The court denied the motion but allowed Petitioner to renew it after trial. Id. Petitioner re-asserted the issue after trial, and the trial court denied relief. CT 307, 312-14; RT 2401-02, 2409-20.
2. Preservation of Evidence Claims
The government violates a defendant's due process rights when it fails to preserve evidence in a criminal case if: (1) the evidence "might be expected to play a significant role in the suspect's defense"; (2) the evidence has exculpatory value; (3) the exculpatory value is apparent before the evidence is destroyed; (4) the defendant is "unable to obtain comparable evidence by other reasonably available means"; and (5) the government acted in bad faith. California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984) (citations and footnote omitted); see also Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (adding the bad faith requirement).
3. Analysis
As a threshold matter, the Court notes Petitioner's claim is based on pure speculation. Petitioner contends "[w]e can presume" that the alleged ride-along "probably" had a conversation with the deputy driving him about the identity of the "Asian-looking detective." Pet. Mem. Part 1 at 46; Pet. Mem. Part 2 at 8. Such speculation and conjecture is simply insufficient to warrant habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (vague speculation or mere conclusions unsupported by record not sufficient to state habeas claim); Greenway, 653 F.3d at 804; Blackledge, 431 U.S. at 75 n.7.
Further, Petitioner has failed to show the ride-along had any exculpatory value because he made no showing that the ride-along was present when the alleged Asian plain-clothes officer purportedly searched Petitioner and his truck. RT B21; see also id. at C6-C7. Deputy Craft testified that a person who he "believe[d] . . . was a civilian ride-along with another unit," arrived after the search occurred and after Petitioner was hand-cuffed. RT B21. Moreover, Craft testified ride-alongs do not have contact with people during the traffic stops, do not touch any of the evidence, and do not have anything to do with the investigation. RT 419-20. Accordingly, the ride-along could not have provided any exculpatory information about the initial stop and search.
Petitioner's subclaims fail for the same reason. In his subclaim related to Deputy Jensen, Petitioner contends Jensen could identify the ride-along, who purportedly rode with Deputy Leitelt, because Jensen was the watch sergeant who prepared the duty roster for the night of the arrest. Pet. Mem. Part 1 at 52; Pet. Mem. Part 2 at 6. But, as Petitioner acknowledges, the duty roster does not have a notation indicating Leitelt had a ride along as it does for other officers on patrol that night. See CT 186 (duty roster); ART B19 (petitioner admitting that "the ride-along we're looking for was a passenger in Officer Leitelt's car . . . [and i]f you look on the roster, [Leitelt] doesn't have a ride-along named next to his name"); Pet. Mem. Part 1 at 46, 49-50. While Petitioner maintains there was a separate roster for unmarked cars that he never received, as the trial court recognized, there was no evidence that the ride-long had anything to do with the search or investigation and was therefore not relevant. See RT 1003, 1008.
Finally, the discovery and motion to dismiss aspects of Petitioner's subclaims are not cognizable for the same reasons discussed in Claim Six.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Eight. F. Claim Nine Does not Warrant Habeas Relief
Petitioner argues in Claim Nine that his court-appointed investigator performed an "ineffective/inadequate" investigation because he failed to obtain video surveillance from the In & Out Burger restaurant showing the Asian plain-clothes deputy, thus warranting (a) a new trial, (b) an evidentiary hearing, (c) dismissal of the case, or (d) timely disclosure of the video surveillance from the prosecution. Pet. Mem. Part 2 at 12-42; Traverse at 14-17. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 117-47; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
The trial court appointed Alan Rush as an investigator for Petitioner. He obtained sixteen photos of the In & Out Burger restaurant parking lot and surroundings and they were admitted at trial. Lodg. No. 6, ACT 187-93; Lodg. No. 7, ACT 3-9.
Later, on August 2, 2010, Petitioner subpoenaed the restaurant for video surveillance footage of the "parking lot area" from January 15, 2009, between the hours of 8:10 p.m. and 8:50 p.m.. Lodg. No. 7, ACT 41-47. The restaurant responded that it did not have any such video surveillance. RT 2724-26.
The restaurant's written response to the subpoena is not included in the record. However, it is clear from the discussion between Petitioner and the trial court that the restaurant "acknowledged in their declaration and response to [the] subpoena that there is no video" of the time period requested by Petitioner. RT 2724-26.
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On August 20, 2010, Petitioner filed a "motion to dismiss (or if denied, for new trial/mistrial) based on ineffective inadequate investigation." He alleged Rush told Petitioner the restaurant may have had interior video surveillance, but it did not have exterior video evidence. CT 414, 419. He further alleged another investigator, Gary Cooper, met with Petitioner after trial and told Petitioner "yes, they do have video surveillance at the In & Out Burger parking lot." Id. at 424. Petitioner argued, based on Cooper's statements to him, video surveillance exists that "definitely will show" the Asian plain-clothes deputy involved in the search of Petitioner's truck. Id. at 425-26. The trial court denied the motion based on the restaurant's written response to the subpoena indicating there was no such video. RT 2724-26.
2. Analysis
As a threshold matter, Petitioner has not established he had the constitutional right to effective investigative assistance. Although the Ninth Circuit has held due process requires, "when necessary, the allowance of investigative expenses or appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys," Williams v. Stewart, 441 F.3d 1030, 1053 (9th Cir. 2006) (citation omitted), the Court is not aware of any Supreme Court or Ninth Circuit authority stating due process requires the effective assistance of an investigator. See Carson v. Adams, No. CV 09-9194-CAS (AGR), 2012 WL 6864593, at *26 (C.D. Cal. Sept. 11, 2012) (rejecting claim that investigator provided ineffective assistance because no Supreme Court precedent required "reasonably competent investigator"), accepted by 2013 WL 169845 (C.D. Cal. Jan. 14, 2013); Brown v. Carey, No. C 06-0264 WHA (PR), 2011 WL 5444251, at *8-9 (N.D. Cal. Nov. 9, 2011) (finding no Supreme Court authority establishing or recognizing constitutional right to effective assistance of investigator); see also Milton v. Morris, 767 F.2d 1443, 1447 (9th Cir. 1985) (noting pro se defendant does not have due process right to access particular legal resource "so long as he is afforded some alternative means for assistance in the preparation of his defense"). Accordingly, because there is no clearly established federal law governing Petitioner's claim, the Court has no authority to grant relief on Petitioner's claim. See Musladin, 549 U.S. at 77.
Even assuming such a right exists, Petitioner has not shown he is entitled to relief. Petitioner admits none of the pictures obtained by Rush "showed any signs of video surveillance at the In & Out Burger parking lot." Pet. Mem Part 2 at 14. Rush also informed Petitioner there was no exterior video, and the restaurant's response to Petitioner's subpoena confirmed no video from the night of the search existed. See Pet. Mem. Part 2 at 28, 34; RT 2724-26. Accordingly, Petitioner has not established his investigator was inadequate or ineffective. See Chambers v. Grounds, No. CV 10-6080-VBF (PLA), 2012 WL 5391959, *9 n.9 (C.D. Cal. Sept. 21, 2012) (even assuming a constitutional right to effective investigative assistance exists, petitioner not entitled to relief because he failed to show "that his investigator performed deficiently and that there is a reasonable probability his investigator's alleged acts or omissions had a negative effect on the verdict"), accepted by 2012 WL 5391730 (C.D. Cal. Nov. 2, 2012).
