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JOHNSON v. LAMARQUE

United States District Court, Northern District of California


April 2, 2003

JAMES R. JOHNSON, PETITIONER,
v.
A.A. LAMARQUE, RESPONDENT.

The opinion of the court was delivered by: Charles B. Breyer, United States District Judge

MEMORANDUM AND ORDER

STATEMENT OF THE CASE

Petitioner James R. Johnson ("petitioner") was charged by information filed on April 28, 1998, with second degree robbery and attempted second degree robbery. The information alleged that these offenses were serious felonies and that petitioner used a deadly weapon when he committed them. It was further alleged that petitioner had previously been convicted of robbery which constituted a "strike" within the meaning of California Penal Code section 667(d)-(e). Petitioner pled not guilty and denied the special allegations.

On December 27, 1999, a jury convicted petitioner of robbery and attempted robbery with a deadly weapon. Pursuant to petitioner's waiver of jury trial on the prior conviction allegations, a court trial was held and the priors were found true. Petitioner was sentenced on March 1, 2000, to a prison term of 19 years and four months with 909 days of credit for time served. The California Court of Appeal affirmed petitioner's conviction on May 4, 2001 and the California Supreme Court subsequently denied review. Petitioner then filed the instant federal petition for writ of habeas corpus under 28 U.S.C. § 2254.

FACTUAL BACKGROUND

The pertinent facts of the case are as follows:*fn1

On the evening of March 18, 1998, Anna Lijpart and Coleen Dowling attended a lecture at the Herbst Theater in San Francisco. Afterwards, as the two entered the elevator lobby of the Civic Center Garage, they heard voices arguing in one of the elevators. Dowling saw two men in the elevator, one African-American and one Caucasian; the Caucasian man said,' "[g]et away from me, you're crazy." Dowling yelled, "[h]ey, what's going on?" The African-American man ran out of the elevator, the doors closed and the white man went down in the elevator.
Another elevator arrived, which Dowling and Lijpart entered, along with an older couple. As the doors were closing, the same African-American man who had run out of the other elevator, whom both Dowling and Lijpart identified as apellant at trial, opened the door and came into the elevator. The man was holding a knife and told the occupants of the elevator, "[g]ive me your stuff give me your money." Lijpart threw a canvas bag containing her wallet, sunglasses, checkbook, cosmetics bag and two books she had purchased that evening at the man's feet. A second African-American man, shorter than appellant, jumped into the elevator and said, "[t]his is a robbery." Dowlin gave the man her wallet. The man grabbed Lijpart's hand, tryin to take off her wedding ring. Apellant was focused on the older couple. At this point, Dowling ran out of the elevator between the men, yelling, "[h]elp. We're being robbed. Help. Somebody help." Lijpart eventually got her ring off her finger, threw it on the ground outside the elevator and ran out. She and Dowling ran outside and stopped a car that was exiting the garage. Dowling testified that, after waiting a few minutes to be sure the men had left, the women returned to the elevator lobby and retrieved Lijpart's ring, went to the garage office and called the police, then returned to the elevator lobby with a garage attendant and waited about 10 minutes for the police to arrive. Lijpart testified that they looked for and found her wedding ring after calling the police, while they were waiting in the elevator lobby.
