Opinion
No. CIV S-01-1795 DFL CMK P.
December 14, 2005
Findings and Recommendations
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his second amended petition, filed April 15, 2004, petitioner challenges his conviction on several grounds.
I. Background
A jury found petitioner guilty of lewd and lascivious conduct with a child under fourteen years of age and oral copulation with a child under fourteen years of age and more than ten years younger than the perpetrator. (Resp.'s Answer filed June 30, 2004, Ex. A; RT 683-84.) Petitioner was sentenced to prison for a term of fifty-five years to life. (Resp.'s Answer, Ex. A; Petitioner's Response filed Dec. 15, 2004, Ex. A.)
Petitioner molested his four-year-old daughter, Ashley, by having her orally copulate him. (Resp.'s Am. Answer filed Sept. 3, 2004 at 4.) Petitioner's wife, Carmen Huckabee (Carmen) testified against him at trial, stating that Ashley told her that boys and girls have "private areas" and that "Daddy has one and you suck on it." (Id.) Carmen testified that Ashley stated that once, when she was playing in the front room, she had wanted milk and that "daddy got her a drink of milk and she sucked on it." (Id.) Ashley stated that when she "sucked on it," milk came out, and that petitioner pulled her hair — a point of significance to Carmen as petitioner pulled on Carmen's hair when she performed oral sex on him. (Id.) After telling Carmen this, Ashley came over to Carmen and told her that she had lied, Daddy did not do anything, and Ashley did not want to get him in trouble. (Id.)
Carmen testified to other actions by Ashley which supported Ashley's original statements. (Id.) Carmen stated that Ashley once knelt by petitioner, put her head near his crotch and opened her mouth. (Id.) Several months earlier, Ashley had told Carmen, after picking up a toy from the floor, that "Daddy's got a thing and you suck on it." (Id.) When Carmen asked petitioner why Ashley would say that, he stated that she might have seen the cover of a tape, which was on the bedroom floor, that depicted oral sex. (Id.)
Ashley testified at trial that petitioner showed her his private part when they were in the front room, but she denied that she touched it or did anything to it. (Id.) She also denied telling her mother that she had done something with it. (Id.) She denied remembering that she had told her mother that she "had sucked on that pee-pee thing." (Id.) Although repeatedly asked whether she ever touched or sucked on petitioner's private part, Ashley either denied such activity or, in most instances, claimed that she could not remember. (Id.) Carmen testified that she had told Ashley that her Daddy was in jail as a result of what Ashley had said. (Id.) Carmen also testified that Ashley stated that petitioner told her during a phone call from jail that, if Ashley told the police officers that he did not do it, petitioner could come home. (Id.)
Two of the investigating officers testified at petitioner's trial. (Id. at 5.) El Dorado County Sheriff's Deputy Brett Smith stated that Ashley told him that she had been with her Daddy both on the floor and on a chair. (Id.) She stated that she had "asked Daddy if she could suck it, I like to suck it . . ." and that Daddy had said it was "O.K., as long as no milk came out." (Id.) Smith had been told by another deputy that petitioner grabbed Carmen by the hair when he ejaculated, and he asked Ashley if petitioner had pulled his hair. (Id.) Ashley responded that petitioner had "only grabbed it for a second." Deputy Dale Spear testified that Ashley was interviewed by a specialist in interviewing child abuse victims. (Id.) The interview was videotaped, and it was played for the jury. (Id.) On the tape, Ashley described petitioner's penis, including the "hole" where the "yucky milk" came out. Ashley also stated on the tape that, on the phone, petitioner told her that if she said nothing happened, he could come home. (Id.) Deputy Spear stated that, while Ashley was testifying in court the previous week, he had seen petitioner shake his head "no" when Ashley began describing the incident in the living room and that Ashley then ceased her description. (Id.)
Leah D., who was seventeen years old, testified that she and her mother had lived with petitioner for several years. (Id.) Leah stated that petitioner began to molest her when she was five years old and continued to do so until she was ten. (Id.) Leah testified that she would orally copulate petitioner while he "held her head or her back." (Id.) The first molestation occurred when petitioner put chocolate syrup on his penis and asked Leah to lick it off. (Id.) Leah also testified that petitioner rubbed his penis between her legs, make her fondle him and once, in the presence of several other children, had Leah's cousin Jennifer play with his penis. (Id.)
Andrew Hobart, a retired police officer, testified that he interviewed Leah in 1991. (Id.) He stated that she told him about the oral copulation but did not mention petitioner putting chocolate syrup on his penis, placing his penis between Leah's legs or the incident in which Leah's cousin played with petitioner's penis. (Id.)
Petitioner did not testify in his own defense. (Id.) His defense, as presented through his wife, Carmen and the investigator who had interviewed Leah in 1991, was to cast doubt on Ashley's and Leah's testimony by demonstrating the inconsistencies and the possibility that both girls had obtained their knowledge from pornographic videos. (Id.) Carmen testified that she "want[ed] [the case] over with." (Reporter's Transcript (RT) 39.) She stated that she had "concerns about all of us if he is convicted." (RT 39.) Carmen testified that, prior to February 1997, she had been afraid of petitioner. (RT 165.) She stated that in July 1997 she was "afraid of confrontation with him." (RT 165.) She testified in court that she wanted her husband to be "released so that he could take care of his own responsibilities." (RT 166.)
