Opinion
Civil No. 04cv1326 BTM (LSP).
October 25, 2005
REPORT AND RECOMMENDATION RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
Danny Lee White, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (West Supp. 2005). He challenges his San Diego Superior Court conviction in case number SCD 149529.
The Court has considered the Petition, Respondent's Answer, Respondent's Supplemental Answer and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.
II. FACTUAL BACKGROUND
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;
On the night of July 16, 1995, a pedestrian found David Wilkins bleeding from his head at the bottom of the cliffs near Del Monte Street in the Ocean Beach area of San Diego. (All relevant dates are in 1995 except as otherwise specified.) By the time paramedics arrived, Wilkins was not breathing and had no pulse. Although emergency personnel were able to get a pulse and blood pressure before transporting Wilkins to the hospital, he died the next day from a gunshot wound, inflicted at close range, to his neck.
The next day, a police intern who was working in the area where Wilkins's body was found saw White walk slowly by the area, which was not yet marked with crime scene tape, a number of times. Ultimately, White approached the intern, pointed to a stain at the bottom of the retaining wall and asked whether it was blood. The intern asked White to stay away from the area, but White persisted and kept asking questions. The intern later recognized White's photograph at the police department and notified her supervisor that she had spoken to White at the scene.
On July 19, police arrested White on outstanding warrants and questioned him in connection with Wilkins's death. White told the officers he did not really know Wilkins and that, on the night of the incident, he had been at a keg party near Bacon Street until sunset and went from there to his girlfriend's mother's house, where he spent the night. White tested positive for methamphetamine at the time of his arrest.
In 1999, prison inmate Tim Fear reported to the District Attorney's office that his cellmate, Kevin Lukasik, told him that Wilkins was shot during a robbery committed by Lukasik and White. Fear indicated that Lukasik originally claimed to have shot Wilkins, but later said that White had done so. Thereafter, the District Attorney charged White and Lukasik with murder with special circumstances of lying in wait and robbery felony murder. Lukasik subsequently entered into a plea agreement with the prosecutor to testify at White's trial. Pursuant to that agreement, if the trial court (Judge Thompson) subsequently determined that Lukasik testified truthfully at White's trial, the prosecutor would accept Lukasik's plea of guilty to voluntary manslaughter and Lukasik would be sentenced to 13 years and 4 months in prison.
At trial, the prosecution introduced evidence of the following:
In the several weeks preceding the murder, Wilkins alternated living in the homes of Jesse Scavello and Jeff and Lisette Winters. During that time, Wilkins kept substantial amounts of marijuana with him and he became friendly with White.
On July 16, a group of people attended a party at Scavello's apartment, to help Wilkins sell his marijuana so that he could afford to move into a place of his own. The partygoers drank beer and smoked marijuana. After awhile, Wilkins left the party for a short time to pick up a pound of marijuana from the Winters' home so that he could sell it to Scavello's neighbor, Steve Perry. Upon returning to the party, Wilkins weighed the marijuana and using Scavello as the go-between, sold the marijuana to Perry for $800, which Wilkins put in his blue Velcro wallet.
Wilkins later went to Perry's apartment. While he was there, White came to the apartment looking for him. Wilkins left with White, telling Perry they were going down to the cliffs to drink beer. White and Wilkins made a brief appearance at Scavello's apartment but left together at approximately 11:30 p.m.
According to Lukasik, on the evening of Wilkins's murder, he and White agreed to commit a robbery. Their plan was that White would take the victim down to the beach at the foot of Del Monte Street, where Lukasik would pretend to rob White and actually rob the victim. Lukasik drove White to a nearby apartment. He saw White come out of the apartment with Wilkins and walk toward the beach. After waiting a short time, Lukasik walked toward the beach on a parallel street.
When Lukasik arrived at the beach, he approached White and Wilkins, who were sitting on the seawall, and asked for a cigarette. As Wilkins extended his hand to shake Lukasik's, Lukasik pulled out a pool cue he had hidden up his sleeve and raised it, intending to hit Wilkins. Before he followed through on his intention, however, Lukasik heard a gunshot and saw Wilkins fall to the ground. Lukasik ran away, dropping the pool cue. He stopped briefly and turned around; as he did so, he saw White leaning over Wilkins. Lukasik started running again, but before he reached his truck, White caught up to him and handed him $400. At White's direction, Lukasik drove White to a bridge that connects Ocean Beach to Mission Beach, where White disposed of the gun and Wilkins's blue Velcro wallet.
While in jail on outstanding warrants, Lukasik told Fear about Wilkins's death. When interviewed by detectives, however, Lukasik lied to them about the incident, telling them that he and White had gone to the beach to beat up the victim for messing around with White's girlfriend. During a February 1999 interview, Lukasik told police that he might have hit Wilkins over the head with the pool cue, but at trial denied that this happened.
White's defense at trial was that he was at a friend's home with his girlfriend on the night in question and that Lukasik alone committed the robbery and the shooting. White called his girlfriend (who, by the time of trial, was his wife), Fear and a former associate of Lukasik's to testify in support of this defense; he also attacked the credibility of a number of the prosecution's witnesses.
The jury convicted White of first-degree murder and found true the special circumstances of lying in wait and robbery felony murder and the allegation and White had personally used a firearm during the commission of the offense. The court struck the prior prison allegations and sentenced White to a term of life without the possibility of parole and a ten-year firearm enhancement. It also imposed a $10,000 restitution fine and a $10,000 parole revocation fine.
(Lodgment No. 6 at 2-5.)
III. PROCEDURAL BACKGROUND
On March 9, 2000, the San Diego County District Attorney's Office filed an Information charging Danny Lee White with the murder of David Wilkins. The Information further alleged that the murder was committed while lying in wait, within the meaning of California Penal Code ("Penal Code") section 190.2(a)(15) and during the commission of a robbery, within the meaning of Penal Code section 190(a)(17); it also alleged that White had personally used a handgun during the commission of the murder, within the meaning of Penal Code section 12022.5(a). (Lodgment No. 1 at 0001-02.) Finally, the Information alleged that White had suffered four prior convictions which made him ineligible for probation, within the meaning of Penal Code section 1203(e)(4), and had suffered a prior conviction for which he had served time in prison, within the meaning of Penal Code sections 667.5(b) and 668. ( Id.) Following a jury trial, White was convicted of the first degree murder of Wilkins by means of lying in wait and during the commission of a robbery. ( Id. at 0278-81.)
White appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment Nos. 3, 4, 5.) That court affirmed White's convictions in an unpublished opinion dated November 21, 2002. (Lodgment No. 6.) White then filed a petition for review in the California Supreme Court, which that court denied without citation of authority on January 29, 2003. (Lodgment Nos. 7, 8.)
The court struck a prior prison term enhancement from White's abstract of judgment which was dismissed by the sentencing court. ( See Lodgment No. 6 at 12.)
Next, White filed a petition for writ of habeas corpus in San Diego Superior Court on July 21, 2003. (Lodgment No. 9.) That court rejected the petition in a unpublished opinion dated August 8, 2003. (Lodgment No. 10.) White then filed a petition for writ of habeas corpus in the California Court of Appeal on October 8, 2003, which the court rejected in an unpublished opinion dated October 22, 2003. (Lodgment Nos. 11, 12.)
Although the caption of Lodgment No. 9 states "Court of Appeal of the State of California, Fourth Appellate District," according to Respondent, this document was filed in San Diego Superior Court, (Answer at 2.)
White filed a petition for writ of habeas corpus in this Court on July 1, 2004 [doc. no. 1]. Respondent filed an Answer which alleged that the petition contained both exhausted and unexhausted claims [doc. no. 7]. The Court issued a "Notice re Possible Dismissal for Failure to Exhaust State Court Remedies" on February 10, 2005 which warned White that because his petition appeared to contain both exhausted and unexhausted claims it was subject to dismissal and gave him several options to cure the exhaustion problem [doc. no. 8]. White did not respond to this Order, and the Court issued a Report and Recommendation ("RR") recommending that the petition be dismissed on March 28, 2005 [doc. no. 9]. On June 8, 2005, the Court issued an Order modifying and adopting the RR, finding that the claims were exhausted and remanding the case to the Magistrate Judge for further proceedings [doc. no. 12]. Respondent filed a supplemental answer on June 30, 2005 [doc. no. 14]. White did not file a traverse. IV. DISCUSSION A. Scope 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.A. § 2254(a) (West 1994) (emphasis added).
The current petition is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). As amended, 28 U.S.C. § 2254(d) reads:
(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)(1)-(2) (West Supp. 2004) (emphasis added).
To obtain federal habeas relief, Barker 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 if 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 412-13; see Lockyer v. Andrade, 538 U.S. 63, 73-74 (2003).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.
B. Analysis
White raises four claims in his federal petition: (1) the state trial judge and the prosecutor improperly vouched for the credibility of a prosecution witness; (2) the trial court erred when it excluded evidence of third party culpability; (3) the trial court erred when it refused to give a modified jury instruction regarding eyewitness identification; and (4) cumulative error denied him a fair trial. (Petition at 6-9; Petitioner's Mem. of P. A. at 1-17.)
In the Answer, Respondent argues that the California Attorney General should be dismissed as an improper respondent. (Answer at 3.) Further, Respondent argues that claims one, two and four should be dismissed in part for failure to state a federal question, and that claim three should be dismissed entirely for the same reason. (Answer at 4-5.) To the extent they do present federal questions, Respondent argues that claims one, two and four should be denied because the state courts' decisions were neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer at 7-11.) Finally, Respondent argues that claim three should be rejected because "[a] rule that a defendant has a federal constitutional right to a pinpoint instruction on the issue of eyewitness identification would constitute a new rule of law, and its application to this case would be barred by Teague v. Lane, 489 U.S. 288 [citations omitted] (1989)." (Answer at 5.) In the Supplemental Answer, Respondent argues that grounds three and four are procedurally defaulted, and, in the alternative, ground three should be denied because the state court's decision was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Supp. Answer at 2-4.)
1. Dismissal of Bill Lockyer as a Respondent
Respondent contends that Bill Lockyer, the Attorney General of the State of California, is not a proper respondent in this action. (Answer at 3.) A long standing rule in the Ninth Circuit holds "that a petitioner may not seek [a writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The actual person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968); see also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). This requirement exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the person who will produce "the body" if directed to do so by the Court.
"Both the warden of a California prison and the Director of Corrections for California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895. However, "if the applicant is not presently in custody pursuant to a state judgment against which he seeks relief but may be subject to such custody in the future," then "the officer having present custody of the applicant as well as the attorney general of the state in which the judgment which he seeks to attack was entered shall each be named as respondents." Rule 2 (b), 28 U.S.C. foll. § 2254. White is presently in custody; therefore, as Respondent correctly points out, there is no basis for Petitioner to have named the Attorney General as a respondent in this action. Thus, the Court recommends that Bill Lockyer be dismissed as a Respondent in this matter.
2. Failure to State a Federal Question
Respondent asserts that claims one, two and four should be dismissed in part because White has failed to state a federal question, and that claim three should be dismissed in its entirety for the same reason. (Answer at 4-5.) To present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a).
In his petition, White states as grounds for claim one that "petitioner's federal and state constitutional rights to a fair trial and to have the jury decide material issues of fact were denied when the trial court informed the jury that it would assess the credibility of an alleged accomplice who testified against petitioner before accepting his guilty plea." (Petition at 6.) (emphasis added). In the memorandum of points and authorities he has attached to his petition, he cites the Due Process Clauses of the Federal Constitution and the Fourteenth Amendment, as well as several United States Supreme Court cases as the bases for claim one. ( See Petitioner's Mem. of P. A. at 3, n. 1.)
White states the following as grounds for claim two: "Petitioner's federal and state constitutional rights to present evidence were denied when the court excluded evidence of third party liability." (Petition at 7.) In his attached memorandum of points and authorities, he cites to the Fourteenth Amendment, Chambers v. Mississippi, 410 U.S. 284 (1973), and Crane v. Kentucky, 476 U.S. 683 (1986) as support for his claim. ( See Petitioner's Mem. of P A's at 11, 13.)
