Opinion
Langford James, Petitioner, Pro se, Susanville, CA.
For F Foulk, Warden, Respondent: Margaret E Maxwell, CAAG - Office of Attorney General of California, Los Angeles, CA.
OPINION AND ORDER ON A PETITION FOR WRIT OF HABEAS CORPUS
ALKA SAGAR, UNITED STATES MAGISTRATE JUDGE.
I .
INTRODUCTION
On January 3, 2013, Langford James (" Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254. On April 22, 2013, the Court determined the Petition contained both exhausted and unexhausted claims as well as non-cognizable state law claims and provided Petitioner with an opportunity to remedy these defects. (Docket (" Dkt.") No. 14). On June 13, 2013, Petitioner filed a First Amended Petition (" FAP") with an accompanying Attachment (" Att."). On April 17, 2014, Respondent filed an Answer with an accompanying Memorandum of Points and Authorities (" Ans. Mem."). Petitioner filed a Reply on June 16, 2014.
The parties have consented to proceed before a United States Magistrate Judge. (See Dkt. Nos. 20, 42, 51). For the reasons discussed below, the Petition is DENIED and this action is DISMISSED with prejudice.
II .
PRIOR PROCEEDINGS
On October 29, 2009, a Santa Barbara County Superior Court jury convicted Petitioner of one count of first degree burglary in violation of California Penal Code (" P.C.") § 459 (count 1), one count of corporal injury to a spouse in violation of P.C. § 273.5(a) (count 2), one count of criminal threats in violation of P.C. § 422 (count 3), four counts of dissuading a witness by force or threat in violation of P.C. § 136.1(c)(1) (counts 4-6 & 8), and one count of attempted criminal threats in violation of P.C. § § 664/422 (count 7). (Clerk's Transcript (" CT") 209-17; Reporter's Transcript (" RT") 526-29). On October 30, 2009, the trial court found that Petitioner had sustained a prior serious felony conviction within the meaning of P.C. § 667(a), a prior strike within the meaning of California's Three Strikes law, P.C. § § 667(b)-(i) and 1170.12(a)-(d), and two prior convictions within the meaning of P.C. § 667.5(b). (CT 316-17; RT 543). On December 30, 2009, the trial court sentenced Petitioner to 38 years and four months in state prison. (CT 360-63; RT 559-63).
Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment in an unpublished opinion filed March 8, 2011. (Lodgments 4-7). Petitioner then filed a petition for review in the California Supreme Court, which denied the petition on June 8, 2011. (Lodgments 8-9).
On April 5, 2012, Petitioner filed a habeas corpus petition in the Santa Barbara County Superior Court, which denied the petition on June 4, 2012. (Lodgments 10-11). On September 4, 2012, Petitioner filed a habeas corpus petition in the California Court of Appeal, which denied the petition on September 13, 2012. (Lodgments 12-13). On October 1, 2012, Petitioner filed a habeas corpus petition in the California Supreme Court, which denied the petition on November 28, 2012. (Lodgments 14-15).
III .
FACTUAL BACKGROUND
The following facts, taken from the California Court of Appeal's decision on direct review, have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
[Petitioner] and his wife Tammi had been married for 14 years and had two children. Their relationship was a stormy one characterized by frequent domestic violence. At times, [Petitioner] struck and slapped Tammi, but soon his anger escalated to threats to kill her. Tammi described [Petitioner] as at " a breaking point."
In October 2008, [Petitioner] became angry when Tammi spoke privately with her daughter Tamika. He took a kitchen cooking pot and walked through the residence striking the pot and threatening to " beat [Tammi's] head until the white meat of [her] brain showed." [Petitioner] also threatened to " bury" any person who summoned police assistance.
[Petitioner's] rage frightened Tamika as he ranted for nearly 30 minutes. In the past, she had reported [Petitioner's] acts of domestic violence. Eventually, Tamika and her stepsister persuaded him to leave the residence. (Counts 3, 4 & 5.)
Tammi left the residence for several nights because she feared [Petitioner]. When she returned home, they discussed a separation. She stated that she would provide a 30--day notice to the landlord. [Petitioner] agreed to separate and on November 17, 2008, he packed " everything in [his] closet" and left. Tammi found a few articles that he left behind and placed them in a suitcase.
Tammi did not inform the landlord, however, that she intended to vacate. She was the sole signatory on the lease, paid the rent, and possessed the keys to the residence.
For the next two weeks, [Petitioner] slept at the residence with Tammi's permission. After that period, he slept elsewhere.
In December 2008, Tammi telephoned [Petitioner] and requested that he bring diapers for the baby. On December 10, 2008, he appeared at the residence with ice cream, but no diapers. He left, but returned shortly. Tammi was outside when [Petitioner] drove into the driveway. When he noticed that Tamika's vehicle was not there, he became irate and spit on Tammi several times. He then " socked" her in the face as she tried to protect herself. Tammi ran into the residence and pushed against the door to prevent [Petitioner] from entering. He overcame Tammi's physical resistance, however, and entered the kitchen. There, he pushed Tammi against the wall and pulled her hair. When Tamika tried to intervene, he ceased his attack on Tammi, took Tamika's cellular telephone, and left. Tammi and [Tamika] walked to the local police station and reported the incident. As a result of [Petitioner's] actions, Tammi suffered a bloody nose, a bruise near her eye, and a puffy lip. The trial court admitted into evidence photographs of Tammi's injuries. (Counts 1 & 2.)
Recorded Telephone Calls During Custody (Counts 6, 7, & 8)
During his confinement in county jail, [Petitioner] placed four telephone calls to " Melvin." The telephone calls were recorded and the prosecutor played the recordings at trial.
During the telephone conversations, [Petitioner] stated that " [s]omething need[ed] to be done to that bitch dog" and that " I need somebody to go over there and talk to that bitch." He also stated that " I'm a kill that bitch, " and " she a done daughter" and that " she better come tell them people she lying." [Petitioner] urged Melvin to " [g]o on over there and see what she say." Melvin responded that he would do " whatever I have to do, " and in a later conversation stated " ain't nobody supposed to be coming to court, " and " them motherfuckers ain't gone show up." In a final conversation, Melvin stated: " [W]e ain't gone let them show up, regardless of what motherfuckers gotta do, they ain't gone show up."
Prior to the preliminary examination, a man visited Tammi's residence and stated that he had been sent to " make this go away" and advised her not to testify in court. Tammi was frightened and informed the prosecutor.
[Petitioner] also telephoned Tiffany Williams during his jail confinement. He stated that although he was not permitted to have contact with Tammi, he could not " control what somebody that cares about [him] goes and does." He also stated that he would be " alright" if Tammi did not testify in court and that it was important to " have somebody out there trying to . . . do stuff for [him]." Tiffany responded that she would do whatever she could to help.
(Lodgment 7 at 1-3).
IV .
PETITIONER'S CLAIMS
Petitioner raises the following claims for federal habeas relief:
Ground One: There was insufficient evidence to support Petitioner's burglary conviction because there was no substantial evidence that Petitioner had moved out of the residence so as to lose his right to unconditional entry.
Ground Two: Petitioner was denied due process of law when in relation to the burglary charge the trial court failed to define " moved out" as the act of vacating or ceasing to occupy a residence.
Ground Four: Petitioner was denied due process of law because the trial court did not instruct the jury that a violation of P.C. § 136.1 includes as an element of the offense that the defendant took a " direct step" towards committing the offense.
Ground Three of Petitioner's initial federal habeas corpus petition alleged the burglary count against him was submitted to the jury on an invalid legal theory. (Petition at 21-25). However, Petitioner failed to exhaust Ground Three, (see Dkt. No. 14; see also Lodgments 8, 14), as he conceded in deleting it from his FAP. (FAP at 6).
Ground Five: There was insufficient evidence to support Petitioner's conviction for attempted criminal threat.
Ground Six: There was insufficient evidence to conclude Petitioner intended to employ force or threats to support Petitioner's count 8 conviction.
Ground Seven: (a) The trial court erred when it failed to strike Petitioner's 1989 robbery conviction pursuant to the California Supreme Court's Romero decision; (b) Petitioner received ineffective assistance of counsel when his appellate counsel did not raise this issue on direct appeal; and (c) Petitioner's 1989 guilty plea was not knowingly and voluntarily entered into because he was not informed that it could result in the doubling of his current sentence.
In People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996), the California Supreme Court concluded that California law " permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law." Id. at 529-30.
Ground Eight: (a) The trial court violated P.C. § 654 and denied Petitioner due process of law when it sentenced him to consecutive sentences on counts 4-6 and 8; and (b) appellate counsel was ineffective in failing to raise this issue on appeal.
Ground Nine: (a) The trial court denied Petitioner a fair trial by preventing defense counsel from impeaching the victim with her prior convictions; and (b) appellate counsel was ineffective in failing to raise this issue on appeal.
Ground Ten: (a) The trial court denied Petitioner due process of law when it admitted testimony that Petitioner had engaged in prior uncharged acts of spousal abuse; and (b) Petitioner received ineffective assistance of counsel when his appellate counsel did not raise the issue on appeal.
Ground Eleven: Petitioner received ineffective assistance of counsel when his trial counsel: (a) did not secure a plea bargain for him; (b) advised him to waive a jury trial on his prior convictions; (c) failed to object to the admission of Petitioner's prior uncharged acts of spousal abuse; (d) did not object to Petitioner's improper consecutive sentences on counts 4-6 and 8; (e) did not object when the trial court improperly used the same prior conviction as the basis for a five-year sentence enhancement under P.C. § 667(a) and two one-year sentence enhancements under P.C. § 667.5(b); and (f) did not object to an improper question the prosecutor asked.
Petitioner raises ineffective assistance of counsel in Grounds Seven through Twelve. (FAP at 9; Att. at 27-56). To the extent Petitioner raises ineffective assistance of counsel claims in Grounds Seven through Ten and Twelve and then repeats the allegations in Ground Eleven, (see, e.g., FAP at 31 (trial counsel was ineffective in failing to object to consecutive sentences Petitioner received), 45 (same)), the Court considers the claims in Ground Eleven and does not treat them as separate sub-claims under Grounds Seven through Ten and Twelve.
Ground Twelve: The five-year enhancement imposed pursuant to P.C. § 667(a) was unlawful because it was used to support imposition of two one-year priors under P.C. § 667.5(b) that were not served separately.
The Court has endeavored to address each claim and sub-claim raised in the FAP. To the extent Petitioner intends the FAP to raise any claims not addressed herein, such claims are summarily rejected as vague, conclusory, and insufficient to warrant habeas corpus relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (A " cursory and vague claim cannot support habeas relief."); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (" Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). Moreover, to the extent Petitioner's Reply can be read to raise new claims for relief (see, e.g., Reply at 17 (arguing " Petitioner was prosecuted for the same crime multiple times which in essence is Double Jeopardy")), the Court declines to address such claims since a Reply " is not the proper pleading to raise additional grounds for relief." Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); see also Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (" Arguments raised for the first time in petitioner's reply brief are deemed waived.").