II. Analysis
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. See Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. See Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
B. Petitioner's Claims
Petitioner claims that: (1) the trial court erred in admitting hearsay testimony; (2) the trial court erred in admitting evidence of petitioner's prior bad acts to show propensity; (3) the trial court sentenced him unconstitutionally; (4) that he received ineffective assistance of both trial and appellate counsel; (5) he was sentenced in violation of the double jeopardy clause; and (6) that he was unconstitutionally prejudiced by the prosecutor's misconduct.
1. Hearsay Testimony
Petitioner first contends that the trial court erred in admitting a videotaped interview with four-year-old Ashley. Petitioner argues that the videotaped interview constituted unreliable hearsay and violated his right to confront and cross examine witnesses against him. Petitioner presented this claim to the state appellate court on direct appeal and to the California Supreme Court in a petition for a writ of habeas corpus. (Resp.'s Am. Answer, Exs. B J.) Both courts denied this claim, and the California Supreme Court denied the claim without a reasoned decision. (Id. Exs. A K.)
Petitioner argues that the holding of Crawford v. Washington, 541 U.S. 36 (2004) is applicable in this case. (Pet.'s Denial to Resp.'s Answer at 3.) Crawford states that out-of-court statements by witnesses not appearing at trial that are testimonial are barred under the Confrontation Clause unless the witnesses are unavailable and the defendants had a chance to cross examine, regardless of whether such statements are deemed reliable by the trial court.Crawford, 541 U.S. at 51. Although the holding of Crawford was not clearly established law at the time that the criminal proceedings in petitioner's case took place, the Ninth Circuit held in Bockting v. Bayer, 399 F.3d 1010, as amended on denial of rehearing by 408 F.3d 1127 (9th Cir. 2005) that theCrawford decision should be applied retroactively on collateral review. Accordingly, the undersigned recognizes that, underBockting, extending the holding of Crawford to petitioner does not violate the nonretroactivity principle set forth inTeague v. Lane, 489 U.S. 288 (1989), and appliesCrawford in the instant case.
Petitioner's trial took place from October 1997 through January 1998. (RT i-ii.) His conviction became final on direct review in April 2000. (Resp.'s Am. Answer, Ex. J at 105; Doc. 18, Ex. C.) (The court notes that in Respondent's Am. Answer at 10:10-11, respondent asserts that petitioner's conviction became final in July 2005.)
The holding in Teague v. Lane, 489 U.S. 288 (1989) states that new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced unless they fall within two exceptions to the general rule. The two exceptions are if the new constitutional rule of criminal procedure would "place certain kinds of primary, private individual conduct beyond the power of criminal-law making authority . . ." or "require the observance of `those procedures that . . . are `implicit in the concept of ordered liberty.'" Teague 489 U.S. at 307; see also, Sawyer v. Smith, 497 U.S. 227, 242 (1990) (stating that rules are properly considered retroactive when they "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding). In Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), the Ninth Circuit stated that Crawford was retroactive because it altered the understanding of the bedrock procedural elements essential to the fairness of a proceeding. See id. at 1019-20.
The facts of Crawford reveal that Michael Crawford stabbed a man who allegedly raped his wife, Sylvia. See Crawford, 541 U.S. at 38, 40. Sylvia apparently witnessed the stabbing, but did not testify at trial due to Washington's marital privilege law, which bars a spouse from testifying without the other spouse's consent. See id. at 40. Because Sylvia did not testify at the trial, the state sought to introduce Sylvia's out of court statement to the police as evidence that Crawford did not act in self defense. See id. at 40.
The Supreme Court held that the use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.See id. at 68. Justice Scalia engaged in a lengthy historical analysis of the Confrontation Clause, "noting that `the principle evil at which the Confrontation Clause was directed was thecivil law mode of criminal procedure, and particularly its use of ex parte communications as evidence against the accused.'"Bockting, 399 F.3d at 1014 (citing to Crawford, 541 U.S. at 50) (emphasis in original). Justice Scalia emphasized that "`the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination.'" Id. (citing Crawford, 541 U.S. at 53-54).
The factual background in Bockting also reveals that the witness did not testify at trial. The relevant facts reveal that Martin Bocketing's daughter, Autumn, told her mother, Laura, that she had been sexually assaulted by Bocketing. See Bockting, 399 F.3d at 1013. At the preliminary hearing, Autumn, when questioned about being touched by Bockting, became upset and, upon further questioning, stated that she could not remember what happened between her and her father. See id. The trial judge declared Autumn an unavailable witness and Autumn did not testify at trial. See id. The trial judge found that Autumn's hearsay statements to Laura were admissible because Autumn was effectively unavailable to testify. See id. Accordingly, applying the holding of Crawford, the Ninth Circuit concluded that admission of Autumn's hearsay statement's violated the Confrontation Clause because the defendant had no opportunity to cross-examine Autumn concerning her statements nor was she unavailable to testify. See id. at 1021-22.
