United States District Court, Northern District of California
March 24, 2003
RAYMOND LEON JOHNSON, PETITIONER,
A. CALDERON, RESPONDENT.
The opinion of the court was delivered by: Susan Illston, United States District Judge.
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of Raymond Leon Johnson's pro se petition for writ of habeas corpus concerning his 1999 conviction. For the reasons discussed below, the petition will be denied.
A. Procedural History
Following a jury trial in Santa Clara County Superior Court, Raymond Leon Johnson was convicted of rape, forced oral copulation, battery and failing to register as a sex offender. The trial court found true allegations that Johnson had sustained prior felony convictions for rape and assault with force likely to produce great bodily injury, found true an allegation that a prior assault conviction was a serious felony, and found true an allegation that Johnson had served a prior prison term. On June 10, 1999, Johnson was sentenced to a term of 105 years to life in prison. He appealed. His conviction was affirmed by the California Court of Appeal and his petition for review was denied by the California Supreme Court. He filed unsuccessful petitions for writ of habeas corpus in state court.
Johnson filed this action in May 2001. His federal habeas petition contains four claims for relief: First, he alleges that his right to due process was violated when the trial judge denied his motion to sever the charge of failing to register as a sex offender from the other charges. Second, he contends that the trial court's limiting instructions were "ineffective to prevent consideration of [his] convicted felony sex offender status as evidence of his guilt of other charges, thus impermissibly lightening the prosecution's burden of proof and violating [his] federal Constitutional right to be convicted only on a proof beyond a reasonable doubt." Petition For Review, p. 2. Third, he contends that he received ineffective assistance of counsel in that, once the severance motion was denied, counsel failed to consider other ways to prevent the jury from learning of his failure to register as a sex offender, e.g., bifurcation of the trial or a guilty plea to that charge. Fourth, he claims that his sentence amounted to cruel and unusual punishment and violated his right to due process. The parties have briefed the merits of the claims and the matter is ready for a decision.
B. The Crimes
Johnson met Jane Doe in May 1997; they moved in together in July 1997 and the crimes occurred in December 1997. For the most part, their sexual encounters were positive and mutually gratifying. As time went on, however, Johnson became more physically and mentally abusive: he became possessive, controlling, threatening, and even struck her on several occasions. "On three different occasions, she suffered a black eye, a bloody nose and a bloody lip. On another occasion in the car, defendant placed his rope belt and his hands around her neck and hit her. After such incidents, defendant was very apologetic. Ms. Doe was ashamed and allowed the abuse to continue just to survive." Cal. Ct. App. Opinion, p. 3. On the day of the crimes, Johnson confronted Doe when she came home from work late; he accused her of cheating on him and threatened her. He was angry and spoke in a raised voice, then hit her (breaking her glasses and causing a bloody nose and two black eyes). He then had sex with her, despite her protests and requests for him to stop. He left the room, but came back later and forced her to orally copulate him and again forced her to have sex with him, despite her protests and requests for him to stop. Doe did not report the incident to the police until a couple of days later. Johnson had previously threatened to have her killed if she called the police.
Johnson's position at trial was that he and Doe had argued, he had simply slapped her face, and then they made up by having sex on this occasion as they had in the past. He admitted to a police officer when interviewed on December 5, 1997 that he had had sex with Doe, but said the sexual encounters were consensual and that he believed Doe was retaliating against him for threatening to turn her in to authorities for using drugs.
Johnson admitted to the police that he was required to register for a prior felony sex offense conviction and that he had changed addresses several times in the seven months since he had last registered.
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition 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); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). Respondent contends that Johnson did not exhaust his state court remedies as to the claim concerning the jury instruction because his mention of that claim in his petition to the California Supreme Court was only cursory. This court need not decide the exhaustion issue because it denies the claim on the merits. See 28 U.S.C. § 2254 (b)(2).
1. Joinder of Claims
Johnson alleges that his right to due process was violated when the trial court denied his motion to sever tria1 of the failure-to-register count from the forced or oral copulation and rape counts. The California Court of Appeal rejected Johnson's claim. The court determined that there had not been a misjoinder under state law and then determined that there was no abuse of discretion or due process violation in the denial of the motion to sever. The court explained its reasoning: First, the evidence of the prior rape was potentially admissible under California Evidence Code §§ 1101 and 1108 if the sex offenses were tried separately. Second, this was not an instance of joining strong charges with a weak charge — the evidence "was equally strong, if not overwhelming." Cal. Ct. App. Opinion, p. 11. Third, all the charges were equally inflammatory. Fourth, the evidence on the sex offenses was overwhelming. Fifth, the jury was given limiting instructions and there is no evidence the jury was unable to follow those limiting instructions. Fifth, the prosecutor did not unduly emphasize the evidence of the failure-to-register and did not attempt to use that fact as proof of the rape and oral copulation. See Cal. Ct. App. Opinion, p. 11.