Petitioner's remaining subclaims, including his allegations that Rush "conspired with the prosecution team, the deputy district attorney . . . , and with the two sheriff deputies," and "lied in stating that there was no exterior video surveillance" (see Pet. Mem Part 2 at 15, 21, 35), fail for the same reason. Petitioner has failed to show that video surveillance on the night of the arrest exists, and therefore the subclaims necessarily fail. See Greenway, 653 F.3d at 804; Blackledge, 431 U.S. at 75 n.7.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Nine. G. Subclaims (a) and (b) of Claim Ten , and subclaim (b) of Claim Seven, Do not Warrant Habeas Relief
Petitioner argues in Claim Ten that his rights to a fair trial and to present a defense were violated because the trial court failed to (a) grant Petitioner's request for judicial notice of "police code-of-silence," and (b) appoint a "police code-of-silence" expert to testify at trial. Pet. Mem. Part 2 at 43-55; Pet. Mem. Part 3 at 1-6; Traverse at 17-18. In subclaim (b) of Claim Seven, Petitioner also argues the trial court should have granted Petitioner's request for judicial notice of a police code of silence at the suppression hearing. Pet. Mem. Part 1 at 11-14. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's subclaims for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 64-67, 148-67; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
As mentioned in the summary of the trial court proceedings relevant to Claim Six, at the suppression hearing, Petitioner requested judicial notice of a police code of silence "which forces some good officers to lie or commit crimes to cover up abuses of their co-workers." RT B73-B74.
In denying Petitioner's motion to suppress and request for judicial notice, the court acknowledged there are officers who lie, just like there are other witnesses who lie, and defendants who lie. Id. at B79. However, Petitioner had failed to show the officers knew in advance anything about Petitioner such that they would set him up and lie. Id. The court explained:
. . . My problem is I just don't see why these officers would, one, single you out on what happened to be just a basic traffic violation and have it expand immediately into something else. You have offered me no suggestion by your own statements and testimony [that] they didn't run your license or anything . . . that happened after the fact so they didn't know that they were potentially dealing with someone who had a criminal record or that they . . . could set up in any sort of way or that they should have a particular concern for you because of your criminal past.Id. at B80-B81.
So, without knowing anything about you, I just don't find it credible that they would determine that they should lie . . .
Petitioner later filed a motion requesting appointment of a "Police 'Code of Silence' Expert," and renewed his request for judicial notice, based in part on newspaper articles. Lodg. No. 6, ACT 86-118. The court denied the request for a police code of silence expert because Petitioner had not shown (1) such an expert exists; (2) the expert would be reasonably necessary for the presentation of his defense; and (3) the "proposition that someone may be untruthful in order to protect a friend or colleague is not beyond the common knowledge of lay people." ART at D17; CT 88. The court denied the renewed request for judicial notice because it had already been decided, and because Petitioner relied on an alleged code of silence in Sacramento in 2001 or 2002, which had little probative value to whether such a code of silence existed in the Los Angeles Police Department in 2009. ART at D18; CT 88.
2. Exclusion of Evidence Claims
It is well established that a criminal defendant has a Sixth Amendment right to present a complete defense. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The right to present a defense is one of the fundamental principles of justice that may be violated by the erroneous exclusion of critical defense evidence. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001). However, exclusion of evidence that is only marginally relevant or repetitive, or more prejudicial than probative cannot give rise to a constitutional violation. Crane v. Kentucky, 476 U.S. 683, 689-90, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); see also Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). Hence, States have broad latitude under the Constitution to establish rules excluding defense evidence from criminal trials, "so long as they are not arbitrary or disproportionate to the purposes they are designed to serve." United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998) (internal quotation marks omitted); see also Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (holding trial courts have "wide latitude" to exclude unreliable or marginally relevant evidence). Finally, the Supreme Court has noted "[o]nly rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." Nevada v. Jackson, ___ U.S. ___, 133 S. Ct. 1990, 1992, 186 L. Ed. 2d 62 (2013) (citations omitted).
3. Analysis
The evidence excluded here is just the type of repetitive and marginally relevant evidence that may be excluded without offending the Constitution. First, as the trial court noted, Petitioner made no showing that the officers knew anything about him such that they would set up the traffic stop in advance to bust him for drugs, and then lie about it later under a "code of silence." Indeed, the officers testified at trial that they were monitoring the intersection because of multiple citizen complaints of motorists running the stop signs and near collisions, not because they had information about any particular person in the area. See RT 330, 358, 423-24. Further, Craft testified he "[ran] Mr. Gupta's information via my computer system," after Petitioner was stopped, searched, handcuffed and placed in the officers' police car, and while his partner was searching Petitioner's truck. RT 235-36, 345, 426. Without any evidence that Petitioner was somehow targeted in advance, evidence of a vast police "code of silence" allegedly utilized to cover up lies regarding Petitioner's traffic stop would have had little probative value and a tendency to confuse the issues. Further, Petitioner testified to the existence of the alleged Asian detective, and Petitioner denied that he consented to the search of his truck - essentially testifying the officers lied about what happened. RT 1256-62. Petitioner also argued, vehemently, that the officers lied and suggested that they had an interest in helping each other out by lying. See, e.g., RT 1567, 1576-77, 1580, 1578-79 ("they are partners and they are friends . . . they do work together, so we see that there is a team bias already, as far as Sheriff deputies versus someone being arrested"), 1584-85 ("there is a motivation to set me up"). Accordingly, such an exclusion of repetitive and marginally relevant evidence does not violate due process.
Petitioner's subclaim regarding appointment of an expert fails because U.S. Supreme Court "cases do not squarely address whether a court's exercise of discretion to exclude expert testimony violates a criminal defendant's constitutional right to present relevant evidence. Nor do they clearly establish 'a controlling legal standard' for evaluating discretionary decisions to exclude the kind of evidence at issue here." Moses, 555 F.3d at 758-59 (citations omitted); see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) ("Between the issuance of Moses and the present, the Supreme Court has not decided any case either 'squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or 'establish[ing] a controlling legal standard' for evaluating such exclusions."), cert. denied, 132 S. Ct. 593 (2011). Accordingly, because there is no clearly established federal law governing Petitioner's claim, the Court has no authority to grant relief on Petitioner's claim. See Musladin, 549 U.S. at 77; Nero v. Vazquez, No. CV 12-2111 FMO AS, 2014 WL 1289723, at *11 (C.D. Cal. Mar. 27, 2014).
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on subclaims (a) and (b) of Claim Ten, and subclaim (b) of Claim Seven. H. Claim Eleven Does not Warrant Habeas Relief
Petitioner argues in Claim Eleven that his right to due process was violated because the trial judge was biased. Specifically, Petitioner contends the trial judge was biased because (a) he said pro per inmates are "no good" and improperly referred to "Russians," (b) he said he did not think Petitioner was going to find the alleged Asian detective, (c) he failed to disclose that his wife was a practicing Los Angeles County district attorney, (d) he declared that Petitioner appeared before him "a half dozen times" when in fact Petitioner appeared only four times, (e) he relied on hearsay when he said his wife does not maintain friendships or contacts with district attorneys at the San Fernando courthouse, (f) he improperly quashed a subpoena upon himself to testify as a witness during trial about his bias. See Pet. Mem. Part 3 at 9-33; Traverse at 19-22. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 170-94; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
On February 16, 2010, during trial, Petitioner filed a "Challenge for Cause to Judge Daniel Feldstrom" under California Code of Civil Procedure section 170.1-170.5, alleging judicial bias and requesting disqualification of the judge on the ground that his wife was a practicing district attorney. CT 203-06. The trial judge filed a verified answer denying the allegations. Id. at 213-220. The matter was assigned to a judge in Orange County, who denied Petitioner's request for disqualification. RT 2708; CT 355.
Petitioner also subpoenaed the trial judge to testify "so the juror's could hear that your spouse is a prosecutor and that [she is] working with the same agency as this prosecutor . . ." RT 631. The trial judge quashed the subpoena because Petitioner had already filed a challenge for cause and "that would not normally be an issue that would be presented to the jury and it won't be in this particular trial." Id.
