Opinion
No. C 01-340 WHA (PR)
March 30, 2004
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has filed a traverse. The matter is submitted.
STATEMENT
Petitioner was convicted by a jury of second degree murder with personal use of a knife. He was sentenced to prison for sixteen years to life. As grounds for habeas relief he asserts that: (1) his due process rights were violated by the trial court's giving jury instructions CALJIC 2.03, 2.06 and 2.52; (2) petitioner's Sixth Amendment right to effective assistance of counsel was violated when trial counsel failed to object to CALJIC 2.52 and ignored an intoxication defense; (3) the trial court violated petitioner's Fifth Amendment rights by admitting petitioner's statements to the police that were coerced and that were obtained in violation of Miranda v. Arizona. 384 U.S. 436 (1966).
Petitioner does not dispute the following facts, which are taken from the opinion of the California Court of Appeal.
On June 22, 1996, appellant was with his friend (and later co. — defendant) Jose Ramirez. On that day, appellant consumed more than 12 beers between the approximate hours of noon and midnight. That night, the two approached the victim, Pearlie Jean Stuart, who sometimes worked as a prostitute, and propositioned her. She agreed to have sex with both of them for $30, and brought them to her house. It was appellant's turn first, but he felt that Stuart was rushing ham, so he got off of her, threw his condom on the floor and wont into the bathroom. When he came out, Stuart and Ramirez were having sex. Appellant told Stuart he wanted his money back, but she told him there were no refunds. Appellant wanted to scare Stuart so he pulled out his pocket knife with a three — inch blade, opened it, and pressed it against her chest, again asking for his money. In an interview with police, appellant admitted he stabbed Stuart, but claimed he did not intend to. He explained that she moved and the knife entered her chest. She moved again, and it wait in again.
The autopsy revealed that Stuart had been stabbed four times, with two of the wounds on the leg and arm appearing to be defensive wounds. The victim's daughter witnessed the stabbing and identified appellant, as did the victim's boyfriend who arrived as appellant was leaving the house. Unable to get into his car, appellant and Ramirez ran away from the house. Ramirez was stopped by police a short distance from the house, appellant walked quickly away and hid, throwing the knife in some bushes. He was apprehended the next day at home.
Ex. E (Court of Appeal opinion) at 2-3.
DISCUSSION
A. Standard of review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffiies v. Wood 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001), while the second prong applies to decisions based on factual determinations, Miller — El v. Cockrell 123 S.Ct 1029, 1041 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry). 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller — EL 123 S.Ct. at 1041. This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Stunner v. Mate. 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.),amended. 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do.Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state — court proceeding." Miller — EL 123 S.Ct. at 1041;see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
B. Issues Presented
1. Instructions
The trial court gave standard California jury instructions that the jury could consider a defendant's willfully false or deliberately misleading pretrial statement as showing consciousness of guilt, CALJIC 2.03; could consider a defendant's suppression of evidence against him as showing consciousness of guilt, CALJIC 2.06; and could consider flight in deciding guilt or innocence, CALJIC 2.52. Petitioner contends that giving these instructions violated his due process rights.
Petitioner's argument is that because he admitted stabbing the victim, the only issue was his state of mind at the time. He contends that these instructions go only to whether he stabbed her, and thus that giving them lessened the burden of proof on the prosecution by distracting the jury from the real issue and directing the its attention to irrelevant matters.
To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.Estelle v. McGuire. 502 U.S. 62, 72 (1991) Estelle v. McGuire. 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973): see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'"). 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. See Estelle. 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
Finally, the defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation."Estelle v. McGuire. 502 U.S. at 73.
As the discussion above shows, petitioner is incorrect that giving an erroneous instruction is automatically a violation of due process. He is also incorrect that the only issue was his mental state at the time of the crime. Although his lawyer may have conceded in closing argument that petitioner did stab the victim, the fact remains that petitioner pleaded not guilty and put the prosecution to its proof — and among the things the prosecution had to prove was that petitioner was the person who physically did the crime. Thus, his "mental state" was not the sole issue for the jury to decide. All of the evidence may have pointed one way, but it was still the prosecution's burden, and the instructions which were given were relevant to meeting that burden. Finally, petitioner is also incorrect that the instructions "direct[ed] the jury . . . to convict" if they believed the predicate facts. The plain language of all three instructions says that the predicate conduct is not sufficient to prove guilt, but rather "may be considered."