As grounds for claim three, Whites alleges that the trial court's refusal to give a pinpoint instruction relating to eyewitness testimony violated his right to present evidence in his defense and his right to adequate jury instructions on the theory of his defense, as outlined in Rock v. Arkansas, 483 U.S. 44 (1987) and Crane, 476 U.S. 683. ( See id. at 17.) Finally, as to claim four, White alleges that cumulative error deprived him of his state and federal due process right to a fair trial, citing two Ninth Circuit cases which rely on United States Supreme Court law. ( Id.)
District courts have a duty to liberally construe pro se filings. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (citing Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) and Hughes v. Rowe, 449 U.S. 5, 9 (1980).) Using this standard, the Court concludes that White has stated a federal constitutional claim as to each of these grounds for relief. As to each ground, he has identified a specific claimed error, as well as a specific federal constitutional right the claimed error violated. Accordingly, the Court recommends that Respondent's request that the claims be dismissed for failure to state a federal question be denied.
3. Application of Teague to Claim Three
Respondent argues that White's claim that the trial court erred by failing to give a pinpoint instruction regarding the reliability of eyewitness testimony is barred by Teague. (Answer at 5.) In Teague, the Supreme Court held that habeas relief is generally unavailable if based on "a rule announced after [a petitioner's] conviction and sentence became final." Caspari v. Bohlen, 510 U.S. 383, 389 (1994); Teague, 489 U.S. at 316. When the State argues on habeas review "that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague v. Lane before considering the merits of the claim." Caspari, 510 U.S. at 389.
Respondent argues that because the Supreme Court has never specifically held that the federal constitution requires a trial court to give a pinpoint instruction directing jurors to view eyewitness testimony with caution, White's claim is barred by Teague. (Answer at 5.) Respondent interprets both White's claim and the holding in Teague too narrowly. The question this Court must answer under Teague is not whether the Supreme Court has ruled precisely on the issue presented by White. Rather, Teague holds that habeas relief may not be granted based on a rule that "breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301 (citations omitted). White bases his claim regarding the rejected jury instruction on his federal due process and fair trial rights. ( See Petition at 17.) Although it is true that no Supreme Court case holds that a trial court is required by the federal constitution to give a pinpoint instruction on the reliability of eyewitness testimony, at the time White's conviction became final clearly established federal law did provide that habeas relief may be based on a failure to give a jury instruction if the petitioner can show that the instructional error "so infected the entire trial [with fundamental unfairness] that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Accordingly, the Court recommends that Respondent's assertion that White's claim regarding the trial court's refusal to give a pinpoint instruction on the reliability of eyewitness testimony is barred by Teague be rejected.
4. Procedural Default — Claims Three and Four
Respondent argues that claims three and four are procedurally defaulted because California's Dixon rule is an independent and adequate state procedural bar. (Supp. Answer at 5.) Although no California court has actually applied the Clark/Dixon procedural bar to claims three and four because White has never presented them to a California court, "the procedural default rule barring consideration of a federal claim `applies . . . when a state court has been presented with the federal claim' but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred.'" Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) quoting Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989) (emphasis added); see also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (finding that "[a] claim is procedurally defaulted `if the petitioner failed to exhaust state court remedies and the court to which the petitioner would be required to present his claims . . . would now find the claims procedurally barred.'") (quoting Coleman v. Thomspon, 501 U.S. 722, 735 n. 1 (1991).) Indeed, this Court has already concluded that the federal aspect of claim three is technically exhausted because California courts would impose the Clark/Dixon bar if White attempted to exhaust the claim. ( See Order dated June 8, 2005 at 4-5 [doc. no. 12].)
Thus, the Court must determine whether the Clark/Dixon rule is an independent and adequate state procedural rule. Id. The Ninth Circuit has held that because procedural default is an affirmative defense, Respondent must have first "adequately pled the existence of an independent and adequate state procedural ground. . . ." See Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.), cert. denied, 540 U.S. 938 (2003). In order to place the defense at issue, White must then "assert specific factual allegations that demonstrate the inadequacy of the state procedure. . . ." Id. The "ultimate burden" of proving procedural default, however, belongs to the state. Id. If the state meets its burden under Bennett, federal review of the claim is foreclosed unless White can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
a. Independence
For a state procedural rule to be "independent," the state law basis for the decision must not be interwoven with federal law. Harris v. Reed, 489 U.S. 255, 265 (1989). A ground is "interwoven" with federal law if "the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, the determination of whether federal constitutional error has been committed." Ake v. Oklahoma, 470 U.S. 68, 75 (1975); Bennett, 322 F.3d at 581-82. Dixon bars habeas review of claims which could have been raised in a timely appeal from a judgment of conviction unless a petitioner can show one of three exceptions: (1) the claims are based on an intervening new rule of law; (2) the claims legitimately assert jurisdictional defects in the judgment under attack; or (3) the claims allege a constitutional error, both clear and fundamental, [which] strikes at the heart of the trial process." In re Harris, 5 Cal. 4th 813, 829-41 (1993); see also In re Robbins, 18 Cal. 4th 770, 814, 811-12 n. 34 (1998) (holding that future application of the constitutional magnitude exception would not involve the application of federal constitutional law).
Because Respondent has pled the existence of Dixon is an independent state procedural bar, the initial burden of pleading under Bennett has been met. (Supp. Answer at 3.) Moreover, as this Court has already noted in its June 8, 2005 Order, claims three and four do not fall under either of the first two Dixon exceptions. (Order dated June 8, 2005 [doc. no. 12] at 5.) As to the third exception, the Ninth Circuit has concluded that where the Clark "fundamental miscarriage of justice" exception is applied after the California Supreme Court's decision in Robbins, it is independent of federal law. See Bennett, 322 F.3d at 581-82. The Ninth Circuit has also concluded that Clark's "fundamental miscarriage of justice exception" is analogous to Dixon's constitutional error exception. LaCrosse v. Kernan, 244 F3d 702, 707 (9th Cir. 2001). Accordingly, the Court concludes that, because the application of the Dixon bar is after the California Supreme Court's decision in Robbins, it is independent of federal law. See Bennett, 322 F.3d at 581-82.