After trial, Petitioner raised additional grounds of judicial misconduct in various motions. CT 259, 282-91; 365-66; RT 2708. The court denied the motions. CT 447; RT 2708-11.
2. Judicial Bias Claims on Federal Habeas Review
On federal habeas review of a state trial judge's conduct, the issue is whether, in the context of the trial as a whole, the judge's behavior rendered the trial so fundamentally unfair as to violate due process. Duckett v. Godinez, 67 F.3d 734, 740-41 (9th Cir. 1995). The Court must otherwise presume the judge's honesty and integrity. Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975). Further, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Petitioner would be entitled to relief only if the record disclosed actual bias on the part of the trial judge or leaves the reviewing court with an abiding impression that the judge's conduct projected to the jury an appearance of advocacy or partiality. United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986).
3. Analysis
a. Alleged Biased Comments Subclaims
In subclaim (a), Petitioner contends the trial judge was biased because he said "I've had plenty of dealings with pro. per. inmates in the past. I know how you all are. You're no good." Pet. Mem. Part 3 at 11. Although Petitioner alleges this comment was made at the January 6, 2010 hearing, no such comment was made. The court's only reference to pro per defendants was to say that "[a] lot of pro pers become dissatisfied with their investigators." RT A15. This aspect of Petitioner's subclaim is therefore denied because it is unsupported by the record and factually inaccurate. See Greenway, 653 F.3d at 804; Blackledge, 431 U.S. at 75 n.7.
Also in subclaim (a), Petitioner contends the trial court improperly referred to information from an extrajudicial source when he commented that "Russians" placed the alleged contraband in Petitioner's truck. Pet. Mem. Part 3 at 14; see also Pet. Mem. Part 4 at 6, 19. In denying Petitioner's post-trial motion for an evidentiary hearing on the issue of the alleged Asian detective, the court stated "[y]ou tried in your best way, I think, to explain how [the drugs] might have gotten there; and it wasn't through the hands of any police officer, but rather maybe some Russians or somebody, I believe, that happened to be staying somewhere who had access to your vehicle." RT 2417-18 (emphasis added). This aspect of Petitioner's subclaim lacks merit because it is evident the trial judge mistakenly referred to "Russians" instead of the purported Brazilians that Petitioner testified about during trial, and, in any event, the comment was part of a judicial ruling made outside the presence of the jury. See Liteky, 510 U.S. at 555; Williams, 441 F.3d at 1043 (finding no due process violation where the trial court's hostile remarks towards defendant occurred outside the presence of the jury); Anderson v. McEwen, No. EDCV 10-0782-CAS(JEM), 2013 WL 4517898, at *14 (C.D. Cal. Aug. 26, 2013) ("it is difficult to see how . . . comments [supporting judicial bias claim] could have influenced the jury and rendered the trial unfair" where they where made outside the presence of the jury).
In subclaim (b), Petitioner contends that in ruling on his discovery motion, the trial court said he did not think Petitioner was going to find the alleged Asian detective. Pet. Mem. Part 3 at 15-17. Petitioner alleges this evidences the judge had "foreknowledge" of the prosecutor's discovery and trial tactics, and the judge colluded with the police to cover-up misconduct. Id. at 15. In denying Petitioner's discovery motion related to the alleged Asian plain-clothes detective, the trial judge noted that the issue "has been discussed at length . . . [b]ut the bottom line is I don't know that there is such a person that will ever be available here to be identified by you as the person you think was there. They have provided you with everything they know of." RT A-8. The trial judge's comment shows skepticism of the merits of Petitioner's motion, not actual bias. In any event, Petitioner is not entitled to relief because the comment was part of a judicial ruling made outside the presence of the jury. See Liteky, 510 U.S. at 555; Williams, 441 F.3d at 1043; Anderson, 2013 WL 4517898, at *14.
b. Recusal Subclaims
To the extent Petitioner contends the denial of his application for recusal of the trial judge under California Code of Civil Procedure section 170.1-170.5 was improper, Petitioner fails to state a cognizable claim for relief. See Freeman v. Cate, No. 10-1987 DMS (MDD), 2012 WL 6162518, *9-10 (S.D. Cal. July 31, 2012) (claims that judge should have been disqualified under California Code of Civil Procedure section 170 et seq. are not cognizable on federal habeas review). Indeed, the Supreme Court has stated "most matters relating to judicial disqualification [do] not rise to a constitutional level." Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986).
Even assuming Petitioner's recusal subclaims are cognizable, they lack merit. In subclaim (c), Petitioner contends the trial judge was biased and should have been recused because he failed to disclose that his wife was a practicing Los Angeles County district attorney. See Pet. Mem. Part 3 at 17-24. Petitioner alleges he learned from another inmate that the trial judge's wife was a district attorney "working for the same employer (Steve Cooley) that's currently prosecuting defendant" and that the judge did not properly disclose this alleged bias. Id. at 17.
In his verified answer to Petitioner's motion for disqualification, the trial judge declared:
To advise the parties that my spouse is a deputy district attorney, I have posted large signs in the courtroom that advise parties and their attorneys of that circumstance, and have caused forms to be located adjacent to the counsel table approximately 1-2 feet from their chairs for litigants and attorneys to acknowledge notice of the advisement that . . . my spouse is a deputy district attorney. One of the signs is located next to the forms and is affixed to the counsel table in plain view directly in front of each defendant and his or her attorney. The other sign is posted in an upright position across from defense counsel's table, directly in front of the defendant's seat and easily visible to defendants and their attorneys at eye level when seated at counsel table. I have modeled this procedure after the practices of other judges who have similar disclosure requirements. My courtroom is a busy, high volume courtroom, and I have found this disclosure procedure works well in that environment. The feed back I have received from attorneys who appear before me, confirm that these signs and forms are immediately noticeable and provide a clear advisement.CT 220.
When Petitioner filed the motion for disqualification, he admitted the court had orally disclosed to Petitioner that his wife was a prosecutor, but Petitioner complained the disclosure came after the jury was picked but before opening statements. RT 628. In response to Petitioner's statement that he was not aware before that time, the trial court outlined all the disclosures in his courtroom, including the disclosure "right in front of your eyes, at eye level, not 4 feet from you, which you've acknowledged in your declaration." Id. at 629. Petitioner simply responded "[w]ell it's not right here where I'm sitting. It's on the upper end of the table" and that he does not "try to read the fine print and memoranda displayed." Id. at 630. The court explained that Petitioner could reach right out and touch it, to which Petitioner replied "I'm not touching it now." Id. Thus, the trial judge did disclose that his wife was a district attorney, and Petitioner's claim is merely based on a frivolous quibble with the judge. See id. at 630. More importantly, Petitioner has failed to show that, even if there was inadequate disclosure, the relationship required recusal. See Sensley v. Albritton, 385 F.3d 591, 599-600 (5th Cir. 2004) (judge not required to recuse when his wife was an employee of the district attorney's office litigating matters in his court).
Relatedly, Petitioner also alleges in subclaim (d) that the trial judge wrongfully stated in his declaration supporting his verified answer that Petitioner appeared "a half dozen times" when in fact Petitioner appeared only four times (Pet. Mem. Part 3 at 24-26); in (e) that the trial judge relied on hearsay in his declaration (id. at 27-31); and in (f) that trial judge improperly quashed a subpoena upon himself to testify as a witness in Petitioner's trial about his bias (id. at 32-33). All of these claims are central to Petitioner's belief that the trial judge was allegedly biased because of his wife's employment with the district attorney's office. But regardless of that relationship, Petitioner has not shown that any of these allegations demonstrate the judge harbored any "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555. Petitioner alleges no facts showing the judge's marriage to a district attorney caused him to do anything that rendered Petitioners trial fundamentally unfair. See id. at 550-51 (even a judge who is "exceedingly ill disposed towards the defendant" not subject to recusal on the ground of bias). On reviewing the record, this Court has discerned no judicial conduct rendering Petitioner's trial "so fundamentally unfair as to violate federal due process . . . " See Duckett, 67 F.3d at 740.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Eleven.
