Opinion
No. C 04-02962 CRB.
February 22, 2005
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
Petitioner, Michael Manjeet Singh, filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. sections 2241 and 2254. Petitioner was convicted of three counts of murder and of multiple special circumstances, all as alleged. Petitioner was thereafter sentenced to life without possibility of parole. Petitioner is currently confined at the California Medical Facility. In short, petitioner claims that the state court's decision to exclude a tape recorded phone message alleged to be a third-party confession to the murders violated his Fourteenth Amendment right to due process under the law. Petitioner requests an evidentiary hearing pursuant to Habeas L.R. 2254-7 so that this Court may consider the taped confession, and seeks an order vacating the judgment of conviction and the sentence imposed.
For the reasons stated below, petitioner's petition and request for an evidentiary hearing are hereby denied.
II. PROCEDURAL BACKGROUND
On May 9, 2000, following a jury trial in Alameda County Superior Court and six days of deliberation, the jury convicted petitioner of three counts of murder pursuant to California Penal Code section 187. The jury additionally found true two special circumstances: "lying in wait" pursuant to section 190.4(a)(15) as to two of the murder counts, and "multiple murder" pursuant to section 190.2(a)(3). The jury also found that petitioner had personally used a firearm in violation of section 12022.5. While the jury rejected the death penalty, on June 12, 2001 Petitioner was sentenced to life in prison without possibility of parole.Petitioner thereafter filed timely notice of appeal to the California Court of Appeal, First Appellate District. On February 10, 2003, the Court of Appeal issued its decision affirming petitioner's convictions. After petitioner filed a Petition for Review in the Supreme Court of California, the Supreme Court denied review on April 23, 2003. This Petition for Writ of Habeas Corpus was filed on July 21, 2004.
III. FACTUAL BACKGROUND
The facts supporting petitioner's conviction are largely not at issue, and are amply described in decision of the Court of Appeal denying petitioner's appeal. See People v. Singh, No. H24413, 2003 WL 264698 (Cal.Ct.App. Feb. 10, 2003) (unpublished). The court summarized the case as follows:
In summary, [petitioner] was a student at the University of California at Berkeley. He was angry with his ex-girlfriend Rhoshima [Pippins Glass], because she had previously become pregnant, and had given birth to a young son, Michael, also called Mike-Mike, and the blood tests showed that [petitioner] was the father. [Petitioner] told friends he feared a child would interfere with his future career as a lawyer, and he didn't want Rhoshima to have the baby. Late one evening, [petitioner] lured Rhoshima and Mike-Mike to a deserted Safeway store parking lot, and shot them both at close range, killing them instantly. Rhoshima's unborn fetus also died.Id. slip op. at 1.
The court goes on to describe the prosecution's case in some detail. Evidence showed that the shootings occurred in a Safeway parking lot some time after midnight, December 1, 1996. Id. slip op. at 1-2. While several people were in the parking lot just before or after the shootings, no witness was able to place the petitioner at the scene of the crime.
Responding to a 911 call from passerby Gary Jose, Hayward Police Officer Jeffrey Albertelli arrived at the scene shortly after 2 a.m. Id. slip op. at 2. Fire Captain Arthur Strong of the Hayward Fire Department arrived soon after Albertelli. Id. They found a car parked in a dark, isolated area of the lot, racing at high idle. Id. According to Albertelli, there appeared to be blood smears on the inside of the driver's side window. Id. Inside, a female (Rhoshima) was slumped over in the driver's seat. Id. An infant (Mike-Mike) was in a car seat in the right passenger seat. Id. Paramedics confirmed that both Rhoshima and Mike-Mike were deceased. Id.
By 3:15 a.m., forensic evidence was being collected at the scene. The appellate court described these efforts as follows:
Arriving at the scene at 3:15 a.m., Hayward Police Department crime scene technician Pauline Gaffey collected evidence including casings and spent bullets, and a Food 4 Less bag in the front seat of the car; she also saw blood spatter at the scene. A steak knife was recovered from the driver's door pouch. Gunshot residue swabs of the back of the driver's seat and passenger's seat were taken, and the car was dusted for latent fingerprints.
A fingerprint expert, Crisanto Pagtakhan, testified that, while some latent fingerprints were identifiable, none matched [petitioner], and some matched the victim Rhoshima. Pagtakhan found identifiable latent prints on the letter notifying [petitioner] of his paternity of the child, and these prints matched [petitioner's] fingerprints. However, Pagtakhan could not locate the letter at the time of trial.Id.
An autopsy performed later on December 1 revealed that Rhoshima's body had three bullet wounds on the top of her head, aiming downward. Id. The doctor performing the autopsy, Thomas Wayne Rogers, M.D., concluded that the "wounds were inflicted while she was alive, as blood in her lungs and stomach showed she breathed and swallowed at least once after she was shot." Id. Dr. Rogers also found a two-inch long well-defined fetus in Rhoshima's uterus. Id. The fetus died as a result of the death of Rhoshima. Id. The autopsy on Mike-Mike revealed three bullet wounds to the head, and one to the chest. Id. slip op. at 3. Dr. Rogers concluded that any of the shots could have been fatal.Id. The death of all three victims was attributed to multiple gunshots wounds. Id.
