Opinion
No. C 01-3697 VRW (PR)
February 25, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a State of California prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on January 2, 2002, the court found that the petition, when liberally construed, appeared to contain colorable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
STATEMENT OF THE CASE
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of first degree burglary and assault with a deadly weapon following a trial at which he represented himself. The jury also found true special allegations that petitioner had used a deadly weapon and had inflicted great bodily injury, and petitioner admitted having suffered two prior prison terms. On May 27, 2000, the court sentenced petitioner to 11 years and 4 months in state prison.
Petitioner appealed and was appointed counsel on appeal. On April 10, 2001, the California Court of Appeal struck the one-year enhancement petitioner had received for using a deadly weapon, but otherwise affirmed the judgment of conviction. (Petitioner's sentence consequently was reduced from 11 years and 4 months to 10 years and 4 months.) On June 20, 2001, the Supreme Court of California denied review.
Petitioner also filed, this time in pro per, a petition for a writ of habeas corpus in the California Court of Appeal. It was denied on April 10, 2001, and, on June 20, 2001, the Supreme Court of California denied review. Petitioner filed a pro se petition for a writ of habeas corpus in the Supreme Court of California on May 16, 2001. It was denied on June 27, 2001.
The instant petition for a federal writ of habeas corpus followed.
STATEMENT OF FACTS
The California Court of Appeal summarized the facts of the case:
[Petitioner's] girlfriend, Ernestine Macklin, lived at the Palms Hotel in Oakland. [Petitioner] spent time with Macklin at the hotel; however he did not live there.
On September 19, 1999, Ronald Armstrong was working as a security guard at the Palms. The manager of the hotel, Darrell Ellis, had told Armstrong that [petitioner was not allowed to enter because he had caused problems in the past.
Around 12:45 a.m. that morning, [petitioner] came to the Palms and demanded to see Macklin. When Armstrong refused to let him in, [petitioner] pushed the door open, and rushed toward Armstrong. Armstrong wrestled with [petitioner] and managed to push him outside.
[Petitioner] went to his car and retrieved a knife. He returned to the hotel, kicked the door open, and rushed toward Armstrong. Armstrong sprayed [petitioner] with mace. [Petitioner] left the hotel, got into his car, and drove away.
Armstrong went upstairs to wash the mace off his hand. He asked two residents, Bradley St. Claire and Kevin Smith, to watch the front door while he was gone. They agreed. While they were watching the door, Macklin came down from her room.
A few minutes later, [petitioner] returned with a knife in his hand. He again kicked the door open. Afraid, Macklin fled upstairs. [Petitioner] ran after her, shouting he was going to "kill" her. St. Claire tackled [petitioner] and pulled him down the stairs. [Petitioner] then attacked St. Claire with his knife. St. Claire tried to defend himself with a chair, but [petitioner] was able to stab him twice. Eventually, St. Claire pushed [petitioner] out the front door.People v. Thompson, No. A090663, slip op at 1-2 (Cal.Ct.App. Apr. 10, 2001) Resp't Ex E).
DISCUSSION
A. Standard of Review
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
"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 [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed — in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2002).
The only definitive source of clearly established federal law under
28 U.S.C. § 2254 (d) is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, No. 00-16727, slip op 1037, 1047 (9th Cir. Jan. 23, 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, "only the Supreme Court's holdings are binding on the state courts and only those holdings need be `reasonably' applied." Van Tran, 212 F.3d at 1154.
Where the state court does not articulate a rationale for its decision, a federal court must conduct "an independent review of the record" to determine whether the state court "clearly erred" in its application of controlling Supreme Court precedent. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
B. Claims
Petitioner's claims are difficult to decipher from the hodgepodge of grievances strewn throughout the petition. Respondent has nonetheless commendably and fairly discerned the essence of the petition into five general claims: (1) denial of right to self-representation because court-appointed investigator was incompetent; (2) unconstitutional conviction for burglary because petitioner was a resident of the Palms Hotel at the time of the offense; (3) denial of right to cross-examine a witness; (4) denial of an expert witness to testify about the effects of mace; and (5) refusal of state appellate court to consider petitioner's pro per supplemental brief.