V .
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") " bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). " This is 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[.]'" Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (citations omitted).
Petitioner raised Grounds One, Two and Four through Six in his petition for review to the California Supreme Court, and Grounds Seven through Twelve in his habeas corpus petition to the California Supreme Court, which denied the petitions without comment or citation to authority. (Lodgments 8-9, 14-15). The Court " looks through" the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (" Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (" [W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision -- whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014). Therefore, in addressing Grounds One, Two and Four through Six, the Court will consider the California Court of Appeal's reasoned opinion on direct review, and in considering Eleven(b) and (f) and Twelve, the Court will consider the Superior Court's reasoned decision denying Petitioner's state habeas petition. Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).
Respondent contends that Grounds Seven through Ten are procedurally defaulted because the Superior Court denied these claims with citation to In re Dixon, 41 Cal.2d 756, 264 P.2d 513 (1953), (Ans. Mem. at 3-5; see also Lodgment 11 at 3), which " prohibits California state courts from considering habeas claims that should have been raised on direct appeal but were omitted." Lee v. Jacquez, F.3d, 2015 WL 3559125, *1 (9th Cir. 2015). However, the Court will not address this issue since the Court retains the discretion to address and deny claims on the merits even if the claims have been procedurally defaulted. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) (" While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits."), cert. denied, 133 S.Ct. 880, 184 L.Ed.2d 688 (2013); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (" [C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar."). Rather, in addition to rejecting Grounds Seven(a) and Eight(a) on procedural grounds, the Superior Court also denied those claims on the merits, and the Court will consider the Superior Court's reasoning applying AEDPA deference. See Clabourne v. Ryan, 745 F.3d 362, 383 (9th Cir. 2014) (" AEDPA deference applies to [an] alternative holding on the merits."); Stephens v. Branker, 570 F.3d 198, 208 (4th Cir. 2009) (" [A]n alternative merits determination to a procedural bar ruling is entitled to AEDPA deference.").
Respondent's argument only relates to Grounds Seven(a), Eight(a), Nine(a) and Ten(a). Petitioner did not raise Grounds Seven(b-c), Eight(b), Nine(b) and Ten(b) before the Superior Court. Moreover, the Superior Court only cited Dixon in relation to Grounds Nine(a) and Ten(a). (Lodgment 11 at 3). However, in addressing Grounds Seven(a) and Eight(a), the Superior Court did cite other cases for the proposition that the claims were " procedurally barred because . . . [they] could have been but [were] not raised on appeal[.]" (Id. at 2-4).
It is less clear, however, if the Superior Court addressed the merits of Grounds Nine(a) and Ten(a). Therefore, the Court will address those claims de novo, and since they fail under even de novo review, Petitioner is not entitled to habeas corpus relief. See Thompkins, 560 U.S. at 390 (" Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review"); Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010) (affirming denial of habeas corpus petition when claim failed even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37 (9th Cir. 2008) (en banc) (a federal habeas court can review constitutional issues de novo before performing a § 2254(d)(1) analysis).
In addition to citing Dixon, the Superior Court stated " [o]n the merits, petitioner has failed to address whether the failure to admit and/or the admission of any evidence was prejudicial under the relevant state or federal standards, deficiencies that preclude a collateral attack at the pleading stage." (Lodgment 11 at 3-4). Despite the Superior Court's reference to " on the merits, " it is at best debatable whether the quoted language constitutes a merits-based decision. See Amado v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014) (" Under AEDPA, an adjudication on the merits is 'a decision finally resolving the parties' claims . . . that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.'" (citation omitted)).
Finally, since no state court has provided a reasoned decision addressing the merits of Ground Seven(b-c), Eight(b), Nine(b), Ten(b), and Eleven(a) and (c-e), this Court must conduct " an independent review of the record" to determine whether the California Supreme Court's ultimate decision to deny those claims was contrary to, or an unreasonable application of, clearly established federal law. Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014); Walker v. Martel, 709 F.3d 925, 939 (9th Cir.), cert. denied, 134 S.Ct. 514, 187 L.Ed.2d 366 (2013).
VI .
DISCUSSION
A. Sufficient Evidence
To review the sufficiency of the evidence in a habeas corpus proceeding, the Court must determine " 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 v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); Parker v. Matthews, 132 S.Ct. 2148, 2152, 183 L.Ed.2d 32 (2012) (per curiam); see also Coleman v. Johnson, 132 S.Ct. 2060, 2065, 182 L.Ed.2d 978 (2012) (per curiam) (" [T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality."). " '[A] reviewing court must consider all of the evidence admitted by the trial court, ' regardless [of] whether that evidence was admitted erroneously, " McDaniel v. Brown, 558 U.S. 120, 131, 130 S.Ct. 665, 175 L.Ed.2d 582 (2010) (per curiam) (citation omitted), all evidence must be considered in the light most favorable to the prosecution, Lewis v. Jeffers, 497 U.S. 764, 782, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); Jackson, 443 U.S. at 319, and if the facts support conflicting inferences, reviewing courts " 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." Jackson, 443 U.S. at 326; Cavazos v. Smith, 132 S.Ct. 2, 6, 181 L.Ed.2d 311 (2011) (per curiam). Furthermore, under AEDPA, federal courts must " apply the standards of [Jackson] with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005); Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011). These standards are applied to the substantive elements of the criminal offense under state law. Jackson, 443 U.S. at 324 n.16; Boyer, 659 F.3d at 964; see also Johnson, 132 S.Ct. at 2064 (" Under Jackson, federal courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." (citation and quotation marks omitted)).
In Grounds One, Five and Six, Petitioner alleges there was insufficient evidence to support his convictions on counts 1 (burglary), 7 (attempted criminal threats) and 8 (dissuading a witness by force or threat). (FAP at 5-7, Att. at 2-10, 19-26).
1. Burglary
Under California law, " [e]very person who enters a house, room, apartment, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary, " P.C. § 459; see also People v. Anderson, 47 Cal.4th 92, 101, 97 Cal.Rptr.3d 77, 211 P.3d 584 (2009) (The elements of first degree burglary in California are (1) entry into a structure currently used as a dwelling (2) with the intent to commit a theft or any felony), and " [e]very burglary of an inhabited dwelling house . . . is burglary of the first degree." P.C. § 460. A burglary " must be committed by a person who has no right to be in the building." People v. Gauze, 15 Cal.3d 709, 714, 125 Cal.Rptr. 773, 542 P.2d 1365 (1975). A " defendant cannot be guilty of burglarizing his own home." Id. Thus, " [t]o sustain a burglary conviction, the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence." People v. Davenport, 219 Cal.App.3d 885, 892, 268 Cal.Rptr. 501 (1990); People v. Ulloa, 180 Cal.App.4th 601, 608, 102 Cal.Rptr.3d 743 (2009); see also People v. Pendleton, 25 Cal.3d 371, 382, 158 Cal.Rptr. 343, 599 P.2d 649 (1979) (" The law after Gauze is that one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.").
The jury was specifically instructed on this point that:
Petitioner contends there was insufficient evidence for the jury to conclude he did not have an unconditional possessory right to enter the family residence. (FAP at 5, Att. at 2-10). The California Court of Appeal rejected this argument, stating:
Sufficient evidence supports the finding that [Petitioner] no longer had an unconditional possessory right to enter the family residence. He was not a signatory on the lease, did not pay the rent after November 17, 2008, and had no keys to the residence. He moved out of the family home on November 17, 2008, leaving behind a few stray belongings. Tammi placed those belongings in a suitcase for him. On December 10, 2008, Tammi did not know where [Petitioner] resided or where he slept. Although she inquired of him, he did not answer her question. The jury weighed the evidence and drew the reasonable inference that [Petitioner] lost his unconditional possessory right to enter the residence. We do not reweigh the evidence or redetermine witness credibility.
(Lodgment 7 at 5).
Petitioner points to evidence in the record that he argues demonstrates that the " full truth" supports his contention that he continued to reside in the family home. (Reply at 2-10). However, Petitioner misapprehends the nature of the Court's inquiry. " [I]t is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial[, ]" and the Court " may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Smith, 132 S.Ct. at 4.
Here, the jury heard evidence the burglary occurred on December 10, 2008, at a time when Petitioner was no longer living at the family residence. (CT 179; RT 178-86). More particularly, after Petitioner threatened his wife Tammi James (" Tammi") in October 2008, Tammi asked Petitioner to leave the residence because she was afraid of him, and Petitioner agreed to do so. (RT 172-77). Petitioner moved his belongings out of the family residence on November 17, 2008, he had not been staying at the residence for at least two weeks prior to the burglary, and Tammi and Petitioner were separated. (RT 178-80). Moreover, Tammi was the only signatory on the lease agreement for the family residence and Petitioner never paid rent on the property. (RT 247-48, 252). Petitioner did not have a key to the home. (RT 179). Furthermore, when Petitioner attacked Tammi on December 10, 2008, he pushed his way inside the residence despite Tammi's attempt to close the door and prevent him from entering. (RT 183). Under these circumstances, there was sufficient evidence for the jury to conclude that Petitioner did not have an unconditional possessory right to enter the family residence. See Ulloa, 180 Cal.App.4th at 610 (sufficient evidence supported a finding that defendant did not have an unconditional possessory interest in apartment he formerly shared with his wife when evidence demonstrated: defendant and his wife were estranged and separated; defendant had moved out of the apartment; defendant had committed prior domestic violence against his wife and she was afraid of him; and defendant no longer had a key to the apartment and entered without his wife's consent); Davenport, 219 Cal.App.3d at 892 (defendant had no unconditional possessory right to enter the cabin when defendant and his wife were separated, defendant's wife lived at the cabin but defendant lived elsewhere, defendant had relinquished his keys to the cabin, and defendant had already removed some of his personal property from the cabin); People v. Sears, 62 Cal.2d 737, 746, 44 Cal.Rptr. 330, 401 P.2d 938 (1965) (" [S]ince defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose, such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it." (citation omitted)), overruled in part on other grounds, People v. Cahill, 5 Cal.4th 478, 20 Cal.Rptr.2d 582, 853 P.2d 1037 (1993).
Petitioner threatened to hit Tammi in the head " until the white meat of [her] brain showed." (RT 175). Petitioner had a history of abusing Tammi. (RT 255-56).
Accordingly, the California Supreme Court's rejection of Ground One was not contrary to, or an unreasonable application of, clearly established federal law.
2. Attempted Criminal Threat
In Ground Five, Petitioner asserts there was insufficient evidence to support his conviction for attempted criminal threats because his statements were just emotional outbursts that lacked sufficient immediacy. (FAP at 6, Att. at 19-22).
a. Background
Petitioner was convicted of attempted criminal threats based on recorded telephone calls Petitioner made to a friend identified as " Melvin." (See Lodgment 7 at 3, 7). In particular, on December 11, 2008, Petitioner called Melvin and said:
I'm telling you dog, I'm a kill that bitch. I don't care if they recording it. . . . Yeah, yeah, you go tell her that. You go tell her that. Tell here . . . go tell her. Whenever I get out, wherever she at, yeah, who -- whatever she doing, she a done daughter.