I. Claim Twelve Does not Warrant Habeas Relief
Petitioner argues in Claim Twelve that the trial court violated his right to a fair trial and to confront witnesses by restricting and then admonishing the jury to disregard Petitioner's cross examination of Deputy Craft. Pet. Mem. Part 3 at 34-37; Traverse at 22-23. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 195-97; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
Just following the prosecutor's opening statement, the trial court noted "I listened very carefully to [the prosecutor's] opening statement . . . [and] there was no mention of consent," and the prosecutor confirmed that he was not going to raise the issue at trial. RT 310.
The court then admonished Petitioner "the issue of the legality of consent is not an issue that is relevant in this trial. What makes it even less relevant is the People are not even mentioning it through their witnesses, that this search was based on any form of consent." Id. The court explained to Petitioner that the issue of whether there was a valid consent to search Petitioner's vehicle was irrelevant and "collateral" to the elements of the crimes charged against him, and that the probative value was outweighed by the potential for prejudice, undue consumption of time, and juror confusion. Id. at 310-11. Petitioner responded "I know I'm not trying the Fourth Amendment." Id. at 314.
During Petitioner's cross-examination of Craft, Petitioner repeatedly asked questions related to the stop of his vehicle and the search, and the court sustained the prosecutor's objections. See, e.g., id. at 360, 362-66, 370-72, 377-78. At a recess, the prosecutor requested the jury be admonished due to Petitioner's repeated references to the legality of the search. Id. at 399-400. The court reminded Petitioner that he was told that the legality of the search was an issue for the court to decide at the suppression hearing, not by the jury. Id. at 401-02. The court then informed the jury that it would be instructed to this effect, and the court did so after trial. Id. at 404; CT 230.
2. Confrontation Clause Claims on Federal Habeas Review
The U.S. Supreme Court has recognized that the Confrontation Clause of the Sixth Amendment protects a defendant's right to cross-examine witnesses. See Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The right to cross-examine a witness includes the opportunity to show not only that a witness is biased, but also that the testimony is exaggerated or otherwise unbelievable. Fowler v. Sacramento County Sheriff's Dept., 421 F.3d 1027, 1035 (9th Cir. 2005) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 51-52, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (plurality opinion)). Hence, to show a restriction on cross-examination violates the Confrontation Clause, a defendant must demonstrate "'[a] reasonable jury might have received a significantly different impression of a [witness's] credibility had counsel been permitted to pursue his proposed line of cross-examination.'" Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009) (quoting Van Arsdall, 475 U.S. at 680).
At the same time, however, trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, or interrogation that is repetitive or only marginally relevant. See Van Arsdall, 475 U.S. at 679; see also Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (explaining even relevant cross-examination may properly be excluded if its probative value is outweighed by other legitimate interests). Such restrictions are permissible, provided they are "'not . . . arbitrary or disproportionate to the purposes they are designed to serve.'" Michigan v. Lucas, 500 U.S. 145, 151, 111 S. Ct. 1743, 114 L. Ed. 2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987)).
Confrontation Clause claims are subject to harmless error analysis. Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011). On federal habeas review, the Court measures the harmlessness of an error according to the standard established in Brecht, 507 U.S. at 637-38. See Fry v. Pliler, 551 U.S. 112, 116, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007); see also Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). "Under this standard, habeas petitioners . . . are not entitled to habeas relief based on trial error unless they can establish it resulted in 'actual prejudice.'" Brecht, 507 U.S. at 637. "'Actual prejudice' is demonstrated if the error in question had a 'substantial and injurious effect or influence in determining the jury's verdict.'" Winzer v. Hall, 494 F.3d 1192, 1201 (9th Cir. 2007) (quoting Brecht, 507 U.S. at 623). In turn, when assessing whether an error had a "substantial and injurious effect," this Court must consider five factors propagated by the U.S. Supreme Court in Van Arsdall: (1) the importance of the witness' testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011) (citing Van Arsdall, 475 U.S. at 684).
3. Analysis
Here, even assuming the trial court's refusal to allow further cross-examination was error, the Court concludes the Van Arsdall factors dictate that the error was not prejudicial under Brecht. First, whether Petitioner consented to the search of his truck was irrelevant to whether he transported or possessed for sale the drugs in his truck. Second, any testimony by the officers about consent would have been cumulative to their testimony about their version of the traffic stop, and Petitioner's testimony that he did not consent. See RT 1256-62. Further, the prosecution presented other evidence at Petitioner's trial supporting the charged act of transporting or possessing the drugs for sale, including the large quantity of methamphetamine found in Petitioner's vehicle, the packaging, cash, and lack of evidence that Petitioner was under the influence, personally used the drug, or possessed it but did not intent to sell it. Thus, weighing the Van Arsdall factors, it is unlikely that the trial court's refusal to allow Petitioner to cross-examine Craft further about whether he consented to the search had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623; Hara v. Santa Clara Superior Court, No. C 04-04810 JSW, 2006 WL 889420, *6 (N.D. Cal. Apr. 6, 2006) (any error in restriction of cross-examination of officer into the legality of a search was harmless, in part, because excluded testimony was cumulative to testimony that someone else had driven defendant's vehicle, which was the defendant's theory of defense).
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Twelve. J. Claim Fifteen Does not Warrant Habeas Relief
Petitioner argues in Claim Fifteen that the trial court violated his rights to a fair trial and to present a defense when it quashed Petitioner's subpoena of a toxicologist who drafted a report indicating a hair follicle test showed Petitioner tested negative for marijuana intoxication. Pet. Mem. Part 3 at 47-49; Traverse at 25-26. Petitioner contends testimony about the negative marijuana test would impeach Deputy Craft's testimony that there was "a strong odor of burnt marijuana emitting from the driver's side of the vehicle." Pet. Mem. Part 3 at 47; RT 332. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 207- 208.1; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
Before the suppression motion hearing, Petitioner produced a hair follicle toxicology report showing negative results for the presence of marijuana. RT B2-B4. The hair samples were provided for testing months after Petitioner was arrested. Id. at B4. Nonetheless, the prosecutor stipulated Petitioner was not under the influence of marijuana at the time Petitioner was arrested. Id. In light of this stipulation, Petitioner indicated "it looks like I may not need to subpoena the toxicologist." Id. at B5.
2. Exclusion of Evidence Claims
See Section VI.G.2, for a summary of the legal standard for assessing exclusion of evidence claims on federal habeas review.