1. Court-appointed investigator
Petitioner claims that "his federal and state constitutional rights to self representation were violated, when the court appointed investigator failed to timely produce information to the petitioner which he requested in advance of his criminal trial, which if timely produced, would have changed the outcome of his criminal trial." Pet at 6. Among other things, petitioner alleges that the court-appointed investigator failed to provide him with advance "written" witness statements and background reports to help him better prepare for trial.
Put simply, petitioner's claim is that he was denied his constitutional right to self-representation under Faretta v. California, 422 U.S. 806 (1975), because he was "denied effective assistance of an investigator." Pet at 14. Unfortunately for petitioner, there is no Supreme Court authority establishing or recognizing a constitutional right to effective assistance from an investigator, as required by 28 U.S.C. § 2254 (d). See, e.g., Clark v. Murphy, No. 00-16727, slip op 1037, 1047 (9th Cir. Jan. 23, 2003) (only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is holdings of U.S. Supreme Court).
To be sure, there is a 1984 case from the United States District Court for the Southern District of New York in which the court held an investigator "to the same constitutional standard of care as a court-appointed attorney." Stubbs v. Thomas, 590 F. Supp. 94, 100 (S.D.N.Y. 1984). The district court reasoned that the right to effective assistance of counsel encompasses the right to adequate investigation and preparation, and that right may not be defeated by delegating investigative duties to someone other than counsel. See id.
Stubbs is of no consequence in these proceedings because it is not Supreme Court authority. Under § 2254(d), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. See Clark, slip op at 1047-48; Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000). In addition, the holding in Stubbs was premised on the fact that the petitioner was represented by counsel and therefore had a right to effective assistance of counsel. As the district court put it, the petitioner's right to effective assistance of counsel could "not be defeated by delegating investigative duties to someone other than counsel." Stubbs, 590 F. Supp at 1000. Here, petitioner elected to represent himself at trial and therefore cannot now make a claim of ineffective assistance of counsel. See Faretta, 422 U.S. at 834-35 n. 46 ("[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'").
Petitioner is not entitled to federal habeas relief on this claim because it cannot be said that the state courts' rejection of the claim was contrary to, or an unreasonable application, of Supreme Court precedent. See 28 U.S.C. § 2254 (d). Nothing in Faretta or subsequent Supreme Court authority qualifies the right to self-representation with a parallel right to effective assistance from a court-appointed investigator.
It also should be noted that, even if petitioner could state a federal habeas claim of ineffective assistance from his investigator, the record does not factually support such a claim. At petitioner's request, the trial court appointed an investigator to assist him in preparing his case. The investigator was to assist petitioner in interviewing witnesses, serving subpoenas, taking pictures of the crime scene, and obtaining transcripts of "911" calls and dispatch tapes. Petitioner was nonetheless dissatisfied with his investigator from the beginning and complained of him constantly to the court, refused to cooperate with him unless it was in open court, and claimed that the investigator failed to undertake certain tasks despite evidence in the record that the tasks had been completed. The trial judge painstakingly ensured that petitioner still received assistance from the investigator and, on the record, had the investigator appear in court almost daily to explain the progress of his investigation. The judge assisted communication between petitioner and the investigator, and made sure that all tasks that reasonably could be completed by the investigator were in fact completed. Repeatedly, the judge found that the investigator had complied reasonably with petitioner's requests and that petitioner's complaints about the investigator's performance were baseless. See, e.g., Rep Tr. at 118 (Resp't Ex A) (the court: "I just want to make a record so that you have no complaints that your requests for investigation have been met."); id. at 119 (the court addressing petitioner's complaints that the investigator had failed to subpoena witnesses: "He has in fact done that. So don't give me any more of this stuff about him not working for you."); id. at 755 (the court addressing petitioner's complaint, after trial, that he was denied an investigator: "That is untrue, sir. You were granted an investigator and Mr. Cross was appointed . . . to investigate for you. Your representation is false, sir."); see also Mar. 27, 2000 Rep Tr. at 6-7 (the court, in rejecting petitioner's motion for a new trial, specifically rejects petitioner's complaints that the investigator failed to provide relevant information to him).