(Augmented Clerk's Transcript (" ACT") at 9).
b. California Court of Appeal's Opinion
The California Court of Appeal rejected Petitioner's contention, stating:
There is sufficient evidence that [Petitioner's] threat was unconditional, immediate, and specific. On the day of his arrest, he spoke with Melvin and stated: " I'm telling you dog. I'm a kill that bitch. . . . [¶ ] . . . [G]o tell her that. You go tell her that. Tell her . . . go tell her. Whenever I get out, wherever she at . . . whatever she doing, she's a done daughter." Although Melvin may not have delivered [Petitioner's] threats, [Petitioner] nonetheless committed the crime of attempted making of criminal threats.
(Lodgment 7 at 8).
c. Analysis
California law makes it a crime to threaten another person with death or great bodily harm. P.C. § 422. To prove the crime of making a criminal threat, the prosecution must establish all of the following:
(1) that the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat -- which may be made verbally, in writing, or by means of an electronic communication device -- was on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family's safety, and (5) that the threatened person's fear was reasonabl[e] under the circumstances.
People v. Toledo, 26 Cal.4th 221, 227-28, 109 Cal.Rptr.2d 315, 26 P.3d 1051 (2001) (citation and internal quotation marks omitted); In re George T., 33 Cal.4th 620, 630, 16 Cal.Rptr.3d 61, 93 P.3d 1007 (2004).
California law also proscribes attempted criminal threats. People v. Chandler, 60 Cal.4th 508, 516, 176 Cal.Rptr.3d 548, 332 P.3d 538 (2014); Toledo, 26 Cal.4th at 235. An " attempted criminal threat requires 'a specific intent to commit the crime' of criminal threat 'and a direct but ineffectual act done toward its commission.'" Chandler, 60 Cal.4th at 516 (quoting P.C. § 21a); see also Toledo, 26 Cal.4th at 230 (A " defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action."). Moreover, " the crime of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear." Chandler, 60 Cal.4th at 511, 525.
Petitioner argues there was insufficient evidence to support his attempted criminal threat conviction since his statements lacked the requisite immediacy, the attempted threat never made it past the planning and preparation stage, and the attempted threat never caused Tammi any fear because it was not communicated to her. (Att. at 22). Petitioner is incorrect.
Petitioner, who had a long history of threatening and physically abusing Tammi, (see RT 172-76, 181-85, 190-94, 244-46, 255-56), communicated to Melvin a willful, specific, unequivocal and unambiguous threat to kill Tammi -- " I'm a kill that bitch . . . [w]henever I get out, wherever she at . . . whatever she doing, she a done daughter" -- and exhorted Melvin to " go tell" Tammi about the threat. (ACT 9); see also Toledo, 26 Cal.4th at 230 (defendant's statement that " 'You know, death is going to become you tonight. I am going to kill you.' -- . . . was the type of threat that satisfied the provisions of section 422"); People v. Fierro, 180 Cal.App.4th 1342, 1348, 103 Cal.Rptr.3d 858 (2011) (sufficient evidence defendant willfully threatened to kill victim when defendant told victim " I will kill you"); People v. Wilson, 186 Cal.App.4th 789, 806, 112 Cal.Rptr.3d 542 (2010) (" 'A threat is sufficiently specific where it threatens death or great bodily injury.'" (quoting People v. Butler, 85 Cal.App.4th 745, 752, 102 Cal.Rptr.2d 269 (2000))). However, Melvin did not communicate the threat to Tammi. (RT 219-20; Lodgment 7 at 8).
In addition to the incidents that form the bases for Petitioner's convictions, Tammi testified:
Here, given the circumstances under which the threat was made as well as Petitioner's prior history of violence towards Tammi, the intended threat " was the type of threat that satisfied the provisions of section 422 and reasonably could have caused [Tammi] to be in sustained fear for her own safety." Toledo, 26 Cal.4th at 235; Chandler, 60 Cal.4th at 526. Moreover, the jury could reasonably conclude Petitioner specifically intended Melvin to convey his threat to Tammi, and that in asking Melvin to relay the threat, Petitioner took a direct, but ineffectual step towards making a criminal threat against Tammi. Cf. Toledo, 26 Cal.4th at 231 (" [I]f a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat.").
While the criminal threat statute requires a threat to convey " a gravity of purpose and an immediate prospect of execution of the threat[, ]" Toledo, 26 Cal.4th at 228, it " 'does not require an immediate ability to carry out the threat.'" Wilson, 186 Cal.App.4th at 807 (citations omitted); People v. Smith, 178 Cal.App.4th 475, 480, 100 Cal.Rptr.3d 471 (2009). Rather, the word " immediate" in P.C. § 422 " mean[s] that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out. . . ." People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1998) (emphasis omitted); Wilson, 186 Cal.App.4th at 807; see also id. at 817 n.3 (" The appraisal of the immediacy of a threat under section 422 quite appropriately includes assessment of the sense of urgency and foreboding caused to the person being threatened."). Under this definition, Petitioner's threat was sufficiently immediate even though he was in jail at the time he made it. Wilson, 186 Cal.App.4th at 816-17; see also People v. Gaut, 95 Cal.App.4th 1425, 1431-32, 115 Cal.Rptr.2d 924 (2002) (rejecting argument that because defendant was incarcerated when he made the threats, the threats were not sufficiently immediate and concluding that given the past history of domestic violence between the defendant and victim, " [i]t was reasonable for [the victim] to fear that defendant would . . . follow through on the threats he made from jail based on the totality of the circumstances").
Petitioner's statements were no less an attempted threat because they were communicated to a third person. California law does not require a criminal " threat be personally communicated to the victim by the person who makes the threat." People v. Nishi, 207 Cal.App.4th 954, 967-68, 143 Cal.Rptr.3d 882 (2012); In re Ryan D., 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193 (2002). Rather, " [t]he kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim." In re David L., 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (1991).
Accordingly, there was more than sufficient evidence to support Petitioner's conviction for attempted criminal threat, Chandler, 60 Cal.4th at 526; Toledo, 26 Cal.4th at 235, and the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
3. Attempting to Dissuade a Witness
Count 8 alleged that on December 29, 2008, Petitioner attempted by use of force or threats to dissuade Tammi from testifying. (CT 182; see also RT 466-67). In Ground Six, Petitioner asserts there was insufficient evidence to sustain his count 8 conviction for attempting to dissuade a witness by force or threats because there was no evidence that Petitioner intended to employ force or threats on December 29, 2008. (FAP at 7, Att. at 23-26). The California Court of Appeal rejected this claim, concluding:
Sufficient evidence supports [Petitioner's] conviction of witness dissuasion through express of [sic] implied threats of force or violence. In the December 29, 2008 conversation with Melvin, [Petitioner] sought reassurance that Tammi would not testify against him. Melvin responded that " we ain't gone let them show up." [Petitioner] responded: " I hear you, " but said nothing to suggest that he intended only non-violent means of persuasion. During his prior telephone conversations with Melvin, [Petitioner] discussed that Tammi " better come tell them . . . she lying" and that he would " kill that bitch." When viewed in the context of [Petitioner's] prior conversations with Melvin, the jury could reasonably conclude that [Petitioner's] December 29 statements constituted implied threats of force or fear.
(Lodgment 7 at 8 (citation omitted)).
" Section 136.1 proscribes preventing or dissuading a witness or victim from testifying or doing other enumerated acts." People v. McDaniel, 22 Cal.App.4th 278, 284, 27 Cal.Rptr.2d 306 (1994). A " defendant who attempts to dissuade a witness from testifying is guilty of either a misdemeanor or a felony, " People v. Lopez, 208 Cal.App.4th 1049, 1064, 146 Cal.Rptr.3d 113 (2012); however, if the defendant's attempt is " accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person, " the defendant " is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years[.]" P.C. § 136.1(c)(1). To prove a violation of P.C. § 136.1(c), " the prosecution must establish that the defendant had the specific intent to dissuade a witness from testifying." People v. Young, 34 Cal.4th 1149, 1211, 24 Cal.Rptr.3d 112, 105 P.3d 487 (2005); see also People v. Wahidi, 222 Cal.App.4th 802, 806, 166 Cal.Rptr.3d 416 (2013) (" The crime of attempting to dissuade a witness from testifying is a specific intent crime. 'Unless the defendant's acts or statements are intended to affect or influence a potential witness' or victim's testimony or acts, no crime has been committed under this section.'" (citations omitted)). " A threat need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." People v. Foster, 155 Cal.App.4th 331, 335, 65 Cal.Rptr.3d 869 (2007).
While in jail, Petitioner made a series of phone calls to an individual named Melvin. During the first call on December 11, 2008, Petitioner told Melvin, among other things, he was going to " kill that bitch [Tammi] . . . [w]henever I get out, wherever she at . . . whatever she doing, she a done daughter" and encouraged Melvin to " go tell" Tammi about the threats and that " she better come tell them people she [was] lying" and " she made this shit up." (ACT 9). After more conversation, Melvin assured Petitioner he would do " whatever [he had] to do" to make sure the charges against Petitioner were dropped. (ACT 17). In a December 23, 2008 telephone call, Melvin told Petitioner " ain't nobody supposed to be coming to court." (ACT 24). Petitioner responded that " motherfuckers come to court that's my ass, dog[, ]" and Melvin replied " I know . . . that's what we trying to prevent now." (ACT 25). On December 29, 2008, Melvin informed Petitioner " them motherfuckers ain't [going to] show up." (ACT 31). Petitioner responded that he has to " push it, I don't have no way around it, I gotta push it" because " [t]hem other people" will " threaten them and all type of shit . . . to the point where . . . they [are going to be] like well I had to do this." (ACT 32). Melvin replied that " we ain't gone let them show up, regardless of what motherfuckers gotta do, they ain't gone show up." (ACT 34). And when Petitioner worried that " them motherfuckers there will try to . . . change her mind about shit, " Melvin reassured Petitioner " they ain't gone be no mind changing." (ACT 36-37).
Petitioner complains that his December 29, 2008 conversation with Melvin was " ambiguous" and there was nothing in the conversation calling for the use of force or threats against Tammi. (FAP at 7; Att. at 23-26). However, the December 29, 2008 conversation is not considered in a vacuum, but rather in the context of surrounding events and circumstances. See Wahidi, 222 Cal.App.4th at 806 (" The circumstances in which the defendant's statement is made, not just the statement itself must be considered to determine whether the statement constitutes an attempt to dissuade a witness from testifying."). And here, even if the December 29, 2008 conversation by itself could be considered ambiguous, the California Court of Appeal's conclusion that " [w]hen viewed in the context of [Petitioner's] prior conversations with Melvin, the jury could reasonably conclude that [Petitioner's] December 29 statements constituted implied threats of force or fear" (Lodgment 7 at 8) was certainly not contrary to, or an unreasonable application of, clearly established federal law. See Johnson, 132 S.Ct. at 2064 (" Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors 'draw reasonable inferences from basic facts to ultimate facts.'" (citation omitted)); 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."); Wahidi, 222 Cal.App.4th at 806 (" If the defendant's actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the witness from testifying, the offense has been committed."); Foster, 155 Cal.App.4th at 336 (" Foster went beyond mere preparation and committed an attempt when he put his plan into action by conveying the threat he wanted Buchanan to deliver. The very nature of this crime is solicitation. By soliciting a third party to convey his wishes to the victim, Foster accomplished some appreciable fragment of the crime. . . ." (citations and internal quotation marks omitted)).