b. Adequacy
"A state procedural rule constitutes and adequate bar to federal habeas review if it was `firmly established and regularly followed' at the time is was applied by the state court." Poland v. Stewart, 169 F.3d 573, 585 (9th Cir. 1999) quoting Ford v. Georgia, 498 U.S. 411, 424(1991). Respondent has asserted that Dixon is an adequate state law ground, thus satisfying his initial burden under Bennett. Bennett, 322 F.3d at 586. Indeed, the California Supreme Court in Harris, which had been the law for nine years when White initiated his appeal, "established the consistency of the application of the Dixon bar." Protsman v. Pliler, 318 F. Supp. 2d 1004, 1014 (S.D. Cal. 2004); but see Dennis v. Brown, 361 F. Supp. 2d 1124, 1133-34 (N.D. Cal. 2005) (concluding that Respondent had not met her ultimate burden of showing that the Dixon bar was adequate). White has not come forward with "specific factual allegations that demonstrate the inadequacy of [ Dixon]." Bennett, 322 F.3d at 586. Accordingly, the Court concludes that Dixon is an adequate procedural rule barring federal review of claims three and four.
Because the federal basis for claim three and claim four in its entirety are procedurally defaulted under Dixon, this Court may reach the merits of the claims only if White can establish cause to excuse the default and prejudice arising from the default, or if a fundamental miscarriage of justice will occur by failing to address the merits of the claims. Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000).
c. Cause
The cause prong is satisfied if White demonstrates some "objective factor" that precluded him from raising his claims in state court, such as interference by state officials or constitutional ineffective counsel. McClesky v. Zant, 499 U.S. 467, 493-94 (1991). White has not come forward with any reasons why he did not include the federal basis for claim three and claim four in its entirety in his original direct appeal. Nor is there anything apparent in the record which would establish cause for the default. Accordingly, White has not established cause for the default.
d. Prejudice
"Prejudice [sufficient to excuse procedurally barred claims] is actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). The Court will consider each of White's procedurally barred claims to determine whether he meets this standard.
i. Refusal to Give a Pinpoint Instruction on Eyewitness Identification
In Henderson v. Kibbe, 431 U.S. 145 (1977), the Supreme Court stated the standard governing jury instructional error:
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. [141], at 147, 94 S.Ct., at 400, 38 L.Ed.2d 368, not merely whether "the instruction is undesirable, erroneous, or even `universally condemned,'" id., at 146, 94 S.Ct., at 400. [T]he . . . burden is especially heavy [when] no erroneous instruction was given. . . . An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.Id. at 154.
The allegedly erroneous jury instruction cannot be judged in isolation, however. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Rather, it must be considered in the context of the entire trial record and the instructions as a whole. Id. Moreover, "[t]he Supreme Court has held that `[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.'" Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002) citing Mathews v. United States, 485 U.S. 58, 63 (1988); see also Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999) (applying the Mathews standard to habeas petitions); Bashor v. Risley, 730 F.3d 1228, 1240 (9th Cir. 1984); but see Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993) (finding that the right to present a complete defense does not entitle a defendant to a particular set of jury instructions).
White contends that the trial court improperly refused to modify California Jury Instructions, Criminal ("CALJIC") No. 2.92 by adding the sentence, "You must view eyewitness testimony with caution and evaluate it carefully." ( See Lodgment No. 1, Vol. 2 at 0229.) He claims that his federal fair trial rights were violated because the court essentially refused to give an instruction on the theory of his defense. (Petition at 14-17.)
Viewing the instructions as a whole, the failure to modify CALJIC No. 2.92 to include the language requested by White did not infect the entire trial such that his conviction violates due process. See Henderson, 431 U.S. at 154. The version of CALJIC No. 2.92 which was given to the jury implicitly told the jury to consider eyewitness identification testimony carefully by directing them to consider several factors when doing so:
Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness's identification of the defendant, including, but not limited to, any of the following:
The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
The stress, if any, to which the witness was subjected at the time of the observation;
The witness's ability, following the observation, to provide a description of the perpetrator of the act;
The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;
The witnesses capacity to make an identification;
The period of time between the alleged criminal act and the witness's identification;
Whether the witness had prior contact with the alleged perpetrator;
The extent to which the witness is either certain or uncertain of the identification;
Whether the witness's identification is in fact the product of [his] [her] own recollection; and
Any other evidence relating to the witness's ability to make an identification.
(CALJIC No. 2.92; Lodgment No. 1, Vol. 1 at 0173-74.).)
Further, CALJIC NO. 2.91, entitled "Burden of Proving Identity Based Solely on Eyewitnesses," which was also given, explicitly told the jury that "[t]he burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime . . .", and that "[i]f . . . you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find [him] not guilty." ( See CALJIC No. 2.91; Lodgment No. 1, Vol. 1 at 0172.)
Moreover, the failure to give the modified version of CALJIC No. 2.92 did not violate White's federal due process rights by failing to instruct the jury on the theory of his defense. The jury instructions which were given adequately informed the jury that the defense was contesting the identity of White as the perpetrator. Further, the prosecution witnesses testified that they saw White, also know as "Scorpion," leave Jesse Scavello's residence with Wilkins a hour or so before Wilkins was found shot in the head at the beach. (Lodgment No. 2, Vol. 3 at 162-64, 201-02, 206; Vol. 4 at 264-67, 318.) Erin Duffy testified that Kevin Lukasik told her he and White had robbed someone and that White had shot the victim. (Lodgment No. 2, Vol. 7 at 819.) Lukasik testified that White lured Wilkins to the beach where he and White planned to rob and beat Wilkins, but that White unexpectedly pulled out a gun and shot Wilkins. (Lodgment No. 2, Vol. 6 at 697-721.) At trial, White presented witnesses who testified that White was with them at the time Wilkins was murdered. (Lodgment No. 2, Vol. 5 at 581; Vol. 6 at 697-711; Vol. 8 at 1035, 1070-74.) He also presented the testimony of Timothy Fear, who said that Lukasik told him while the two were housed together in jail that Lukasik had shot the victim, and Robert Kelley, who also testified that Lukasik said he had shot the victim. (Lodgment No. 2, Vol. 7 at 899-92, 968-69, 979.) During closing argument, defense counsel argued that Lukasik was the killer and was trying to pin the blame on White. (Lodgment No. 2, Vol. 9 at 1197-1215.) Thus, the thrust of White's defense was not that he had been misidentified as Wilkins' killer, but that he had an alibi for the time Wilkins was killed and that Lukasik was implicating him as a way to save himself.