The facts of the instant case distinguish it from bothCrawford and Bockting. Here, Ashley testified at trial. The record reveals that Ashley testified at trial that she did not perform oral sex on petitioner. (RT 232-24.) Ashley admitted only that petitioner had showed her his penis and either stated that she could not remember or denied telling her mother that she had done anything to petitioner's penis. (RT 232-24.) The prosecutor questioned Ashley about the statements she made during a videotaped interview with a trained child molester victim interviewer, which were that she had orally copulated petitioner and that he had ejaculated into her mouth. (RT 242.) The prosecutor asked Ashley if she "remember[ed] telling that lady that one time when you are in the room with the big mirror, do you remember telling her [that you orally copulated your father]." (RT 242.) Ashley stated that she did not remember telling the victim interviewer that she had orally copulated petitioner, but that she did remember telling the police officer that. (RT 242.)
The questions asked on direct examination concerning the statements that Ashley made during the videotaped interview opened the door for defense counsel to cross examine Ashley about these statements. See Fed.R.Evid. 611(b) (stating that "cross examination should be limited to the subject matter of direct examination and matters affecting the credibility of the witness"); United Sates v. Arias-Villaneuva, 998 F.2d 1491, 1508 (9th Cir. 1993) (stating that a district court may permit cross examination as to all matters reasonably related to the issues put in dispute by a witness's on direct examination). After Ashley repeatedly denied remembering anything on direct examination, the trial court stated to the prosecution: "I think we've gone about as far as we can. . . ." (RT 259.) The court then asked if defense counsel had any questions, and defense counsel said no, declining to question Ashley on cross examination. (RT 259.)
After Ashley testified, the prosecutor sought to have admitted into evidence Ashley's statements, which she made during a videotaped interview with a trained child molester victim interviewer, that she had orally copulated petitioner and that he had ejaculated into her mouth. (RT 260.) Over petitioner's objection, the trial court admitted Ashley's videotaped testimony under the prior inconsistent statement exception to the hearsay rule under California Evidence Code § 1235. (RT 267-68.)
Although Ashley's videotaped statement constitutes a testimonial statement, the undersigned finds that its admittance does not violate petitioner's right under the confrontation clause. Petitioner was afforded the only "indicium of reliability sufficient to satisfy constitutional demands" — confrontation. The record reveals that Ashley testified at trial and was available for cross examination on her videotaped statement. Although petitioner was offered the opportunity to cross examine Ashley, he declined to do so. Accordingly, the undersigned concludes that, under the holding announced inCrawford, petitioner's right to confront and cross examine witnesses against him was not violated by the trial court admitting Ashley's videotaped interview. The undersigned finds that the state court's rejection of petitioner's claim that the trial court erred in admitting the videotape evidence was neither contrary to nor an unreasonable application of controlling principles of federal law. The undersigned recommends that petitioner's first claim for relief be denied.
In Crawford, Justice Scalia stated that, at a minimum, the term testimonial covered police interrogations. Crawford, 541 U.S. at 68.
2. Evidence of Petitioner's Prior Bad Acts
Petitioner next claims that the trial court erred in allowing the prosecution to submit evidence of petitioner's prior probationary term for sexually molesting a minor. Petitioner claims that admitting this evidence allowed the prosecution to show that petitioner has a propensity for committing sex crimes in violation of his right to due process. Petitioner presented this claim to the California Supreme Court, which denied the claim without a reasoned decision. (Resp.'s Am. Answer, Exs. J K.)
At the onset, respondent argues that petitioner's due process claim is barred by the Teague nonretroactivity rule. See Teague v. Lane, 489 U.S.at 288. However, in making his due process argument, petitioner relies heavily on McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993), which was decided nearly four years before petitioner was tried in 1997. (Pet.'s Denial to Respondent's Answer at 3:22-24.) Accordingly, the undersigned concludes that petitioner's due process argument is not Teague barred.
The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the trial fundamentally unfair. See Estelle, 502 U.S. at 70. Only if no permissible inferences can be drawn from admitted evidence will due process be violated. See Jammal v. Van de Van De Kamp, 926 F.2d 918, 920 (9th Cir. 1991). "The Supreme Court has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conformity therewith or that it violates due process to admit other crimes evidence for other purposes without a limiting instruction to the jury." Garceau v. Woodford, 275 F.3d 769, 774-45 (9th Cir. 2001, rev'd on other grounds) (citing Estelle, 502 U.S. at 75, n. 5). The Ninth Circuit has held that the admission of other crimes evidence violates due process when (1) the balance of the prosecution's evidence against defendant was "solely circumstantial; (2) the other crimes evidence was similar to the crime for which defendant was on trial; (3) the prosecutor relied on the other crimes evidence at several points during the trial; and (4) the other crimes evidence was emotionally charged." McKinney, 993 F.2d at 1381-82-1385-86.