That Petitioner acted through an intermediary does not insulate Petitioner from conviction under P.C. § 136.1. See Foster, 155 Cal.App.4th at 333, 335 (" Foster's phone call asking a third party to deliver a message to a witness that she should not testify against him was an attempt to dissuade a witness" since " [t]he statute neither restricts the means a defendant selects to commit the offense, nor does it require that defendant personally deliver the message to the witness.").
Accordingly, there was more than sufficient evidence to support Petitioner's conviction for disuading a witness by force or threats, Wahidi, 222 Cal.App.4th at 806; Foster, 155 Cal.App.4th at 335, and the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
B. Jury Instructions
Instructional error warrants federal habeas relief only if the " 'instruction by itself so infected the entire trial that the resulting conviction violates due process[.]'" Waddington v. Sarausad, 555 U.S. 179, 191, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009) (citation and internal quotation marks omitted); Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (per curiam). The instruction must be more than merely erroneous; rather, Petitioner must show there was a " reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." McNeil, 541 U.S. at 437 (citations and internal quotation marks omitted); Sarausad, 555 U.S. at 190-91; see also Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) (" Before a federal court may overturn a conviction resulting from a state trial in which [an allegedly faulty] instruction was used, it must be established not merely that the instruction is undesirable, erroneous or even 'universally condemned, ' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment."). Further, " [i]t is well established that the instruction 'may not be judged in artificial isolation, ' but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citation omitted); Sarausad, 555 U.S. at 191. Where, as here, the alleged error is the failure to give an instruction, the burden on the Petitioner is " 'especially heavy.'" Sarausad, 555 U.S. at 191 (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)). Moreover, if a constitutional error occurred, federal habeas relief remains unwarranted unless the error caused prejudice, i.e., unless it had a substantial and injurious effect or influence in determining the jury's verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) (per curiam) (citing Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Petitioner does not satisfy these standards for habeas relief.
In Ground Two, Petitioner claims the trial court denied him due process of law when in relation to the burglary charge it failed to define " moved out" as the act of vacating or ceasing to occupy a residence. (Petition at 5, Att. at 11-13). In Ground Four, Petitioner alleges he was denied due process of law because the trial court did not instruct the jury that a violation of P.C. § 136.1 includes as an element of the offense that the defendant took a " direct step" towards committing the offense. (Petition at 6, Att. at 14-18).
1. Burglary Instruction
The trial court instructed the jury with a modified version of CALCRIM 1700, which provided, in relevant part:
To sustain a burglary conviction, the People must prove that the [Petitioner] does not have an unconditional possessory right to enter his family home. A family member who has moved out of the family home commits burglary if he or she makes an unauthorized entry with a felonious intent, since he or she had no claim of a right to enter that residence. [¶ ] An unconditional possessory right to enter is the right to enter as the occupant of that structure.
(CT 258; RT 429-30). However, Petitioner contends that this instruction deprived him of due process of law because it did not define the term " moved out." (Petition at 5; Att. at 11-13).
The " moved out" language was taken from the case notes following CALCRIM 1700. (RT 360-61).
The California Court of Appeal rejected Petitioner's claim, stating:
Here the instruction properly and clearly instructed that the prosecutor must prove that [Petitioner] did not have an unconditional possessory right to enter the family home. The instruction further defined " unconditional possessory right." We presume that jurors are intelligent persons capable of understanding the jury instructions and applying them to the evidence. There is no reasonable likelihood that jurors understood " moved out" to mean a temporary leaving by a person who retained unconditional possessory rights to the residence.
(Lodgment 7 at 6).
Petitioner's claim is without merit. " Whether a term in a jury instruction requires definition normally turns on whether it expresses a concept within the jury's ordinary experience." United States v. Tirouda, 394 F.3d 683, 688 (9th Cir. 2005). Here, the trial court instructed the jury that the prosecutor was required to prove Petitioner did not have an " unconditional possessory right to enter" the residence where the burglary occurred, and also defined " unconditional possessory right." (CT 258; RT 429-30). However, since the concept of moving out from a residence is certainly within ordinary juror experience, the trial court was not required to further define the term " moved out, " and Petitioner was not denied due process of law because the trial court did not do so. See, e.g., United States v. Young, 458 F.3d 998, 1010 (9th Cir. 2006) (" Jury instructions need not define common terms that are readily understandable by the jury."); Tirouda, 394 F.3d at 688-89 (" No prejudice results from a district court's failure to define a concept 'within the comprehension of the average juror.'" (citation omitted)); United States v. Somsamouth, 352 F.3d 1271, 1275 (9th Cir. 2003) (" [T]he district court cannot be expected to define the common words of everyday life for the jury.").
Accordingly, the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
2. Witness Intimidation Instruction
The Sixth and Fourteenth Amendments " require criminal convictions to rest upon a jury determination that the defendant is guilty of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 509-10, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (" [T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). " Jury instructions relieving States of this burden violate a defendant's due process rights." Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam); Francis v. Franklin, 471 U.S. 307, 326, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); see also Evanchyk v. Stewart, 340 F.3d 933, 939 (9th Cir. 2003) (" It is a violation of due process for a jury instruction to omit an element of the crime.").
In Ground Four, Petitioner contends he was denied due process of law because the trial court did not instruct the jury that a violation of P.C. § 136.1 includes as an element of the offense that the defendant took a " direct step" towards committing the offense. (Petition at 6, Att. at 14-18). The California Court of Appeal rejected Petitioner's claim, stating:
The trial court instructed with CALCRIM No. 2622, defining the crime of intimidating a witness, and CALCRIM No. 2623, defining additional allegations that [Petitioner] acted maliciously and used or threatened to use force pursuant to [P.C. § 136.1(c)]. CALCRIM No. 2622 instructed that in order to convict [Petitioner], the People must prove that " [t]he defendant maliciously tried to prevent or discourage [Tammi and her daughter] from attending or giving testimony at a judicial proceeding or . . . from making a report that someone was the victim of a crime to law enforcement." The court also instructed that violation of section 136.1, subdivision (c) required a finding that [Petitioner] acted with specific intent. A slight act performed in furtherance of a design to commit a crime will constitute an attempt. The instructions sufficiently conveyed this legal principle. The court properly instructed concerning the crime of intimidating a witness and additional instruction was not required.
As given, this instruction provided:
CALCRIM 2623 provides:
(See CT 240; RT 414).
(Lodgment 7 at 7 (citations omitted; footnotes added)).
Petitioner's claim is without merit. The California Court of Appeal found that the trial court properly instructed the jury on the crime of intimidating a witness, including adequately conveying to the jury the concept that a " slight act performed in furtherance of a design to commit a crime will constitute an attempt[, ]" and no further instruction was required. (Lodgment 7 at 7). This Court cannot second-guess the state court's interpretation of California law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (" [A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Murtishaw v. Woodford, 255 F.3d 926, 956 (9th Cir. 2001) (federal courts must defer to a state supreme court's interpretation of state law governing a jury instruction); Gonzalez v. Gonzalez, 394 F.App'x 415, 415-16 (9th Cir. 2010) (" The California Court of Appeal's conclusion that there was no instructional error is a binding interpretation of state law."). Accordingly, " the trial court's jury instruction was consistent with California law and did not . . . violate [Petitioner's] rights to due process and a fair trial." Spivey v. Rocha, 194 F.3d 971, 976 (9th Cir. 1999); Solis v. Garcia, 219 F.3d 922, 927 (9th Cir. 2000).
Therefore, the California Supreme Court's rejection of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
C. Sentencing Issues
In Ground Seven(a), Petitioner asserts the trial court erred when it rejected Petitioner's request to strike his 1989 robbery conviction pursuant to People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996). (Petition at 7-8, Att. at 27-29). In Ground Seven(c), Petitioner contends his 1989 guilty plea was not knowingly and voluntarily entered into because he was not informed that it could result in the doubling of his current sentence. (Petition at 7-8, Att. at 29). In Ground Eight(a), Petitioner alleges the trial court violated P.C. § 654 and denied him due process of law when it consecutively sentenced him on counts 4-6 and 8. (Petition at 8, Att. at 30-33). In Ground Twelve, Petitioner claims he was denied due process of law because his 1989 conviction was improperly used as the basis for a five-year sentence enhancement under P.C. § 667(a) as well as two one-year sentence enhancements under P.C. § 667.5(b). (Petition at 9, App. at 53-56).
1. Romero Motion
In Ground Seven(a), Petitioner asserts the trial court erred when it rejected Petitioner's request to strike his 1989 robbery conviction pursuant to Romero. (Petition at 7-8, Att. at 27-29).
A federal court, in conducting habeas review, is limited to deciding whether a state court decision violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam); McGuire, 502 U.S. at 67-68. Federal habeas corpus relief " does not lie for errors of state law." Jeffers, 497 U.S. at 780; McGuire, 502 U.S. at 67; see also Wilson v. Corcoran, 562 U.S. 1, 5, 131 S.Ct. 13, 178 L.Ed.2d 276 (2010) (per curiam) (" [I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts." (emphasis in original)); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (" A federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law."). Thus, to the extent Ground Seven(a) alleges the trial court abused its discretion in not striking Petitioner's prior strike conviction, it does not set forth a cognizable ground for habeas corpus relief. See Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (Federal habeas relief is available " only for constitutional violation, not for abuse of discretion.").
Petitioner also raises other abuse-of-discretion allegations, (see, e.g., Att. at 34 (allegation that trial court abused its discretion when it denied Petitioner the opportunity to impeach Tammi James with her prior convictions)), which are denied for the reasons set forth herein and will not be further discussed.
Moreover, alleged errors in the interpretation or application of state sentencing laws are generally not cognizable on federal habeas review. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989). " Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); see also Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987) (" Generally, a federal . . . court may not review a state sentence that is within the statutory limits."). Thus, Petitioner must establish that an error of constitutional significance occurred in order to state a cognizable federal habeas claim. McGuire, 502 U.S. at 67-68; Christian, 41 F.3d at 469. Petitioner has not done so.
