Opinion
Case No. 05cv1102-H (BLM).
April 7, 2006
REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge Marilyn L. Huff pursuant to 28 U.S.C. § 636(b) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
PROCEDURAL HISTORY
On December 5, 2001, the San Diego County District Attorney filed an information charging Petitioner, Johnny Ransom, with four crimes. Lodgment 1, Clerk's Tr. at 1. Petitioner was charged with attempted murder in violation of Cal. Penal Code § 664/187(a) (count 1); torture in violation of Cal. Penal Code § 206 (count 2); assault by means of force likely to produce great bodily injury in violation of Cal. Penal Code § 245(a) (1) (count 3); and corporal injury to a co-habitant in violation of Cal. Penal Code § 273.5(a) (count 4). Lodgment 1 at 1. The Information also alleged, as sentencing enhancements, that Petitioner had served a prior prison term within the meaning of Cal. Penal Code sections 667.5 (b) and 668, and had been convicted of one prior felony, which constituted a "strike" under California's Three Strikes law. Lodgment 1 at 4.
On June 17, 2002, a San Diego County Superior Court jury found Petitioner guilty on all four counts. Id. at 153-159. The jury also found that Petitioner personally used a deadly weapon while committing the crimes described in counts one and three. Id. at 154 and 156. On September 5, 2002, the court sentenced Petitioner to two concurrent sentences of life with the possibility of parole for counts one and two. Id. at 273-274. Additionally, the court stayed the sentences for counts three and four. Id. at 275. The court found beyond a reasonable doubt that Petitioner had a prior strike conviction. Lodgment 2 at 546. The court added a thirteen-year sentence enhancement due to Petitioner's prior strike conviction and use of a deadly weapon when committing the crimes in counts one and three. Lodgment 1 at 275-276.
The abstract of judgment does not list count three as stayed, but that is an error. The Court of Appeals ordered the abstract of judgment to be corrected to reflect the sentence that count three is stayed. Lodgment 6, Court of Appeals Opinion, at 11-12.
The abstract of judgment lists the sentence enhancement as fourteen years, but that was an error. The Court of Appeals ordered that the abstract of judgment be corrected to reflect an enhancement sentence of thirteen years. Lodgment 6 at 11-12.
Petitioner appealed his conviction to the California Court of Appeal. Lodgment 6, Court of Appeals Opinion, at 1. On September 12, 2003, in an opinion addressing Petitioner's appeal, the California Court of Appeal, Fourth Appellate District, Division One, affirmed Petitioner's conviction. Id. at 1.
Petitioner thereafter filed a petition for review in the California Supreme Court. Lodgment 7. That petition was denied by an order filed December 10, 2003, which stated: "Petition for review DENIED." Lodgment 8.
Petitioner next sought collateral relief in state court. On June 9, 2004, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Lodgment 9 at 1. The petition filed in the California Supreme Court was Petitioner's first and only petition for habeas corpus relief and it stated two claims for relief. Id. at 3-4. On April 27, 2005, the California Supreme Court summarily denied his petition citingIn re Waltreus, 62 Cal. 2d 218 (1965), and In re Lindley, 29 Cal. 2d 709 (1947). Lodgment 10.
Although stated as two claims, Petitioner actually asserted three arguments in support of his petition. Petitioner's first claim alleged that the trial court erred by admitting evidence that prejudiced the jury. Lodgment 9 at 3. In this claim, Petitioner also alleged that his sentence for torture and attempted murder violated double jeopardy because the evidence did not prove a separate intent to torture the victim. Id. Petitioner's second claim alleged that the trial court erred by admitting the 911 tape into evidence because the declarant did not testify at trial. Id. at 4.
Petitioner filed an Amended Petition for Writ of Habeas Corpus ("Am. Pet.") with this Court on July 19, 2005. Respondent filed an answer on September 8, 2005. Petitioner did not file a traverse.