Here, the prosecution's case hinged on the testimony of Carmen, Ashley and Ashley's out-of-court-videotaped statements. The balance of the prosecution's case against defendant was not solely circumstantial. Instead, it was based on direct evidence of Ashely's statements concerning the incident between herself and defendant. The prosecution did not excessively rely on evidence of petitioner's prior bad acts. Instead, the prosecution's main focus was on Ashley's testimony and the testimony of those who interviewed her. The evidence of petitioner's prior bad acts were slightly different and no more inflammatory than the testimony given by Ashley. Further, petitioner's prior bad acts were introduced for a relevant purpose — to show a common plan or scheme.
Accordingly, the undersigned finds that the state court's rejection of petitioner's claim that his due process rights were violated by the trial court admitting evidence of his prior bad acts was neither contrary to nor an unreasonable application of controlling principles of federal law. The undersigned recommends that petitioner's second claim for relief be denied.
3. Unconstitutional Application of California's Sentencing Scheme
Petitioner contends that California's sentencing scheme, as it was applied in his case, infringed on his right to a fair trial. He contends that the trial court imposed sentencing enhancements, which constituted separate charges that needed to be proved to a jury beyond a reasonable doubt. Petitioner presented this claim to the California Supreme Court, and it was denied without a reasoned decision. (Resp. Am. Answer, Ex's. J K.)
In Apprendi v. New Jersey, 530 U.S. 466, 471 (2000), the Supreme Court stated that "other than a fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Here, the jury found petitioner guilty of two charged counts — committing a lewd act on a child and oral copulation of a person under fourteen. (RT 683.) The jury also found petitioner's prior California Penal Code Section 288(a) conviction to be true. (RT 683-84.) The jury found this conviction to be true beyond a reasonable doubt. (Clerk's Transcript (CT) 135-36.)
Under Apprendi, petitioner was not entitled to have the fact of his prior conviction submitted to the jury. See id. at 471. However, the jury did find that petitioner's prior conviction was true beyond a reasonable doubt. To the extent that petitioner argues that the jury should have been advised of the effect petitioner's prior conviction would have on his sentence, this argument must also fail. Petitioner has no right to have the jury consider sentencing information in a non-capital cases. See Shannon v. United States, 512 U.S. 573, 579 (1994). The undersigned finds that the state court's rejection of petitioner's claim that the California sentencing scheme, as applied in his case, was unconstitutional was neither contrary to nor an unreasonable application of controlling principles of federal law. The undersigned recommends that petitioner's third claim for relief be denied.
4. Ineffective Assistance of Counsel
Petitioner next claims that he received ineffective assistance of trial and appellate counsel under several different theories. Petitioner claims that his trial counsel failed to adequately consult with him about his case, was late to or failed to attend court hearings, failed to allow petitioner to review the videotaped interview of Ashley, refused to allow petitioner to testify, agreed with the prosecutor to ensure a conviction against petitioner in exchange for leniency for another of trial counsel's clients, failed to convey a plea offer to the petitioner from the prosecution, failed to present expert testimony, failed to file a Miranda motion to exclude certain statements that petitioner made to law enforcement, failed to present mitigating evidence at sentencing and failed to file a timely notice of appeal. Petitioner argues that his appellate counsel should have brought the Miranda claim on appeal. Petitioner presented these claims to the California Supreme Court in a petition for writ of habeas corpus, which that court denied without a reasoned decision. (Resp. Am. Answer, Exs. J K.)
Miranda v. Arizona, 384 U.S. 436 (1966).
In order to prevail on his claim of ineffective assistance of counsel, petitioner must show two things, an unreasonable error and prejudice flowing from that error. See Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 688. To this end, petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See id. at 690. The federal court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. See id. "We strongly presume that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
Second, petitioner must affirmatively prove prejudice. See Strickland, 466 U.S. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also Williams v. Taylor, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed."Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quotingStrickland, 466 U.S. at 697). In order to demonstrate prejudice in this context, petitioner must demonstrate that, but for counsel's errors, he probably would have prevailed on appeal.See Miller, 882 F.2d at 1434 n. 9. The Strickland standard also applies to claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000).
After a careful review of the record, the undersigned determines that petitioner cannot show that he suffered prejudice as a result of the alleged deficiencies of his trial counsel. Petitioner's trial counsel, David Weiner, has submitted an affidavit stating that petitioner's allegations are false. (Decl. of David Weiner, Doc. 24.) Further, petitioner has not shown that he was prejudiced by any of the alleged deficiencies.
a. Adequate Consultation
Petitioner alleges that several days elapsed between the time that petitioner's family retained trial counsel and the time that trial counsel contacted petitioner. Petitioner also claims that he made almost daily calls asking trial counsel to come to the county jail for consultation, which trial counsel ignored. There is no constitutionally required minimum of meetings between trial counsel and a client. See e.g. United States v. Olsen, 846 F.2d 1103, 1108 (7th Cir. 1988) (stating that there is no required minimum of meetings between counsel and the accused). Even if trial counsel's performance is deficient in this regard, a petitioner still must affirmatively prove prejudice. See United States v. Rogers, 769 F.2d 1418, 1425 (9th Cir. 1985). Petitioner makes allegations that his trial counsel did not consult with him; however, these allegations do not show how trial counsel's performance was deficient, nor do they show how petitioner was prejudiced by the alleged deficiencies. See Strickland, 466 U.S. at 693.
