Opinion
NO. CV 03-5465-RGK (CT)
October 9, 2003
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AND MOTION TO STAY
TO: All Parties of Record Michael E. Gaston, Esq. P.O. Box 20714 Long Beach, CA 90801
Marc A. Kohm Deputy Attorney General
300 S. Spring St., Suite 500 Los Angeles, CA 90013
You are hereby notified that pursuant to the Local Rules Governing Duties of Magistrate Judges, the Magistrate Judge's report and recommendation has been filed on September 10, 2003, a copy of which is attached.
Any party having objections to the report and recommendation shall, not later than September 24, 2003, file and serve a written statement of objection; with points and authorities in support thereof before the Honorable CAROLYN TURCHIN, U.S. Magistrate Judge.
Failure to so object within the time limit specified shall be deemed a consent to any proposed findings of fact. Upon receipt of objections, or upon lapse of the time for filing objections, the case will be submitted to the District Judge for disposition. Following entry of judgment and/or order, all motions or other matters in the case will be considered and determined by the District Judge.
The report and recommendation of a Magistrate Judge is not a final appealable order. A notice of appeal pursuant to Federal Rules of Appellate Procedure 4(a)(1) should not be filed until the judgment and/or order by the District Judge has been entered.
This report and recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the petition be DENIED AND DISMISSED WITH PREJUDICE.
SUMMARY OF PROCEEDINGS
On May 9, 2003, petitioner, in state custody and represented by counsel, filed a federal petition for writ of habeas corpus ("first federal petition") in Case Number CV 03-3273-RGK (CT). On June 6, 2003, respondent filed a motion to dismiss ("motion to dismiss") that argued the petition should be dismissed because it contained two unexhausted grounds. The motion to dismiss described the process to request that a federal petition containing both exhausted and unexhausted grounds ("mixed petition") be stayed and abeyed ("the stay and abey procedure") pending exhaustion of petitioner's grounds in state court. See Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2003). On July 17, 2003, a report and recommendation was filed recommending dismissal without prejudice for failure to exhaust state court remedies. The July 17, 2003 report and recommendation also described the stay and abey procedure. On July 24, 2003, petitioner filed a response that argued the two grounds in fact were exhausted and requested that the petition be held in abeyance while petitioner presented the two unexhausted grounds in the California Supreme Court. On July 25, 2003, the court denied petitioner's request, advising petitioner it did not have discretion to stay petitioner's mixed petition. The court again advised petitioner about the stay and abey procedure and the court warned petitioner that, according to respondent, he had until approximately July 30, 2003 to timely file a fully exhausted federal petition for writ of habeas corpus under the applicable statute of limitations. See The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). On July 29, 2003, judgment was entered dismissing the mixed petition without prejudice.
That same day, July 29, 2003, petitioner, again in state custody and represented by counsel, filed a timely second federal petition for a writ of habeas corpus ("second federal petition"), which was assigned Case Number CV 03-5465-RGK (CT). The second federal petition contains petitioner's three exhausted grounds. Petitioner concurrently filed a motion to hold the second petition in abeyance while he exhausted his other two grounds in the California Supreme Court ("motion to stay"). On August 25, 2003, respondent filed a return ("return") and an opposition to the motion to stay. On August 28, 2003, the court denied petitioner's motion to stay. On September 9, 2003, petitioner filed a traverse ("traverse").
Petitioner labeled this document "amended petition." However, Case Number CV 03-3273 was closed. The second federal petition was timely and, therefore, it was assigned a new case number.
BACKGROUND
On June 27, 2000, a jury convicted petitioner of two counts of robbery, conspiracy, and first degree murder in violation of California law. (Mot. to Dismiss, Ex. A.)
On November 30, 2000, petitioner filed an appeal in the California Court of Appeal, raising the following grounds:
1. The trial court erred in denying petitioner's motion to suppress evidence on the grounds that petitioner's arrest was unlawful;
2. The trial court erred in denying petitioner's in limine motion to exclude his extrajudicial statements on the grounds that Miranda warnings were required at their inception, the statement was involuntary and the post-Miranda statement was otherwise coerced and involuntary;
3. The trial court erred in instructing the jurors pursuant to CALJIC No. 17.41.1 that they were obligated to report to the trial court any "improper" thoughts expressed by any juror during deliberations; and,
4. The sentences on Counts 2 and 6 must be stayed pursuant to California Penal Code section 654.
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
(Mot. to Dismiss, Ex. B at 27-28.) On September 25, 2001, the court of appeal affirmed the judgment and corrected petitioner's sentence in a partially published opinion. (Mot. to Dismiss, Ex. C.)