In regard to motive, the prosecution put on evidence demonstrating petitioner's animus toward Rhoshima for having their child Mike-Mike. Rachael Patterson, a friend of petitioner, testified that on several occasions petitioner became angry when discussing Rhoshima's pregnancy, stating that he did not want to be a father and that he didn't want a child to interfere with his school and future career plans. Id. Patterson testified that petitioner made statements such as "I'll kill her," "I'll have her killed," "I'll have her knocked off," and "I'll do her," and referred to Rhoshima as a "bitch and a "slut." Id. When Patterson later became friends with Rhoshima, petitioner became angry with Patterson, called her a traitor, and refused to socialize with her. Id. Moreover, a blood test confirmed petitioner as Mike-Mike's biological father. Id. slip op. at 4. The results of the paternity test were mailed to petitioner on October 4, 1996, and a copy of the results was recovered from petitioner's backpack. Id.
Evidence showed that petitioner visited Rhoshima at approximately 10 p.m. on the night of the shootings (November 30). Id. Rhoshima's friend and neighbor Wendy Barefield testified to seeing a man drive up to their apartment building, at which time Rhoshima indicated that the man was "Mike-Mike's dad." Id. She testified that the man wore a big dark jacket — a description fitting a jacket later seized from petitioner's home.Id. Barefield testified that Rhoshima and petitioner spoke privately for about 20 minutes and that Rhoshima thereafter informed Barefield that she was going with petitioner to a Lucky store to buy milk for Mike-Mike. Id. Barefield stated that Rhoshima left around 10:30 p.m. and that she noticed that petitioner's and Rhoshima's cars were gone. Id.
Rhoshima's younger sister, who was staying with Rhoshima at the time, testified that Rhoshima left for Safeway around 10 p.m. to purchase milk for Mike-Mike. Id. She also testified that she never saw Willie Paul Williams, Rhoshima's boyfriend at the time, leave the apartment that evening. Id. A receipt from a local Food 4 Less store was recovered from Rhoshima's car. Id. The receipt was dated December 1, 1996 at 12:57 a.m. and indicated a purchase of baby formula and cereal. Id.
Evidence showed that Willie Paul Williams lived with the victim, along with her two daughters and Mike-Mike. Id. slip op. at 9. Williams knew Rhoshima was a few months pregnant. Id. Williams testified that on the night of the shootings, he recalled Rhoshima leaving with Barefield and that she did not return before he fell asleep. Id. He states he never left the apartment that night. Id. Evidence also showed that "Williams had been convicted of brandishing a firearm two years previously, and of assault and battery 10 years before that. He had also been accused of kidnaping, but was not convicted of that offense."Id.
The testimony of Leslie Lelaind, petitioner's girlfriend at the time of the shootings, corroborated petitioner's animus against Rhoshima, the fact that petitioner was out on the evening of the shootings, and indicated that petitioner had attempted several times to talk her (Lelaind) into lying to the police to provide for an alibi for the night. Id. slip op. at 5-6. Thus, Lelaind testified that petitioner had mentioned a woman carrying a baby that may be his, that he wouldn't let anybody or anything "stop him from becoming a lawyer," and that he would either kill her or would have someone else kill her. Id. slip op. at 5. On the night of the shootings, petitioner left Lelaind sometime between 9 and 10 p.m. wearing the dark blue jacket later seized from petitioner's home. Id. Lelaind stated that petitioner asked her for permission to stay out until 3 or 4 in the morning so that he could go to a club with college friends. Id. Lelaind paged petitioner 10 to 12 times that evening, but never received a return call. Id. When petitioner returned home, it was after 2 a.m. and he was carrying a gun. Id.
With regard to the testimony concerning the gun, the appellate court noted the following:
Lelaind told the police conflicting stories regarding the gun. First she stated that [petitioner] did not have any gun. Next she twice told the authorities that the gun was a "throw away" gun, not the handgun registered to [petitioner]. Then she said it was [petitioner's] registered gun, and finally she indicated it was a .45-caliber gun. At the preliminary hearing, and at trial, Lelaind testified she did not know what kind of gun it was.Id. slip op. at 5.
After petitioner's arrest, Lelaind visited him in jail numerous times. Lelaind testified that during these visits, petitioner asked Lelaind to lie the police to provide for an alibi for petitioner. Id. slip op. at 6. The court described the testimony in this way:
During the visits, [petitioner] asked Lelaind to lie, and to say that he was with her all night. [Petitioner's] mother was present during these conversations. [Petitioner] asked Lelaind to tell the police that the reason she was paging him was that she was just playing with the pager. Lelaind urged [petitioner] to tell the friends he was with that night to come forward, but [petitioner] said he did not want to involve them. Lelaind was distressed at the requests to lie, and asked [petitioner] why she would have to lie if he were innocent. [Petitioner] did not say anything, but just looked at her, and Lelaind began to cry.Id.