b Trial Counsel's Lateness or Failure to Appear
Petitioner alleges that trial counsel was late or failed to appear at hearings. Petitioner claims that the substitute counsel who appeared at hearings were "ill prepared" and that petitioner met "with negative results" when trial counsel did appear. (Second Am. Pet. at 38.) Petitioner claims that these alleged failures deprived him of zealous representation. Again, petitioner has made allegations of his counsel's alleged deficiencies, but he has not shown that he was prejudiced by them. Petitioner makes no showing that the end result of his trial would have been different, but for his counsel's alleged failure to appear at hearings or to appear at hearings in a timely manner. See Strickland, 466 U.S. at 693.
c. Review of Ashley's Videotaped Interview
Petitioner alleges that his right to due process and his right to cross-examine witnesses were violated by trial counsel's alleged failure to allow him to view Ashley's videotaped interview. Petitioner's trial counsel has denied that petitioner requested to view the videotaped interview. (Decl. of David Weiner, Doc. 24.) The record shows that when the prosecutor sought to have the videotaped admitted, petitioner's trial counsel objected. Despite the objections of the defense, the trial judge ruled that the videotapes were admissible. (RT 261-69.) Petitioner has failed to demonstrate that he was prejudiced by trial counsel's alleged failure to allow him to view the videotape. Further, the record reveals that petitioner cannot show that the end result of his trial would have been different had he been afforded an opportunity to view the videotape prior to trial. See Strickland, 466 U.S. at 693.
d. Petitioner's Ability to Testify
Petitioner claims that his trial counsel refused to let him testify despite his express desire to do so. Petitioner states that he believes that his testimony was necessary to "clarify several points." (Second Am. Petition at 43.) Petitioner's trial counsel has denied that he refused to allow petitioner to take the stand. (Decl. of David Weiner, Doc. 24.) While petitioner claims that he wanted to clarify several points by testifying, petitioner does not point to any specific area of confusion that he would have clarified. The record shows that petitioner attempted to show inconsistencies in Ashley's statements through the testimony of petitioner's spouse and the testimony of Officer Hobart. Petitioner has not shown that his testimony would have added anything to the testimony of these two witnesses. Petitioner has not demonstrated that he was prejudiced by allegedly being prevented from testifying as he cannot demonstrate that the end result of his trial would have been different but for his failure to testify. See Strickland, 466 U.S. at 693.
e. Trial Counsel's Agreement to Ensure Conviction
Petitioner alleges that his trial counsel entered into an agreement with the prosecution to ensure that petitioner was convicted in order to obtain a favorable plea agreement for trial counsel's brother, who was also one of trial counsel's clients. Petitioner claims that this circumstance resulted in trial counsel having a conflict of interest. Petitioner's trial counsel denies that he entered into such an agreement. (Decl. of David Weiner, Doc. 24.) Petitioner claims that he learned this information from a cellmate who claimed to be trial counsel's brother. Petitioner has not provided any evidence to support this claim. Further, the record indicates that trial counsel vigorously defended petitioner. Trial counsel objected to the admittance of prejudicial evidence and, through examination of witnesses, attempted to discredit the prosecution's case. Based on the record, the undersigned finds that petitioner has failed to show that trial counsel entered into any agreement with the prosecution to ensure petitioner's conviction. Since there is no evidence of any untoward agreements between trial counsel and the prosecution, the undersigned finds that petitioner was not prejudiced by such an agreement.
f. Plea Offer
Petitioner claims that the prosecution offered his trial counsel a plea bargain, which trial counsel failed to communicate to petitioner. Petitioner's trial counsel has denied this allegation. (Decl. of David Weiner, Doc. 24.) Petitioner has offered no evidence that the prosecution did make a plea offer. Based on all the evidence in the record, the undersigned finds that petitioner has failed to show that the prosecution offered a plea bargain to petitioner's trial counsel. Since there is no evidence that a plea bargain was offered, the undersigned finds that petitioner was not prejudiced by a failure of trial counsel to communicate a plea offer to petitioner.
g. Failure to Present Expert Testimony
Petitioner contends that his trial counsel should have retained an expert witness to rebut the prosecution's expert witness on Sexual Abuse Accommodation Syndrome. Petitioner does not offer evidence that such an expert would have testified on his behalf at trial; instead he speculates that such an expert could have been found. Such speculation is insufficient to establish prejudice. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001); see also, Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997) (speculating as to what an expert would say is not sufficient to establish a prejudice). h. Failure to Make Miranda objections
Petitioner argues that his trial counsel should have moved to exclude statements that he made to law enforcement as unconstitutional under Miranda and that his appellate counsel should have raised this issue on appeal. Petitioner makes several allegations concerning law enforcement's disregard for hisMiranda rights during questioning. However, petitioner fails to indicate that he made any statements in response to questioning by law enforcement or that any statements were introduced at trial. In fact, petitioner states that, upon questioning by officers, he "invoked his right to remain silent" and refused to answer questions. (Second Am. Pet. at 56.) After about twenty minutes of questioning, with no statements made by petitioner, the officers ceased their interrogation. (Id.) At a later questioning session, petitioner states that he again refused to answer questions and was finally returned to his cell. (Id. at 57.) Based on the evidence, it appears that any Miranda objections made by trial counsel would have been fruitless. The undersigned finds that petitioner has failed to demonstrate that he was prejudiced by trial counsel's failure to make Miranda objections.