"`The propriety of a consolidation rests within the sound discretion of the state trial judge. The simultaneous trial of more than one offense must actually render petitioner's state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate.'" Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998), cert. denied, 528 U.S. 922 (1999) (quoting Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991)). "This prejudice is shown if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir.), cert. denied, 534 U.S. 943 (2001). Factors that may be considered in determining whether joinder is unduly prejudicial include the joinder of other crimes where the evidence would otherwise be inadmissible and the joinder of a strong evidentiary case with a weak one. See id.
There was no due process violation caused by the failure to sever the trial of the several counts against Johnson. He argues that the failure-to-register evidence alerted the jury to the fact that he had a previous sex offense and therefore led the jury to believe he was more apt to commit the current offenses. His argument immediately runs into a substantial obstacle: evidence of the prior rape was admissible in the trial of the current sex offenses, whether or not he was also being tried at the same time for the failure-to-register crime. California Evidence Code § 1108 allows evidence of another sex offense by the defendant in a trial for a sex offense as propensity evidence. Cf. Fed.R.Evid. 413, 414; United States v. LeMay, 260 F.3d 1018, 1024-25, 1030 (9th Cir. 2001), cert. denied, 534 U.S. 1166 (2002) (rejecting due process and equal protection challenges to Federal Rule of Evidence 414, which governs the admissibility of evidence of prior conduct in cases of child molestation). And California Evidence Code § 1101 allows evidence that a person committed a crime when that fact is relevant to prove some fact such as absence of mistake or accident or "whether a defendant in a prosecution for an unlawful sexual act or attempted sexual act did not reasonably and in good faith believe that the victim consented." The evidence of the prior conviction was cross-admissible, i.e., it was proof that he had a prior conviction for which he needed to register and therefore committed the crime of failing to register and it tended to disprove his consent defense to the rape and oral copulation charges. Second, this was not a situation where a weak case was being joined with a strong case in hopes of a spill-over of the stronger case. The evidence on the sex offenses counts was ample and Johnson concedes that the evidence on the failure-to-register count was, too. Johnson has not disputed the state appellate court's determination that the prosecutor did not try to misuse the prior sex offense to her advantage in the rape and oral copulation charges. Third, the joinder did not prevent the admission of any evidence that would have been admissible had there been a severance. Cf. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997) (no due process violation even though joinder prevented defendant from introducing co-defendant's wife's corroborative statement). Fourth, the jury was given limiting instructions and its verdict finding Johnson not guilty of assault indicates that the jury was able to compartmentalize the evidence.*fn1 Cf. Featherstone, 948 F.2d at 1503-04. As discussed in the following section, the jury is presumed to have followed the limiting instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). Finally, the evidence of the prior sex offense was sanitized so that, although the jury learned that he had a sex offense conviction, it did not learn that the particular offense of which he had been convicted was a rape.
The refusal to sever the failure-to-register claim from the assault claim also did not render the trial fundamentally unfair. The jury was instructed to consider the evidence on the failure-to-register count separately and not for purposes of guilt on the other counts. The jury's acquittal on the charge of assault with force likely to produce great bodily injury and guilty finding on the lesser charge of battery showed that the jury successfully compartmentalized the evidence. The evidence on the assault count did not taint consideration of the failure-to-register count — the latter being a crime to which Johnson admittedly "had no defense whatsoever." Petition For Review, p. 11.
Johnson has not shown that there is "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254 on the severance issue he raises. He thus has not shown that the state appellate court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law. Even if he could rely on just Ninth Circuit case law, he would not prevail. Under the law of this circuit, the failure to sever the failure-to-register count did not rise to the level of a constitutional violation. He is not entitled to the writ on this claim.
2. Instruction On Sex Offender Charge
Johnson contends that the trial court's limiting instructions on the failure to register claim were "ineffective to prevent consideration of [his] convicted felony sex offender status as evidence of his guilt of other charges, thus impermissibly lightening the prosecution's burden of proof and violating [his] federal Constitutional right to be convicted only on a proof beyond a reasonable doubt." Petition For Review, p. 2. Respondent contends that this claim is unexhausted. The court need not decide whether the claim was exhausted because the court can deny (but not grant) an unexhausted claim. See 28 U.S.C. § 2254.
Jury instructions, and their powers, cannot be underestimated in the American system. The U.S. Supreme Court has recognized
the almost invariable assumption of the law that
jurors follow their instructions, Francis v.
Franklin, 471 U.S. 307, 325, n. 9 (1985), which we
have applied in many varying contexts. For example, in
Harris v. New York, 401 U.S. 222 (1971), we held that
statements elicited from a defendant in violation of
Miranda v. Arizona, 384 U.S. 436 (1966), can be
introduced to impeach that defendant's credibility,
even though they are inadmissible as evidence of his
guilt, so long as the jury is instructed accordingly.