San Francisco police officers Richard Aceret and Jennifer Dudoroff arrived at the Civic Center garage at 9:52 p.m. and found the victims five minutes later. When the police arrived, the women gave them a physical descriptions of the robbers, describing the taller man as a little over six feet tall, with a mustache, dressed all in black, including a "puffy" black jacket with a hood. Lijpart testified that she said the man had bloodshot eyes and was wearing some sort of black cap. The police had the women get into the police car and rove around the Civic Center area looking for the suspects. At 10:10 p.m., the officers stopped near the Carl's Junior at Seventh and Market Streets because they observed an African-American man wearing a puffy black hooded jacket sitting in the back. The officers told the victims that the man might or might not be the right one. Lijpart and Dowling looked through the window of the restaurant, saw the man's profile and thought it was the first robber but were not sure.*fn2 The officers then went inside and had the man stand up and face the window. Appellant did not say anything but complied with the request. Lijpart testified that she "knew immediately that it was him" and was "[a] hundred percent certain" it was the first robber. Dowling was "sure" it was the first robber, with no question in her mind.*fn3 Both women nodded to police officers. One of the officers then held up Lijpart's car keys and asked if they were hers; Lijpart said they were. The officers arrested apellant and took him out of the restaurant. officer Dudoroff went outside and each of the victims separately told her that this was the person who had robbed them. Officer Dudoroff also testified that appellant was "kind of mellow . . . like he was coming of[f] something" and that the Tenderloin area had a "high rate of crime, including drugs and violent crimes." The officer made no reference in her report, however, about the possibility of appellant being under the influence of anything.
The officers brought the women to the table where appellant had been sitting and Lijpart saw her wallet, checkbook, sunglasses and cosmetics bag there. The contents of her wallet were undisturbed, including $300 in cash. Both victims testified that a knife found on the table was the one appellant had used to threaten them in the elevator.
Kandyce Kelsey testified for the defense. Kelsey was a program coordinator for a social service agency serving clients with HIV, substance abuse, and mental issues, and had previously worked at a treatment facility for substance abusers. She had met appellant about four years prior to trial, when he was a client at the treatment facility. They developed a personal relationship after appellant left the program and Kelsey moved to a different job. They were romantically involved briefly, then remained good friends.
Appellant was with Kelsey at her house in Alameda on March 18; he had been staying there for a couple of days. That evening, she drove him back to San Francisco, leaving her house at about 9:30 p.m. Appellant was not under the influence and his eyes were not bloodshot. Kelsey dropped appellant at the Carl's Junior on Market Street. As he walked into the building, Kelsey saw a bag on the ground. Appellant picked it up, saying that there might be money in it. Kelsey told appellant not to get into any trouble and drove off.
Kelsey did not immediately come forward with the information to which she testified because appellant did not want her to get involved. As time went on, her information seemed more crucial and he eventually agreed to let her be involved. Kelsey was asked on cross-examination whether it worried her to take appellant to an area with a lot of drug activity and said it did not. She was shown a transcript of her interview with a defense investigator about a year after the incident in which she said she had picked appellant earlier in the day of March 18, but testified that this was a mistake.
DISCUSSION