UNDERLYING FACTS
This Court gives deference to state court findings of fact and presumes them to be correct. Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C.A. § 2254(e) (1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). The facts as found by the state court are as follows:
Rosemary Pearson had been Ransom's girlfriend on and off for about 18 years. Ransom was abusive towards Pearson, and over the course of their relationship engaged in such conduct as hitting, choking, kicking, and beating her. On May 10, 2001, Ransom beat Pearson, pulled a knife on her, and threatened to kill her. When the police arrived, Pearson gave them Ransom's gun because she was afraid he would hurt her with it. Ransom was upset at Pearson for giving the gun to the police.
As a result of another incidence of violence against Pearson on June 26, 2001, Ransom was arrested. During a phone conversation a couple of days before his scheduled release from jail, Pearson told Ransom she was going to leave. Ransom said "[n]o"; asked Pearson if she "remember[s] the movie "Friday the 13th" and if she "know[s] what that means"; and told her "[t]hat's what it's going to be like." Ransom started laughing and Pearson hung up the phone. On previous occasions, Ransom had threatened to kill her if she left him. The reference to "Friday the 13th" was to a horror movie in which a serial killer stabs people to death.
After this phone conversation, Pearson left the Long Beach area where she and Ransom resided, and went to a friend's house in San Diego. Fearful of Ransom, she did not tell him about her departure. Around 5:15 p.m. on Friday, July 13, 2001, Pearson was walking from her friend's house to a liquor store when she saw Ransom. Ransom put his arm around Pearson's back and told her to get in his car. When she refused, he told her if she did not come with him he would shoot her in her head right there. Pearson grabbed the window bars of a nearby restaurant. Ransom had one arm around Pearson's neck and used his other arm to stab her in her neck with a pocket knife. Pearson started screaming and trying to get away from him. She fell onto her back, and Ransom repeatedly stabbed and kicked her. Pearson tried to protect herself. Ransom stabbed her about eight or nine times in her head, leg, nose, chin, arm, hand, and behind her ear. Pearson believes her hand wounds were probably inflicted when she was trying to block his knife attacks.
As Ransom stabbed her, Pearson begged him to stop and screamed for help. When asked if she could feel each stab separately, Pearson testified: "You know, yeah. I can't say I felt each stab. All I knew I was in pain. And I — I felt something sticking me. I thought I was getting stabbed more than [eight or nine times]." People were starting to gather, and Ransom finally stopped the attack and left in his car. Pearson was bleeding everywhere; she grabbed her neck because it was bleeding profusely. A man took off his shirt and wrapped it around her neck until emergency personnel arrived.
Charles Ralph was waiting at the bus stop near the liquor store and heard Pearson's cries for help. When Ralph first saw Pearson, she was standing, holding her neck, and bleeding badly. Ralph could not see if Ransom had a weapon, but Ransom was swinging wildly with both firsts at Pearson's face and stomach, kicking her, and trying to knock her out. When Pearson fell to the ground, Ransom kept kicking and beating her in the stomach and face. Ralph testified that he saw "blood . . . gushing out of [Pearson's] neck"; "her whole shirt was filled with blood"; and "it surprised [Ralph] that [Ransom] was pounding on her like it was Mike Tyson or something, beating her to pulp, kicking her."
As a result of the attack, Pearson suffered five serious stab wounds: three to her neck and head area (one in her neck, one in her head, and one behind her ear) and two on her right hand. Her neck wound could have been life-threatening because it was so near the carotid artery and jugular vein. Surgery revealed that the stab wound in the neck stopped just one or two millimeters short of puncturing these vital blood vessels. In addition to the surgery on her neck, surgery was performed to repair muscle and tendon injuries in her hand. The wounds in her head and behind her ear were cleaned and stapled. Pearson has a scar on her neck and still suffers from pain in her hand.
After the jury rendered its guilty verdicts on the charged offenses, the trial court imposed a sentence of life with the possibility of parole for attempted pre-meditated murder and a concurrent life term for torture, and stayed sentence on the two remaining offenses under [Cal. Penal Code] § 654. The court imposed an additional 13-year determinate sentence for various enhancements.