As petitioner made no statements which could have been excluded under Miranda, an appeal on such grounds would have been fruitless. See U.S. v. Aguon, 851 F.2d 1158, 1172 (9th Cir. 1998). In determining whether to file an appeal on certain issues, appellate counsel need only identify non-frivolous issues. Smith, 528 U.S. at 285. Based on the evidence in the record, petitioner has failed to demonstrate that he was prejudiced by appellate counsel's failure to include a Miranda argument on appeal.
i. Failure to Present Mitigating Evidence at Sentencing
Petitioner alleges that his trial counsel failed to present any mitigating evidence at his sentencing. Petitioner points out that he had "no criminal history, other than a probationary term, was gainfully employed, and was a tax paying member of his local community." (Second Am. Complaint at 58.) The record reflects that the court was aware of this information through the probation report and that petitioner's sentence was mandated by statute instead of being left to the discretion of the trial judge. Accordingly, petitioner has failed to demonstrate that trial counsel's alleged failure to introduce mitigating evidence prejudiced him. See Strickland, 466 U.S. at 686.
j. Timely Notice of Appeal
Petitioner contends that his trial counsel promised he would file a notice of appeal, then waited until two days prior to the date the appeal notice was due to tell petitioner to do it himself. The record does not support this contention. Petitioner was sentenced on January 12, 1998. (CT 219-34.) Petitioner had sixty days from that date to file an appeal. See California Rules of Court, Rule 2. The sixty days for petitioner to file an appeal expired on March 13, 1998. The notice of appeal was filed on February 27, 1998, more than fourteen days prior to the deadline. Further, petitioner has not shown that he was prejudiced in any way by trial counsel's alleged failure to file an appeal after promising to do so. See Miller, 882 F.2d at 1434 n. 9.
For the foregoing reasons, the undersigned finds that none of the theories advanced by petitioner establish that he was prejudiced by ineffective assistance of counsel. The undersigned finds that the state court denial of petitioner's ineffective assistance of counsel claim was neither contrary to nor an unreasonable application of controlling principles of federal law. The undersigned recommends that petitioner's fourth claim for relief be denied.
5. Sentencing in Violation of the Double Jeopardy Clause
Petitioner argues that California's three strikes law and his sentence, which stems from that law, violate the double jeopardy clause. Petitioner claims that applying a prior conviction to a current conviction to increase the term of imprisonment constitutes a double punishment. Petitioner presented this claim to the California Supreme court, which denied the claim without a reasoned decision. (Resp. Am. Answer, Exs. J K.)
In enacting the three strikes law, the California Legislature made a judgment that protecting public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. See Ewing v. California, 538 U.S. 11, 25-26 (2003). "Nothing in the Eighth Amendment prohibits California from making that choice." Id. Instead, established precedent demonstrates that states have an interest in deterring and segregating repeat offenders. See id. (internal citations omitted). Although the petitioner claims that Apprendi v. New Jersey, 530 U.S. 466 (2000) indicates that his sentence does violate the Double Jeopardy Clause of the constitution, Apprendi was decided prior to Ewing. The holding concerning the Double Jeopardy Clause issue in Ewing controls over petitioner's interpretation of the dicta in Apprendi. Accordingly, the undersigned finds that the state court denial of petitioner's double jeopardy claim was neither contrary to nor an unreasonable application of controlling principles of federal law. The undersigned recommends that petitioner's fifth claim for relief be denied.
6. Prosecutorial Misconduct
Petitioner alleges that he was subjected to multiple instances of prosecutorial misconduct. Petitioner claims that: the prosecutor failed to give notice that the state was seeking a "one-strike adjudication," the prosecutor knowingly presented various false testimony and evidence, the victim's statements were coerced, his spouse was threatened so that she would testify against him, the victim's mother (petitioner's spouse) was not permitted to be present during victim interviews, when police interviewed his spouse the interview was videotaped without her knowledge, the prosecution provided the trial court with false information at sentencing, the prosecution offered leniency to a defendant in an unrelated criminal case in order to secure petitioner's conviction, the prosecutor failed to disclose exculpatory information and that the prosecution subjected the victim to an unduly long examination. Petitioner also contends that he was not allowed to attend in camera hearings, that he is factually innocent and that the cumulative effect of all the aforementioned errors resulted in reversible prejudice. Petitioner presented these claims to the California Supreme Court, which denied them without a reasoned decision. (Resp. Am. Answer, Ex. J K.)