For all the foregoing reasons, the Court concludes that White has not shown actual prejudice sufficient to excuse the procedural default of this claim. See Vickers, 144 F.3d at 617.
ii. Cumulative Error
White also alleges that cumulative effect of all the errors committed at his trial denied him his federal due process and fair trial rights. (Petition at 17.) The Ninth Circuit has held that while any single error may not have deprived a defendant of due process when considered alone, a series of errors may have the cumulative effect of denying a defendant due process when considered together. See Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000).
As discussed in this Report and Recommendation, inasmuch as this Court has concluded that there were no errors of constitutional magnitude which occurred at White's trial, White has not shown actual prejudice sufficient to excuse the procedural default of this claim. See Vickers, 144 F.3d at 617.
e. Fundamental Miscarriage of Justice
The Court may also reach the merits of White's procedurally defaulted claims if he can demonstrate that the failure to do so would result in a fundamental miscarriage of justice. The Supreme Court has limited the "miscarriage of justice" exception to petitioners who can show that "a constitutional violation has probably resulted in one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). "Actual innocence" means factual innocence, not merely legal insufficiency; a mere showing of reasonable doubt is not enough. See Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997). White has not come forward with any evidence to establish that he is "actually innocent" of Wilkins' murder, and there is nothing in the record which even suggests that that is the case. Accordingly, he has not met the standard for establishing a fundamental miscarriage of justice. See Schlup, 513 U.S. at 327.
f. Conclusion — Claims Three and Four are Procedurally Defaulted
Based on the foregoing, the Court concludes that claims three and four are procedurally defaulted, and the White has not established either cause and prejudice for the default or that the failure to reach the merits of his claims would result in a fundamental miscarriage of justice. See Park, 202 F.3d at 1150. Accordingly, the Court recommends that claims three and four be dismissed.
6. Claim One — Vouching
In claim one, White alleges that the judge and prosecutor engaged in impermissible "vouching" for the credibility of Lukasik. The California Supreme Court rejected these claims without citation of authority. (Lodgment No. 8.) Thus this Court must "look through" to the state appellate court decision rejecting the claim as the basis for its analysis. Ylst, 501 U.S. at 801-06.
a. Judicial Vouching
White contends that the disclosure to the jury of a provision in Lukasik's plea agreement which required the trial judge to determine that he testified truthfully before he would be permitted to plead guilty to voluntary manslaughter and be sentenced to a prison term of 13 years and four months amounted to improper judicial "vouching" for Lukasik's truthfulness. (Petition. at 3; Petitioner's Mem. of P. A. at 3-8.) That state appellate court rejected this claim:
The existence of an agreement bearing on the credibility of a trial witness, including a plea agreement that is conditioned on the witness testifying truthfully at trial, must be disclosed to the jury. ( People v. Fauber (1992) 2 Cal.4th 792, 823.) However, it is not necessarily true that every aspect of such an agreement is admissible; portions of an agreement that are not relevant to a witness's credibility or that are potentially misleading to the jury should be excluded upon an appropriate objection. ( Ibid.) Here, the jury was entitled to learn that Lukasik would suffer certain consequences if he failed to testify truthfully during White's trial. Further, although the court was not required to admit evidence of how Lukasik's truthfulness would be determined, it did not abuse its discretion in doing so.
Even if we assume, however, that the trial court should have excluded the evidence to which White objects, any such error was harmless beyond a reasonable doubt. At the time Lukasik took the stand, the court admonished the jury not to draw any inferences regarding its assessment of Lukasik's credibility and instructed the jury that "[y]ou and you alone are to make the assessment as to the credibility of this witness. . . ." After the close of evidence, the court instructed the jurors in accordance with CALJIC No. 2.20, that they were the sole judges of the believability of the witnesses and of the weight to be accorded to the witnesses' testimony. Defense counsel's closing argument focused on the credibility of Lukasik's testimony and, after the completion of closing argument, the court again admonished the jury "I have not intended, by anything I have said or done or by any question I might have asked or any ruling I have made, to suggest what you should find to be the facts or that I believe or disbelieve any witness. If anything I have done or said has seemed to so indicate, you will disregard it and form your [own] conclusions."
Despite the court's repeated admonitions and instructions to the jury, White argues that the admission of the evidence diminished the jury's sense of responsibility and the importance of its task. We disagree. While it is prejudicial error to inform jurors in a capital case that their decision whether to sentence the defendant to death is "not the final decision" because the decision is subject to automatic appellate review ( Caldwell v. Mississippi (1985) 472 U.S. 320, 325, 340), no comparable circumstances were involved here. Lukasik's testimony made clear that the issue of his truthfulness was to be determined by the court in connection with the charges against him arising out of Wilkins's death. No part of the evidence suggested to the jury that it was relieved of the responsibility for assessing the credibility of Lukasik's testimony in White's trial and the court's repeated instructions unequivocally informed the jury that it had such a responsibility. In the absence of a contrary indication in the record, we presume that the jury understood and followed these instructions. ( People v. Fauber, supra, 2 Cal.4th at p. 823.)
(Lodgment No. 6 at 6-9.)
As Respondent notes, clearly established Supreme Court law requires the disclosure of a plea agreement which bears on the credibility of a prosecution witness. Giglio v. United States, 405 U.S. 150, 153-54 (1972). Moreover, the Supreme Court has held that a trial judge "may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination." Quercia v. United States, 289 U.S. 466, 469 (1933). The Ninth Circuit has similarly concluded that a trial judge may make comments and draw attention to the evidence so long as the comments do not distort the evidence or add to it and the judge reminds the jury that it is their exclusive duty to determine the facts. See United States v. James, 576 F.2d 223, 228 (9th Cir. 1978); Rodriguez v. Marshall, 125 F.3d 739, 749 (9th Cir. 1997), overruled in part on other grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002); Gonsior v. Craven, 449 F.2d 20, 21 (9th Cir. 1971).