Lodgment 6 at 2-4.
DISCUSSION
A. Standard of Review
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) (West 1994).
This action was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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
(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.A. § 2254(d) (West Supp. 2004).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d) (1) or § 2254(d) (2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d) (1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or of the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412-413; see also Lockyer v. Andrade, 538 U.S. 63, 73-74 (2003).
Under § 2254(d) (2), Petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claim rests are objectively unreasonable, assuming it rests on a factual determination. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Analysis
Petitioner raises two claims in his federal petition: (1) there was insufficient evidence to prove intent to torture, therefore the trial court abused its discretion in sentencing Petitioner for torture; and (2) the trial court abused its discretion by admitting the 911 tape into evidence, which violated Petitioner's Sixth Amendment right to confront witnesses against him. Am. Pet. at 6-7. In the Answer, Respondent contends: (1) Petitioner's first claim for habeas relief should be denied because the California Court of Appeal's decision on the merits was not contrary to, or an unreasonable application of, clearly established federal law; and (2) Petitioner's second claim for habeas relief is procedurally barred. Answer at 7-10.
1. Petitioner is Not Entitled to Habeas Relief on the Basis of His First Ground for Relief
Petitioner contends that the trial court erred in sentencing him for torture, because there was insufficient evidence presented at trial to prove the element of intent to torture. Am. Pet. at 6. Petitioner raised a similar claim throughout his direct appeal and in his state habeas petition. Lodgment 3 at 12-20; Lodgment 7 at 12-20; Lodgment 9 at 3. Respondent argues that the appellate court did not err in finding that there was sufficient evidence to sustain Petitioner's conviction for torture. Answer at 7.
In evaluating a habeas claim, federal courts must "look through" to the state court's most recent reasoned decision.Ylst v. Nunnemaker, 501 U.S. 797, 803-806 (1991); Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996). In Petitioner's case, the most recent reasoned state court opinion is from the California Court of Appeal. Lodgment 6 at 5-7.
In denying Petitioner's insufficiency of the evidence challenge, the Court of Appeal applied the standard established in People v. Crittenden, 9 Cal. 4th 83, 139 (1994), which requires the court to "consider the entire record and draw all inferences in favor of the [lower court's] judgment to determine whether a reasonable trier of fact could have found guilt beyond a reasonable doubt." Lodgment 6 at 5-7. The court then concluded that "given [the facts of the case], including the calculated, sadistic nature of [Petitioner's] threat and the continuation of the assault notwithstanding Pearson's pleas and incapacitation, there is substantial evidence to support the jury's finding that Ransom acted with the intent to inflict cruel or extreme pain beyond the pain inherent in death." Id. at 7. The court reasoned that the jury could have inferred an intent to torture from the following facts:
[T]hat a few days before the actual physical assault Ransom formulated his plan to attack Pearson with a knife when he threatened her by referring to the "Friday the 13th" movie. The jury could also reasonably view his laughter when he made the threat as reflecting a sadistic intent to make her suffer. Ransom made a lengthy drive from Long Beach to San Diego to effectuate [his] plan. After Pearson refused to accompany him, he stabbed her in the neck, causing her to bleed profusely and ultimately fall to the ground. She was conscious during the entire attack and was begging him to stop. Ransom continued stabbing and kicking her even when she was on the ground and blood was gushing out of her neck. Even if some or all of the nonlethal stab wounds were missed marks because of Pearson's resistance rather than the result of a deliberate aim, the jury could still infer that Ransom's conduct of brutally assaulting Pearson while she was on the ground, already seriously wounded and unable to effectively resist, showed an intent to cause her to suffer extreme pain while he was attempting to kill her.Id. at 6-7.
The clearly established Supreme Court law regarding sufficiency of the evidence is set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson Court held that when a habeas petitioner makes a claim of insufficient evidence, "the federal courts must determine if the conviction was obtained in violation of In re Winship, 397 U.S. 385 (1970), by asking `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.'" Lewis v. Jeffers, 497 U.S. 764, 781 (1990) (quoting Jackson, 443 U.S. at 324).