3. Analysis
Here, although Petitioner contends the toxicologist who prepared the drug test report appeared in court and the trial judge "erroneously excused [him] from court without even having a [h]earing on the record" (see Pet. Mem. Part 3 at 48), there appears to be nothing in the record indicating the toxicologist in fact appeared. See RT 946-75, 1341; CT 211-12 221-22. In any event, Petitioner has failed to explain how his proposed testimony about a drug test taken after Petitioner was arrested was relevant to his trial. Further, to the extent the test could show lack of marijuana use for a period prior to the test that could include the day he was arrested (see RT B3), Petitioner has also failed to show how it was not cumulative to the prosecutor's stipulation. See Crane, 476 U.S. at 689-90.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Fifteen. K. Claim Sixteen Does not Warrant Habeas Relief
Petitioner argues in Claim Sixteen that the trial court violated his due process rights by erroneously denying his foundational objection to the admission of chain of custody evidence. Pet. Mem. Part 3 at 50; Pet. Mem. Part 4 at 1-2; Traverse at 26-27. Specifically, Petitioner contends prosecution criminalist Gregory Forte testified he received the contraband to test from someone else and there is no evidence concerning where that person received the bag or envelope containing the drugs. Pet. Mem. Part 3 at 50. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 209-11; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
Deputy Craft testified that the 23 plastic bindles found in Petitioner's truck were logged into evidence, assigned a uniform report number ("URN"), placed into a sealed envelope that contains a lab receipt number, and submitted to the sheriff's department lab for testing. RT at 338-39. Deputy Craft was shown three color-photographs of contraband, and he recognized the items depicted in the photographs as the bindles recovered from Petitioner's vehicle. Id. at 339-40. Gregory Forte, the sheriff's department's senior criminologist, testified that he received the bindles in a sealed envelope under the same URN. Id. at 665-67, 678. Forte personally broke the seals, removed the substance, weighed and tested it, and determined it was methamphetamine. Id. at 667-68, 670-71. Forte was also shown the photographs and testified that the items depicted were the bindles containing the substance he subsequently determined was methamphetamine. Id. at 667.
On cross-examination, Forte testified he was assigned to test the contraband, and received the sealed envelope from his supervisor to do so. Id. at 674. He did not see where his supervisor retrieved the envelope, but said "it's assumed that she received it from our evidence control system." Id. Petitioner asked whether he had ever heard of any instances where people stole "from the evidence locker or exchanged items from the evidence locker," and Forte replied "not that I'm aware of," and followed by stating "I'm sure it's happened, but I've never heard of any [instances]." Id.
Petitioner later moved to exclude the methamphetamine on the basis that the prosecution had failed to establish a chain of custody showing the drugs were the same items that were recovered from his vehicle. Id. at 939-41. The trial court denied the motion:
It appeared to the court from the testimony provided in this trial that there was sufficient testimony with regard to the chain of custody to support its admissibility.Id. at 941.
Any absences or breaks in the -- untestified to parts of the chain go to the weight of the evidence and not its admissibility. I heard no evidence that suggested to me that there was a problem with the integrity of the chain of custody. Your motion is denied.
2. Analysis
At the outset, the Court notes Petitioner presents his claim as a state-law issue that is not cognizable on federal habeas corpus. In the Petition Memorandum, Petitioner almost exclusively relies on California case law and the California Evidence Code. See Pet. Mem. Part 3 at 50; Pet. Mem. Part 4 at 1-2; Traverse at 26-27. His only attempt to present a federal question is through fleeting references to "due process" and "a fair trial." See Pet. Mem. Part 3 at 50, Pet. Mem. Part 4 at 2. Generally, this is not sufficient to covert a state law claim into a federal issue. See Johnson v. Rosemeyer, 117 F.3d 104, 110 (3rd Cir. 1997) ("[E]rrors of state law cannot be repackaged as federal error simply by citing the Due Process Clause."); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (holding a petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process").
Furthermore, although the U.S. Supreme Court has been clear that a habeas petition should be granted when constitutional errors have rendered the trial fundamentally unfair, see Williams v. Taylor, 529 U.S. 362, 375, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), the Ninth Circuit has held the Court has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of a writ of habeas corpus. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Accordingly, because there is no clearly established federal law governing Petitioner's claim, the Court has no authority to grant relief on Petitioner's claim. See Musladin, 549 U.S. at 77; Hall v. Cate, No. CV 12-4770-JGB (SP), 2014 WL 3587509, at *8 (C.D. Cal. July 16, 2014) (claim that admission of criminalist's testimony violated due process does not warrant federal habeas relief "because there are no controlling Supreme Court decisions holding that the admission of evidence based on an inadequate chain of custody violates due process").
Despite this Court's reluctance to view this claim as a cognizable federal issue, even assuming the claim is reviewable, habeas relief is not warranted because there were permissible inferences for the jury to draw from the evidence, and the evidence did not render Petitioner's trial fundamentally unfair. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) ("Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.'"). Despite any possible glitch in the chain of custody, the jury could permissibly infer from Forte's testimony that the substance he was charged with transporting and possessing for sale was a controlled substance. See California Health and Safety Code §§ 11378, 11379(a); Jammal, 926 F.2d at 920.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Sixteen. L. Claim Seventeen Does not Warrant Habeas Relief
Petitioner argues in Claim Seventeen that the prosecutor committed misconduct during closing argument by intentionally lying to the jury that Petitioner had already been convicted of the exact same counts for which he was on trial. Pet. Mem. Part 4 at 3-8; Traverse at 27-29. Petitioner contends he did not have a prior conviction for transportation or possession for sale of methamphetamine, but rather only offering to sell methamphetamine. Pet. Mem. Part 4 at 3-6. Finally, Petitioner contends the prosecutor improperly "went by" an instruction given by the trial court that improperly detailed three of his convictions. Pet. Mem. Part 4 at 7. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 212-16.1; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
At trial, Petitioner admitted on cross-examination that he had been convicted of "offer[ing] to sell a controlled substance" that was "probably" under California Health and Safety Code section 11379, and that another conviction for possession for sale of marijuana had been dismissed on appeal. RT at 1301-02. In closing argument, the prosecutor asked the jury to consider Petitioner's prior convictions while evaluating the credibility of his testimony. RT 1564-65. The prosecutor stated as follows:
And what you also know is that the defendant has admitted on the stand here that he has a previous conviction for various crimes. I will just point these out and tell you why they're important. He's got a previous conviction of [California] Health and Safety Code section 11379. That's transportation of methamphetamine, okay? He's also got a conviction for possession of narcotics for the purpose of sales. And he's got a conviction for residential burglary, you've heard. And
he's got a conviction for possession of marijuana for purposes of sales. Okay?Id. (emphasis added).
When you're evaluating the credibility of this defendant, these convictions go towards his ability to tell the truth. His truth and veracity is in question just like every witness. Okay? So this is something you need to consider when deciding the believability of this defendant.
The prosecutor clarified in his rebuttal closing argument that Petitioner was convicted of possession for sale, rather than transportation, and explained the confusion by stating that both those crimes fall under the same code section, California Health and Safety Code section 11379:
One thing, I did mis-speak in my first closing. I indicated that he had a prior [California Health & Safety Code section] 11379 conviction, this defendant. That is true. Okay? But it was not for transportation. 11379. And this particular case that we're in happens to be the same charge, but on a theory of transportation. Okay? 11379 has other theories as well that don't apply to this case, namely sales of methamphetamine; and that was brought up when he testified in trial. Okay? Sales of methamphetamine. This is a transportation of methamphetamine case. Looks like the same charge.RT at 1592-93.
Following Petitioner's conviction, but before the trial on his prior convictions, the trial court noted the People's exhibits consisted of an abstract of judgment in "[Los Angeles County Superior Court] case number PA027363, which includes convictions on three counts, one 11360(a) of the Health and Safety Code, count 1; count 2, 11359 of the Health and Safety Code; and count 3, 11379(a) of the Health and Safety Code, conviction date for all three May 28, 1998." Id. at 1624; CT 341. Petitioner advised the court he had originally received a life sentence in that case pursuant to the Three Strikes law but the convictions were reversed in 2004, and that on remand he had pled to only one of the three counts in exchange for a sentence of time served. RT at 1627. The court noted it would order the file for that prior conviction and consider the matter during sentencing. Id.