Merely informing the jury that the trial judge would determine Lukasik's credibility did not create the impression that the judge had given his stamp of approval to his credibility. The trial judge did not make any comments about Lukasik's testimony or his credibility, nor did he "distort the evidence or add to it" in any manner. See Quercia, 289 U.S. at 469. Indeed, the Ninth Circuit has found no error in cases where a trial judge has commented on the state of evidence and the testimony of witnesses, provided the comments do not usurp the function of the jury as the arbiter of facts and credibility. See James, 576 F.2d at 227-28 (finding no error when trial judge stated that if the jury concluded beyond a reasonable doubt that defendant had made certain telephone calls, they could conclude that the offense had been committed); Rodriguez, 125 F.2d at 749 (finding no error where trial judge noted conflicting evidence and highlighted questions jurors might take into account when considering the testimony of particular witnesses). The judge in White's case was also careful to give a cautionary instruction before Lukasik testified:
THE COURT: Before we get started with Mr. Lukasik's examination, I will advise the panel that Mr. Lukasik is represented by counsel, attorney William Apgar. Mr. Apgar is seated in the second row in the courtroom.
I have not reviewed Mr. Lukasik's testimony or the proposed testimony. I have heard exactly what you people have heard in the opening statements.
You are not to take anything I say or do, any ruling I make on any objections during Mr. Lukasik's testimony, as a statement by me that I believe or disbelieve his testimony. If anything I do seems to so indicate, you will disregard it. You and you alone are to make the assessment as to the credibility of this witness and the weight you are going to give his testimony, just as you would the credibility and weight of other witnesses who have testified before you.
(Lodgment No. 2, Vol. 6 at 673-74)
The jury was also told by CALJIC No. 1.00 that it was their duty to determine the facts, by CALJIC No. 3.18 that the testimony of an accomplice was to be viewed with care and caution, and by CALJIC No. 17.30 that they were not to take anything said or done by the judge as indicative of the credibility of a witness. (Lodgment No. 1, Vol. 1 at 0142, 0214, 0181.) Accordingly, for all the foregoing reasons, the Court concludes that the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. White is not entitled to relief.
b. Prosecutorial Vouching
White next contends that the prosecutor improperly vouched for Lukasik's credibility by stating that she had information about Lukasik's plea agreement that she could not tell the jury about now, but that she would happy to do so later. (Petition at 6; Petitioner's Mem. of P. A. at 8-9.) White argues that this suggested to the jury that the prosecutor had information about Lukasik's credibility that was not admitted at trial. ( Id.) The state appellate court denied this claim:
White also argues that any error in admitting the evidence was rendered prejudicial because the prosecutor's closing argument "vouched" for Lukasik's credibility by suggesting that additional information relating to his truthfulness existed but was not admitted at trial. A prosecutor cannot vouch for the credibility of a witness or otherwise bolster the veracity of the witness's testimony by referring to matters outside the record. ( People v. Frye (1998) 18 Cal.4th 894, 971.) Here, however, the prosecutor's comments did not refer to or imply the existence of extra-record evidence bearing on the credibility of Lukasik's testimony. In fact, her closing argument emphasized that the jury was required to determine, from the evidence admitted at trial, whether she had met her burden of proof. Taken as a whole, the prosecutor's comments did not vouch for Lukasik's credibility but instead properly directed the jury not to speculate about the existence of other evidence, why certain witnesses were not called to testify or why the District Attorney's office had entered into the agreement with Lukasik. Nothing about the comments rendered the admission of the challenged evidence prejudicial.
(Lodgment No. 6 at 8.)
A prosecutor commits misconduct when his or her comments "`so infect . . . the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974).) Misconduct also occurs when a prosecutor "vouches" for the credibility of a witness. "`Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony.'" United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993); see also United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980) (citing Lawn v. United States, 355 U.S. 339, 359-60 n. 15 (1958)).
White alleges that the prosecutor vouched for Lukasik's veracity by "suggesting that information not presented to the jury supports [his] testimony" when, during her closing argument and rebuttal, she told the jury that, after the trial, she would be happy to answer any questions they may have about the state of the evidence, the plea agreement her office struck with Lukasik to secure his testimony, and the reasons why it took the District Attorney's office five years to prosecute White for Wilkins' murder after the trial concluded. See Weatherspoon, 410 F.3d at 1146. Specifically, the prosecutor argued:
As a practical matter, in case it's not clear, you have all the evidence that you are going to get. It's not possible for you to receive any more. That phase of the trial is closed. You simply should evaluate the evidence that you have to see if I have met my burden of proof.
Any questions that you might have about why the evidence is in the state that it's in, I'll be happy to answer for you after the trial.
At the beginning of this case, I mentioned to you that Kevin Lukasik would be testifying and that he had reached an agreement with the District Attorney's Office in this case.
Again, if you have any questions about that, I'll be happy to answer them after the trial. But I mentioned to you that as the defendant's partner in crime, Kevin Lukasik was, in the eyes of the law, fully responsible for everything that happened to David Wilkins on July 16, 1995.
. . . .
The only point I wanted to make is that one — the one comment that the defense attorney made that might cause you to feel some emotional reaction that would impact your ability to objectively and impartially view the evidence is his suggestion that someone is to blame that the defendant is here five years later being charged for a murder that was committed back in 1995. And so it's somehow my fault or someone else's fault, and that he should not be in this position.
Well, I'm sure you are very curious as to why this case wasn't filed in 1995. I'm sure you are very curious as to why Mr. Lukasik wasn't arrested in San Diego in 1999. I'm sure you are curious as to what happened after that to cause us now to be here at this point in time.
I'll be happy to answer those questions after the trial. Don't get angry with someone because you haven't really been given an explanation. It might be a reasonable explanation. If it was relevant, I'm sure you would have heard it.
Again, please focus on the evidence the way it is and see if I've met my burden of proof beyond a reasonable doubt. I think if you do objectively and thoroughly review the evidence, you will return with a verdict of first-degree murder, and you will find both special circumstances to be true.
(Lodgment No. 2, Vol. 9 at 1153, 1217-18) (emphasis added.)