The court is satisfied, as was petitioner's appellate counsel, that "nothing in the record indicate[s] deficient performance on [petitioner's] investigator's part." Letter from Howard Specter to Petitioner (Nov. 16, 2000) (Resp't Ex O) (explaining why counsel will not make a claim on appeal that petitioner as provided with an inadequate investigation). Nor does anything in the record, contrary to petitioner's assertions, indicate that there is a reasonable probability that, but for the investigator's alleged deficient performance, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
2. Residency at the Palms Hotel
Petitioner claims that "his conviction for burglary is unconstitutional and must be reversed, because the petitioner was a lawful paid resident at the time of the offense, and is factually impossible of being guilty of the charge because he was at all times in constructive possession, and could not commit burglary of his own residence." Pet at 16. He specifically contends that "the failure of the court to allow the petitioner to argue that a resident could not be alleged in violation of the right to possession, and the conduct of the security persons was in violation of clearly established Federal and state laws." Id.
The Sixth Amendment affords a defendant in a criminal trial the right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The Supreme Court has made clear that the erroneous exclusion of critical defense evidence may violate the Sixth Amendment right to present a defense, as well as the due process right to a fair trial. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers, 410 U.S. at 294, and Washington v. Texas, 388 U.S. 14, 18-19 (1967)). Petitioner's claim that the trial court did not allow him to argue that he was a resident of the Palms Hotel is belied by the record, however.
Throughout his trial, petitioner maintained that he was a legal resident of the Palms Hotel at the time of the assault. The manager of the hotel, Darell Ellis, testified that petitioner was not a resident and that he had in fact given specific instructions that petitioner not be allowed to enter the hotel. See Rep Tr. at 494, 496, 522 (Resp't Ex A). Petitioner tried to counter Ellis's testimony with the testimony of others, including his girlfriend, Ernestine Mackin. See, e.g., id. at 527-28. Unfortunately for petitioner, no witness (including himself) was able to disprove in the eyes of the jury the hotel manager's testimony that petitioner was not a resident. As the prosecutor pointed out in his closing argument, petitioner presented no credible evidence such as a lease showing that he was a resident of the Palms Hotel. See id. at 641, 725.
See also Rep Tr. at 449 (the court: "So far, I believe I have had two to three witnesses testify that you were not a resident.").
Petitioner is not entitled to federal habeas relief on this claim because it cannot be said that the state courts' rejection of the claim was contrary to, or an unreasonable application, of Supreme Court precedent. See 28 U.S.C. § 2254 (d). Petitioner's continued insistence that he was a resident of the Palms Hotel (still without additional proof) does not compel a different result. See Milton v. Wainwright, 407 U.S. 371, 377 (1972) (federal habeas courts "do not sit to retry state cases de novo but, rather, to review for violations of federal constitutional standards").
To whatever extent petitioner contends there was insufficient evidence to support his burglary conviction, the claim is unexhausted and dismissed under 28 U.S.C. § 2254 (b)(2) because, after viewing the evidence in the light most favorable the prosecution, it cannot be said that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979).
3. Denial of right to cross-examine a witness
Petitioner's third "cause of action" is entitled: "The petitioner contends that the trial court violated his state and federal constitutional rights under the 5th, 6th, and 14th Amendments when the court did not allow petitioner to cross-examine the promised defense witness Annette Lie." Pet at 31. Although the heading of the claim only refers to Annette Lie, the claim itself contains an assortment of complaints, including that petitioner's defense was built on the expected testimony of Ms. Lie and the fact that she did not testify means that the trial was unfair, that his investigator failed to give him the contents of "911" and dispatch tapes in time for him to prepare for trial, that the trial court made promises to petitioner regarding witnesses and evidence that the trial court did not keep, and that the trial court erred in ruling that the testimony of one of the treating nurses, Mary Malcolm, was cumulative. See id. at 31-39.
