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United States District Court, Northern District of California

July 29, 2003


The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge


On May 19, 2000, petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of assaulting James Butner by personally using a hammer and inflicting great bodily injury. The trial court sentenced petitioner to seven years in prison, and ordered him to pay a restitution fine of $1,200 and restitution to the victim of $5,980.49 for medical expenses and $14,771.70 for home security measures and replacement costs.

On January 29, 2002, the California Court of Appeal affirmed the judgment of conviction and, on April 17, 2002, the Supreme Court of California denied review. Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on October 9, 2002, the court found that the petition, when liberally construed, appeared to contain colorable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.


The California Court of Appeal summarized the facts of the case as follows:

On Wednesday, November 24, 1999, defendant's father Benjamin O'Neal came home to find windows broken in his San Jose residence. Benjamin believed that defendant had broken them. Defendant had left home years earlier at the age of 15 or 16. A month or two before November 24, 1999, defendant was agitated when Benjamin told him that he no longer wanted to administer defendant's social security disability benefits. At the time of the vandalism defendant lived about five miles away.
On Tuesday, November 30, 1999, James and Darlene Butner came home to find all the windows broken in their San Jose home, including the glass in their front double door. James could not imagine who had vandalized his house. They had the glass replaced with Plexiglass to prevent future breakage.
On Thursday, December 2, 1999, the Butners came home around 6:00 p.m. to find the Plexiglass broken. The glazier was surprised to hear this. He said it had to be a strong person swinging a heavy sharp object. James put up transparent drop cloths outside to cover the broken windows and keep the heat in the house. He left the porch light on overnight.
Around 5:00 a.m. on December 3, 1999, Darlene awakened her husband James and told him to answer the doorbell. He put on his robe and went to the front door. James saw defendant, nicknamed Rambo, about two to four feet away from him. He assumed defendant was trying to locate one of his two sons, who were adult and lived elsewhere.
Defendant had been a high school friend of their sons 15 years earlier. At the same time defendant was also a friend of children who lived next door. Defendant socialized with their sons outside the Butners' house. Defendant was an occasional dinner guest. James had last seen defendant about a year and a half earlier when they chatted for a few minutes at a neighborhood gas station. They never had any disagreement.
Recognizing defendant, James opened the door. Defendant immediately struck him in the face with a standard carpenter's hammer. The blow knocked James down. He propped himself up against the wall. Defendant stepped into the house brandishing the hammer and said, "If you don't quit doing this to me, I'm going to fuck you up." James turned around to look at him and said, "What have I ever done to you?" Defendant hesitated for a moment, lowered the hammer, and left.
The blow ripped James' face near his left eye. He had a two-inch deep half-inch wide cut above his left eye, a slight rip down the left side of the eye, and a smaller sash at the corner of the eyebrow near his nose. Photographs of his injuries were in evidence.
James had his wife call 911 while he grabbed towels to stanch the bleeding. He told her that it was a black friend of their boys. James was dazed and unable at first to remember defendant's name. Darlene asked if it was Nicky. James said Nicky was too dark. The man was light-skinned. She asked if it was Rambo and James said it was.
Police and paramedics arrive within ten minutes. James described his assailant to the police and gave them his name. He said he remembered Rambo as having a moustache.
James was hospitalized that day and received 22 stitches to close up three wounds. At the hospital around 10:30 a.m., Police Detective Donald Guess showed James a photographic lineup. James hesitated on the fourth picture and said the moustache was similar. When he saw defendant's picture, number six, he identified defendant as his assailant. Darlene agreed the photo showed Rambo.
The same morning, December 3, 1999, sometime between 5:45 and 6:45 a.m., defendant collected his paycheck from his employer, Raymond Talbott, as defendant had prearranged by phone call the prior evening. Talbott lived in San Jose. Defendant had worked for Talbott as an apprentice drywall installer. Defendant last worked for Talbott on November 24, 199[9]. When he left work that day, he took his hammer, leaving his other tools on Talbott's truck.
Detective Guess arrested defendant at his San Jose residence around 11:15 a.m. on December 3, 1999. He did not find the red and green sweatshirt that James had seen defendant wearing that morning. Defendant did not have a moustache.
A crime investigator for the Santa Clara County District Attorney determined that it took about 14 minutes to drive from defendant's residence to the Butners' residence and about 17 minutes from the Butners' to Talbott's residence.
Defendant's roommate, Israel Leal, testified that he saw defendant's car parked outside their house when he left for work around 6:15 a.m. on December 3, 1999. He did not see defendant that day.
The Butners' residence was not vandalized again after defendant was arrested on December 3, 1999. James obtained a restraining order against defendant. James did not lose his eyesight, but his eye was swollen for a week and a halt and he took pain medication for two or three weeks.
People v. O'Neal, No H021675, slip op at 2-4 (Cal Ct App. Jan 29, 2002) (Ex E).