I. Standard of Review

This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).

The writ 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." Id. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

An unreasonable application of federal law is different from an incorrect application of federal law. Id. at 410. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for the purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

II. Legal Claims

Petitioner raises five claims: (1) violation of his Fifth Amendment rights by the prosecution's use of pre-arrest silence; (2) improper admission of speculation evidence, that petitioner came to the Tenderloin on the night of the robbery to find drugs and robbed the victims to obtain money for drugs, violating his right to a fair trial; (3) denial of the right to trial by jury by the trial court's use of judicial notice; (4) prejudicial error by the trial court's instructing the jurors under CALJIC No. 17.41.1 that they had a duty to inform one another; and (5) violation of due process and the right to a fair trial due to the cumulative effect of the errors alleged herein.

A. Evidence of Petitioner's Pre-arrest Silence

Following the robbery, the police approached petitioner at Carl's Jr. restaurant on Market Street and asked him to stand up so that the robbery victims could observe him through the window. Petitioner complied with the request and remained silent. During trial, the prosecution argued that the petitioner's silence during this encounter showed consciousness of guilt. Petitioner claims that admission of his pre-arrest silence was error which violated his Fifth Amendment and due process rights. He contends that the state court's error was not harmless beyond a reasonable doubt.

The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986).

As noted by the opinion of the California Court of Appeal, the issue of whether pre-arrest silence is admissible as substantive evidence of guilt has not been resolved by the U.S. Supreme Court. See People v. James Johnson, No. A090560, slip op. at 6 (Cal. Ct. App. May 4, 2001) (Resp't Ex. F). Because it cannot be shown that the state court unreasonably applied clearly established law as determined by the U.S. Supreme Court, petitioner is not entitled to habeas relief. See 28 U.S.C. § 2254 (d); Clark v. Murphy, 317 F.3d at 1044 (only the Supreme Court holdings are binding on the state courts and only those holdings need be reasonably applied).

While the U.S. Supreme Court has not decided the issue, the federal circuit courts are divided on the issue of admissibility of pre-arrest silence as substantive evidence of guilt.*fn4 The Ninth Circuit expressly permits the admissibility of pre-arrest, pre-Miranda silence as impeachment evidence and as evidence of substantive guilt. See United States v. Oplinger, 150 F.3d 1061, 1066-1067 (9th Cir. 1998); United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002).

In Oplinger, the defendant, a supply coordinator for a bank, made several cash purchases totaling over $22,000 and later returned the supplies, keeping the cash for himself. 150 F.3d at 1064. When questioned about his behavior in a meeting with his employer, defendant remained silent. Id. at 1066. On appeal from his conviction, defendant claimed the government's reference to his pre-arrest silence during closing argument was constitutional error, violating the rule against self-incrimination. Id. The Ninth Circuit held that the admission of testimony regarding the meeting in question did not offend defendant's privilege against self-incrimination or his due process rights. Id. at 1067.

Similarly, in United States v. Beckman, the Ninth Circuit, citing United States v. Oplinger, held that the defendant's pre-arrest silence was admissible as impeachment evidence and as evidence of substantive guilt. Beckman, 298 F.3d at 795. Beckman was charged with importing marijuana and possessing it with an intent to distribute. Id. at 791. He claimed to have been invited to Mexico by Ty Gregg (a government cooperating witness) to race dune buggies. Id. Defendant claimed that when the two men reached the border checkpoint. Gregg asked defendant to drive through the checkpoint, which was part of a set-up. Id. at 792. When boarder patrol agents searched the truck, they discovered 1541 pounds of marijuana inside. Id. Defendant claimed error by the admission of his pre-arrest silence when the government suggested in closing that if Beckman had really believed he was tricked by the government's witness, he would have told inspectors at the border checkpoint. Id. at 795. The court found no error from the government's commentary on Beckman's silence. Id.

The Fifth and Eleventh Circuits have also held that the admissibility of a defendant's pre-Miranda silence does not offend the Fifth Amendment right against self-incrimination. See United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (no Fifth Amendment violation where the silence at issue was neither induced by nor a response to any action by a government agent); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) (the government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings).

Other circuits prohibit the admission of pre-arrest silence as substantive evidence of guilt. See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000); Coppola v. Powell, 878 F.2d 1562, 1567-1568 (1st Cir. 1989); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991). The cases holding pre-arrest silence inadmissible are distinguishable in that they appear to have involved defendants who had affirmatively asserted their constitutional right to silence by refusing to speak with government officials, thereby more directly implicating the protections of the Fifth Amendment. For example, in United States v. Burson, the primary case relied upon by petitioner, the Tenth Circuit held that the admission of testimony of two IRS agents concerning defendant's silence when they questioned him about his financial dealings during an investigation for tax evasion constituted plain error in violation of defendant's right to remain silent under the Fifth Amendment. Id. What distinguishes Burson from the case at bar is that the defendant invoked his privilege against self-incrimination. Id. at 1200. The court noted that "It is clear from the agents' testimony Mr. Burson "`did not want to be questioned'" and would not answer any of the agents' questions." Id.

In the present case, petitioner did not assert a right to silence, but simply did not speak when requested by police to stand up and face the window. In addition, the police did not ask petitioner any questions. Further, there is no evidence that petitioner was in custody or was exercising his Fifth Amendment privilege against self-incrimination when the officers approached him. He did not refuse to speak to the officers, but rather, remained quiet when asked to stand. Thus, petitioner's situation is most factually analogous to that of the defendants in Beckmanand Oplinger, as opposed to the defendants in Burson, Combs and Coppola.