In Winship, the court held "the 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." In Re Winship, 397 U.S. 358, 364 (1970).
In Schlup v. Delo, 513 U.S. 298, 330 (1995), the Court explained that under Jackson, "the mere existence of sufficient evidence to convict would be determinative of petitioner's claim. . . ." This is because the use of the word "could" in the Jackson standard "focuses the inquiry on the power of the trier of fact to reach its conclusion." Id. The Schlup Court determined that matters such as the credibility of witnesses were beyond the scope of the Jackson test. Id. The Jackson standard requires a "binary response: Either the trier of fact has power as a matter of law or it does not." Id. This makes theJackson standard much less probabilistic, because the court does not need to determine what a trier of fact is likely to do given the evidence. Id. Under Jackson, if a federal habeas court is faced with a "record of historical facts that support conflicting inferences [then the court] must presume — even if it is not affirmatively 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.
The Supreme Court noted in Early v. Packer, 537 U.S. 3, 8 (2002), that a state court need not even be aware of the applicable Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Here, the trial court applied the Crittendon standard, which required it to determine "from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt." Crittenden, 9 Cal. 4th at 139. The Crittenden test is a mirror image of the standard stated in Jackson that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324. Accordingly, the court utilized the correct standard of review.
In order to convict Petitioner of the crime of torture, the prosecution was required to prove that Petitioner (1) inflicted great bodily injury on another, (2) with the intent to cause cruel or extreme pain and suffering, and (3) for the purpose of revenge, extortion, persuasion, or any other sadistic purpose. Cal. Penal Code § 206. At trial, Ms. Pearson testified that Petitioner stabbed her repeatedly. Lodgment 2 at 107-17. Ms. Pearson described being stabbed in the neck, arm, hand, and receiving cuts on her nose and behind her ear. Id. A witness to the incident, Charles Ralph, described seeing Petitioner kick Ms. Pearson repeatedly in her stomach and face, while she lay on the ground bleeding from a wound to her neck. Lodgment 2 at 182-86. The prosecution also entered into evidence photos of Ms. Pearson's injuries. Lodgment 2 at 278, 280.
Applying the rules from Jackson and Schlup, it is clear that a rational trier of fact could have found Petitioner guilty of torture beyond a reasonable doubt. A rational trier of fact could have found intent to torture in many of Petitioner's actions. Since the stab to Ms. Pearson's neck satisfies the attempted murder conviction, the jury reasonably could have considered all the other stabbing and kicking that took place while Ms. Pearson was on the ground bleeding as proving the torture conviction. Accordingly, this Court finds that the state court's conclusion that Petitioner's torture conviction was supported by sufficient evidence was reasonable and consistent with clearly established Supreme Court law. See Williams v. Taylor, 529 U.S. 362, 412-413 (2000).
To the extent the Petitioner's position is that he was improperly sentenced for two crimes based on one criminal transaction, Petitioner's claim is without merit. The California Court of Appeal found "the facts [of the case] support a conclusion that Ransom operated with the distinct objectives of killing Pearson and causing her to suffer cruel or extreme pain. . . ." Lodgment 6 at 11 (emphasis in the original). The test for determining whether there were two criminal transactions or a single transaction is whether each conviction required proof of a fact that the other did not. Blockburger v. U.S., 284 U.S. 299, 304 (1932) (citing Gavieres v. U.S., 220 U.S. 338, 342 (1911)). The California Court of Appeal applied a similar test from Neal v. State of California, 55 Cal.2d 11, 19 (1960), which requires proof of two different intents and objectives. Lodgment 6 at 8.
A charge of attempted murder requires (1) an attempt to murder the victim, with (2) malice aforethought. Cal. Penal Code § 664/187(a). The charge of attempted murder was proven by (1) Petitioner stabbing Ms. Pearson in the neck, and (2) Petitioner's "Friday the 13th" threat. By contrast, as noted above, torture could be proven by Petitioner's acts of continually stabbing and kicking Ms. Pearson as she lay on the ground bleeding. These separate facts support a separate criminal objective of torture and a finding of two separate criminal transactions.