Success on a claim of prosecutorial misconduct requires a showing that the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. See Greer v. Miller, 483 U.S. 756, 765 (1987). The conduct must be examined to determine "whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury's discharge of its duty to judge the evidence fairly." United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). Generally, if an error of constitutional magnitude is determined, a harmless error analysis ensues. Error is considered harmless if the court, after reviewing the entire trial record, decides that the alleged error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Error is deemed harmless unless it "is of such a character that its natural effect is to prejudice a litigant's substantial rights." Kotteakos v. United States, 328 U.S. 750, 760-761 (1946).
Depending on the case, a prompt and effective admonishment of counsel or curative instruction from the trial judge may effectively "neutralize the damage" from the prosecutor's error.See U.S. v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1993) (citing Simtob, 901 F.2d at 806).
a. Notice of "One-Strike Adjudication"
The record reveals that petitioner was aware that the state sought a conviction that would trigger a one-strike sentence. The information in this case stated "the following circumstances apply: . . . the defendant has suffered a prior conviction for P.C. 288(a). It is further alleged that . . . defendant was previously convicted of the crime of Lewd Conduct with a Child Under 14 . . ." (CT at 15.) Accordingly, the undersigned finds that petitioner's claim that he was unaware that the state sought a one-strike adjudication is without merit.
b. Presentation of False Evidence and Testimony
Petitioner states that the prosecutor used evidence which petitioner "sincerely believes" that "[the prosecutor] as well as Trial Counsel, KNEW . . . was false and would mislead the jury." (Second Am. Pet. at 65.) Petitioner does not point to any specific false testimony and offers no evidence, aside from his statements, that any testimony or evidence was false.
The knowing use of false or perjured testimony to obtain a conviction against a defendant is unconstitutional. See Napue v. Illinois, 360 U.S. 264 (1959). An allegation only that false or perjured testimony was introduced, however, is not a violation absent knowing use by the prosecutor. See Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001). As petitioner can show neither that any testimony was false or perjured nor that the prosecutor knew that any testimony was false or perjured, he cannot show that he was prejudiced. See id.
c. Coerced Testimony of the Victim
Petitioner claims that the prosecutor coerced the testimony of the victim, Ashley, during interviews. He states that Ashley was interviewed without her mother and was offered food and snacks during the interviews. He further states that the misconduct in his case is "an echo of prosecutorial misconduct occurring. . . . across this Nation." (Second Am. Pet. at 68.)
The record indicates that interviews of Ashley were performed by deputies specially trained to interview child sexual assault victims. (RT 363-67, 395-411.) More importantly, however, petitioner offers no evidenced that he has been prejudiced by the allegedly coerced statements of Ashley. As discussed above, petitioner cannot show that the prosecutor knowingly introduced perjured testimony. He cannot show that the admittance of Ashley's allegedly coerced testimony rendered his trial fundamentally unfair. See Greer, 483 U.S. at 765. The record shows that, when Ashley testified, petitioner was afforded the opportunity to cross examine her. He was afforded the opportunity to examine the deputies who interviewed Ashley. Finally, petitioner was afforded the chance to examine the victim's mother, his wife Carmen. He has not shown that the alleged coerced testimony was likely to have affected the jury's ability to judge the evidence fairly." Simtob, 901 F.2d at 806.
d. Coerced Testimony of Petitioner's Spouse
Petitioner argues that the testimony of his spouse was coerced by the prosecution through threats. As discussed above, petitioner has not shown that the prosecution introduced perjured testimony or that the admittance of his wife's testimony rendered his trial fundamentally unfair. See Greer, 483 U.S. at 765.
e. Spouse's Videotaped Testimony
Petitioner contends that because an interview with his spouse was videotaped without her knowledge, his trial was rendered fundamentally unfair. This claim does not state a cognizable claim for habeas relief as petitioner has no liberty interest in whether his spouse's testimony was videotaped without her knowledge. Cf. Rakas v. Illinois, 439 U.S. 128, 139-40 (1978) (to have standing to bring a claim, proponent must assert his own legal rights and interests rather than basing his claim for relief on the rights of third parties). Further, petitioner has made no showing that the alleged taping infected his trial with unfairness. See Greer, 483 U.S. at 765.
f. False Prior Probation Information at Sentencing
Petitioner claims that the prosecution presented the trial court with false prior probation information at his sentencing. Specifically, he claims that, although he successfully completed his probation term, the probationary report stated that he was unsuccessful in completion.
The record shows that both the prosecutor and petitioner's trial counsel acknowledged that petitioner was on probation for two misdemeanor convictions of spousal abuse. (RT 694.) Petitioner cannot show that the prosecution knowingly provided false information concerning the probation. Further, even if such alleged conduct were true, the prosecution's error was harmless as petitioner's sentence was statutorily mandated. Kotteakos, 328 U.S.at 760-761.
g. Prosecution's Agreement to Ensure Conviction
Petitioner contends that the prosecution and his trial counsel entered into an agreement by which petitioner's counsel would ensure petitioner's conviction in exchange for leniency for counsel's brother, whom trial counsel also represented. As discussed on page fourteen supra, petitioner provides no evidence that such an agreement was ever made. Instead, the record indicates that trial counsel vigorously defended plaintiff.