Even if the law of the circuit courts was applicable to federal habeas review, Ninth Circuit authority is sufficient to enable this Court to determine that the state court did not commit error when it admitted petitioner's pre-arrest silence as substantive evidence of guilt during trial. See Beckman, 298 F.3d at 795; Oplinger, 150 F.3d at 1066-67.

And even if the trial court erred in the admission of petitioner's silence, such error would not be prejudicial so as to require reversal. In order to grant habeas relief on the basis of an evidentiary error, there must have been error of constitutional dimension and that error must have resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). It must be shown that the error had a "substantial and injurious effect" or influence in determining the jury's verdict. Id. The federal habeas court must ask: "Do I the judge, think that any error substantially influenced the jury's decision?" See O'Neal v. McAninch, 513 U.S. 432, 436 (1995). Here, the overwhelming evidence pointed to petitioner's guilt. The victims gave police detailed accounts of petitioner's physical description, that he was a tall African-American man wearing a black puffy jacket. In addition, a short span of time elapsed between the victims' report to police and his sighting at Carl's Jr. restaurant on Market Street. Moreover, petitioner was found with Ms. Lijpart's bag containing her personal contents, including sunglasses. checkbook and $300 in cash, and the knife used in the incident. Last, both victims positively identified petitioner both at the restaurant and at trial. As the state appellate court correctly determined, it is virtually inconceivable that a reasonable juror could have believed petitioner's defense that he innocently stumbled upon Ms. Lipjart's bag. See People v. James Johnson, No. A090560, slip op. at 8 (Cal. Ct. App. May 4, 2001) (Resp't Ex. F). Error, if any, was not prejudicial. See Brecht, 507 U.S. at 637. The Court is satisfied that the error. if any, did not influence the jury or had but very slight effect on the verdict. See Payton v. Woodford, 299 F.3d 815, 828 (9th Cir. 2002).

Petitioner is not entitled to federal habeas relief on this claim.

B. Evidence Concerning Drug Activity in the Tenderloin and Petitioner's Prior Drug Use

Petitioner claims that the trial court committed error by admitting speculation evidence that Ms. Kelsey dropped him off in San Francisco's Tenderloin district, a "drug supermarket," on the night of the robbery, to support the inference that petitioner, a recovering drug addict, was going there to buy drugs, and further, that he was going to rob to obtain money to pay for such drugs.

The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. The category of infractions that will violate fundamental fairness is a very narrow one. Estelle v. McGuire, 502 U.S. 62, 73 (1991). "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). But only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. Id.

The admission of Ms. Kelsey's testimony was not so arbitrary that it rendered the trial fundamentally unfair. At trial, Ms. Kelsey testified that she became acquainted with petitioner while he was a patient at the substance abuse facility where she worked. She also testified that she dropped off petitioner in the Tenderloin district of San Francisco on the night of the robbery and was aware that a lot of drug occurred in that area. The state appellate court found the admission of Ms. Kelsey's testimony to be proper since it was relevant to her credibility and to petitioner's motive for the robbery. See People v. James Johnson, No. A090560. slip op. at 10-11 (Cal. Ct. App. May 4, 2001) (Resp't Ex. F). The jury was permitted to hear this information to assess whether Ms. Kelsey had a bias or motive for testifying. Additionally, the jury was permitted to draw permissible inferences from Ms. Kelsey's testimony, including that petitioner came to the Tenderloin to buy drugs and robbed victims to obtain money for that purpose. Because there are permissible inferences to draw from Ms. Kelsey's testimony, the admission of that evidence passes constitutional muster. Further, the testimony was not so highly inflammatory so as to render the trial fundamentally unfair. Cf. McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993) (admission of evidence depicting defendant as a man fascinated with knives and a commando lifestyle, even though one of the two knives he possessed could not possibly have been used in the subject murder, was not relevant and only served to prey upon the emotions of the jury).