As the state appellate court correctly found, the prosecutor's comments, when taken in context, did not improperly refer to matters outside the record in order to order to bolster Lukasik's credibility. She acknowledged that jurors may be curious about matters outside the record, including the state of the evidence, details of Lukasik's deal with the District Attorney's Office, and the reasons why it took so long to prosecute White for Wilkins' murder. However, each time she acknowledged the jury might have such questions, she emphasized that they were not to consider those matters and that they were to decide the case objectively based upon the evidence presented in the courtroom. ( Id.) She did not suggest to the jury in any way that the things the jury might be curious about would support Lukasik's credibility. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. White is not entitled to relief.
7. Exclusion of Third Party Liability Evidence
White argues that the state trial court improperly precluded him from introducing evidence that a third party was responsible for Wilkins' murder. (Petition at 7; Petitioner's Mem. of P. A. at 10-13.) The California Supreme Court rejected this claim without citation of authority. (Lodgment No. 8.) Thus, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 804-06.
White sought to introduce two separate pieces of third party liability evidence: (1) a drug dealer named Teodocio "Pelon" Rubio, for whom Wilkins had been working, had threatened to kill Wilkins because 350 pounds of Pelon's marijuana had been seized by law enforcement from Wilkins' garage; and (2) three days before Wilkins' murder, a individual was robbed by three Hispanics near the area where Wilkins' body was discovered. (Lodgment No. 1, Vol. 1 at 47-57.1; Lodgment No. 2, Vol. 3 at 34-44, Vol. 7 at 860-67.) The trial court excluded the evidence, finding that White had not made a sufficient showing under California law to permit the introduction of the evidence. (Lodgment No. 2, Vol. 3 at 34-44, Vol. 7 at 860-67.) The state appellate court found no error:
The admissibility of third party culpability evidence is determined in accordance with Evidence Code sections 350 and 352: if the evidence is relevant, it is admissible unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion of the jury. ( People v. Lewis (2001) 26 Cal.4th 224, 372.) In a criminal case, the defendant is entitled to present evidence of third party culpability for the charged offense provided such evidence is sufficient to raise a reasonable doubt as to his guilt. ( Ibid.) However, evidence that a third party merely had a motive or an opportunity to commit the charged offense, without more, does not raise a reasonable doubt about the defendant's guilt; rather, the defendant must present direct or circumstantial evidence linking the third person to the actual perpetration of the crime. ( Ibid., citing People v. Hall (1986) 41 Cal.3d 826, 833.) A trial court's determination of whether to admit third party culpability evidence will not be disturbed on appeal absent an abuse of discretion. ( People v. Lewis, supra, 26 Cal.4th at p. 372.)
We find no such abuse. The proffered evidence suggested that Rubio may have had a motive to kill Wilkins but there was simply no evidence linking Rubio to the actual murder. Although White made an offer of proof that, a few days before the murder, three Mexican men committed an armed robbery or attempted robbery in the vicinity of where Wilkins's body was found, there is no evidence that the unidentified men were involved with Rubio, were in the same area on the night that Wilkins was murdered or that they were involved in Wilkins's murder. The court acted within its discretion in excluding White's proffered third party culpability evidence.
(Lodgment No. 6 at 9-10.)
Clearly established federal law holds that the right to present witnesses is essential to due process; it is also guaranteed by the compulsory process clause of the Sixth Amendment. Taylor v. Illinois, 484 U.S. 400, 409 (1988); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Washington v. Texas, 388 U.S. 14, 19 (1967); Denham v. Deeds, 954 F.2d 1501, 1503 (9th Cir. 1992). The Ninth Circuit has summarized the scope of this right:
The Sixth Amendment guarantees the accused "compulsory process for obtaining witnesses in his favor." This right is a part of the due process that the fourteenth amendment requires of the state. Washington v. Texas, 388 U.S. 14, 18-19 [citations omitted] (1967). Compulsory process implicitly prevents the state from arbitrarily excluding such testimony . . . The defendant's general fourteenth amendment right to due process also restrains the operation of state rules of evidence. Due process "is, in essence, the right to a fair opportunity to defend against the state's accusations. Chambers v. Mississippi, 410 U.S. 284, 294 [citations omitted] (1973). State evidentiary rules "may not be applied mechanistically to defeat the ends of justice." [citations omitted].
The defendant's right to present evidence, however, is not absolute. "In the exercise of this right, the accused, as is required of the state, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302, 92 S.Ct. at 1049 (right to confront witnesses). Even relevant and reliable evidence can be excluded when the state interest is strong. See Washington, 388 U.S. at 23 n. 21, 87 S.Ct. at 1925 n. 21 (attorney-client privilege).Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
Thus, the exclusion of defense evidence is not always error. "The defendant's general right to present evidence is undeniably strong; yet the states' legitimate interest in reliable and efficient trials is also compelling. [citations omitted]." Id. at 1451.
To resolve the conflict between these interests, the Ninth Circuit has identified five factors that should be considered when deciding whether a court's exclusion of defense evidence violates the Constitution: "(1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the defense." Whelchel v. Washington, 232 F.3d 1197, 1211 (9th Cir. 2000) (citing Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990)); see also Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999) (finding that "[Ninth Circuit] cases may be persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law. . . ."). The importance of the evidence must then be balanced against the state's interest in exclusion. Whelchel, 232 F.3d at 1211 (citing Tinsley, 895 F.2d at 530). To overcome the state's strong interest in the administration of its trials, the circumstances of the exclusion must be "unusually compelling." Perry, 713 F.2d at 1452.
The Court's analysis begins by weighing the Whelchel factors. The first factor is the probative value of the evidence on the central issue. Whelchel, 232 F.3d at 1211. The central issue in White's case was the credibility of Lukasik who testified that he and White robbed Wilkins and that White shot Wilkins. Evidence that other people, i.e., Pelon or unidentified "Hispanics" had a motive or opportunity to kill Wilkins was not probative as to Lukasik's credibility or the credibility of defense witnesses who testified that White was with them on the night of the murder.