Similarly, in Spencer v. Texas, 385 U.S. 554 (1967),
we held that evidence of the defendant's prior
criminal convictions could be introduced for the
purpose of sentence enhancement, so long as the jury
was instructed it could not be used for purposes of
determining guilt. Accord, Marshall v. Lonberger,
459 U.S. 422, 438-39, n. 6 (1983). See also Tennessee
v. Street, 471 U.S. 409, 414-416 (1985) (instruction
to consider accomplice's incriminating confession only
for purpose of assessing truthfulness of defendant's
claim that his own confession was coerced); Watkins
v. Sowders, 449 U.S. 341, 347 (1981) (instruction not
to consider erroneously admitted eyewitness
identification evidence); Walder v. United States,
347 U.S. 62 (1954) (instruction to consider unlawfully
seized physical evidence only in assessing defendant's
credibility). In Bruton v. United States, 391 U.S. 123
(1968), however, we recognized a narrow exception to
this principle: We held that a defendant is deprived
of his Sixth Amendment right of confrontation when the
facially incriminating confession of a nontestifying
codefendant is introduced at their joint trial, even
if the jury is instructed to consider the confession
only against the codefendant. We said:
"[T]here are some contexts in which the risk that the
jury will not, or cannot, follow instructions is so
great, and the consequences of failure so vital to the
defendant, that the practical and human limitations of
the jury system cannot be ignored. Such a context is
presented here, where the powerfully incriminating
extrajudicial statements of a codefendant, who stands
accused side-by-side with the-defendant, are
deliberately spread before the jury in a joint trial. . . ."
391 U.S. at 135-136.
Richardson v. Marsh, 481 U.S. 200
, 206-07 (1987) (Confrontation Clause was not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when the confession was redacted to eliminate the defendant's name and any reference to his existence). Elsewhere in the Richardson opinion, the Court stated that "[t]he rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Id. at 211.
Johnson has not presented a convincing argument that the jury was not able to follow the limiting instructions on the consideration of the failure-to-register count. see RT 236. The jury's verdict of guilt on the lesser charge of battery (rather than assault with force likely to produce great bodily injury) indicates that it was able to compartmentalize the evidence and not simply convict Johnson of all crimes because it perceived him as a bad person based on his criminal past. The sex offender conviction was not so inflammatory that no instruction could cure it. This court sees no reason to depart from the almost invariable assumption of the law that jurors follow their instructions. Johnson does not come within the two narrow exceptions to that rule, i.e., that jury instructions cannot cure a true Bruton error (i.e., where a codefendant's confession directly implicates a defendant at a joint trial) and that limiting instructions are insufficient to overcome a situation where the jury is asked to decide both whether a confession is voluntary and its appropriate use. See Bruton, 391 U.S. at 126-37; see generally Spencer v. Texas, 385 U.S. 554, 565 (1967) (rejecting the notion that jury instructions cannot cure errors or adequately limit consideration of evidence: "It would be extravagant in the extreme to take Jackson as evincing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose.") Johnson is not entitled to the writ on this claim.
3. Ineffective Assistance of Counsel Claim
Johnson argues he received ineffective assistance because, once the motion to sever was denied, his trial counsel failed to take other steps to keep the jury from learning of the prior sex offense when it considered his guilt on the other charges. Specifically, he claims that counsel should have moved to bifurcate the trial so that a single jury could have considered the failure-to-register count only after it reached a verdict on the other counts He further claims that, if the motion to bifurcate was denied, his counsel then should have convinced him to plead guilty to the failure-to-register count.
The California Court of Appeal rejected the ineffective assistance claim. The court explained that it did not need to determine whether counsel's failure to seek bifurcation or a guilty plea was deficient performance because Johnson had failed to demonstrate prejudice:
First, there is no evidence on the record that the
trial court was inclined to grant a motion to
bifurcate had one been presented by defendant's trial
attorney. Indeed, the court would have been well
within its discretion to deny the motion for the same
reasons it denied the motion for severance. Second,
even had defendant successfully removed the issue of
his prior felony sex offense conviction from the trial
of the rape and oral copulation counts, either by
bifurcation or by pleading guilty to the section 290
charge, we do not believe it is reasonably probable
the jury would have reached a more favorable verdict
on any of the counts. As discussed above, the evidence
on the rape, oral copulation and assault charges was
uncontradicted and overwhelming. Furthermore, given
the physical injuries sustained by Ms. Doe in the
attack, and the evidence of prior and current threats
of harm, defendant's defense of consent or mistaken
believe in consent was not plausible.
Cal. Ct. App. Opinion, p. 13.
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999).