A police investigation ensued on December 1. Rhoshima's boyfriend, Williams, broke down upon hearing of Rhoshima's death, cooperated in the search of their apartment and gave gunshot residue samples from his hands. Id. Later on December 1, police visited petitioner's home. The court describes the visit as follows:
[The police detectives] entered the house, with a tape recorder secretly running. There, the detectives spoke with [petitioner]. The tape recorded conversation was played at trial, and a transcript of the recording was simultaneously provided to the jurors. In the interview, [petitioner] told numerous falsehoods. . . . [Petitioner] said he remained the entire rest of the night at Lelaind's apartment, until the next morning. [Petitioner] also claimed he was suffering from a disabling back injury from a recent car accident, for which he was taking a drug called Soma. Thus, he had not felt like going out the previous night. [Petitioner] stated he had not seen the victim in a "long time" or about "two months ago." He also repeatedly claimed to have not received the results of the blood test concerning his paternity of the six-month-old child.
Permission was given to search his bedroom, and the detectives recovered [petitioner's] dark jacket, which had suspected blood stains on the left sleeve. The police also seized a backpack with an opened envelope containing the letter detailing the positive results of the blood test indicating [petitioner] was the biological father of the six-month-old boy. [Petitioner's] fingerprints were later matched with latent prints lifted from the letter. Detective Koller offered that the transcript of the tape recording accurately reflected a particular question by [petitioner], insofar as the transcript read, "Is there any idea who umm . . . popped her?" [Footnote omitted.] The police had not previously told [petitioner] that Rhoshima had been shot, and had instead advised she was "murdered."
A .40-caliber semi-automatic pistol, which was not the murder weapon, was recovered from [petitioner]'s room. It was stipulated this gun was registered to [petitioner].
[Petitioner] never mentioned having spent the night with friends. Nor did [petitioner] mention his alibi witness Abdul Jalil.Id. slip op. at 6-7.
Defense acoustic forensics expert Fausto Poza testified that petitioner seemed to end his question to the police with the word "officer" instead of "popped her." Id. slip op. at 6 n. 1. The appellate court concluded that the transcript did not support Poza's determination. Id. In view of the totality of the evidence, it is this Court's view that this determination was not critically important to petitioner's conviction; nor is it of import to the issues the Court must now resolve.
An abundance of forensic evidence, and testimony regarding that evidence, was introduced at trial. Tests of the coat confiscated from petitioner's home revealed blood spots and a small piece of human tissue on the left sleeve. Id. slip op. at 7. DNA tests of the blood revealed that it matched that of Rhoshima; the chance of a match to another African-American was stated to be 1 in 29 billion. Id. The tissue also matched Rhoshima. Id. The chance of a match of the tissue to another African-American was estimated at 1 in 4.5 billion. Id. The chance of both the blood and the tissue matching to another person was even smaller. Id. Other experts testified that the splattering of the blood on the sleeve was consistent with "the result of a high velocity spray, such as would be delivered by a gunshot." Id. Although two experts admitted that the spray could have been the product of a sneeze or cough, one concluded that this possibility seemed unlikely while the other concluded that it was merely possible.Id.
Another expert testified regarding gunshot residue found on Rhoshima, petitioner's right and left gloves and hands, petitioner's dark blue jacket, and the headrests of the car the victims were found dead in. Id. slip op. at 7-8. Unique gunshot residue particles were found on Rhoshima, petitioner's right and left gloves, the headrests, and petitioner's jacket. Id. slip op. at 8. Particles consistent with, but not unique to gunshot residue, were found on petitioner's right hand. Id. The same kinds of particles were found on Willie Williams' hands. Id. No such particles were found on petitioner's left hand. Id.
"A former police officer who had been assisting the district attorney with this case, District Attorney Inspector Lynne Breshears, had observed [petitioner] to see which hand he used when writing; he appeared to be left handed." Id. slip op. at 9.
The court then described testimony and evidence presented by the defense. Pertinent parts of that description are as follows:
Maureen Hamby, an employee at a pistol range in San Leandro, produced records which showed that [petitioner] had visited and used the range in March and August of 1996.
Alibi witness Abdul Jalil testified that [petitioner] arrived at his house at 11:00 p.m. on the evening of the shootings. The two grown men remained there, watching the video of Disney's Lion King show, for about one and a half times, because it was "cute," until roughly 2:00 a.m. [Petitioner] then left the house. Jalil never mentioned this fact to anyone before March 21, 2000, about one month before his testimony at trial. He had not mentioned [petitioner's] presence at his house earlier because [petitioner's] mother advised him the lawyers were handling the case and he was scared. Because [petitioner's] son had been killed, Jalil thought that "somebody" would also try to harm him. Jalil had known [petitioner] since he was born, and was a friend of [petitioner's] grandfather; [petitioner] called Jalil "uncle." He had visited [petitioner] while he was in custody.