The second Tinsley factor, the reliability of the evidence, also does not weigh in White's favor. The information that linked Pelon with Wilkins was almost entirely hearsay, and the state trial judge noted that one of the reasons he was excluding the information was that he was not sure how credible it was. ( See Lodgment No. 1, Vol. 1 at 47-57.1; Lodgment No. 2, Vol. 3 at 44.) Moreover, even if the information did reliably link Pelon to Wilkins, it did not link Pelon to Wilkins' murder other than to provide a possible motive for Pelon to kill Wilkins. Further, the allegation that unidentified Hispanics had attempted to rob an individual near the location where Wilkins' body was found was also not shown to be reliable. The only evidence in the record regarding this individual is defense counsel's assertion that the individual would have testified that three Hispanics threatened him with a handgun and attempted to rob him. ( See Lodgment No. 2, Vol. 7 at 862-63.)
Whether the evidence is capable of evaluation by the trier of fact is the third Whelchel factor. As noted above, the link between Pelon and Wilkins' murder was weak as it was based primarily on the allegation that Pelon may have had a motive to kill Wilkins because Pelon's marijuana was seized by law enforcement from Wilkins' garage. ( See Lodgment No. 2, Vol. 2 at 35-44, Vol. 7 at 861-65.) Any link between the information about the individual who was allegedly accosted by three Hispanic males near where Wilkins' body was found and Wilkins' murder was even weaker. If this evidence had been presented, the jury may have wondered whether Pelon or the unidentified Hispanics had anything to do with Wilkins' death. However, there is nothing inherent in the evidence which made it difficult for the jury to evaluate. Accordingly, the third factor weighs in White's favor.
The fourth Whelchel factor, whether the excluded material is the sole evidence on the issue, weighs in White's favor. The only way he could have presented evidence of possible third party culpability was through this evidence.
Finally, the fifth factor, whether the excluded material constitutes a major part of his defense, weighs against White. As the state trial judge noted, White's main defense against the charges was to cast Lukasik as a liar and to point the finger at him as the individual who had actually committed Wilkins' murder. (Lodgment No. 2, Vol. 865-66.) Regardless of whether third party culpability evidence was admitted, White's main problem was Lukasik's testimony placing White at the scene and shooting Wilkins in the head. Evidence of third party culpability was not a major part of his effort to challenge the reliability of his Lukasik's testimony.
Two of the five factors weigh in White's favor. However, in determining whether exclusion of defense evidence was unconstitutional, the Court must also consider the state's interest in the evidentiary rule in question. Whelchel, 232 F.3d at 1211. As the Ninth Circuit noted in Perry:
The weight of the state's interest . . . depends upon many factors. The Court must determine the purpose of the rule, its importance, how well the rule implements this purpose, and how well the purpose applies in the case at hand. The court must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, in excluding unreliable or prejudicial evidence. . . .
Our common rules of evidence — testimonial privileges, the hearsay rule — have been justified by long experience. [citations omitted]. The state interests which they embody have already been weighed and found to be compelling; only the most urgent considerations, such as those in Chambers, can outweigh them. A defendant must show that his interest clearly outweighs the state's before we will interfere with routine procedural matters. [citations omitted].Perry, 713 F.2d at 1452-53.
California permits a defendant to present evidence of third party culpability when "it is capable of raising a reasonable doubt of defendant's guilt." People v. Hall, 41 Cal. 3d 826, 833 (1986). However, the California Supreme Court has said that "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible (§ 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion (§ 352)." Id. at 834. Given the highly speculative nature of the third party evidence, as well as the lack of any concrete connection between it an Wilkins' murder, California's "substantial state interest in preserving orderly trials, in judicial efficiency, in excluding unreliable or prejudicial evidence" outweighs White's interest in presenting the evidence. See Perry, 713 F.2d at 1452-53.
Moreover, the evidence White sought to introduce was not "unusually compelling." See id. In Perry, the Ninth Circuit discussed two of the leading United States Supreme Court cases, Chambers v. Mississippi, 410 U.S. 284, 294 (1973) and Washington v. Texas, 388 U.S. 14, 19 (1967), which illustrated this principle. In Chambers, the trial court excluded evidence that another person had confessed to the crime on the ground that it was hearsay. The Supreme Court, however, found that the state's interest in excluding the evidence was too weak to pass due process scrutiny. The evidence was not unreliable, unlike most hearsay statements, because it was a declaration against the declarant's penal interest. Further, it was critical to the defendant's case because it was the only source of the exculpatory information. Thus, the exclusion of the evidence violated Chambers' due process rights. See Perry, 713 F.2d at 1452 (citing Chambers, 410 U.S. at 302.)
In Washington, Washington tried to call a codefendant, Fuller, who had already been convicted, to testify that Washington had left the murder scene before the fatal shot was fired. The trial court excluded the testimony because a local rule prevented accomplices from testifying in behalf of each other. Id. at 1452 (citing Washington, 388 U.S. at 21.) The Supreme Court found that, on balance, the exclusion violated Washington's due process rights. Id. (citing Washington, 388 U.S. at 21.) The procedural rule excluded an entire class of witnesses because they were ostensibly more likely to lie. The prosecution, however, used these same witnesses in their cases in chief. Thus, the Supreme Court found the rule was arbitrary, unfair and did not serve a legitimate state interest. The defendant's due process rights were therefore violated by the exclusion of the testimony. Id. (citing Washington, 388 U.S. at 21.)
While the evidence White sought to introduce suggested that Pelon or some unidentified Hispanics could have been possible suspects in Wilkins' murder, unlike the defendants in Chambers and Washington, this evidence did not exonerate White. Accordingly, the Court concludes that the state court's exclusion of the testimony did not violate White's due process rights. See Taylor, 484 U.S. at 409; Whelchel, 232 F.3d at 1211. The state appellate court's decision upholding the exclusion was not contrary to, nor an unreasonable application of clearly established Supreme Court law. Williams, 529 U.S. at 412-13. White is not entitled to relief as to this claim.
IV. CONCLUSION AND RECOMMENDATION
The Court submits this Report and Recommendation to United States District Judge Barry Ted Moskowitz under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. For the reasons outlined above, 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 and dismissing this action.
IT IS ORDERED that no later than November 28, 2005, 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 December 28, 2005. 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); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).