The California Court of Appeal's decision was thus reasonable and consistent with clearly established federal law. Accordingly, this Court RECOMMENDS that petitioner's first claim be DENIED. 2. Petitioner's Second Claim for Habeas Relief is Procedurally Barred
Respondent contends that Petitioner's second claim is procedurally defaulted, because the claim was denied by the California Supreme Court with a citation to In re Lindley, 29 Cal. 2d 709 (1947). Petitioner failed to file a traverse responding to Respondent's contention, so this Court will evaluate whether the doctrine applies without any briefing by Petitioner. Having reviewed the record and other documentation submitted, this Court finds that Petitioner's second claim is procedurally barred. Alternatively, this Court also finds that Petitioner's Sixth Amendment rights were not violated by the admission of the 911 call.
a. The Procedural Default Doctrine
"The procedural default doctrine `bar[s] federal habeas when a state court declines to address a petitioner's federal claims because the prisoner has failed to meet a state procedural requirement.'" Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). Procedural default has its roots in the adequate and independent state law doctrine, which provides that the United States Supreme Court lacks jurisdiction to review a state court judgment which rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729.
When the "adequate and independent ground" for a state court's rejection of a federal claim involves a violation of state procedural requirements, a habeas petitioner is said to have procedurally defaulted his claim and a federal court cannot reach the merits of the federal claim. Id. However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989). Additionally, the Court may still reach the merits of a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the procedural default and actual prejudice therefrom, or (2) that the failure of the Court to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
b. Application of the Procedural Default Doctrine by the State Court
In Lindley, the California Supreme Court held that challenges to the admissibility of evidence must be raised on direct appeal, not via habeas corpus. Lindley, 29 Cal.2d at 723. The Lindley holding forms an independent and adequate state procedural bar.Carter v. Giurbino, 385 F.3d 1194, 1196 (9th Cir. 2004). Therefore, if a petitioner fails to raise an admissibility of evidence allegation on direct appeal and instead raises it in a subsequent state habeas petition, the claim will be defaulted as a matter of California law.
For a federal court to enforce a state procedural default, the default must actually have been imposed by the state court under state law. Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). Further, the state court must clearly and expressly invoke the procedural bar. Coleman v. Thompson, 501 U.S. 722, 735 (1991). Here, the Supreme Court of California clearly and expressly invoked the Lindley bar to Petitioner's second claim by specifically citing Lindley in denying Ransom's habeas petition. Lodgment 10.
In denying the claims asserted in Ransom's habeas petition, the California Supreme Court cited two cases: Lindley andWaltreus. Lodgment 10. The specific holdings of Lindley andWaltreus make it clear that the California Supreme Court's citation to Lindley applies exclusively to Petitioner's second claim and the Waltreus citation applies to Petitioner's first claim. Lindley prohibits insufficiency or admissibility of evidence claims that were not brought on direct appeal from being asserted in habeas proceedings. See Lindley, 29 Cal.2d at 721-24. A citation to Waltreus, however, governs claims thatwere raised on direct appeal. See Waltreus, 62 Cal.2d at 225. Petitioner's second claim was not raised on direct appeal; therefore, the California Supreme Court's citation to Lindley clearly and expressly referred to Petitioner's second claim.
Petitioner's first claim was in fact raised on direct appeal. See Lodgment 3 at 12-20; Lodgment 7 at 12-20; and Lodgment 9 at 3. Therefore, the California Supreme Court's citation to Waltreus clearly and expressly referred to Petitioner's first claim. Because a claim cannot simultaneously be both raised on direct appeal (Waltreus) and not raised on direct appeal (Lindley), it is clear that the California Supreme Court could not have intended to apply Waltreus andLindley to the same claim.