Pauline Gaffey, recalled by the defense, offered that she recovered a steak knife and a nightstick in Rhoshima's car following the shootings. There were no signs she had used either weapon to defend herself, and no fingerprints were found on the knife or nightstick.
Willie Paul Williams was recalled to further explain circumstances surrounding his arrest for kidnaping several years earlier. In particular, he acknowledged lying to the police regarding his involvement in the kidnaping at the time. Williams was not prosecuted for that offense.
[Petitioner's] mother, Purnima Devi Singh (Purnima), testified he lived with her in a house on Addison Street in Berkeley, where she also ran a child care center. At some time in the past Purnima had seen Rhoshima wearing [petitioner's] jacket. On cross-examination, Purnima admitted she had not told the police about seeing Rhoshima wearing [petitioner's] jacket, and she denied asking Leslie Lelaind not to speak to the authorities, or to provide a false alibi for her son.Id. slip op. at 9-10.
IV. THE RELEVANT EVIDENTIARY RULING
At trial, petitioner attempted to put into evidence a tape-recorded phone message purported to be a confessional third-party statement against penal interest. Reporter's Transcript (RT) 413-14; 3139-40; 5139-41. The trial court ultimately ruled that the statement was unreliable and therefore inadmissible. RT 5141. Petitioner argues that there existed various indicia of trustworthiness ignored by the trial and appellate courts, that the state courts erred in concluding that the statement was unreliable, and that the error was one of constitutional proportions. A brief description of the message at issue, and of the pertinent rulings, will be of some help in evaluating these claims.The message, left at the victim's mother's hair salon a few days after the murders and after Petitioner's arrest, consisted of "an unknown person with a disguised voice" stating "I killed Rhoshima, Ha, Ha, Ha." Singh, slip op. at 10. In addition, the unknown person appears to have uttered some numbers on the recording. As described by petitioner's counsel at the trial stage, ". . . the police report it says `call 568-4418' but if you listen to the tape there is a missing 1 — I don't think 1 is really there, so we have a 568-448 partial number." RT 3139-40. Police and defense attempts to link the number to a person were unsuccessful. Petitioner's counsel argued that the message, although hearsay, was a statement against interest by a witness rendered unavailable. RT 3140.
Petitioner argues that the unidentified caller actually referred to victim Rhoshima as "Shima," a nickname, petitioner asserts, "known only to close family and friends." Petitioner asserts that this is another piece of evidence suggesting the inherent reliability of the message. While petitioner's counsel once related to the court that he (counsel) heard "Shima" on the message, see RT 3106, the trial judge heard "Rhoshima." RT 414. The police report concerning the call also reported the message as contained reference to Rhoshima, not "Shima." RT 3139. Thus, the record as a whole strongly suggests that the caller referenced the victim's full name. Moreover, the appellate court accepted as fact the caller's use of the victim's full name.See Singh, slip op. at 13. A district court must presume correct any factual determination made by a state court unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The presumption attaches even if the state appellate court, and not the trial court, determines the fact. Sumner v. Mata, 449 U.S. 539, 546-47 (1981). The trial record itself establishes that the message is, at best, susceptible to either description, and thus cannot amount to clear and convincing evidence of petitioner's claim. There is no other evidence to support petitioner's claim. This Court, therefore, cannot disturb the factual determination of the state appellate court.
At trial, petitioner's counsel noted that the police had phoned "568-4418" and had determined that the number belonged to Linares Truck Company, but that their own research had revealed that there was "no such thing as the Linares Truck Company and it didn't exist in 1996." RT 3140.
After listening to the message and allowing the parties to present their arguments on several occasions, the trial judge ruled that the message be excluded as evidence. In ruling, the judge stated that the message is "inherently unreliable evidence, untrustworthy, quite apart from any unavailability problems or foundation problems . . ." RT 5141.
Petitioner relied in part on the trial court's exclusion of the message to support his appeal. Petitioner advanced essentially the same argument in state court as he does in support of the instant petition, i.e., that the trial court abused its discretion and violated his federal constitutional rights by refusing to allow the message into evidence. The Court of Appeal upheld the trial court's decision, finding that it was reasonable to exclude the message as unreliable hearsay, that the decision did not violate petitioner's constitutional rights, and that, even assuming error, the decision was harmless when viewed in light of the compelling evidence of petitioner's guilt. Singh, slip op. at 12-15. The appellate court did not, however, discuss the apparent attempt by the caller to leave a phone number; nor did it contemplate the evidentiary significance of such an attempt. As already noted, the California Supreme Court summarily dismissed petitioner's appeal.
V. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this habeas action under 28 U.S.C. § 2254 and 28 U.S.C. § 1331. Venue is proper because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).
VI. EXHAUSTION
State prisoners who wish to make a collateral challenge using habeas proceedings to either the fact or length of their confinement are first required to exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c). Here, petitioner's petition for review by the California Supreme Court was rejected on April 23, 2003, and no other direct review in state court remains. Accordingly, he has satisfied the exhaustion requirement.
VII. PETITIONER'S CLAIMS
In support of his petition, petitioner argues that the trial court's exclusion of the phone message confession violated his Fourteenth Amendment right to due process. Because some discrepancy exists as to whether the unidentified person left a phone number on the message, thereby leaving some means of identification, petitioner has additionally requested that an evidentiary hearing be held so that the message can be put into evidence and so this Court may fully consider whether the caller attempted to leave a number and whether such an attempt has any evidentiary significance.
VIII. STANDARD OF REVIEW
The Court may review a petition for writ of habeas corpus filed by a state prisoner challenging his state court conviction. 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petition will not be granted with respect to any claim adjudicated on the merits in state court proceedings unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(1) and (2).
A state-court decision is contrary to clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth" by the Court or if it "confronts a set of facts . . . materially indistinguishable from a decision of [the Court] and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Otherwise, habeas relief may be granted if the reviewing court determines that the state court decision constitutes an " unreasonable application of clearly established federal law, or [is] based on an unreasonable determination of the facts." Early v. Packer, 537 U.S. 3, 11 (2002) (per curium) (emphasis in original) (internal quotations omitted). Something more is needed than a finding of clear error. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, the reviewing court must conclude that the state court's application of federal law is "objectively unreasonable" in order to grant habeas relief.Id.
The only definitive source of "clearly established" federal law is Supreme Court precedent. Williams, 529 U.S. at 413. Moreover, the standard of review in habeas proceedings is "highly deferential" to the state courts, and often will demand that the state court "be given the benefit of the doubt." Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997);Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curium).
For purposes of review, the applicable state court decision here is the decision of the California Court of Appeal denying petitioner's direct appeal. Although the California Supreme Court denied review of the petitioner's appeals, it did so without comment or discussion. In these circumstances, a reviewing court must look beyond the summary denial to the last reasoned decision as the basis for the state court's judgment. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).
IX. DISCUSSION AND CONCLUSIONS
A. An Evidentiary Hearing in this Matter is Unnecessary
As an initial matter, this Court has determined that petitioner's claims may be fully and properly considered without resort to an evidentiary hearing. "Before the enactment of the AEDPA, the decision concerning an evidentiary hearing with respect to a habeas petition was firmly committed to the discretion of the district courts, subject to some judicially-created limitations on that discretion." Baja v. Ducharme, 187 F.3d 1075, 1077-78 (9th Cir. 1999). The amendments contained in the AEDPA, by contrast, limit the power of a federal court to grant an evidentiary hearing. The statute provides that a district court may not hold an evidentiary hearing on a claim for which the petitioner failed to develop a factual basis in state court unless petitioner fits his claims into certain specified, limited exceptions. See 28 U.S.C. § 2254(e)(2).
A prisoner "fails" to develop the factual basis of a claim, triggering § 2254(e)(2), if "there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000). If the petitioner has not failed to develop the facts in state court, the district court may proceed to consider whether a hearing is appropriate, or required under Townsend v. Swain, 372 U.S. 293 (1963), modified by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Baja, 187 F.3d at 1078. That an evidentiary hearing is permitted does not, however, mean that a hearing is required. Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). The district court retains discretion whether to hold such an evidentiary hearing. See id. (noting that expansion of the record may obviate the need for a hearing). Where the issues presented can be resolved by reference to the state court record, an evidentiary hearing is not required. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). Moreover, a hearing is not required where "substantial unchallenged evidence of guilt exists" and where the facts alleged would still not entitle petitioner to relief.Karis v. Calderon, 283 F.3d 1117, 1126-27 (9th Cir. 2002).
A federal evidentiary hearing is mandatory if: (1) petitioner's allegations, if proven, would establish the right to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. See Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995),cert. denied, 516 U.S. 1124 (1996); Jeffries v. Blodgett, 5 F.3d 1180, 1187 (9th Cir. 1993), cert. denied, 510 U.S. 1191 (1994). In these circumstances, a petition may be dismissed without a hearing only when it consists solely of conclusory, unsworn statements unsupported by any proof or offer thereof.Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). Still, an evidentiary hearing is not required where "`there are no disputed facts and the claim presents a purely legal question.'"Williams, 52 F.3rd at 1484 (quoting Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).
Here, petitioner seems to have been sufficiently diligent in developing the facts he now seeks to introduce through an evidentiary hearing. Although petitioner does not appear to have requested an evidentiary hearing, the evidential significance of the message was argued before the trial judge on several occasions, the judge listened to the message in open court, and the police report concerning the call describes it in some detail and corroborates the suggestion that the unidentified caller attempted to leave a phone number. In short, the record describes the call with specificity.