Nor was the testimony of Ms. Kelsey "so prejudicial" that it rendered the trial fundamentally unfair and had a substantial and injurious effect on the verdict. See Brecht, 507 U.S. at 637. The remaining evidence was overwhelming in demonstrating petitioner's guilt, including the detailed physical description of petitioner provided by the victims and the identification of the petitioner by the victims both at the restaurant and at trial. As the state appellate court correctly noted, "There is no reasonable possibility the jury would have reached a different verdict if it had not been presented with evidence of appellant's past drug history." See People v. James Johnson, No. A090560, slip op. at 12 (Cal. Ct. App. May 4, 2001) (Resp't Ex. F). The Court is satisfied that error, if any, did not influence the jury or had but very slight effect on its determination. See Payton, 299 F.3d at 827.

Petitioner is not entitled to habeas relief on this claim.

C. Judicial Notice of Petitioner's Failure to Appear for Trial

During the trial, the court instructed the jury to take judicial notice of the court minutes describing petitioner's failure to appear for trial on April 7 and April 8, 1999, that a bench warrant for his arrest was subsequently issued and that he was arrested pursuant to the warrant. The trial court subsequently instructed the jury that the flight of a person after he is accused of a crime could be used as evidence of guilt pursuant to CALJIC No. 2.52.

Petitioner argues that the device of judicial notice cannot be used to establish facts whose proper interpretation is subject to dispute. Petitioner further argues that the trial court's use of judicial notice in this regard eased the government's burden of having to prove each and every element of the crime beyond a reasonable doubt, in violation of his Sixth Amendment right to a jury trial.

The Sixth Amendment guarantees to a criminal defendant the opportunity for a jury to decide guilt or innocence. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). A criminal defendant is entitled to have the jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. United States v. Gaudin, 515 U.S. 506, 522-23 (1995). Federal circuit court authority speaks directly to the use of judicial notice in this context. Mandatory judicial notice is permissible where judicial notice does not remove an element of the offense from the jury's consideration. United States v. Bello, 194 F.3d 18, at 22-25 (1st Cir. 1999). A judge commits constitutional error "`when he instructs the jury as a matter of law that a fact essential to the conviction has been established by the evidence, thus depriving the jury of the opportunity to make this finding.'" United States v. Johnson, 71 F.3d 139, 142 (4th Cir. 1995) (quoting United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir. 1986)).

Petitioner's claim that the trial court violated his Sixth Amendment right to jury trial because it took judicial notice of his failure to appear for trial and the issuance of a bench warrant for his arrest is without merit. To show constitutional error in this context, petitioner would have to demonstrate that the trial court removed one of the elements of the offense (robbery) from the jury's consideration. Because failure to appear at trial is not an essential element of the offense of robbery or attempted robbery, the trial court's judicial notice of that fact is not a violation of the Sixth Amendment. The trial court's judicial notice of the fact that petitioner failed to appear for trial simply offered the jury a circumstantial basis for inferring consciousness of guilt. None of the elements of the charged crimes was removed from the consideration of the jury. The state appellate court did not unreasonably apply clearly established Supreme Court precedent in rejecting petitioner's claim. See 28 U.S.C. § 2254 (d).

Petitioner is not entitled to federal habeas relief on this claim.

D. Trial Court's Use of California Jury Instructions. Criminal. Number 17.41.1

Petitioner claims that the trial court's rendering of CALJIC No. 17.41.1 was prejudicial error, undermined the integrity of the deliberative process and was a structural defect for which reversal of the judgment is required.

CALJIC No. 17.41.1 provides: "The integrity of a trial requires that jurors, at all times, during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."