The instructions at issue are inference instructions. The first step in analyzing whether an instruction that creates an evidentiary inference violates due process by relieving the State of its burden of proving each element of a crime beyond a reasonable doubt is to determine whether the instruction creates a mandatory presumption or a permissive inference.United States v. Warren. 25 F.3d 890, 897 (9th Cir. 1994) (analyzing whether jury instruction shifted burden of proof by determining whether inference permissive or mandatory). "A mandatory presumption tells the jury that it must presume that an element of a crime has been proven if the government proves certain predicate facts."Id. By contrast, "a permissive inference instruction allows, but does not require, a jury to infer a specified conclusion if the government proves certain predicate facts." Id. An instruction that creates a mandatory presumption violates due process because it "directly foreclose[s] independent jury consideration of whether the facts proved establish certain elements of [the charged offense] . . . and relieve[s] the State of its burden of . . . proving by evidence every essential element of [the] crime beyond a reasonable doubt."Carella, 491 U.S. at 265-66 (citations omitted).
An instruction that merely creates a permissive inference does not shift the burden of proof, but it nonetheless violates due process unless it can be said "`with substantial assurance'" that the inferred fact is `"more likely than not to flow from the proved fact on which it is made to depend."' County Court of Ulster County v. Alien, 442 U.S. 140, 167 n. 28 (1979) (quoting Leary v. United States. 395 U.S. 6, 36 (1969)).
These instructions were permissive inference instructions, because they tell the jury that it may — not must — infer consciousness of guilt, in the case of the false statement and suppressing evidence instruction, or guilt itself, in the case of the flight instruction. And the Court can say with substantial assurance that the inferred facts (consciousness of guilt or guilt) is more likely than not to flow from the proved facts, willfully false or misleading statement, suppression of evidence, and flight. The instructions did not impermissibly reduce the prosecution's burden of proof.
Petitioner may also be attempting to argue that the instructions were not supported by the evidence. As the state appellate courts found, petitioner's version of events in his statement to the police was contrary to that of the victim's daughter, which supporting giving the "false statement" instruction. His statement that he threw the knife away upon fleeing because he did not want to be caught with it supported the suppression of evidence instruction. And his efforts to avoid the police supported the flight instruction.
Petitioner also contends that these instructions taken cumulatively violated his due process rights. The instructions were proper under California law, as the state appellate courts determined, and, as this Court determines above, did not violate due process. Petitioner's claim thus is without merit. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation).
The decisions of the state appellate courts rejecting this claim were not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.
2. Ineffective assistance of counsel
Petitioner contends that his lawyer was ineffective in failing to object to CALJIC 2.52, the flight instruction. Given that there was evidence to support giving it, and the Court's rejection above of petitioner's other claims regarding this instruction, failure to object to it was neither deficient performance nor was it prejudicial. See Strickland v. Washington, 466 U.S. 668, 686 (1984) (to prevail on ineffective assistance claim, a habeas petitioner must show that counsel's performance was deficient and that he or she was prejudiced).
Petitioner also contends that his counsel was ineffective in failing to put on a defense and in not claiming intoxication as a defense. As respondent correctly points out, this defense was in fact presented: there was evidence that petitioner and his co. — defendant had consumed a considerable quantity of beer, defense counsel referred to this in her opening statement, and the trial court instructed on voluntary intoxication. This claim is without merit.
The decisions of the state appellate courts rejecting these claims were not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
3. Extrajudicial statements
Petitioner contends that the trial court should have excluded from evidence his three statements made after his arrest. It is not entirely clear if this is based on an alleged violation of theMiranuda rule, or on coercion. Both will be addressed.
Miranda v. Arizona, 384 U.S. 436, 473-74 (1966),
Petitioner was interviewed three times on June 23, 19%. He was givenMiranda warnings at the outset of the first interview and waived his rights. A little less than four hours after the end for the first interview he gave another statement. He was again given theMiranda warnings and again waived them. The third interview began about three and half hours later. At that interview, the warnings were not given until part way into the interview, when the deputy district attorney reminded petitioner of the previous admonishments of his rights, repeated the warnings, and received a waiver.