On October 29, 2001, petitioner filed a petition for review in the California Supreme Court, raising the following grounds:
1. Petitioner was arrested illegally and his subsequent confession should be suppressed; and,
2. The jurors were unconstitutionally instructed with CALJIC No. 17.41.1.
(Mot. to Dismiss, Ex. D at 105.) On December 19, 2001, the California Supreme Court granted the petition for review and noted that "[f]urther action on the matter is deferred pending consideration and disposition of a related issue in People v. Mckay. . . ." (Mot. to Dismiss, Ex. E.) After the California Supreme Court's decision in People v. McKay, 27 Cal.4th 601 (March 4, 2002), on May 1, 2002, the California Supreme Court issued another order regarding petitioner's petition for review that dismissed the petition and remanded the "cause" to the court of appeal. (Mot. to Dismiss, Ex. F.) On May 8, 2002, the court of appeal closed the case and issued the remittitur. (Respondent's Response to Court's June 10, 2003 Order, Ex. A.)
Petitioner did not seek collateral review in the California courts.
The first and second federal petitions followed.
CONTENTIONS
In his first federal petition, petitioner raised the following grounds:
1. Trial counsel was constitutionally ineffective for failing to argue that petitioner's statements were the product of improper police coercion;
2. Petitioner's arrest was unlawful;
3. Evidence that was the product of the unlawful arrest and unlawful search of petitioner's vehicle was introduced at trial and used to convict petitioner;
4. Petitioner's statements should have been suppressed because he was not advised of his constitutional rights prior to questioning and the statements were therefore obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and,
5. The trial court violated petitioner's federal constitutional rights when it instructed the jury pursuant to CALJIC No. 17.41.1.
(First Fed. Pet. at 5-6). Respondent contended that grounds one and four were unexhausted, and the court concurred. In his second federal petition, petitioner raises the following grounds:
1. The trial court erred in refusing to suppress evidence seized from petitioner's vehicle because the evidence was obtained as the result of an unlawful search and seizure in violation of petitioner's Fourth Amendment rights;
2. Petitioner was arrested without probable cause; and,
3. The trial court violated petitioner's federal constitutional rights when it instructed the jury pursuant to CALJIC No. 17.41.1.
(Second Fed. Pet. at 3.)
FACTUAL BACKGROUND
The facts set forth in the California Court of Appeal's opinion are reasonably supported by the record, and that opinion is attached as exhibit 1 to this Report and Recommendation. (Ret., Ex. B.) Essentially, on May 3, 1999, petitioner and three other men entered a jewelry and music store in Long Beach, California; shot and killed co-owner Gary Kim; threatened an employee; and stole money and jewelry from the store. (RT 447-88; 513; 520.) After being advised of and waiving his constitutional rights, petitioner told the police that he participated in the robbery. (RT 576-80.) Petitioner admitted that jewelry found in his home was stolen during the robbery. (RT 537-41; 583.)
"RT" refers to the reporter's transcript of the proceedings. "CT" refers to the clerk's transcript of the proceedings. Each reference will be followed by the applicable page number(s).
DISCUSSION
Standard of Review
An application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; 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) (as amended by the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA")); see also Williams v. Taylor, 529 U.S. 362, 412 (2000) (stating that "[S]ection 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court").
A state court decision is "contrary to" the Supreme Court's clearly established precedents if it "applies a rule that contradicts the governing law set forth" in the Supreme Court's cases or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Williams v. Taylor, 529 U.S. at 405-06. State court decisions that are not contrary to clearly established Supreme Court precedent warrant federal habeas corpus relief "only if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or based on `an unreasonable determination of the facts.'"Early v. Packer, 537 U.S. 3 (2002) (per curiam) (finding state court decision does not even require awareness of United States Supreme Court cases, so long as neither the reasoning nor the result of the state court decision contradicts them); see also Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam) (emphasizing difference between unreasonable application of federal law and incorrect application).