To the contrary, the Santa Barbara County Superior Court specifically determined that the trial court properly applied California law in sentencing Petitioner (Lodgment 11 at 3), and this Court cannot second guess that determination. Richey, 546 U.S. at 76. Thus, Ground Seven(a) does not set forth a cognizable federal habeas claim, McGuire, 502 U.S. at 67-68; see also Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993) (per curiam) (" [S]entence enhancement on the basis of prior convictions . . . does not violate the Constitution." (bracketed material and ellipsis added)); Moore v. Chrones, 687 F.Supp.2d 1005, 1040 (C.D. Cal. 2010) (rejecting claim that trial court abused its discretion in declining to strike prior strike conviction since a " challenge to a state court's application of state sentencing laws does not create a federal question cognizable in federal habeas review"); Ely v. Terhune, 125 F.Supp.2d 403, 411 (C.D. Cal. 2000) (claim that trial court abused its discretion in refusing to strike one of petitioner's prior strikes was not cognizable in habeas corpus proceeding), despite Petitioner's allegation of a due process violation. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (" Langford may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process."); Moore, 687 F.Supp.2d at 1041 n.27 (" [M]erely placing . . . a [due process] label on an alleged state law sentencing violation is insufficient to state a cognizable federal constitutional claim.").
The Superior Court stated that " the sentencing transcript . . . reveals that the trial court considered all relevant factors and evidence and found, ultimately, that [P]etitioner 'fit[] squarely within the scheme of the three-strikes statute, ' predominately because [P]etitioner 'ha[d] a criminal background spread over a long, long time. . . .' The trial court's decision appears sound." (Lodgment 11 at 3 (citation omitted)).
2. 1989 Robbery Conviction
On April 13, 1989, in San Luis Obispo Superior Court, Petitioner pled guilty to, and was convicted of, one count of robbery in violation of P.C. § 211 (" the 1989 conviction"). (Lodgment 16). On May 17, 1989, Petitioner was sentenced to 360 days in jail and placed on probation. (Id.). When Petitioner was sentenced in the current matter, the trial court used the 1989 conviction to enhance Petitioner's sentence as a second " strike" offender. (CT 316, 360-63; RT 539-43; 559-63). In Ground Seven(c), Petitioner alleges that had he been informed that his robbery conviction could be used as a " strike" to double his current sentence, he would not have pled guilty to the 1989 conviction. (Att. at 27).
A petitioner for federal habeas corpus relief under 28 U.S.C. § 2254 cannot challenge his current sentence on the ground it was enhanced by an allegedly unconstitutional prior conviction which " 'is no longer open to direct or collateral attack in its own right because the [petitioner] failed to pursue those remedies while they were available (or because the [petitioner] did so unsuccessfully). . . .'" Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (citing Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001)); see also Nunes v. Ramirez-Palmer, 485 F.3d 432, 443 (9th Cir. 2007) (" [T]here is no federal constitutional right to attack a prior state conviction, 'once a conviction is no longer open to direct or collateral attack in its own right.'" (citation omitted)). An exception to this rule is when " the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment. . . ." Id. at 404. However, Petitioner clearly does not fall within this exception since he was represented by counsel when he pled guilty to the 1989 robbery. (Lodgment 16); cf. Sanchez v. Hedgpeth, 706 F.Supp.2d 963, 992 (C.D. Cal. 2010) (" Petitioner does not assert that he was denied counsel in violation of the Sixth Amendment when he entered the guilty pleas in his 1991 convictions. Thus, Petitioner's claim does not fit within the narrow exception to non-reviewability established in [Coss]." (citation omitted)).
Moreover, even if Petitioner could collaterally attack his 1989 plea agreement, it would not benefit him. A guilty plea " operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences.'" Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)); Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). For a plea to be knowing, intelligent and voluntary, the defendant must be advised of the direct, but not the collateral, consequences of the plea. Brady, 397 U.S. at 755; see also Bargas v. Burns, 179 F.3d 1207, 1216 (1999) (" A trial court is not required to inform a defendant of all of the consequences of his plea; instead this Court only will find a due process violation where the trial court failed to inform a defendant of the direct consequences of his plea, as opposed to the collateral consequences." (italics in original)). A future sentence enhancement is a collateral consequence of a guilty plea. See United States v. Brownlie, 915 F.2d 527, 528 (9th Cir. 1990) (" The possibility that the defendant will be convicted of another offense in the future and will receive an enhanced sentence based on an instant conviction is not a direct consequence of a guilty plea." (citing United States v. Garrett, 680 F.2d 64, 65-66 (9th Cir. 1982))); see also Davis v. Woodford, 446 F.3d 957, 962 (9th Cir. 2006) (" [I]n California, contracts (including plea bargains) are 'deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws.'" (citing People v. Gipson, 117 Cal.App.4th 1065, 1070, 12 Cal.Rptr.3d 478 (2004))). Therefore, use of Petitioner's 1989 guilty plea to enhance his current sentence did not render the 1989 guilty plea involuntary. Brownlie, 915 F.2d at 528; see also Sanchez, 706 F.Supp.2d at 992 (" [P]lea agreements are not rendered involuntary by a defendant's lack of understanding that [his] conviction could be used to enhance a future sentence.").
Accordingly, the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
3. Consecutive Sentences
In Ground Eight(a), Petitioner asserts the trial court violated P.C. § 654 and denied him due process of law when it consecutively sentenced him on counts 4-6 and 8. (Petition at 8, Att. at 30-33). However, this state law allegation fails to state a cognizable ground for federal habeas corpus relief. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (" The decision whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and is not within the purview of federal habeas corpus."); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (petitioner's claim that his sentence violated P.C. § 654 was not cognizable on federal habeas corpus review). Nor is this result changed by Petitioner's cursory reference to due process. Langford, 110 F.3d at 1389; Moore, 687 F.Supp.2d at 1040-41 n.27.
Under narrow circumstances, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (" [T]he federal, constitutional question is whether [the sentencing error] is 'so arbitrary or capricious as to constitute an independent due process' . . . violation." (citation omitted)); Christian, 41 F.3d at 469 (" Absent a showing of fundamental unfairness, a state court's misapplication if its own sentencing laws does not justify federal habeas relief."). However, here the Superior Court rejected Petitioner's claim, stating:
4. Dual Use of Prior Convictions
In Ground Twelve, Petitioner claims he was denied due process of law because his 1989 conviction was improperly used as the basis for a five-year sentence enhancement under P.C. § 667(a) as well as two one-year sentence enhancements under P.C. § 667.5(b). (Petition at 9, Att. at 53-56). The Superior Court rejected Petitioner's claim, stating " [t]here is no indication on the record that the same prior conviction used to support the five-year enhancement under [P.C. § 667(a)] was used to support imposition of any one-year prior prison term enhancement imposed pursuant to [P.C. § 667.5(b)]. . . ." (Lodgment 11 at 6-7 (citations omitted)).
At the time of Petitioner's offenses, P.C. § 667(a) provided, in relevant part:
At the time of Petitioner's offenses, P.C. § 667.5(b) provided:
A petitioner may state a cognizable habeas corpus claim where he alleges the state imposed a punishment in violation of that authorized by state law, which is a violation of due process. See, e.g., Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir. 1991) (Petitioner's " claim that his sentence violated California sentencing laws . . . sets forth a cognizable federal habeas corpus claim based on the due process clause of the Fourteenth Amendment."); Wasko v. Vasquez, 820 F.2d 1090, 1091-93 & n.2 (9th Cir. 1987) (" Since Wasko has a liberty interest in the correct sentence of eight months, it was a due process violation to order him to a full two-year term.").
In People v. Jones, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 (1993), the California Supreme Court held that " when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." Id. at 1150. Here, however, the trial court did not use the same prior offense to sentence Petitioner under P.C. § 667(a) and 667.5(b). Instead, Petitioner received a five-year sentence enhancement under P.C. § 667(a) for his 1989 robbery conviction and received one-year sentence enhancements under P.C. § 667.5(b) for a July 19, 2000 conviction for corporal injury to a spouse in violation of P.C. § 273.5(a) and for a December 7, 1994 conviction for unauthorized possession of a controlled substance in jail in violation of P.C. § 4573.6. (RT 543; see also Lodgments 16-18).
Accordingly, there is no factual basis for Petitioner's claim, see Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (factually unfounded argument provides no basis for federal habeas relief), and the California Supreme Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law.
D. Improperly Excluded Evidence
In Ground Nine(a), Petitioner alleges he was denied his due process right to a fair trial when the trial court did not allow defense counsel to impeach Tammi with her prior convictions. (FAP at 8, Att. at 34-37).
1. Background
Before trial, the prosecution filed a document outlining the criminal history of Petitioner and various witnesses, including Tammi. (CT 140-44). Specifically, the prosecution indicated that Tammi had the following criminal history: (1) a March 21, 1989 misdemeanor conviction for false representation of identity to a police officer in violation of P.C. § 148.9; (2) a June 15, 1990 misdemeanor conviction for battery in violation of P.C. § 242; (3) a June 7, 1991 felony conviction for possession of cocaine base for sale in violation of Health & Safety Code § 11351.5, which was subsequently dismissed pursuant to P.C. § 1203.4 (fulfillment of conditions of probation); and (4) an August 8, 1994 arrest for receiving stolen property in violation of P.C. § 496(a) with no charges filed. (CT 141).
Defense counsel sought to impeach Tammi with her three prior convictions, but the prosecutor argued that Tammi's prior criminal convictions were not admissible for impeachment purposes. (CT 136, 170-71). The trial court held a hearing and agreed with the prosecutor " subject to change should [the trial court] hear something in her direct testimony or other cross-examination testimony. . . ." (RT 27-29).
2. Analysis
" [T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). This right includes the ability to call witnesses and present evidence in one's own defense. Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Even so, there is no requirement " that a defendant must be allowed to put on any evidence he chooses." LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir. 1998). Rather, the defendant " must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302; Crane, 476 U.S. at 690. Thus, a criminal defendant " does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor, 484 U.S. at 410; Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983). Indeed, " any number of familiar and unquestionably constitutional evidentiary rules authorize the exclusion of relevant evidence[, ]" Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion); LaGrand, 133 F.3d at 1266-67, and states have " broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense 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) (citations omitted); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002).
Nevertheless, the exclusion of evidence that is highly reliable and relevant to the defense may violate due process. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam); Chambers, 410 U.S. at 300-02. When deciding whether the exclusion of evidence violates the due process clause, the Court must balance the significance of the evidence against the state's interest in its exclusion. Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004); United States v. Duran, 41 F.3d 540, 545 (9th Cir. 1994). To determine the significance of the evidence, the Court normally considers the probative value of the excluded evidence on the central issue, its reliability, whether the evidence is capable of evaluation by the trier of fact, whether the evidence is the sole evidence on the issue or merely cumulative, and whether it constitutes a major part of the attempted defense. Chia, 360 F.3d at 1004; Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003); Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.), amended by, 768 F.2d 1090 (9th Cir. 1985). Evaluation of the state's interest, likewise, depends upon several factors, including the purpose of the evidentiary rule, its importance, how well the rule implements its purpose, and how well the purpose applies in the case. Miller, 757 F.2d at 994-95; Perry, 713 F.2d at 1453. The Court, moreover, " must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or prejudicial evidence." Miller, 757 F.2d at 995; Chia, 360 F.3d at 1003-04.