Petitioner's claim that the trial court did not allow petitioner to cross-examine Ms. Lie is without merit. Prior to trial, petitioner, through the trial court, gave his investigator a list of witnesses that he wanted subpoenaed for trial. One of those witnesses was a woman named Annette Lie who was the manager of the hotel "complex" and the person who called "911" to report that petitioner was trying to break into the hotel. See Rep Tr. at 357-58. The investigator tried to locate Ms. Lie several times, but was unable to do so. On December 16, 1999, on the eve of trial, he informed the court that "Ms. Lie is out of town on vacation and no one will tell me where she is. . . ." Id. at 258. On December 20, 1999, during trial, the court again asked the investigator about his efforts to locate Ms. Lie.
MR. CROSS: I have not been able to locate Ms. Lie. I go there and I am told constantly Ms. Lie is not around. I am receiving conflicting reports that she . . . is hiding out somewhere in the hotel.
THE COURT: I think we have done everything that we could possibly do. Thank you very much, Mr. Cross.
Id. at 400.
Contrary to petitioner's assertions, the trial court did not guarantee or promise that Ms. Lie would definitely be available to testify at trial. Nor did the trial court in any way preclude Ms. Lie from testifying. It was not the court's fault that Ms. Lie apparently avoided service of a subpoena. After all, the trial court, through its appointed investigator, made repeated efforts to secure Ms. Lie's testimony. That these efforts were ultimately unsuccessful did not amount to a violation of petitioner's constitutional rights. Cf. Taylor v. Illinois, 484 U.S. 400, 410 (1988) (right to compulsory process is not absolute).
Petitioner's claim that his investigator should have tried to find Ms. Lie earlier in the proceedings is without merit because petitioner has not shown that there is a reasonable probability that, had Ms. Lie testified, the result of the trial would have been different. Cf.Strickland, 466 U.S. at 694.
Petitioner's claim that he did not receive the contents of the "911" and dispatch tapes in adequate time is without merit. The record shows that after the jury returned its verdict, petitioner complained to the court that, among other things, his investigator had not given him the tapes. The court responded: "Mr. Thompson, I was sitting here and watched you receive those tapes, so that's an error." Mar. 27, 2000 Rep Tr. at 6. When petitioner continued to complain, the court added: "Wait a minute. You got the tape, Mr. Thompson. . . . Mr. Thompson, please. Mr. Thompson, we have been through this over and over and over again." Id. at 7. The trial court's determination is entitled to a presumption of correctness which petitioner has not overcome. See 28 U.S.C. § 2254 (e)(1) (district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence); see alsoBragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir), amended, 253 F.3d 1150 (9th Cir. 2001) (conclusory assertions insufficient to overcome § 2254(e)(1)'s presumption of correctness). It certainly cannot be said, applying a firm conviction standard, "that the determination made by the state court was wrong and that the one [petitioner] urges was correct."Torres v. Prunty, 223 F.3d 1103, 1108 (9th Cir. 2000) (citation omitted).
Petitioner's claim that the trial court erred in finding that the testimony of Nurse Mary Malcolm would be cumulative is also without merit. The record shows that petitioner sought to present the testimony of three nurses who treated him for injuries after the assault. The investigator had trouble locating them because petitioner could not identify them by name. Ultimately, one of the nurses was located and, on December 22, 1999, Antoinette Jenkins, a nurse at the Oakland City Jail, testified as a witness for petitioner. See Rep Tr. at 465. Ms. Jenkins mentioned that Ms. Malcolm was the first nurse to have examined petitioner. See id. at 467. Unfortunately, the trial court noted that it had attempted to secure the testimony of Ms. Malcolm for petitioner, but that Ms. Malcolm was out of California and therefore was unavailable for trial. The court was nonetheless successful in securing the testimony of the third nurse. See id. at 468. That nurse, Raufat Ikharo, testified as a witness for petitioner. See id. at 567. In addition, the prosecutor agreed to allow the notes in a log written by Ms. Malcolm to be read into the record by Ms. Jenkins without objection. See id. at 468. The court accordingly noted that, based on the expected testimony of the two nurses and the log notes of Ms. Malcolm, the actual testimony of Ms. Malcolm, even if she was available, "would be cumulative." Id. The trial court did not err in excluding testimony it reasonably deemed cumulative (not to mention unavailable). See Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990).