A state court decision is an "unreasonable application of" the Supreme Court's precedent if the court "correctly identifies the governing legal rule but applies it unreasonably to the facts" of the case. Penry v. Johnson, 532 U.S. 782, 792 (2001) (quoting Williams v. Taylor, 529 U.S. at 407-08). On federal habeas review, even if constitutional error occurred in the state court, error is harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v, Abrahamson, 507 U.S. 619, 637 (1993); see also O'Neal v. McAninch, 513 U.S. 432, 435-36 (1995).
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991);see also 28 U.S.C. § 2254(a). The United States Supreme Court has held that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding the judgment or rejecting the same claim rest upon the same ground."Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). On habeas review, when there is no reasoned state court decision to review, the court conducts an independent review of the record to determine whether the state court unreasonably applied controlling federal law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
1. Opportunity to Litigate Fourth Amendment Claims (Second Federal Petition, Grounds 1 and 2)
In ground one, petitioner argues that the trial court erred in refusing to suppress evidence seized from petitioner's vehicle because the evidence was obtained during an unlawful search in violation of petitioner's Fourth Amendment rights. (Second Fed. Pet. at 3.) In ground two, petitioner contends he was arrested without probable cause. (Second Fed. Pet. at 3.) Neither claim is cognizable on habeas review.
The United States Supreme Court has held that "[w]here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). "The relevant inquiry is whether petitioner had the opportunity to litigate his [ Fourth Amendment] claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
Here, petitioner not only had the opportunity to litigate his Fourth Amendment claims, he actually did so. Petitioner brought a motion to suppress evidence during trial, and it was denied. (CT 255-62; 308-09.) On direct appeal, petitioner raised his Fourth Amendment claims before the California Court of Appeal and the California Supreme Court, both of which denied relief. (Ret., Exs. B, C, and E.) Petitioner therefore had a full and fair opportunity to present his Fourth Amendment claims in the state courts, and habeas relief is not warranted. See Villafuerte v. Stewart, 111 F.3d 616 (9th Cir. 1997).
Moreover, the court observes that the court of appeal concluded that the search of petitioner's vehicle and petitioner's arrest complied with the Fourth Amendment and U.S. Supreme Court law. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). (Ret., Ex. B at 80, 83.) This court concurs under the applicable standard of review.
2. Jury Instruction (Second Federal Petition, Ground 3)
Petitioner claims that the trial court violated petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments because it instructed the jury with California Jury Instruction Criminal ("CALJIC") No. 17.41.1.
The record reflects that the trial court advised the jury that "[y]ou must accept and follow the law as I state it to you whether or not you agree with the law." (RT 641; CALJIC No. 1.00.) The trial court also read CALJIC No. 17.41.1 to the jury. (RT 675; CALJIC No. 17.41.1.) As read to the jury in this case, CALJIC No. 17.41.1 stated:
The integrity of a trial requires that the jurors conduct themselves as required by these instructions. So if it should occur to some juror that some other juror just refuses to deliberate or expresses some intention just to disregard the law or decide the case based upon things like penalty or punishment or any improper basis, please, it is your obligation to let me know by some note. Anybody can send out a note.
(RT 675; CALJIC No. 17.41.1.) Trial counsel did not object to these instructions.
The trial court also instructed the jurors regarding their duty to decide the case based on their individual opinions:
The people and the defendant are entitled to the individual opinion of each of you. You must consider the evidence for the purpose of reaching verdicts if you can do so. You must decide the case for yourself but you should do so only after discussing the evidence and the instructions with the other jurors. Do not hesitate to change an opinion if you are-persuaded or convinced it is wrong; however, don't decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. Obviously, no decisions by chance.
(RT 674; CALJIC No. 17.40.) Additionally, the trial court instructed the jury, "[i]n your deliberations, don't discuss the subject of penalty or punishment. It must not in any way affect your verdict." (RT 675; CALJIC No. 17.42.) The trial court concluded its instruction of the jury by stating that "[i]n order to reach verdicts, all twelve jurors have to agree." (RT 676; CALJIC No, 17.50.) The jury is presumed to have followed the trial court's instructions. Zafiro v. United States, 506 U.S. 534, 540 (1993).