The balancing test set forth herein is not clearly established law for AEDPA purposes. Moses v. Payne, 555 F.3d 742, 759-60 (9th Cir. 2009). However, as discussed above, the Court is reviewing Grounds Nine(a) and Ten(a) de novo rather than under AEDPA's limitations.
Here, exclusion of the evidence in question did not violate Petitioner's due process rights. Initially, Tammi's lone felony conviction was dismissed under P.C. § 1203.4 (CT 141; RT 27), and therefore inadmissible under California law. Cal. Evid. Code § 788(c); see also People v. Field, 31 Cal.App.4th 1778, 1790, 37 Cal.Rptr.2d 803 (1995) (" A felony conviction is inadmissible hearsay except under [Cal. Evid. Code § 788(c)], which permits it for purposes of impeachment. Once a conviction has been [dismissed under P.C. § 1203.4], it no longer is a viable conviction for impeachment purposes. In other words, by virtue of [the dismissal], there no longer is a prior conviction."). Furthermore, while under California law, " any criminal act or other misconduct involving moral turpitude suggests a willingness to lie and is not necessarily irrelevant or inadmissible for impeachment purposes[, ]" People v. Contreras, 58 Cal.4th 123, 157 n.24, 165 Cal.Rptr.3d 204, 314 P.3d 450 (2013); People v. Wheeler, 4 Cal.4th 284, 295-96, 14 Cal.Rptr.2d 418, 841 P.2d 938 (1992), Tammi's misdemeanor battery misconduct did not involve moral turpitude and was inadmissible for impeachment purposes. See People v. Lopez, 129 Cal.App.4th 1508, 1520, 29 Cal.Rptr.3d 586 (2005) (" [S]imple battery is not a crime of moral turpitude. The evidence of batteries by Chino and his son was irrelevant to their credibility and was therefore objectionable." (citation omitted)). And while Tammi's misdemeanor misconduct involving falsely representing her identity to a police officer was admissible under California law, see Wheeler, 4 Cal.4th at 295 (" [I]f past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as 'relevant' evidence[.]"); People v. Steele, 83 Cal.App.4th 212, 222-23, 99 Cal.Rptr.2d 458 (2000) (providing false information to a police officer is a misdemeanor involving moral turpitude), it certainly did not deprive Petitioner of due process of law for the trial court to exercise its discretion and exclude the misconduct. The probative value of Tammi's misdemeanor misconduct was extremely limited given that the misconduct occurred over 20 years prior to the trial, Tammi was relatively young (20 years old) when convicted, and she had not been convicted of a crime in 18 years. (See RT 27-28; CT 171). In short, Petitioner has not shown the trial court's rulings were erroneous or the exclusion of the challenged evidence prevented the jury from being able to evaluate Tammi's credibility. See Holmes, 547 U.S. at 326, 126 S.Ct. at 1732 (The " Constitution permits judges to exclude evidence that is . . . only marginally relevant. . . ." (citations and internal quotation marks omitted)); United States v. Rubio-Topete, 999 F.2d 1334, 1339-40 (9th Cir. 1993) (defendant not deprived of due process right to present a defense when excluded evidence " was marginally relevant, at best, " and would have added little, if anything, to defendant's defense); Stankewitz v. McDonald, 2011 WL 347123, *16 (E.D. Cal. 2011) (" [I]t is questionable whether a twenty-year-old conviction would have any actual impeachment value given its remoteness, a factor that the trial court considered, and introducing the evidence would present the jury with the difficult task of assessing how much or how little such a remote conviction could impact Lewis' credibility."). Moreover, any possible error in the trial court's ruling did not have a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 U.S. at 623.
The defense theory at trial did not rely on an extensive attack on Tammi's credibility. (See RT 471-96). To the extent defense counsel did challenge Tammi's credibility during closing argument, he relied on evidence that her testimony was inconsistent with photographic evidence and that she " lied under oath at the preliminary hearing[.]" (RT 474-76). Defense counsel also impeached Tammi's testimony that she moved because she was afraid of Petitioner with evidence she told the district attorney that she needed to relocate for school and the government paid $2000 in financial assistance for her to move. (RT 223-25, 238-41).
E. Improperly Admitted Evidence
In Ground Ten(a), Petitioner asserts he was denied due process of law when the trial court admitted testimony that he had engaged in prior uncharged acts of spousal abuse. (FAP at 8, Att. at 38-44).
1. Background
In a pretrial motion, the prosecution sought to introduce evidence of Petitioner's prior acts of domestic violence, including four incidents involving Petitioner's prior wife, Michele James (" Michele"), and three incidents involving Petitioner and Tammi: (1) Petitioner's convictions for false imprisonment and criminal threats based on a March 30, 2000 incident in which he punched Tammi in the face, picked her up in a bear hug and squeezed so hard she could barely breathe, and threatened to kill Tammi because he knew the police were going to be called; (2) Petitioner's conviction of spousal battery and resisting a police officer based on an April 21, 2005 incident in which Petitioner slapped Tammi and resisted arrest when the police were called; and (3) a January 2008 incident in which Petitioner began wrapping a stick with tape and told Tammi he would beat her ass with the stick. (CT 159). (CT 158-60). Defense counsel did not object to the prior incidents involving Tammi, but did object to the incidents involving Michele, and the trial court ruled that it would not allow most of the incidents involving Michele. (RT 22-24, 56-57).
The prosecution argued such acts were admissible under California Evidence Code § § 1101(b) and 1109. (CT 163-70). Cal. Evid. 1101(b) provides that " [n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." Cal. Evid. Code § 1109(a) states in relevant part, that " in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." Cal. Evid. Code § 1109(a)(1). Cal. Evid. Code § 352 provides that " [t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The incidents involving Petitioner and Michele were: (1) Petitioner's October 21, 1990 arrest after he grabbed Michele's hair, slammed her head into a wall, and struck her in the back of the head with his fist because he was upset that a man was in their home without his permission; (2) Petitioner's January 10, 1991 battery conviction for slapping Michele and shoving her into a wall during an argument; (3) Petitioner's May 30, 1991 spousal abuse conviction for forcing his way into Michele's apartment, hitting her in the face and striking her in the face with his knee, causing her to lose consciousness; and (4) Petitioner's October 2, 1992 battery conviction for picking Michele up in a bear hug and punching her in the head. (CT 158-59).
At trial, the jury heard evidence from Tammi, her daughter Tamika Hatcher, and Jonathan Crump, a former neighbor, that on March 30, 2000, Petitioner and Tammi were arguing in the parking lot of the apartment complex where they lived when Petitioner struck Tammi in the chin, picked her up and attempted to carry her upstairs to their apartment, pushed her against a rail and struck her arm on the fire extinguisher while carrying her. (RT 192-93, 261-62, 316-19). Additionally, Tammi and Tamika testified that on April 21, 2005, Petitioner slapped Tammi in a J.C. Penney parking lot. (RT 193, 262). Tammi also testified that prior to October 2008, Petitioner showed her a stick he had " taped up" and told her he would " 'beat the dog shit out of [her]'" with it. (RT 190-92). Petitioner kept the stick around the house. (RT 192, 263). The stick was recovered from the master bedroom closet and admitted as a trial exhibit. (RT 191, 333, 441-42).
Petitioner now objects that allowing Tammi to testify to the uncharged acts of spousal abuse deprived him of due process of law. (FAP at 8; Att. at 38-44).
2. Analysis
a. Teague v. Lane
Initially, Respondent argues that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) bars Ground Ten(a) because " [g]ranting relief . . . would require that a new rule of constitutional law be announced, i.e., that the admission of prior crimes evidence to show a propensity or disposition to commit criminal acts violates the Constitution." (FAP, Att. at 36-39). The Court disagrees.
The Teague rule is a " nonretroactivity principle" that " prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final." Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994); Horn v. Banks, 536 U.S. 266, 271, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). Under Teague, " an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review." Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007); Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). " A holding constitutes a 'new rule' within the meaning of Teague if it 'breaks new ground, ' 'imposes a new obligation on the States or the Federal Government, ' or was not ' dictated by precedent existing at the time the defendant's conviction became final.'" Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 301 (emphasis in original)); Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). If Teague is " properly raised by the state, " a federal court must conduct a threshold Teague analysis prior to considering the merits of a petitioner's challenged claim. Banks, 536 U.S. at 272; Bohlen, 510 U.S. at 389; see also Arredondo v. Ortiz, 365 F.3d 778, 781-82 (9th Cir. 2004) (To properly raise Teague, " at a minimum Teague should be identified as an issue (indeed, the first issue). .., the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an argument should be made why the rule contended for is not within one of Teague 's exceptions.").
Here, Respondent argues that Teague applies because " the Supreme Court has never held that the admission of prior crimes evidence constitutes a federal constitutional violation." (Ans. Mem. at 38). Respondent's discussion of Supreme Court precedent is correct. See McGuire, 502 U.S. at 75 n.5 (" Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime."); Alberni v. McDaniel, 458 F.3d 860, 863 (9th Cir. 2006) (The Supreme Court " has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith." (citation and internal quotation marks omitted)); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (" The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process" and " 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 the writ."). However, Respondent appears to conflate the Teague analysis with the distinct question arising under AEDPA of what constitutes " clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1); see also Greene v. Fisher, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011) (" AEDPA did not codify Teague, and . . . 'the AEDPA and Teague inquiries are distinct.'" (quoting Banks, 536 U.S. at 272)). Unlike AEDPA, which limits " [c]learly established federal law" to " the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision[, ]" Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Glebe v. Frost, 135 S.Ct. 429, 431, 190 L.Ed.2d 317 (2014) (per curiam) (" [C]ircuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court.'" (citation omitted)), circuit court holdings can create an " old" rule under Teague. Butler v. Curry, 528 F.3d 624, 635 n.10 (9th Cir. 2008) (" In determining whether a rule is 'new' for Teague purposes, we may also consider our own case law."); Leavitt v. Arave, 383 F.3d 809, 819 (9th Cir. 2004) (per curiam) (" '[C]ircuit court holdings suffice to create'" an old rule under Teague (citation omitted)); Bell v. Hill, 190 F.3d 1089, 1091-92 (9th Cir. 1999) (Teague " bars the application of circuit court precedent that announces a new rule and post-dates a petitioner's conviction but does not prevent the application of circuit court precedent that pre-dates a habeas petitioner's conviction."). And, as discussed further below, Ninth Circuit precedent predating Petitioner's convictions holds that admission of other acts evidence can violate due process if there are no permissible inferences the jury could draw from the evidence. McKinney v. Rees, 993 F.2d 1378, 1384-85 (9th Cir. 1993); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991); see also Alberni, 458 F.3d at 865 (" [E]very circuit, in cases decided prior to the enactment of AEDPA, has acknowledged, at least implicitly, that the improper introduction of evidence may violate due process if it renders a trial fundamentally unfair."); United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (Other acts " evidence will only sometimes violate the constitutional right to a fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little relevance it might have." (italics in original)). Therefore, Teague does not bar Ground Ten(a). See Chaidez v. McDonald, 2015 WL 575849, *15 (C.D. Cal. 2015) (Teague does not bar claim that admission of prior crimes evidence due process); Marshall v. McEwen, 2013 WL 6439387, *33 (C.D. Cal. 2013) (Teague does not bar claim that admission of petitioner's uncharged crimes and conduct violated due process); Fletcher v. Dobson-Davis, 2013 WL 5591940, *20 (C.D. Cal. 2013) (rejecting argument Teague barred claim that admission of " bad character" evidence violated due process of law).