Importantly, none of petitioner's complaints against the trial court and his court-appointed investigator under the heading of claim three warrant habeas relief because the record does not demonstrate that any of the alleged errors "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). The record makes clear that the evidence against petitioner was overwhelming: Bradley St. Claire (the victim), Kevin Smith and Ray Armstrong all testified that petitioner entered the Palms Hotel with the intent to assault Ernestine Macklin and that petitioner assaulted St. Claire with a knife. The court is satisfied that the alleged errors in claim three did not influence, or had only a slight effect, on the jury's verdict. Payton v. Woodford, 299 F.3d 815, 827-28 (9th Cir. 2002) (en banc).
4. Denial of an expert witness
Petitioner claims that "his federal and state constitutional rights were violated by the trial court when the court denied the services of an expert witness to testify about the effect of mace." Pet at 42. According to petitioner, the trial court's refusal to allow an expert to testify on the effects of mace on him after he was sprayed by the hotel's security guard violated his "6th and 14th amendment to Due Process and the right to present a defense." Id. at 43.
The record shows that prior to trial, petitioner asked the court to appoint an expert witness on the effects of mace. The court considered the request and denied it as unnecessary.
THE COURT: Mr. Thompson, you have filed a motion for an appointment of an expert on the issue of mace and the effect it had you at the time. . . . [¶] The appointment of an expert has to address a topic which is not a matter of common know edge, namely, usually it is a physician or a pathologist or a scientific expert, et cetera. I do not believe — and I have done some independent research that the effects of mace upon an individual, the research I have done indicates that we do not need an expert to testify to that.
THE DEFENDANT: Somebody testify to it — the reason why I say somebody got to testify it because it becomes a problem, you honor. The problem of me being able to establish what it did to me at the time of the incident because the incident is an important factor.
THE COURT: I don't need an expert, sir. I think we need — this probably can be derived from the testimony of a police officer because they are trained in that.
Rep Tr. at 101. Petitioner insisted that an expert was needed to testify as to the effect mace had on his vision and the "whole incident." Id. at 102. The court replied: "Sir, I think you're going to have to testify to that because that is an individualized reaction." Id. As petitioner persisted, the court suggested that any law enforcement official could probably testify as to the effects of mace and stated that it would contact a deputy who might be willing to testify. Id. at 104-05. The court then denied the motion for appointment of an expert. Id. at 105.
Later in the proceedings, the court revisited the issue after the prosecutor objected to "expert" testimony on the subject without a showing that the evidence supported the need for such testimony. The court asked petitioner to make an offer of proof on the issue. Id. at 271. Petitioner responded that an expert was necessary to show that petitioner needed to get into the hotel to wash his eyes with water after being sprayed with mace. Id. at 278. The court stated that petitioner did not need an expert for such testimony. Id. It then asked the prosecutor to stipulate that if a person's eyes are sprayed with mace, he would be temporarily blinded. The prosecutor agreed. Id. at 279. The court also stated that petitioner could testify that he wanted water to wash out his eyes. Id. The court then concluded that an expert was not needed:
We do not need an expert then because it is a stipulated fact by the prosecutor who will agree that this is not an issue, that an individual sprayed with mace is temporarily blinded.
Given that fact which will be read to the jury by me that this is an agreed-upon fact, you may testify that upon being sprayed with mace it was your desire to wash the substance out of your eyes. Given that, we do not need an expert.