Nevertheless, this Court concludes that an evidentiary hearing is neither required by law or by the nature of petitioner's claims. This is not a case governed by the Townsend standard. As discussed infra, the presence of a phone number on the message would not have overcome the unreliable nature of the message. Nor would it have refuted the substantial, unchallenged evidence of guilt contained in the record. In other words, petitioner's factual claim, if taken as true, would probably not have led to acquittal. Jeffries v. Blodgett, 5 F.3d 1180, 1187-88 (9th Cir. 1993), cert. denied, 510 U.S. 1191 (1994).
Insofar as an evidentiary hearing is not mandatory underTownsend, the decision whether to hold the hearing is left to the discretion of the district court. Downs, 232 F.3d at 1041. Here, the issue presented is susceptible to resolution based on the state court record alone. The call was described in detail by petitioner's counsel, and both counsel's comments and the police report suggest that the caller attempted to leave a phone number. Therefore, an evidentiary hearing is not required to resolve petitioner's claims. Totten, 137 F.3d at 1176. Moreover, and as discussed in more detail infra, the substantial, unchallenged evidence of petitioner's guilt is not overcome by the fact that the phone message included an incomplete contact number. Because the facts alleged would not entitle petitioner to relief, there is no need for a hearing.See Karis, 283 F.3d at 1126-27.
For the reasons stated above, Petitioner's request for an evidentiary hearing is denied.
B. The Exclusion of the Message Did Not Amount to Constitutional Error
As explained by the court of appeal, the trial court had to consider the phone message in light of California Evidence Code section 1230. Evaluation of the trustworthiness of a statement against interest often revolves around whether the declarant realizes "`that the statement . . . was distinctly against his penal interest'" and may therefore lead to some ill consequence. Singh, slip op. at 12 (quoting People v. Johnson, 39 Cal. App. 3d 749, 761 (1974) (emphasis omitted)). In determining whether to admit such a statement, the court may take into account the circumstances under which is was uttered, the possible motivations of the declarant, and the relationship between the declarant and the defendant. Id. (citing People v. Cudjo, 6 Cal. 4th 585, 607 (1993)).
The pertinent section reads as follows:
Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or crated such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.
Cal. Evid. Code § 1230 (West 1999).
The court of appeal upheld the trial court's exclusion of the message as inherently unreliable largely due to the fact that the caller was anonymous and unidentifiable. In these circumstances, the caller would not have expected to face penal consequences for "confessing." Therefore, the statement could not be viewed as reliable or trustworthy. See id. at 13-14. Petitioner refutes this conclusion insofar as the caller attempted to leave an identifying phone number and, thus, must have realized that penal consequences could follow from the confession. Because the trial record suggests that the caller did attempt to leave a phone number, see RT 3139-40, the Court assumes that the tape contained evidence of a failed attempt to leave a contact number.
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See 28 U.S.C. § 2254(a); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). The defendant must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." See id.; see also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (it is clearly established federal law that when a trustworthy hearsay statement is critical to the defense, the exclusion of the statement may rise to the level of a due process violation).
The first step in analyzing petitioner's claim is to determine whether the state courts' application of state evidentiary law resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law. If so, the Court must then determine whether the error was "objectively unreasonable." See DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001).
The Supreme Court has established that the exclusion of hearsay statements that are critical to the defense and that bear "persuasive assurances of trustworthiness" may rise to the level of a due process violation. Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see also Chia, 360 F.3d at 1003; DePetris, 239 F.3d at 1062. A court must ensure that the defendant has a full opportunity to defend himself against the state's accusations. Chambers, 410 U.S. at 294; Chia, 360 F.3d at 1003. That opportunity must not be frustrated by a mechanistic application of state evidentiary law. Chambers, 410 U.S. at 302; Chia, 360 F.3d at 1006. The state appellate court's decision must be measured against these clearly established principles of federal law.
At bottom, the inquiry as to whether the trial court's exclusion of the message rose to the level of a due process violation depends on balancing the importance of the taped message to petitioner's defense with the state's interest in excluding it. Chia, 360 F.3d at 1003. The Court considers (1) the probative value of the taped message on the central issue; (2) the reliability of the message; (3) whether the message is capable of evaluation by the trier of fact; (4) whether the message is the sole evidence relating to the issue; and (5) whether the message constitutes a major part of the attempted defense. Id. at 1004; Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000); Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985). Application of the five-part balancing test to the instant matter weighs against finding a due process violation.