b. Merits
" A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005). " 'The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley, 568 F.3d at 1101 (citations omitted); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). In the context of a claim of improperly-admitted evidence, " [a] writ of habeas corpus will be granted . . . only where the 'testimony is almost entirely unreliable and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.'" Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (citation omitted). " Only if there are no permissible inferences the jury may draw from evidence can its admission violate due process." Alcala v. Woodford, 334 F.3d 862, 887 (9th Cir. 2003) (emphasis in original); Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999). " Even then, the evidence must 'be of such quality as necessarily prevents a fair trial[, ]'" Jammal, 926 F.2d at 920 (emphasis in original; citation omitted); Randolph v. People of the State of Cal., 380 F.3d 1133, 1147-48 (9th Cir. 2004), which can only occur if the admission of the evidence had a " 'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006) (" [T]he admission of the challenged evidence did not violate Plascencia's due process rights" since " [e]ven if the admission of the [evidence] was improper, the error could not have had 'a substantial and injurious effect on the jury's verdict.'" (citation omitted)).
" Here, there is a rational inference the jury could draw from the challenged evidence, an inference that is not constitutionally impermissible." Jammal, 926 F.2d at 920. In particular, " the prosecution must prove all the elements of a criminal offense beyond a reasonable doubt." McGuire, 502 U.S. at 69. To convict Petitioner of burglary, the prosecutor was required to " establish that [Petitioner] entered the premises with the intent to commit a felony or theft." People v. Holt, 15 Cal.4th 619, 669, 63 Cal.Rptr.2d 782, 937 P.2d 213 (1997); In re Matthew A., 165 Cal.App.4th 537, 540-41, 81 Cal.Rptr.3d 119 (2008). " Commonly, that intent must be inferred from the circumstances of the charged offense or offenses." Holt, 15 Cal.4th at 669; see also Matthew A., 165 Cal.App.4th at 541 (" [T]he existence of the requisite intent is rarely shown by direct proof, but may be inferred from facts and circumstances."). Here, as the prosecutor argued, Petitioner's prior history of domestic violence was relevant to his intent in entering Tammi's home -- particularly as Petitioner argued there was no evidence as to his intent when he entered Tammi's home. (RT 452, 469-70, 481); see also McGuire, 502 U.S. at 69-70 (Evidence of prior injuries " was relevant to an issue in the case" -- the defendant's intent -- and the defendant's " due process rights were not violated by the admission of the evidence."); Houston, 177 F.3d 901, at n.6 (intent is a permissible inference the jury may draw from prior bad acts evidence). Moreover, as noted above, to convict Petitioner of making a criminal threat against Tammi, the prosecution was required to prove, inter alia, that Tammi was in sustained fear that was reasonable under the circumstances, Toledo, 26 Cal.4th at 227-28, and, as the prosecutor contended (RT 461-62), Petitioner's history of domestic violence and threats was highly relevant to demonstrate the reasonableness of Tammi's fear. See Godbouldt v. Lamarque, 327 F.App'x 745, 746 (9th Cir. 2009) (" A threat recipient may also reasonably sustain fear because the victim knows of the defendant's prior unlawful conduct."); Pescador v. Scribner, 2012 WL 907230, *13 (C.D. Cal.) (" [T]he fact that [Petitioner] had previously responded to marital discord with physical violence and threats is highly relevant to whether he would do so again." (citation omitted)), report and recommendation adopted by, 2012 WL 907216 (C.D. Cal. 2012); People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (1995) (" The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear."). Therefore, the admission of the disputed evidence " did not 'lead only to impermissible inferences about [Petitioner's] character' . . . [and] did not violate [Petitioner's] right to due process." Windham v. Merkle, 163 F.3d 1092, 1104 (9th Cir. 1998) (citation omitted); McGuire, 502 U.S. at 69-70; Boyde, 404 F.3d at 1172-73; Houston, 177 F.3d at 910 n.6.
F. Ineffective Assistance of Counsel
In Ground Eleven, Petitioner contends he received ineffective assistance of counsel when his trial counsel: (a) did not secure a plea bargain for him; (b) advised him to waive a jury trial on his prior convictions; (c) did not make a motion to exclude uncharged acts of domestic violence; (d) did not object to Petitioner's improper consecutive sentences on counts 4-6 and 8; (e) did not object when the trial court improperly used the same prior conviction as the basis for a five-year sentence enhancement under P.C. § 667(a) and two one-year sentence enhancements under P.C. § 667.5(b); and (f) did not object to an improper question the prosecutor asked. (FAP at 9, Att. at 45-52). In Grounds Seven through Ten, Petitioner alleges he received ineffective assistance of counsel when his appellate counsel did not raise the following issues on appeal: (a) the trial court abused its discretion in refusing to dismiss Petitioner's prior strike (Ground Seven(b)); (b) Petitioner improperly received consecutive sentences on counts 4-6 and 8 (Ground Eight(b)); (c) Petitioner was denied his due process right to a fair trial when the trial court did not allow defense counsel to impeach Tammi with her prior convictions (Ground Nine(b)); and (d) Petitioner was denied due process of law when the trial court admitted testimony that Petitioner had engaged in prior uncharged acts of spousal abuse (Ground Ten(b)). (FAP, Att. at 29, 31, 36, 42).
Petitioner sets forth a portion of this claim in Ground Ten. (See FAP, Att. at 40-42).
1. Trial Counsel
" The Sixth Amendment guarantees criminal defendants the effective assistance of counsel." Yarborough v. Gentry, 540 U.S. 1, 4, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam); see also Missouri v. Frye, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012) (" The right to counsel is the right to effective assistance of counsel."). To succeed on an ineffective assistance of trial counsel claim, Petitioner must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Pinholster, 131 S.Ct. at 1403 (Strickland standard is clearly established federal law). " 'To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.'" Richter, 562 U.S. at 104 (citation omitted); Premo v. Moore, 562 U.S. 115, 121, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011). Prejudice " focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Williams v. Taylor, 529 U.S. 362, 393 n.17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). That is, Petitioner must establish there is a " reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[, ]" Strickland, 466 U.S. at 694; Pinholster, 131 S.Ct. at 1403, and " [t]he likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112; Pinholster, 131 S.Ct. at 1403. Petitioner bears the burden of establishing both components. Williams, 529 U.S. at 390-91; Strickland, 466 U.S. at 687. However, the Court need not determine whether counsel's performance was deficient before examining the prejudice the alleged deficiencies caused Petitioner. See Smith v. Robbins, 528 U.S. 259, 286 n.14, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (" 'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" (quoting Strickland, 466 U.S. at 697)).
a. Plea Bargain
In Ground Eleven(a), Petitioner contends defense counsel was ineffective in failing to secure a plea bargain for him. (FAP at 9, Att. at 45, 47-48). Petitioner does not indicate the prosecution ever offered him any plea bargain, he merely complains that defense counsel " failed to pursue and secure settlement of the case which would have resulted in a plea agreement and less prison time for the Petitioner." (Id. at 47-48). Petitioner's claim is vague and conclusory, Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994), speculative, see Wood v. Bartholomew, 516 U.S. 1, 8, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (per curiam) (granting a habeas corpus petition " on the basis of little more than speculation" is improper); Cooks v. Spalding, 660 F.2d 738, 740 (9th Cir. 1981) (per curiam) (claim that " amounts to mere speculation" does not warrant habeas corpus relief), and without merit. See Eisemann v. Herbert, 401 F.3d 102, 109 (2d Cir. 2005) (" [T]he failure to obtain a plea bargain is not evidence of ineffective assistance of counsel when the record does not contain evidence that one might have been offered.").
b. Waiving Jury Trial on Prior Convictions
In Ground Eleven(b), Petitioner asserts he received ineffective assistance of counsel when defense counsel advised him to waive his right to a jury trial on his prior convictions. (FAP at 9, Att. at 45-46). The Superior Court rejected this claim because Petitioner " fail[ed] to provide any meaningful explanation" for his argument and did not overcome the presumption that defense counsel's advice was reasonable. (Lodgment 11 at 6). The Court agrees that Petitioner's claim is meritless. Among other deficiencies, Petitioner's claim fails since Petitioner has not shown any likelihood -- let alone a substantial likelihood -- that he would have received a different outcome had he elected a jury trial on his prior convictions rather than a court trial. Richter, 562 U.S. at 112; Pinholster, 131 S.Ct. at 1403.
c. Motion to Exclude Evidence of Uncharged Acts of Domestic Violence
" Where the defendant claims ineffective assistance for failure to file a particular motion, he must 'not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome.'" Leavitt v. Arave, 646 F.3d 605, 613 (9th Cir. 2011) (quoting Styers v. Schriro, 547 F.3d 1026, 1030 n.5 (9th Cir. 2008)). Petitioner cannot make this showing.
In Ground Eleven(c) -- and as also discussed in Ground Ten -- Petitioner claims defense counsel was ineffective in failing to make a motion to exclude uncharged acts of domestic violence. (FAP at 9, Att. at 40-42, 45, 48). Specifically, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and related cases, Petitioner complains his defense counsel should have moved for an order excluding evidence of Petitioner's uncharged acts of domestic violence because the prosecutor did not inform defense counsel before trial that she was going to rely on this evidence. (FAP, Att. at 40-42).
Under Brady and its progeny, the prosecution's willful or inadvertent suppression of evidence favorable to the accused violates due process when the evidence is material to guilt or punishment, Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); Brady, 373 U.S. at 87, whether the evidence is exculpatory or impeaching. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Here, however, no suppression occurred. Petitioner was well aware of his prior acts of domestic violence. Moreover, the prosecutor's trial brief clearly indicated she intended to rely on Petitioner's prior acts of domestic violence at trial. (CT 156-74). Accordingly, there was no Brady violation. See Strickler, 527 U.S. at 281-82 (government's suppression of evidence is a necessary element of a Brady claim); Rhoades v. Henry, 638 F.3d 1027, 1039 (9th Cir. 2011) (no Brady claim when allegedly suppressed evidence was, in fact, disclosed).
The prosecutor's trial brief also stated that Petitioner's " prior domestic violence has been discovered to defense counsel[, ]" (CT 163), and Petitioner has not presented any evidence contradicting this statement.