Id. at 279-80.
Prior to petitioner's testimony, the court instructed the jury: "There is a stipulation, an agreement, that the effects of having mace or pepper spray sprayed into the face of an individual causes temporary blindness. That is an agreed-upon stipulation. You may consider that fact as evidence." Id. at 569.
Petitioner is not entitled to federal habeas relief on his claim that the trial court's refusal to allow an expert to testify on the effects of mace violated his federal constitutional rights. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court held that states must provide indigent defendants "access to a competent psychiatrist" in cases where "a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial." 470 U.S. at 83. In light of Ake, some lower courts have held that, since Ake spoke of providing indigent defendants with an adequate opportunity to present their claims fairly in the adversarial system, non-psychiatric experts should also be provided if the evidence at issue is both critical to the conviction and subject to varying expert opinion. See Moore v. Johnson, 225 F.3d 495, 502 (5th Cir. 2000). However, no such appointment of non-psychiatric experts is required under Ake itself, or any subsequent Supreme Court authority. See, e.g., Jackson v. Ylst, 921 F.2d 882, 886 (9th Cir. 1990) (rejecting claim regarding proposed expert on eyewitness identification because no such issue was presented to the Supreme Court in Ake and a holding by lower court that a state must appoint such an expert would impermissibly create a "new rule" imposing new obligations on the states). It therefore cannot be said that the state courts' rejection of petitioner's mace expert claim was contrary to, or an unreasonable application, of Supreme Court precedent. See 28 U.S.C. § 2254 (d); Clark v. Murphy, No. 00-16727, slip op 1037, 1047 (9th Cir. Jan. 23, 2003).
Even if the law of the lower federal courts applied in federal habeas proceedings, petitioner would not be entitled to relief because the evidence at issue was not critical to his defense and, in view of the stipulation of the parties, was not the subject of differing expert opinions. Cf. Moore, 225 F.3d at 502. Moreover, there is no evidence or indication that the denial of the proposed mace expert had a substantial and injurious effect or influence in determining the jury's verdict. SeeBrecht v. Abrahamson, 507 U.S. 619, 637 (1993).
5. Appellate court's refusal to accept pro per brief
Petitioner claims that his state and federal constitutional rights were violated when the California Court of Appeal refused to file his pro per supplemental brief. The claim is without merit.
Although petitioner was represented by counsel on his direct appeal, he attempted to file a supplemental pro per brief raising several additional issues on appeal. The California Court of Appeal declined to file the brief, citing well-established California law. See People v. Thompson, No. A090663, slip op at 1 (Cal.Ct.App. Dec. 28, 2000) (order) (Resp't Ex M); see also People v. Clark, 3 Cal.4th 41, 171 (1992) (reiterating California rule that motions and briefs of parties represented by counsel must be filed by such counsel). Petitioner later filed a petition for a writ of habeas corpus in the Supreme Court of California raising the same issues he sought to raise on appeal. It was denied on the merits. See In re Thompson, No. S097626, 2001 Cal. LEXIS 4447, at *1 (Cal. June 27, 2001).
Petitioner is not entitled to federal habeas relief because he was not prejudiced by the state appellate court's alleged error; his claims/issues were ultimately considered on the merits by the Supreme Court of California. Moreover, errors in the state post-conviction review process generally are not addressable through federal habeas corpus proceedings. See Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Villafuerte v. Stewart, 111 F.3d 616, 632 n. 7 (9th Cir. 1997); Franzen v Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Application of Gordon, 157 F.2d 659, 660 (9th Cir. 1946) (allegation that state court decided appeal improperly not enough to state claim in federal habeas).
CONCLUSION
After a careful review of the record and pertinent case law, the court cannot say, applying a firm conviction standard, that the state courts "clearly erred" in applying controlling Supreme Court authority and rejecting the constitutional claims raised here. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). The petition for a writ of habeas corpus accordingly is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.