At a subsequent hearing, the trial court reviewed the court file for the prior conviction, and confirmed Petitioner was correct. Id. at 2404. The court explained Petitioner had initially been convicted of California Health and Safety Code sections 11360(a), 11359, and 11379(a). Id. The court further explained the Ninth Circuit reversed the case and Petitioner later entered into a plea agreement for offering to sell a controlled substance under California Health and Safety Code section 11379(a), and he was sentenced for that conviction only in 2005. Id. at 2405; see Gupta v. Runnels, 116 F. App'x 816 (9th Cir. 2004). The court then reiterated its agreement with Petitioner that, as to the violations of California Health and Safety Code sections 11360 and 11359, "those two allegations were stricken, based upon the revised plea and conviction in the case in 2005." RT at 2405.
2. Prosecutorial Misconduct Claims on Federal Habeas Review
To obtain federal habeas relief for prosecutorial misconduct on due process grounds, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (internal quotation marks omitted). Prosecutorial misconduct merits habeas relief only where the misconduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (internal citation omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). "In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (internal citation omitted). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384-85, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)); see also Waddington v. Sarausad, 555 U.S. 179, 195, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009).
To grant habeas relief on the basis of prosecutorial misconduct, the misconduct must have been prejudicial, that is, it must have "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623. See Karis v. Calderon, 283 F.3d 1117, 1128 (9th Cir. 2002) (stating that a claim of prosecutorial misconduct is analyzed under the prejudice standard set forth in Brecht). Under Brecht, a reviewing court must grant relief if "in grave doubt as to the harmlessness of the error." O'Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). In assessing prejudice arising from prosecutorial misconduct, the Court must consider a number of factors: (1) whether a curative jury instruction was given, see Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987); (2) the weight of evidence of guilt, see United States v. Young, 470 U.S. 1, 19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (finding "overwhelming evidence" of guilt); (3) whether the misconduct was isolated or part of an ongoing pattern, see Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); (4) whether the prosecutorial misconduct related to a critical aspect of the case, see Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); and (5) whether the challenged comment of the prosecutor misstated or manipulated the evidence. Darden, 477 U.S. at 181-82.
3. Analysis
Looking to the factors for assessing prejudice in prosecutorial misconduct cases, the Court finds the prosecutor's remarks were not prejudicial. Brecht, 507 U.S. at 637-38. First, the jury was instructed that they "alone must judge the credibility of the witnesses," and that a prior felony conviction could be used to evaluate only the credibility of a witness' testimony. CT 227, 229; RT 1533, 1538. The jury was further instructed that "[n]othing that the attorneys say is evidence" and specifically that their remarks in closing arguments "are not evidence." CT 226; RT 1530. Further, the prosecutor admitted his mistake and corrected himself. RT at 1592-93; see Rhoades v. Henry, 598 F.3d 495, 510 (9th Cir. 2010) (petitioner not entitled to relief on claim that prosecutor improperly commented on his decision not to testify because prosecutor corrected himself and jury was instructed not to infer anything from the defendant's failure to testify). Second, the case against Petitioner was strong: Petitioner was found with over $25,000 in methamphetamine packaged for sale in 23 individually-wrapped small bags, additional packaging materials, and cash bindles in amounts consistent with the street value of one ounce of methamphetamine. RT 336-39, 324-43, 345, 426-32, 910, 917-20. Third, the prosecutor's remarks were isolated and not part of a larger pattern of misconduct by the prosecutor. See Hall v. Whitley, 935 F.2d 164, 165-66 (9th Cir. 1991) ("Put in proper context, the comments were isolated moments in a three day trial."). Fourth, the prosecutor's misstatement about Petitioner's prior convictions did not relate to a critical aspect of the case, only to one of a multitude of other factors the jury could consider in assessing Petitioner's credibility. See CT 227-28; RT 1534-35. Moreover, it related to only one of four prior convictions Petitioner admitted on cross-examination, which included the far more serious prior convictions of manslaughter and first degree residential burglary. See RT 1299-1302. Finally, the prosecutor's remarks did not actually misstate or manipulate any of the evidence presented at trial. Thus, the Court finds the factors weigh against a finding of prejudice.
Finally, in a single sentence, Petitioner contends the prosecutor also committed misconduct because "he went by CALCRIM 3101 that was submitted by the trial court, but CALCRIM 3101 incorrectly showed three (3) erroneous convictions that defendant is not convicted of." Pet. Mem. Part 4 at 7. This aspect of the claim lacks merit because the trial court gave no such instruction, and the prosecutor never argued under the purported instruction. CT 224-233; RT 1525-66, 1588-96. Moreover, as Petitioner admitted after trial, no other evidence of Petitioner's priors was before the jury besides his admissions during cross-examination. See RT 2405 ("My priors never even went in front of the jury. I had admitted them in court.").
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Seventeen. M. Claim Eighteen Does not Warrant Habeas Relief
Petitioner argues in Claim Eighteen that there was insufficient evidence to support a finding that he "had knowledge of the presence" of the methamphetamine found in his truck. Pet. Mem. Part 4 at 9-15; Traverse at 29-33. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 217-22.1; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Sufficiency of the Evidence Challenges
On federal habeas review, a petitioner may challenge the sufficiency of the evidence underlying a conviction in state court, on the grounds that the conviction violates his rights under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Jackson v. Virginia, 443 U.S. 307, 321, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). However, this Court's inquiry into the sufficiency of evidence supporting a conviction is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975) (internal quotation marks and citations omitted). The standard of review on a sufficiency of the evidence claim has long been 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 (1979); see Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). This Court will not re-weigh the evidence to reach a result different from that of the jury. See Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) ("The reviewing court must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict."). Circumstantial evidence alone is sufficient to support a conviction. See Jackson, 443 U.S. at 324-25 ("From the circumstantial evidence in the record, it is clear that the trial judge could reasonably have found beyond a reasonable doubt that the petitioner did possess the necessary intent at or before the time of the killing."); Schad v. Ryan, 671 F.3d 708, 717 (9th Cir. 2011) (per curiam) ("Circumstantial evidence and reasonable inferences drawn from it may properly form the basis of a conviction."), cert. denied, 133 S. Ct. 432 (2012).
On federal habeas review under AEDPA, the Court must apply the standards of Jackson with an "additional layer of deference" to the state court's decision and may only overturn the decision if it constituted an "objectively unreasonable application" of Jackson. See Juan H. v. Allen, 408 F.3d 1262, 1274 & n.12 (9th Cir. 2005). In short, for a federal habeas court, "the only question under Jackson is whether th[e] [jury] finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, ___ U.S. ___, 132 S. Ct. 2060, 2065, 182 L. Ed. 2d 978 (2012).
The Jackson standard is "applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. The Court, therefore, first looks to California law when assessing whether the Court of Appeal unreasonably applied Jackson in deciding that there was sufficient evidence supporting Petitioner's convictions.
2. Applicable California Law
Under California law, both transportation of a controlled substance and possession of a controlled substance for sale require as an element that the accused knew the substance was present. See People v. Meza, 38 Cal. App. 4th 1741, 1746 (Cal. Ct. App. 1995) ("Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character."); People v. Harris, 83 Cal. App. 4th 371, 374 (Cal. Ct. App. 2000) ("Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character."). That knowledge may be established by circumstantial evidence. See People v. Palaschak, 9 Cal. 4th 1236, 1242 (1995); see also People v. Williams, 5 Cal. 3d 211, 215 (1971).
"Possession may be actual or constructive. Actual possession means the object is in the defendant's immediate possession or control. A defendant has actual possession when he himself has the [object]. Constructive possession means the object is not in the defendant's physical possession, but the defendant knowingly exercises control or the right to control the object." In re Daniel G., 120 Cal. App. 4th 824, 831 (Cal. Ct. App. 2004). Dominion and control over a vehicle in which the narcotics are found supports an inference of dominion and control over the narcotics found in the vehicle. See Williams, 5 Cal. 3d at 215.