Petitioner also argues defense counsel should have sought to suppress the evidence because it was irrelevant and " inadmissible under various code provisions and appellate decisions. . . ." (FAP, Att. at 41). First, defense counsel did argue that evidence of Petitioner's prior acts of domestic violence against Michele should be excluded, and he succeeded in getting most of this evidence excluded. (RT 22-26, 56-57). Therefore, as to this evidence, there is no factual basis for Petitioner's claim. Dows, 211 F.3d at 486-87. Second, as discussed in relation to Ground Ten(a), the evidence in question was relevant to issues before the trial court. Third, to the extent Petitioner argues the evidence in question should have been excluded under " various code provisions and appellate decisions[, ]" his claim is vague, conclusory and insufficient to warrant habeas corpus relief. Greenway, 653 F.3d at 804; James, 24 F.3d at 26. In short, defense counsel was not ineffective in failing to make a futile motion. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (" It should be obvious that the failure of an attorney to raise a meritless claim is not prejudicial[.]"), cert. denied, 133 S.Ct. 2831, 186 L.Ed.2d 890 (2013); Flournoy, 681 F.3d at 1006 (" The failure to make an objection that would have been overruled was not deficient performance.").
d. Sentencing
In Grounds Eleven(d-e), Petitioner contends defense counsel was ineffective when he did not object to improper consecutive sentences on counts 4-6 and 8 as well as when the trial court improperly used the same prior conviction as the basis for a five-year sentence enhancement under P.C. § 667(a) and two one-year sentence enhancements under P.C. § 667.5(b). (FAP at 9, Att. at 45, 47). In Strickland, the Supreme Court expressly declined to " consider the role of counsel in an ordinary sentencing, which . . . may require a different approach to the definition of constitutionally effective assistance." Strickland, 466 U.S. at 686. Based on this statement, the Ninth Circuit has repeatedly concluded " there is no clearly established law, as required under AEDPA for a federal court to provide habeas relief to a state prisoner, that the Strickland standard applies to sentencing in noncapital cases." Daire v. Lattimore, 780 F.3d 1215, 1221 (9th Cir. 2015); Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005). Accordingly, the California Supreme Court's rejection of these claims cannot have been contrary to, or an unreasonable application of, clearly established federal law.
Among other arguments, Respondent contends that the ineffective assistance of counsel claims the Court has labeled as Ground Eleven(d-e) are Teague barred. (Answer at 1; Ans. Mem. at 22-26, 47). However, " it is not necessary to resolve the Teague issue because Petitioner's claim is foreclosed by AEDPA. . . . Therefore, the issue the Court addresses first is not whether Petitioner's claim is barred by Teague 's doctrine of non-retroactivity, but whether Petitioner has stated a violation of 'clearly established federal law' under AEDPA." Adams v. Hedgpeth, 2012 WL 4069351, *5 (C.D. Cal.), report and recommendation adopted by, 2012 WL 4087225 (C.D. Cal. 2012).
In any event, as discussed in Part VI(C) of this Opinion, there is no merit to Petitioner's sentencing claims. Therefore, even if Strickland did apply in this context, defense counsel did not render ineffective assistance in failing to raise a meritless objection. Jones, 691 F.3d at 1101; Flournoy, 681 F.3d at 1006.
e. Failure to Object to the Prosecutor's Question
In Ground Eleven(f), Petitioner asserts defense counsel rendered ineffective assistance when he failed to object to an improper question the prosecutor asked. (FAP, Att. at 49-50). In particular, the prosecutor asked Tammi " [s]o when [Petitioner] said that he was going to bury you when you called the cops, what did you take that to mean?" (RT 174). Petitioner claims this question was improper because Tammi " did not say anything about a threat being made to her by the Petitioner to 'bury her.'" (FAP, Att. at 49). The Superior Court rejected this claim, concluding Petitioner had shown neither deficient performance nor prejudice. (Lodgment 11 at 5).
Petitioner's claim is meritless. Shortly before the prosecutor asked the disputed question, Tammi testified that in October 2008, Petitioner " got very mad" at her and " started going through the house, yelling, saying that he would beat my head in with a pot. He went in the kitchen and got a pot and was trying to come into the room that I was in, saying that he would bury me if I ever called the police on him." (RT 173). Thus, contrary to Petitioner's argument, Tammi did testify that Petitioner threatened to " bury" her if she called the police, and there is simply no factual basis for Petitioner's claim. Dows, 211 F.3d at 486-87.
Accordingly, the California Supreme Court's rejection of Petitioner's ineffective assistance of trial counsel claims was not contrary to, or an unreasonable application of, clearly established federal law.
2. Appellate Counsel
" [T]he right to effective assistance of counsel is not confined to trial, but extends also to the first appeal as of right." Kimmelman v. Morrison, 477 U.S. 365, 378 n.2, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The standard for establishing a prima facie claim of ineffective appellate counsel is the same as for trial counsel: Petitioner must show his appellate counsel was deficient and the deficient performance prejudiced him. Robbins, 528 U.S. at 285, 289; Strickland, 466 U.S. at 687. Moreover, appellate counsel has no constitutional duty to raise every issue, where, in the attorney's judgment, the issue has little or no likelihood of success. Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see also Knowles v. Mirzayance, 556 U.S. 111, 127, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (" The law does not require counsel to raise every available nonfrivolous defense."). Indeed, as an officer of the court, appellate counsel is under an ethical obligation to refrain from wasting the court's time on meritless arguments. McCoy v. Wisconsin, 486 U.S. 429, 436, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Thus, in reviewing appellate counsel's performance, the Court will presume that appellate counsel used reasonable tactics; otherwise, it " could dampen the ardor and impair [counsel's] independence. .., discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997) (citing Strickland, 466 U.S. at 690).
In Grounds Seven(b), Eight(b), Nine(b) and Ten(b), Petitioner alleges he received ineffective assistance of counsel when his appellate counsel did not raise Grounds Seven(a), Eight(a), Nine(a) and Ten(a), respectively, on appeal. (FAP, Att. at 29, 31, 36, 42). However, since the Court has reviewed Grounds Seven(a), Eight(a), Nine(a) and Ten(a) and determined they are without merit, appellate counsel's decision not to raise them on direct appeal cannot have been ineffective assistance. See Rogovich v. Ryan, 694 F.3d 1094, 1106 (9th Cir. 2012) (" Counsel is not required to raise an 'untenable issue' on appeal." (citations omitted)), cert. denied, 134 S.Ct. 93, 187 L.Ed.2d 69 (2013); Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002) (" A failure to raise untenable issues on appeal does not fall below the [Strickland] standard."); Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (" [Petitioner] cannot sustain his claim for ineffective assistance of appellate counsel because the issues he raises are without merit").
Accordingly, the California Supreme Court's rejection of Petitioner's ineffective assistance of appellate counsel claims was neither contrary to, nor an unreasonable application of, clearly established federal law.
VII .
ORDER
IT IS HEREBY ORDERED that Judgment be entered DENYING the First Amended Petition for Writ of Habeas Corpus and DISMISSING this action with prejudice.
JUDGMENT
Pursuant to the " Opinion and Order on a Petition for Writ of Habeas Corpus, "
IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.
To sustain a burglary conviction, the People must prove that [Petitioner] does not have an unconditional possessory right to enter his family home. A family member who has moved out of the family home commits burglary if he or she makes an unauthorized entry with a felonious intent, since he or she has no claim of a right to enter that residence. [¶ ] An unconditional possessory right to enter is the right to enter as the occupant of that structure. Even if [Petitioner] could properly enter the house for a lawful purpose, where [Petitioner] does not have the right to enter as the occupant of the structure without permission, an entry with the intent to commit a felony is a burglary.
(CT 258; RT 429-30).
[Petitioner's] given me black eyes before. He's busted my nose, given me bloody noses. He's slapped me around. He's bruised me behind my ear. He's pulled my hair. Just -- basically pushed me into my closet. Hit me when I was in the closet so I couldn't go anywhere. When I was in the shower, same thing. I mean, he's hit me a lot of different times. A lot.
(RT 192). Additionally, Tammi testified that Petitioner made a stick he " taped up" and threatened to " 'beat the dog shit out of me.'" (RT 190-91).
[Petitioner] is charged in Courts 4, 5, 6 and 8 with intimidating a witness in violation of [P.C. § ] 136.1. [¶ ] To prove that [Petitioner] is guilty of this crime, the People must prove, number one, that [Petitioner] maliciously tried to prevent or discourage Tammi James and Tamika Hatcher from attending or giving testimony at a judicial proceeding, or [Petitioner] maliciously tried to prevent or discourage Tammi James and Tamika Hatcher from making a report that someone was the victim of a crime to law enforcement; number two, Tammi James and Tamika Hatcher were . . . witness[es] or . . . crime victim[s]; and, three, [Petitioner] knew he was trying to prevent or discourage Tammi James and Tamika Hatcher from reporting a crime or attending or giving testimony and intended to do so. [¶ ] A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way or intends to interfere in any way with the orderly administration of justice. [¶ ] As used here, " witness" means someone, or a person [Petitioner] reasonably believed to be someone, who knows about the existence or nonexistence of facts relating to a crime or who has reported a crime to a peace officer. [¶ ] A person is a " victim" if there's reason to believe that a federal or state crime is being or has been committed or attempted against him or her. [¶ ] . . . It is not a defense that [Petitioner] was not successful in preventing or discouraging the witness or victim. [¶ ] It is not a defense that no one was actually physically injured or otherwise intimidated.
(RT 431-32; CT 261).
If you find [Petitioner] guilty of intimidating a witness, you must then decide whether the People have proved the additional allegations that [Petitioner] acted maliciously and used or threatened to use force. [¶ ] To prove these allegations, the People must prove, number one, that [Petitioner] acted maliciously, and, number two, [Petitioner], used force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness or victim. [¶ ] A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden for any allegation, you must find that the allegation has not been proved.
(RT 432-33; CT 262).
Petitioner's challenge is unavailing on the merits. . . . The sentencing transcript (as well as the Court of Appeal opinion) indicates the trial court actually stayed the terms imposed on counts 4 and 7. The trial court imposed a consecutive term on count 5 because it involved a separate victim, a well-settled exception to [P.C. § ] 654. . . . And while the trial court did not stay the terms imposed for counts 6 and 8. .., the presentence report indicates the term imposed for count 6 was based on a recorded telephone call made by [P]etitioner from prison on December 11, 2008, while the term imposed for Count 8 was based on a recorded telephone call made by [P]etitioner from prison on December 20, 2008. The record unmistakably supports the trial court's implied conclusion that these crimes were not the byproduct of an indivisible course of conduct but were in fact two separate acts, committed at different times, with different intents and objectives. The claim is therefore unpersuasive.
(Lodgment 11 at 4-5 (citations omitted)). Since this Court is bound by the state court's interpretation of state law, Richey, 546 U.S. at 76, Petitioner cannot even show a misapplication of state law, let alone a due process violation.
[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.
Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.