The California Court of Appeal's rejection of Johnson's ineffectiveness claims was not contrary to or an unreasonable application of clearly established federal law. The state appellate court described the appropriate two prong test requiring deficient performance and prejudice, even though it did not explicitly cite by name Strickland v. Washington, the controlling U.S. Supreme Court case. And the court's analysis was correct.
Johnson has submitted a declaration from trial counsel in which counsel stated that he had not even thought about bifurcation and would have requested it if he was aware of its availability and if there was legal authority to support such a request. Johnson also submitted a declaration from himself in which he says he would have agreed to bifurcation or a guilty plea. Neither of these declarations can help him because, regardless of his ability to show deficient performance, he cannot show prejudice resulting from counsel's conduct.
Counsel's failure to seek bifurcation or a guilty plea resulted in no prejudice to Johnson. As the state appellate court noted, there is no indication the trial court would have granted a motion to bifurcate in light of its ruling on severance. And even if there had been a bifurcated trial, California Evidence Code § 1101 and 1108 made the evidence of the prior rape admissible in light of Johnson's anticipated consent defense. Since the evidence of the prior rape was admissible, there was no benefit in bifurcating the trial. A guilty plea on the failure-to-register count also would not have kept that evidence out of the trial off the sex offenses. Additionally, this court presumes the jury followed the instruction to keep separate the evidence on the failure-to-register count, so that regardless of whether the counts were bifurcated or not, the jury used the evidence in a manner consistent with the court's instructions. There is no reasonable probability that the result of the proceedings would have been different if counsel had moved for a bifurcated trial or had Johnson entered a guilty plea. Johnson is not entitled to the writ on this claim.
4. Cruel And Unusual Punishment Claim
Johnson alleges that his sentence of 105 years to life amounts to cruel and unusual punishment. The California Court of Appeal rejected Johnson's claim. First, the court found of no consequence the argument that the sentence was cruel and unusual punishment because it could not, as a practical matter, be served in a lifetime. Cal. Ct. App. Opinion, p. 17-18. The court also concluded that the sentence "neither shocks the conscience nor is disproportionate to the crimes."
Defendant, who was involved in an abusive relationship
with Ms. Doe, took the opportunity to vent his
jealousy by hitting her so hard that her glasses
broke, her nose bled profusely and she flew across the
bed from the force of the blow. Thereafter, despite
the fact that she was injured and losing
consciousness, defendant forced her to repeatedly have
sexual intercourse with him and to orally copulate
him. This was the final assault in an abusive
relationship in which defendant had not only
threatened Ms. Doe with harm but had injured her on
several occasions in the past. Furthermore, defendant
has a substantial criminal record dating back to June
Cal. Ct. App. Opinion, p. 18-19. Johnson's recividism warranted a longer prison sentence. Id. at 19.
Two very recent U.S. Supreme Court cases require a denial of Johnson's claim. In Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003), the Court rejected the notion that its case law was clear or consistent enough to be clearly established federal law within the meaning of U.S.C. § 2254(d), except that it was clearly established that a gross disproportionality principle does apply to sentences for terms of years (as well as to the death penalty), but the precise contours of that principle "are unclear, applicable only in the `exceedingly rare' and `extreme' case." Andrade casts doubt on almost any non-death penalty petitioner's ability to show that a state court's rejection of his Eighth Amendment claim was contrary to or an unreasonable application of clearly established federal law. The other key case is Ewing v. California, 123 S.Ct. 1179 (2003), which upheld a sentence of 25-years-to-life for a recidivist convicted most recently of grand theft. Ewing explained that California's Three-Strikes Law was not constitutionally infirm and that states may deal in a harsher manner with repeat offenders.
Johnson's sentence of 105 years to life — which respondent concedes is functionally equivalent to petitioner being required to spend the rest of his life in prison — does not come close to raising an inference of gross disproportionality to his crimes. In the present case, Johnson was convicted of rape, forced oral copulation, failure to register as a sex offender, and misdemeanor battery. And he had a very lengthy criminal history, which Ewing explained properly may be considered in a sentencing decision. "He has six misdemeanor convictions, including resisting arrest, drunk driving, sexual battery, violating a restraining order to prevent domestic violence, and unauthorized entry of a dwelling. Additionally, he has two prior strike convictions. The first strike, a felony conviction for assault with force likely to produce great bodily injury was based on an assault in which defendant hit a former sexual partner, breaking her jaw. The second strike, a conviction for forcible rape, was based on defendant's actions in gaining access to a woman's home, choking her and raping her." Cal. Ct. App. Opinion, p. 19 (citations to Penal Code omitted). A 105-years-to-life sentence does not raise an inference of gross disproportionality to Johnson's current crimes, especially in light of his extensive criminal record. He is not entitled to the writ on his Eighth Amendment claim.
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.