h. Failure to Disclose Exculpatory Evidence
Petitioner claims that the prosecutor failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, petitioner contends that the prosecution failed to disclose to him evidence of the alleged agreement to ensure petitioner's conviction between his counsel and the prosecutor. In order to prove a Brady violation, a petitioner must prove three things. First, the evidence at issue must be favorable to the accused because it is either exculpatory or impeachment material. See United States v. Bagley, 473 U.S. 667, 676 (1985). Next, the evidence must have been suppressed by the state either willfully or inadvertently. See United States v. Agurs, 427 U.S. 97, 110 (1976). Finally, prejudice must result from the failure to disclose evidence.See Bagley, 473 U.S. at 678. Evidence is material underBrady only if there is a reasonable probability that the result would have been different had it been disclosed to the defense.See United States v. Cooper, 173 F.3d 1192, 1202 (9th Cir. 1999).
Even assuming for the moment that petitioner could show that the prosecution and petitioner's counsel entered into an agreement to ensure his conviction, he still cannot establish aBrady claim. The evidence of an agreement between the prosecution and trial counsel is neither exculpatory toward defendant nor impeachment material. See Bagley, 473 U.S. at 676.
i. Victim Subject to an Unduly Long Examination
Petitioner claims that the prosecutor engaged in misconduct by keeping the victim on the stand for undue lengths of time, badgering her with repeated questions in order to garner the desired response. This claim does not state a cognizable claim for habeas relief as petitioner has no liberty interest in the amount of time that the victim was on the stand or the kinds of questions that she was asked. Cf. Rakas, 439 U.S. at 139-40 (to have standing to bring a claim, proponent must assert his own legal rights and interests rather than basing his claim for relief on the rights of third parties).
However, even assuming for the moment that petitioner does state a cognizable habeas claim, petitioner has not shown that the prosecutor's questioning of the victim, Ashley, rendered his trial fundamentally unfair. The record reflects that the prosecutor asked Ashley several preliminary questions to make her feel comfortable on the stand. (RT 175-94.) Several breaks were taken during questioning. (RT 197-98.) Only at the very end of the questioning, did the prosecutor attempt to question Ashley about the molestation. Ashley either denied the molestation or claimed that she had no recollection. Her answers on the witness stand were no more damaging than her initial videotaped statements or her statements to her mother. Thus, any improper questioning was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 629 (1993.)
j. The Victim's Pictures
Petitioner alleges that the presentation of pictures that the victim drew of his penis constituted prosecutorial misconduct. Specifically, petitioner argues that the drawings were done by an interviewer and not by the victim. The record reflects that the pictures were a small part of the evidence against petitioner, and that petitioner's counsel was afforded the opportunity to examine a deputy who testified that the victim drew the pictures in the deputy's presence. Petitioner has not demonstrated that the prosecutor knowingly introduced false testimony, and he cannot show that presentation of the pictures rendered his trial fundamentally unfair. See Greer, 483 U.S. at 765.
k. In Camera Hearings
Petitioner argues that the prosecutor engaged in misconduct by not allowing him to attend in camera hearings that occurred throughout the trial. A defendant has a right to be present at any state of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness and reliability of the proceeding. See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Presence is not guaranteed when the defendant's presence would be useless or that of a shadow. See id. Petitioner has not demonstrated that his presence at any of the in camera hearings would have been useful or more than a mere shadow. As such, he has failed to show that the prosecutor's alleged misconduct prejudiced him. See Greer, 483 U.S. at 765.
I. Factual Innocence
Petitioner claims that he is factually innocent and that the affidavit of his spouse, which was attached to his first amended petition serves to provide motive for the victim's "misunderstood statements to law enforcement." The undersigned first notes that as petitioner's first amended petition was superseded by his second amended petition. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). In other words, petitioner's first amended petition no longer serves any function in this case; therefore, the affidavit of petitioner's wife is not properly before the court. Even considering the affidavit of petitioner's spouse, the undersigned finds that petitioner has failed to establish a claim of factual innocence.
Federal habeas relief is not available for claims of freestanding factual innocence. See Herrera v. Collins, 506 U.S. 390, 404 (1993) (stating that actual innocence is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred claim considered on the merits). Petitioner appears to argue that the evidence adduced at state court was not sufficient to convict. Accordingly, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id. at 404. After a careful review of the record, the undersigned concludes that a rational trier of fact could have found petitioner guilty of the essential elements of the crime based on the evidence produced at trial.
m. Cumulative Effect
Petitioner claims that the combined cumulative effect of the alleged errors in his case establish prejudice. Where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. Such is the case here. Petitioner has failed to demonstrate any constitutional error. Accordingly, there can be no cumulative effect.
For the foregoing reasons, the undersigned finds that none of the theories advanced by petitioner establish that he was prejudiced by prosecutorial misconduct. The undersigned finds that the state court denial of petitioner's prosecutorial misconduct claim was neither contrary to nor an unreasonable application of controlling principles of federal law. The undersigned recommends that petitioner's sixth claim for relief be denied.
III. Conclusion
In accordance with the above, IT IS RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).