This Court notes that Waltreus is not an independent and adequate state ground. See Calderon v. U.S. Dist. Ct. (Bean), 96 F. 3d 1126, 1131 (9th Cir. 1996); Hill v. Roe, 321 F. 3d 787 (9th Cir. 2003). "A Waltreus denial is neither a ruling of procedural default nor a ruling on the merits. Waltreus merely bars relitigation in state habeas proceedings of claims already litigated on direct appeal." Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004) (citing Hill, 321 F.3d at 789; and Bean, 96 F.3d at 1131). Therefore, the California Supreme Court's citation to Waltreus will not prevent this Court from reviewing Petitioner's first claim for federal habeas relief. See section B.1.
In addition to being expressly invoked, the procedural bar must be independent and adequate. Coleman, 501 U.S. at 729. InCarter v. Giurbino, 385 F.3d at 1197-98, the Ninth Circuit held that a procedural bar under the Lindley rule is an independent and adequate state ground to support a procedural default finding. The court held that it is independent because it is not intertwined with federal substantive or procedural law, and that it is adequate because it was firmly established and regularly followed by the state court at the time of the petitioner's procedural default. Id.
Having found that the state court actually and clearly imposed the Lindley bar, and that imposition of this procedural bar by the state supreme court is independent and adequate, this Court finds that Petitioner's second claim is procedurally barred.
c. Cause and Prejudice or Fundamental Miscarriage of Justice
There are two exceptions which could allow this Court to reach the merits of Petitioner's claim despite a finding that the claim is procedurally barred. The first exception is cause and prejudice, which is applied when a "prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). The second exception is a fundamental miscarriage of justice, which requires Petitioner to show that the constitutional error complained of probably resulted in the conviction of an innocent person. Shulp v. Delo, 513 U.S. 298, 327 (1995). Petitioner did not file a traverse, and this Court finds neither exception satisfied in this case.
Examples of objective impediments to compliance with a procedural rule identified by the Court include: (1) a showing that the factual or legal basis for a claim was not reasonably available to counsel; (2) that some interference by officials made compliance impracticable; and (3) that the procedural default is the result of ineffective assistance of counsel.Murray v. Carrier, 477 U.S. 478, 488 (1986).
Regarding the cause and prejudice exception, Petitioner does not allege the existence of any objective impediments to compliance with the Lindley rule, nor is there anything in his filings to indicate that any exist. Therefore, this exception is not satisfied.
To establish an exception based on a fundamental miscarriage of justice, Petitioner must show that it is more likely than not that no reasonable juror would have found Petitioner guilty beyond a reasonable doubt. Id. "Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he must show not just that the evidence was weak, but that it was so weak that `no reasonable juror' would have convicted him. Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). Petitioner has not claimed actual innocence and the Appellate Court found "substantial evidence to support the jury's finding. . . ." Lodgment 6 at 5-6. In addition, this Court has reviewed the record and documentation submitted in this case and finds that the fundamental miscarriage of justice exception has not been satisfied.
2. Petitioner's Sixth Amendment Rights Were Not Violated
In his second claim for relief, Petitioner alleges that the trial court abused its discretion by admitting the 911 call, which violated his Sixth Amendment rights. Am. Pet. at 7. As set forth above, this claim is procedurally barred. However, because Petitioner is proceeding pro se, and as an alternative basis for the Court's recommendation, the Court will address Petitioner's Sixth Amendment claim.
Petitioner did not raise a Sixth Amendment claim on direct appeal. He first asserted a Sixth Amendment claim in his state habeas petition, but the California Supreme Court did not issue a reasoned opinion in the case. Therefore, this court will review Petitioner's Sixth Amendment claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
In his Petition, Petitioner attacks the propriety of the victim's testimony in connection with his challenge to the introduction of the 911 tape. Am. Pet. at 7. However, the 911 call was made by a witness to the crime, Ms. Samoa, who did not testify at Petitioner's trial. Lodgment 1 at 81-84; Lodgment 2 at 230-31. The victim, Ms. Pearson, did testify at trial and was cross-examined by Petitioner's attorney. Lodgment 2 at 59-165; 287-298.