Clearly, the first two statement were not taken in violation of Miranda. As to the third, courts generally reject a per se rule as to when a suspect must be readvised of his rights after the passage of time or a change in questioners. United States v. Andaverde, 64 F.3d 1305, 1311 (9th Cir. 1995). Rather, the totality of circumstances should be considered in each individual case. Id at 1311-12 (finding (1) voluntary waiver even though defendant moved into different room and questioned by new interrogator, and (2) one day interval between voluntary waiver and second questioning not unreasonable); see also Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir. 1984) (change in interrogators and three hour interval between warnings did not raider statement inadmissible). In view of the relatively short time between the second and third questioning and the fact that the environment was the same, though the interrogator was different, petitioner's previous waiver remained valid for the third questioning. There was no Miranda violation.
Petitioner also contends that the confessions were not voluntary. Involuntary confessions in state criminal cases are inadmissible under the Fourteenth Amendment. Blackburn v. Alabama. 361 U.S. 199, 207 (1960). The voluntariness of a confession is evaluated by reviewing both the police conduct in extracting the statements and the effect of that conduct on the suspect. Miller v. Fenton. 474 U.S. 104, 116 (1985); Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir. 1999). Absent police misconduct causally related to the confession, there is no basis for concluding that a confession was involuntary in violation of the Fourteenth Amendment. Colorado v. Connelly. 479 U.S. 157, 167 (1986)
To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne." United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citing Haynes v. Washington. 373 U.S. 503, 513-14 (1963)); see, e.g., Cunningham v. Perez, 345 F.3d 802, 810-11 (9th Cir. 2003) (officer did not undermine plaintiff's free will where interrogation lasted for eight hours and officer did not refuse to give break for food and water, officer suggested cooperation could lead to treatment rather than prison, officer made statement he had put people in prison for similar conduct, officer denied plaintiff's request to call therapist, and plaintiff diagnosed with mental disorder and taking bi — polar medication); Clark v. Murphy. 331 F.3d 1062, 1073 (9th Cir.),cert. denied 124 S.Ct. 446 (2003) (holding that state court's determination that interrogation was non — coercive, where suspect was interrogated over 5 — hour period in 6 by 8 foot room without water or toilet (but never requested water or use of a toilet), was objectively reasonable application of Schneckloth). Was the statement the product of an essentially free and unconstrained choice by its maker? Henry, 197 F.3d at 1026-27 (quoting Collazo v. Estelle. 940 F.2d 411, 416 (9th Cir. 1991) (en banc)).
"[C]oercive police activity is a necessary predicate to the finding that a confession is not Voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Connelly, 479 U.S. at 167. A confession is only involuntary if the police use coercive activity to undermine the suspect's ability to exercise his free will.Derrick v. Peterson. 924 F.2d 813, 818 (9th Cir. 1990). Personal characteristics of the defendant are therefore irrelevant absent proof of coercion. Id. (citation omitted).
Petitioner was questioned for about ten hours. His contention is that because he did not have any food for that period, he was coerced. The tape of the second interrogation shows that petitioner said he had been allowed water, food, and bathroom breaks if he needed them, and that he had been treated "pretty good." Petitioner also contends that Sergeant Olivas improperly offered him leniency by telling him on the way to the bathroom that he might get only five years if he confessed. Olivas denied this, and petitioner's claim was impeached, though not completely, by a log book showing that an officer other than Olivas had gone with him to the bathroom. Petitioner has not established that there was "coercive police activity." In the absence of coercion, the confessions were voluntary.
Alternatively, assuming police coercion, petitioner has not shown that his will was overborne. Although the period petitioner was at the police station was long (ten hours), the interviews themselves were not; he was given water and bathroom breaks as needed; and he felt he had been treated "pretty good." He was nineteen at the time and had attended some high school with reasonable marks. He had some acquaintance with the criminal justice system as a juvenile. The transcript of the interviews, attached to the petition as exhibits B and C, indicates an intelligent response to questioning. On this record, the Court concludes that petitioner's will was not overborne.
The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file. IT IS SO ORDERED.