A confession by a third party to the crime charged is obviously probative to the central issue of guilt beyond a reasonable doubt. Thus, the first prong of the test weighs in favor of petitioner. The unreliability of the message confession, however, seriously calls its value into question. Even assuming the caller attempted but failed to leave a contact number, the caller remained anonymous insofar as the voice was unrecognizable and no name was left. See Singh, slip op. at 13. Indeed, petitioner's counsel admitted at trial that the numbers left did not constitute "a real phone number" and that it was "impossible" to determine who the caller was for purposes of determining availability. RT 3140. Thus, not only were the state courts unable to determine who the caller was, but they were wholly precluded from considering the caller's motivations, relationship to the petitioner, and other key aspects concerning trustworthiness and reliability.
Petitioner asserts that police investigators' efforts to follow up on the phone message were truncated and ineffective. In view of the nature of the call, however, it is not clear what steps police investigators could have taken to determine the origin of the call, and petitioner fails to suggest methods that should have been employed. Indeed, petitioner's counsel admitted that it was impossible to determine the identity of the caller. This claim is without merit.
While assuming that the caller did in fact attempt to leave a contact number corroborates the reliability of the statement to a degree, the "persuasive assurances of trustworthiness" standard requires more. In Chia, for example, the out-of-court statements found by the Ninth Circuit Court of Appeals to be sufficiently reliable were iterated on several different occasions and to several different persons. Chia, 360 F.3d at 1001. Moreover, each of the declarant's statements were consistent with his prior statements, and the content was consistent with observations made independently by law enforcement officials. Id. Similarly, the statements at issue in Chambers were uttered on different occasions to different individuals and were corroborated by independent evidence.Chambers, 410 U.S. at 292-94.
Here, we have one instance in which an anonymous caller left a message laying claim to the purported crimes. The only corroborating evidence supporting the reliability of the message is the fact that the caller attempted but failed to leave a contact number. Not only did the caller fail to leave his name, but it is admitted that the voice was disguised. See RT 3139; 5139. The very nature of the message precludes evaluation of the trustworthiness of the speaker and, hence, the reliability of the statement. In short, parts two and three of the balancing test weigh decidedly against petitioner.
Parts four and five of the test are more mixed. What the taped confession goes to more generally is whether a person other than petitioner committed, or may have committed, the crime. In regard to this issue, the message is not the only evidence in the record. During trial, for example, petitioner's counsel, recalled Willie Paul Williams — victim Rhoshima's then-current boyfriend — to testify about his involvement in a kidnaping some years prior to the murders. Singh, slip op. at 9. It was brought out that Williams had been convicted brandishing a firearm two years prior, and of assault and battery 10 years prior. Id. Williams was also aware of Rhoshima's pregnancy, id., and tests of Williams hands revealed residue consistent with, but not unique to, gunshots. Id. slip op. at 8. Clearly, petitioner was demonstrating that at least one other individual — namely, Williams — had motive and opportunity to commit the crime. So, although the taped message was the only direct evidence of a third-party confession to the crime, there was other evidence on record to suggest someone else could have committed the crime. Because the message was not the only evidence relating to whether someone other that petitioner may have committed the crimes, part four tips slightly against petitioner.
In contrast, part five tips slightly in favor of petitioner. While petitioner was able to put on competent evidence attacking several of the State's witnesses, providing petitioner with an alibi, and suggesting that Williams had motive and opportunity to commit the crime, a third-party confession would be of obvious import to any criminal defense. At the same time, the unreliable nature of the message renders it an important, but by no means dispositive, element of the defense. Part five of the test, then, weighs slightly in favor of petitioner.
As the discussion above demonstrates, the five-part test suggests that the court had an appreciable and important interest in excluding the taped message as inherently unreliable evidence, and that petitioner's interest in having the message accepted as evidence did not outweigh the court's interest. Even assuming that the caller attempted to leave a contact number, the taped message simply did not bear the persuasive assurances of trustworthiness demanded under federal law. In light of the balancing of interests here articulated, and of the nature of the evidence in question, the appellate court's decision to affirm the trial court's exclusion of the message was not a "mechanistic" application of state evidentiary law, but was a reasoned and justifiable determination based on the facts presented. The decision was not "objectively unreasonable." Cf. Chia, 360 F.3d at 1006-07 (concluding that the exclusion of reliable out-of-court statements critical to petitioner's defense amounted to a mechanistic application of state hearsay rules and was objectively unreasonable in light of Chambers). Therefore, petitioner's habeas request must be denied.
C. Assuming the Presence of Constitutional Error, that Error was Harmless
Assuming that the appellate court's exclusion of the message should be viewed as erroneous and objectively unreasonable, thus constituting constitutional error, petitioner's request must still fail on the grounds that the error was harmless.
Once a reviewing court determines that the exclusion of evidence by a state court constituted constitutional error, the court must then apply the Brecht standard to determine whether that error was harmless. Habeas relief is warranted only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also DePetris, 239 F.3d at 1061. In other words, state prisoners are not entitled to habeas relief unless the error resulted in "actual prejudice." Brecht, 507 U.S. at 637 (citation omitted); see, e.g., Coleman v. Calderon, 210 F.3d 1047, 1051 (9th Cir. 2000) (finding Brecht prejudice where "at the very least" the court could not "`say with fair assurance . . . that the judgment was not substantially swayed by the [instructional] error.'") (citation omitted).