The California Court of Appeal found that although this instruction did not pass constitutional muster, giving it was harmless. See People v. James Johnson, No. A090560, slip op. at 19 (Cal. Ct. App. May 4, 2001) (Resp't Ex. F). The court reasoned that the surrounding jury instructions with respect to individual decision-making served to dissipate any ill-effects of CALJIC No. 17.41.1, including instructions that the People and the defendant are entitled to the individual opinion of each juror, and that each juror must decide the case for himself/herself, but should do so only after discussing the evidence and the instructions with the other jurors. See id. In addition, there was overwhelming evidence of petitioner's guilt and no indication in the record that CALJIC No. 17.41.1 had any effect on any juror. See id.*fn5

The state appellate court's rejection of petitioner's claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. A trial court is vested with a responsibility to remove prospective jurors who will not be able to follow the court's instructions. Morgan v. Illinois, 504 U.S. 719, 730 (1992). CALJIC No. 17.41.1 simply requires a juror to advise the court when a fellow member of the jury refuses to follow the law as provided by the court.

Even if instructing the jury with CALJIC No. 17.14.1 was erroneous, petitioner is not entitled to federal habeas relief because he has not shown that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. 62, 72 (1991). In order to obtain relief, petitioner must show that there is a "reasonable likelihood" that the jury applied the challenged instruction in a way that violates the Constitution. Id. at 72 & n. 4; Boyde v. California, 494 U.S. 370, 380 (1990). Even then, a determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. See Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, the petitioner must also show that the error had "a substantial and injurious effect or influence in determining the jury's verdict before granting relief in habeas proceedings." Brecht, 507 U.S. 619, 637 (1993).

Petitioner is not entitled to federal habeas relief on his claim because he has not shown that the challenged instruction had "a substantial and injurious effect" on the jury's verdict. See id. As the state appellate court found, the jury instructions immediately preceding CALJIC No. 17.41.1 served to counter any potential ill-effects of the instruction. The jury deliberated for less than an hour and a half and there was no report of any juror refusing to follow the law. It cannot be said that the instruction invaded or chilled the deliberative process. Moreover, as stated earlier, the evidence against petitioner was overwhelming.

The Court is satisfied that any error committed by the state court had nos substantial and injurious effect in determining the jury's verdict. See O'Neal, 513 U.S. at 434-445. And it is also satisfied that the state courts' rejection of the claim was not contrary, or involved an unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254 (d)(1). Petitioner is not entitled to federal habeas relief on this claim.

E. Cumulative Prejudice

Petitioner claims that the cumulative effect of the trial court's errors alleged herein deprived him of his federal constitutional right to due process and a fair trial. The claim is without merit.

The U.S. Supreme Court has never expressly held that a due process violation may be based on cumulative prejudice. Therefore, petitioner is not entitled to relief because he cannot show that the state courts unreasonably applied U.S. Supreme Court precedent in rejecting his claim. See Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir. 2001) (The question under § 2254(d) "is not whether [the conviction] violates due process as that concept might be extrapolated from the decisions of the Supreme Court. Rather, it is whether [the conviction] violates due process under `clearly established' federal law, as already determined by this Court").

The Ninth Circuit has held that the cumulative effect of several trial errors may prejudice a defendant so much that his conviction must be overturned. See Thomas v. Hubbard, 273 F.3d 1164, 1179-81 (9th Cir. 2002). Even if circuit law applied here, this is not one of those exceedingly rare cases. Cf. id. at 1179-81 (reversing conviction based on cumulative prejudicial effect of (a) admission of triple hearsay statement providing only evidence that defendant had motive and access to murder weapon; (b) prosecutorial misconduct in disclosing to the jury that defendant had committed prior crime with use of firearm; (c) truncation of defense cross-examination of police officer, which prevented defense from adducing evidence that someone else may have committed the crime and evidence casting doubt on credibility of main prosecution witness). Cumulative error is more likely to be found prejudicial when the government's case is weak. See id. Here the evidence pointing to petitioner's guilt was overwhelming. As stated above, both victims provided detailed physical descriptions of petitioner, he was found near the location of the crime shortly after it occurred, and both victims identified petitioner directly following the robbery and later at trial.

Petitioner is not entitled to federal habeas relief on his claim of cumulative error/prejudice.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment in favor of respondent and close the file.

IT IS SO ORDERED.


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