Within claim two, Petitioner also argued that the jury was not informed of Ms. Pearson's deal for immunity in exchange for her testimony. Am. Pet. at 7. Petitioner is mistaken. The Prosecutor asked Ms. Pearson, while she was on the stand if she was "given use immunity for the information about [her] using drugs". Lodgment 2 at 79. Ms. Pearson's response was "yes." Lodgment 2 at 79. The Prosecutor also entered a letter into evidence that confirmed the immunity deal. Lodgment 2 at 335.
To the extent Petitioner's argument is that his Sixth Amendment right to confront witnesses was violated because Ms. Samoa (the declarant on the 911 tape) did not testify at trial, Petitioner's claim is without merit. Under Crawford v. Washington, 541 U.S. 36, 68 (2004), out-of-court, testimonial statements by witnesses are barred, under the Confrontation Clause of the Sixth Amendment, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. InCrawford, the court declined to give a comprehensive definition of "testimonial statements" but found that, at a minimum, it included ". . . prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations." Id. at 68. The court determined these types of statements were "testimonial" because they involve "[a]n accuser who makes a formal statement to government officers [and] bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 51.
Following Crawford, the Ninth Circuit specifically addressed the issue of 911 tapes and the Confrontation Clause. Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir. 2004). In Leavitt, the court found a 911 tape did not fall under the Crawford category of testimonial out-of-court statements because (1) the declarant, not the police, initiated the conversation; and (2) the declarant was not being interrogated, but was frightened and seeking help. Id. Therefore, the court concluded that the statements on the 911 tape did not implicate "`the principle evil at which the Confrontation Clause was directed[:] . . . the civil law mode of criminal procedure, and particularly, its use of ex parte examinations of evidence against the accused.'" Id. (citingCrawford, 541 U.S. at 50).
This Court notes that on March 20, 2006, the U.S. Supreme Court heard oral arguments in the cases of Davis v. Washington, No. 05-5244, and Hammon v. Indiana, No. 05-5705, which address the issues of (1) whether a victim's statements to a 911 operator are testimonial, within the meaning of Crawford; and (2) whether an oral accusation to a police officer at the scene of an alleged crime is testimonial, within the meaning of Crawford. An opinion has not yet been issued in either case.
In the present case, Mary Samoa called 911 while observing Ms. Pearson bleeding from her stab wounds. Lodgment 1 at 81. As inLeavitt, Ms. Samoa's statements to the 911 operator were spontaneous and not testimonial. Therefore, the trial court's decision to admit the tape was not a violation of the Petitioner's Sixth Amendment rights as set forth in Crawford.
Even if the 911 tape was testimonial and its admission into evidence was improper, the error was harmless. In Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), the court held
. . . Confrontation Clause errors, [are] subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
In the 911 tape, Ms. Samoa provided her location and a portion of the license plate number of the attacker's car and described Ms. Pearson's physical condition, the attacker's car, the direction that the car was driving, and that the driver was a black male. Lodgment 1 at 81-84. All of the information in the 911 tape was confirmed at trial by the testimony of Nora Ape, who was with Ms. Samoa at the time of the 911 call. Lodgment 2 at 207-230. More importantly, Ms. Pearson testified at trial and identified Petitioner as her attacker. Lodgment 2 at 84-96. Another witness to the attack, Charles Ralph, also testified at Petitioner's trial and identified Petitioner as the attacker. Lodgment 2 at 180-205. Due to the corroborating testimony of other witnesses and the overall strength of the prosecution's case, the admission of the 911 tape, if error, was harmless.
3. Conclusion
For the reasons set forth above, the Court finds that Petitioner's second claim challenging the admissibility of the 911 tape is procedurally barred. Alternatively, the Court also finds that Petitioner's Sixth Amendment claim is without merit. Accordingly, this Court RECOMMENDS that Petitioner's second claim be DENIED.
RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that judgment be entered denying the petition.IT IS ORDERED that no later than April 28, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than May 19, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).