The proper question in assessing harm in a habeas case is, "`Do I, the judge, think that the error substantially influenced the jury's decision?'" O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (citation omitted). If the court is convinced that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. Id. at 437. If, on the other hand, the court is not fairly assured that there was no effect on the verdict, it must reverse. Id. In the course of this inquiry, the state bears the "risk of doubt." Payton v. Woodford, 346 F.3d 1204, 1217 (9th Cir. 2003) (en banc) (citations omitted). The court should look to the state to instill in the court a "fair assurance" that there was no effect on the verdict. Id.
A review of the record in this case convinces the Court that any error assignable to the state courts' exclusion of the taped message was harmless. The appellate court summarized the evidence of petitioner's guilt as follows:
Inculpatory evidence would include [petitioner's] pre-homicide statements to the effect that he wanted to kill Rhoshima and avoid payment of child support, which he felt would interfere with his ambitions to become a lawyer. After receiving blood test results positively identifying him as the father of Rhoshima's child, [petitioner] lured both Rhoshima and the child from their residence to attend a late night meeting, from which they never returned. [Petitioner] was unavailable by pager during the period of the homicides; and he returned, carrying a handgun, to his new girlfriend's apartment after the homicides took place. The jacket [petitioner] wore that evening was later determined to be spattered with blood and body tissue, which matched Rhoshima. He erased his pager and tried to concoct a false alibi involving his new girlfriend. When she refused, [petitioner] relied on an implausible, newly formed alibi, suggesting he was watching a children's film with his "uncle," after midnight when the killings occurred. [Petitioner] likewise made statements to the investigating officers that proved to be damaging, and he was unable to dispute, in any significant manner, the forensic evidence linking him to the crime.Singh, slip op. at 15.
As the appellate court explained, "the compelling evidence of [Petitioner's] guilt . . . and the obvious weakness of the proffered third party culpability evidence" simply does not support a finding of prejudice to Petitioner. The presence on the message of an incomplete contact number did not convert it into reliable evidence sufficient to overcome the evidence of guilt. This Court is convinced that the introduction of the taped message into evidence would not have swayed the jury from their ultimate decision. Therefore, the "error" of not allowing the phone message into evidence could not have had a substantial or injurious effect on the jury's verdict. Brecht, 507 U.S. at 637-38.
Petitioner emphasizes that the jury deliberated for six days before reaching a verdict, and that it was largely circumstantial evidence that supported the conviction. That it took the jury six days to reach a verdict may demonstrate nothing more than the gravity of the decision with which they were charged. At any rate, it would amount to mere speculation to assume that six days of deliberation necessarily meant that the case was close on the merits. Insofar as the conviction seems supported largely by circumstantial evidence, such evidence may be sufficient to find guilt beyond a reasonable doubt. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995); see also Holland v. U.S., 348 U.S. 121, 139-40 (1954) (finding unnecessary an instruction in addition to the reasonable doubt instruction requiring jurors to disregard circumstantial evidence if they cannot rule out every reasonable hypothesis other than guilt). Here, the circumstantial evidence was plentiful and especially damning. Acceptance of the relatively unreliable taped message as evidence would not have swayed the jury from its verdict.
If a state court disposes of a constitutional error as harmless under an appropriate standard of review, the federal court must, for purposes of application of the "unreasonable application" clause of § 2254(d)(1), first determine whether the state court's harmlessness error analysis was objectively unreasonable. Medina v. Hornung, 386 F.3d 872, 878 (9th Cir. 2004). If the federal court determines that the state court's harmless error analysis was objectively unreasonable, and thus an unreasonable application of clearly established federal law, the federal court then proceeds to the Brecht analysis. Id. at 877. Here, the appellate court determined first that there was no constitutional error and thereafter disposed of the assumed error as harmless, citing Chapman v. California, 386 U.S. 18, 24 (1967). See Singh, slip op. at 12-15. Chapman describes the analysis as requiring proof of harmlessness beyond a reasonable doubt — a stricter standard than that applied by the Brecht court but a standard appropriately invoked on direct review.See, e.g., Medina, 386 F.3d at 878. Because the appellate court's harmlessness analysis comported with the appropriate Federal standard of review, an initial determination of whether that analysis was objectively unreasonable would seem appropriate. Id. at 878. At the same time, the appellate court's harmlessness analysis appears to have constituted an alternative basis for its determination. Assuming that this Court is required initially to determine whether the state court's harmlessness analysis was objectively unreasonable, the Brecht analysis makes clear that the appellate court's determination of harmlessness was well-reasoned and not objectively unreasonable.
For all the reasons set forth above, Petitioner's request for habeas corpus relief is hereby denied.