"[T]he mere possession of narcotics constitutes substantial evidence that the possessor of the narcotic knew of its nature." See People v. Eckstrom, 187 Cal. App. 3d 323, 331 (Cal. Ct. App. 1986). Further, "[k]nowledge of the presence of contraband and of its narcotic content may be inferred from the accused's conduct or statements at or near the time of his arrest." People v. Solo, 8 Cal. App. 3d 201, 206 (Cal. Ct. App. 1970), disapproved on other grounds by People v. Rogers, 5 Cal.3d 129, 134, n.4 (1971).
3. Analysis
Here, as mentioned, Petitioner was found with over $25,000 in methamphetamine packaged for sale in 23 individually-wrapped small bags, additional packaging materials, and cash bindles in amounts consistent with the street value of one ounce of methamphetamine. RT 336-39, 324-43, 345, 426-32, 910, 917-20. The drugs, and one of the cash bindles were within Petitioner's reach inside the truck, and two cash bindles were found on his person. Id. at 334-35, 426-32. Petitioner makes no challenge to the possession element of his convictions (see, e.g., Pet. Mem. Part 4 at 9; Traverse at 29, 32), and the jury could reasonably infer he had knowledge of the presence of the drugs due to his constructive possession of such a large amount of drugs. See United States v. Kearney, 560 F.2d 1358, 1369 (9th Cir. 1977) (street value of narcotics relevant to defendant's knowledge of the presence of the drugs), cert. denied, 434 U.S. 971 (1977); Thanh v. Evans, No. SA CV 08-127-CAS (PJW), 2009 WL 303150, *3 (C.D. Cal. Feb. 6, 2009) (jury could have reasonably inferred petitioner had knowledge of presence of methamphetamine in his car because a large quantity was found in an open console beside petitioner's seat); Eckstrom, 187 Cal. App. 3d at 331.
Further, Petitioner exhibited an awareness of its presence by acting "extremely nervously" during his interaction with the officers. RT 333. Deputy Craft testified Petitioner was shaking, stuttering, and his hands were trembling. Id. at 333-34, 397-98. He was acting "more nervous than usual for a person on a basic traffic stop for a Vehicle Code violation." Id. at 333-34. The jury could reasonably infer from this that Petitioner had knowledge of the presence of the drugs. See United States v. Campbell, 507 F.2d 955, 958 (9th Cir. 1974) (jury could infer defendant's knowledge of contraband found in car based on his proximity to drugs, complete control of the car, and because he appeared to be nervous); Thanh, 2009 WL 303150, at *3 (jury could have reasonably inferred petitioner had knowledge of presence of methamphetamine in his car based on his conduct after officer's stopped him); Solo, 8 Cal. App. 3d at 206.
While Petitioner points to his own testimony that he did not know of the drug's presence and reiterates his defense that it could have been the Brazilians who placed the drugs in his truck (see Pet. Mem. Part 4 at 220-21; Traverse at 30), on federal habeas review of a claim under Jackson, this Court must not re-weigh the evidence or inferences therefrom to reach a result different from that of the jury. See Walters, 45 F.3d at 1358; see also Jackson, 443 U.S. at 326 ("[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."). In any event, even if the drugs belonged to someone else, the jury could reasonably infer Petitioner had knowledge of their presence based on the factors above. See McNutt v. Gonzalez, No. CV 10-122 JFW (SS), 2011 WL 662343, at *8 (C.D. Cal. Jan. 18, 2011) (although jury heard testimony from a passenger admitting the drugs were hers, "the jury could nevertheless reasonably conclude from the totality of the circumstances that Petitioner had dominion, control and knowledge of the drugs"), accepted by 2011 WL 662976 (C.D. Cal. Feb. 17, 2011).
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Eighteen. N. Claim Twenty Does not Warrant Habeas Relief
Petitioner argues in Claim Twenty that the trial court erroneously denied his motion for production of trial transcripts for the purpose of preparing a motion for new trial, thereby making Petitioner "ineffective as pro. per. counsel." Pet. Mem. Part 4 at 18-23. In its denial disposing of Petitioner's state habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claim for failing to state a prima facie case for relief, but did not explain its reasoning. Lodg. No. 18 at 225-230; Lodg. No. 19. Accordingly, the Court engages in an "independent review of the record" to determine "whether the state court's decision was objectively unreasonable." Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d).
1. Relevant Trial Court Proceedings
Petitioner filed a "motion for production of trial transcripts for his motion for new trial," along with other similar requests. CT 347-54; RT at 2402-03 (trial court's summary of various requests for transcripts for new trial motion).
The trial court found Petitioner had failed to show good cause for the transcripts, explaining "[i]f and when you're sentenced in this case, you're entitled to appeal your sentence, which includes the right to have an attorney represent you for appeal and to a transcript of all of the proceedings." RT 2406. The court further explained that ordering transcripts at that juncture in the proceedings would not assist the court in ruling on his motion for new trial and other various motions, and denied Petitioner's request. RT 2406-07.
2. Analysis
Petitioner's claim is premised on his belief that, with transcripts, he would have been able to present a better motion for a new trial. However, Petitioner has failed to show that the trial court was unable to rule on his motion for a new trial without the transcripts. Furthermore, even assuming he was able to obtain such transcripts, as mentioned in the Court's analysis of Claim Six, a challenge to the ultimate ruling on the motion for a new trial is not cognizable in this proceeding. See McGuire, 502 U.S. at 67-68; Herrera, 506 U.S. at 408; Gilliam, 2014 WL 6750223 at *23. Accordingly, Petitioner fails to present a cognizable claim.
Hence, reviewing the record independently, the Court concludes the Los Angeles County Superior Court's denial of Petitioner's claim was not an "objectively unreasonable" application of clearly established federal law. See Walker, 709 F.3d at 939 (internal quotation marks and citations omitted); see also 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Claim Twenty. O. Claims Two , Three, and Four Do not Warrant Habeas Relief
Petitioner argues in Claim Two that his appellate counsel was ineffective by failing to raise the issues Petitioner raised on state habeas corpus and because counsel "intentionally, deliberately & recklessly, frustrated and sabotaged [P]etititoner's attempt to comply with the Court of Appeals' November 28, 2012 Order." See Pet. at 7; Pet. Part 1 at 15-30; Pet. Part 9 at 7-13; Traverse at 5-6. Petitioner argues in Claim Three that appellate counsel was ineffective by failing to challenge the denial of Petitioner's search and seizure motion. See Pet. at 7; Pet. Part 9 at 15; Pet. Part 10 at 1-2; Traverse at 5-6. Finally, Petitioner argues in Claim Four that appellate counsel was ineffective by failing to obtain a complete and adequate appellate record. See Pet. at 8; Pet. Part 10 at 3-14; Traverse at 5-6. In its reasoned order disposing of Petitioner's habeas petition on October 3, 2012, the Los Angeles County Superior Court rejected Petitioner's claims. See Lodg. No. 6. Accordingly, the Court reviews the Superior Court's reasoned disposition of Petitioner's claims as an "adjudication on the merits" subject to deference under AEDPA. See 28 U.S.C. § 2254(d).
1. Ineffective Assistance of Appellate Counsel Claims
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 391-405, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). For a petitioner to prevail on his ineffective assistance of appellate counsel claims, he must satisfy a two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) he must show counsel's performance was deficient; and (2) he must show he was prejudiced by the deficient performance. Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (adopting Strickland standard for assessing claims of ineffective assistance of appellate counsel). A court evaluating an ineffective assistance of counsel claim does not need to address both components of the test if a petitioner cannot sufficiently prove one of them. Strickland, 466 U.S. at 697; see also Thomas v. Borg, 159 F.3d 1147, 1152 (9th Cir. 1998).