Petitioner also raised this ground in the California Court of Appeal and, noting that the issue currently was under review by the California Supreme Court, the court of appeal stated:
Appellant contends the instruction is unconstitutional because it deprives him of his right to a unanimous jury. He also contends it violates the Evidence Code provisions guaranteeing the inviolate privacy of a juror's mental processes by inviting jurors to single out unpopular or holdout voters for removal. Finally, he contends it intrudes on the jury's power (albeit not the right) of jury nullification. Appellant did not object to the instruction, thus waiving his contentions . . .
Even if appellant's contentions are preserved on appeal, they are unavailing because the instruction correctly states the law that the jurors are under a duty to follow the trial court's instructions . . . We believe that CALJIC No. 17.41.1 is neutral in its language, and serves the interests of both the prosecution and the defense by preventing improper considerations from influencing the jury. We find no basis for ruling it improper.
After the court of appeal's opinion was filed, the California Supreme Court held in People v. Engleman, 28 Cal.4th 436 (2002), that "merely because CALJIC No. 17.41.1 might induce a juror who believes there has been juror misconduct to reveal the content of deliberations unnecessarily (or to threaten to do so)," the giving of the instruction did not constitute a violation of the constitutional right to trial by jury or otherwise constitute error under state law. 28 Cal.4th at 444. The court, however, did conclude that the instruction should not be given in future criminal cases because it had the "potential" to intrude on the deliberative process." Id.
(Ret., Ex. B at 87) (citations omitted).
To the extent petitioner claims a jury instruction was incorrect under state law, his claim is not cognizable on federal habeas review.Estelle v. McGuire, 502 U.S. 62, 68 n. 2 (1991). To merit relief, petitioner must show the instructional error so infected the entire trial that the resulting conviction violated due process,Estelle v. McGuire, 502 U.S. at 68 n. 2; Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cupp v. Naughten, 414 U.S. 141, 147 (1973). The allegedly erroneous instruction must be considered in the context of the trial record and the instructions as a whole. Estelle v. McGuire, 502 U.S. at 72; Henderson v. Kibbe, 431 U.S. at 156; CUDD v. Naughten, 414 U.S. at 146-47.
"The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged." Shannon v. United States, 512 U.S. 573, 579 (1994). The jury is not to consider the consequences of its verdict, and should be instructed to reach its verdict without regard to what sentence might be imposed.Id. "Jury nullification" occurs when the jury acquits the defendant even though the government has proven its case beyond a reasonable doubt. United States v. Powell, 955 F.2d 1206, 1212-13 (9th Cir. 1991). Defendants are not entitled to jury nullification instructions; "anarchy would result from instructing the jury that it may ignore the requirements of the law." United States v. Powell, 955 F.2d at 1213 (citation omitted). Although the jury has the power of nullification, the jury has no right to engage in nullification.Standefer v. United. States, 447 U.S. 10, 22 (1980).
Based on review of the entire record, this court defers under the applicable standard of review to the state court's determination, and independently finds that the administration of CALJIC No. 17.41.1 did not so infect the trial that the resulting conviction violated petitioner's constitutional right to due process. Considered as a whole, the instructions administered to the jury accurately stated the law and advised the jurors that it was their duty to decide the case based on their individual opinions. Moreover, the record contains no indication that any problems arguably attributable to CALJIC No. 17.41.1 — such as jury deadlock, conflict regarding holdout jurors, refusal to follow the law, or intrusion by the presiding judge into the deliberative process — occurred during deliberations. Rather, the record reflects that the jurors deliberated for approximately eight-and-a-half hours and then returned their verdict. (Ret., Ex. B at 86-88.) Habeas corpus relief is unwarranted on this ground.
Stay and Abey Order
For the reasons set forth in the magistrate judge's August 28, 2003 order denying petitioner's motion to stay and abey the second federal petition, the magistrate judge recommends that the district judge also deny petitioner's motion to stay and abey the second federal petition. A copy of the August 28, 2003 order is attached as exhibit 2 to this Report and Recommendation.
CONCLUSION
After independent review of the record and, where applicable, looking through the California Supreme Court's silent denial on the claims raised in this petition, this court finds that the California courts' adjudication of these claims did not involve an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court, As a result, habeas corpus relief is not warranted.
RECOMMENDATION
In accordance with the foregoing, it is recommended that the court issue an order: (1) accepting this report and recommendation; and (2) directing that judgment be entered denying and dismissing the petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrates and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of judgment of the District Court.