First, to prove deficient performance, a petitioner must show counsel's representation fell below an objective standard of reasonableness. Strickland. 466 U.S. at 687-88. Because of the difficulty in evaluating counsel's performance, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Only if counsel's acts or omissions, examined in light of all the surrounding circumstances, fell outside this "wide range" of professionally competent assistance will the petitioner prove deficient performance. Id. at 690; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
Second, to demonstrate prejudice as a result of appellate counsel's deficient performance, a petitioner must demonstrate a "reasonable probability" he would have prevailed on appeal, but for appellate counsel's errors. Miller v. Keeney, 882 F.2d 1428, 1434 & n.9 (9th Cir. 1989).
A federal habeas court's review of a claim under the Strickland standard is "doubly deferential." Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009). The relevant question "is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable - a substantially higher threshold." Id. (citations omitted). "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id. (citation omitted).
2. The State Court Decision
The Superior Court rejected Petitioner's claims for "fail[ing] to meet the[] threshold burdens" of either of the Strickland requirements, and because "the record is devoid of any evidence that any of the tactical or strategic decisions made by counsel resulted from anything other than informed tactical choices within the range of reasonable competence." See Lodg. No. 19 (citing Strickland, 466 U.S. 699; People v. Ledesma, 43 Cal. 3d 171 (1987); and People v. Bunyard, 45 Cal. 3d 1189 (1988)).
3. Analysis
Petitioner's argument in Claim Two that appellate counsel was ineffective by failing to raise the claims he pursued on state habeas corpus fails because he cannot adequately demonstrate prejudice. See Strickland, 466 U.S. at 697. Specifically, because the Court concludes in the previous sections that these claims are themselves meritless, the Court finds appellate counsel's failure to raise the claims was not prejudicial. That is, given the claims are meritless, it is not "reasonably probable" Petitioner would have prevailed on direct appeal even if appellate counsel had raised them. Miller, 882 F.2d at 1434. Moreover, regarding claims that the Court did not address on the merits solely because there is no clearly established federal law governing the claims for the purposes of federal review, the Court finds Petitioner nevertheless would not have succeeded on direct appeal on those claims because he cannot show any of the alleged errors were prejudicial in light of the evidence against him, as explained in previous sections. Id.
Petitioner's argument, also in Claim Two, that appellate counsel "intentionally, deliberately & recklessly, frustrated and sabotaged [P]etitioner's attempt to comply with the Court of Appeals' November 28, 2012 Order" lacks merit. See Pet. Part 9 at 13. Appellate counsel's representation of Petitioner on direct appeal had concluded and Petitioner was proceeding pro se on state habeas corpus at that time (see Lodg. Nos. 21-22), and Petitioner did not have the right to effective assistance of counsel in those proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987) (holding that the right to counsel extends only "to the first appeal of right, and no further"); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982).
Regarding Petitioner's argument in Claim Three that appellate counsel was ineffective by failing to challenge the denial of Petitioner's search and seizure motion (see Pet. at 7; Pet. Part 9 at 15; Pet. Part 10 at 1-2; Traverse at 5-6), this Court did not address the merits of that claim because it found the claim was barred by Stone, 428 U.S. a 481-82. However, the Court finds it is not "reasonably probable" Petitioner would have prevailed on direct appeal had counsel raised the issue for the reasons stated in Claim Six and elsewhere in the Petition. Miller, 882 F.2d at 1434. Petitioner's claim is based on his allegations that he declined consent to the search to the alleged Asian plain-clothes officer that he was never able to show existed. The trial court could properly rely on the testimony of the two officers who were actually at the scene that Petitioner consented to the search, and deny the motion to suppress based on their testimony. Accordingly, any challenge on appeal to the search would have been unsuccessful, and Petitioner thus cannot show he was prejudiced. Id.
Finally, Petitioner's argument in Claim Four that appellate counsel was ineffective by failing to obtain a complete and adequate appellate record (Pet. at 8; Pet. Part 10 at 3-14; Traverse at 5-6) is also meritless. Appellate counsel was able to substantially augment the record with two Augmented Reporter's Transcripts (see Lodg. Nos. 3, 5), and three Augmented Clerk's Transcripts, which included a multitude of Petitioner's numerous and repetitive filings in the trial court (see Lodg. No. 4 at 14-15; Lodg. No. 6 at ACT 456-58; Lodg. No. 7 at ACT 66-67). Petitioner has failed to show that these were insufficient to obtain review of his underlying claims in state court or here. Thus, counsel's performance was not deficient on appeal, and Petitioner was not prejudiced. See Robbins, 528 U.S. at 285.
Hence, the Court holds the Superior Court's decision was not "contrary to" or an "unreasonable application" of "clearly established federal law." 28 U.S.C. § 2254(d)(1). Accordingly, habeas relief is not warranted on Petitioner's ineffective assistance of appellate counsel claims. P. Claim Twenty-One Does not Warrant Habeas Relief
Petitioner argues in Claim Twenty-One that the cumulative effect of the errors alleged in the previous twenty grounds for relief resulted in a denial of due process. Pet. Mem. Part 4 at 23-24; Traverse at 33.
"Cumulative error applies where, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant." Mancuso v. Olivarez, 292 F.3d 939,957 (9th Cir. 2002) (citing United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)); see also Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) ("[T]he Supreme Court has clearly established that the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal.").
Here, this Court finds none of the alleged errors individually constituted error or prejudiced Petitioner. See Mancuso, 292 F.3d at 957; Detrich v. Ryan, 740 F.3d 1237, 1273 (9th Cir. 2013) (cumulative effect of counsel's alleged errors did not amount to ineffectiveness because most of petitioner's claims relied on misleading characterizations of the factual record that, even if true, would not establish significant prejudice, and even "[t]aken cumulatively, they still are not substantial"), cert. denied, 134 S. Ct. 2662 (2014). Accordingly, the Court finds Petitioner did not suffer any cumulative error that deprived him of due process. Q. Claim Twenty-Two Does not Warrant Habeas Relief
Petitioner argues in Claim Twenty-Two that there was insufficient evidence to support the civil forfeiture of $4,010 because there was no nexus between the seized funds and some illegal transaction. Pet. Mem. Part 4 at 25-28; Traverse at 34-37.
Petitioner's challenge to the civil forfeiture is not cognizable on federal habeas review because 28 U.S.C. § 2254 provides relief based on a showing that an individual "is in custody in violation of the Constitution or laws or treaties of the United States." Section 2254 "explicitly requires a nexus between the petitioner's claim and the unlawful nature of the custody." Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010) (citing Dickerson v. United States, 530 U.S. 428, 439 n.3, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000)). A challenge to civil forfeiture order does not provide such a nexus. Bailey, 599 F.3d at 980-81. This is demonstrated by the fact that, even if petitioner were to successfully establish that forfeiture was improper he would still have to serve the rest of his custodial sentence in the same manner. Id. at 981; United States v. Finze, 428 F. App'x 672, 677 (9th Cir. 2011) (claim challenging forfeiture order is not a cognizable § 2255 claim because it does not seek release from custody); Tharpe v. Quarterman, No. 4:07-CV-494-Y, 2007 WL 2491855, at *1 (N.D. Tex. Sept. 5, 2007) ("A § 2254 petition may not be used as a vehicle for challenging a civil forfeiture judgment or decree entered by a state court."). Accordingly, the claim is not cognizable on federal habeas review.
VII.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Judge issue an order: (1) accepting the findings and recommendations in this Final Report; (2) directing that judgment be entered denying the Petition; and (3) dismissing the action with prejudice. DATED: March 27, 2015
/s/_________
HON. KENLY KIYA KATO
UNITED STATES MAGISTRATE JUDGE