A. Standard of Review

A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).

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

"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id at 409.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in 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 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.

B. Claims

Petitioner raises two colorable claims for relief under § 2254: (1) the admission of evidence that petitioner had committed the prior acts of vandalism rendered the trial fundamentally unfair; and (2) the imposition of a $14,771.70 fine in direct victim restitution was in error and unreasonable.

1. Admission of prior acts

Petitioner claims he was denied his due process right to a fair trial by the trial court's erroneous admission of evidence showing that (1) he had broken the windows at the Butners' residence one and three days before the assault, and that (2) he had broken the windows at his own father's residence nine days before the assault.

Prior to trial, the trial court held a hearing on the prospective testimony of petitioner's father, Benjamin O'Neal. Benjamin testified that the windows in his home were smashed on November 24, 1999 and that he believed petitioner was responsible. His windows had been broken before and he always suspected that petitioner had done that too. Benjamin could not think of anyone who would do that except for petitioner, who was not living with him. Petitioner is paranoid schizophrenic and sometimes cannot control his anger. A month or two earlier Benjamin had informed petitioner that he would no longer administer petitioner's social security payments and petitioner became angry and yelled at Benjamin.

The trial court ruled that the November 24 act of vandalism was admissible to show identity and motive. The court reasoned, "it shows that although identity is not crystal clear on the issue of knocking out the windows on his father's house, he eliminates all other suspects, and if the jury ultimately believed that — that Sean did not do that, of course, then they could not consider that evidence against him. On the other hand, if they believe that he did do it, by a preponderance of the evidence, then it would be relevant to show the pattern of window breaking, and that would tend to show identity. [¶] Perhaps that's a little bit convoluted, but I think it follows logically." The court also observed, "The evidence that the defendant broke out the windows in Mr. Butner's are that the fact [sic] that within the same time period shortly after the placement of the second breaking the defendant appears in the early morning hours." "[T]here are three incidents all within the same time frame." Petitioner's father's windows were broken. The Butners' windows were broken twice. And then petitioner assaulted Mr. Butner "with an instrument that's capable of doing the damage that was done to the windows. So there is some evidence of identity."

At trial, the court stated that it had ruled admissible the acts of vandalism at petitioner's father's house and the Butners' house, and the prosecutor argued to the jury that these acts of vandalism were relevant to show identity and motive. The court instructed the jury that evidence of other crimes by petitioner was admitted for the limited purposes of showing the identity or motive of the person who committed the charged crime and not general disposition or bad character. Despite the court's admonitions, petitioner contends that the evidence of prior bad acts was so prejudicial that its denied him a fair trial.

A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir 1991). Accordingly, a federal court cannot disturb on due process grounds a state court's decision to admit evidence of prior crimes or bad acts unless the admission of the 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 v. Sumner, 784 F.2d 984, 990 (9th Cir 1986).

The Ninth Circuit has held that the admission of other crimes evidence may violate due process only if there were no permissible inferences the jury could have drawn from the evidence (in other words, no inference other than conduct in conformity therewith). See McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir 1993); Jammal, 926 F.2d at 920. Even then, the evidence must be of such highly inflammatory or emotionally charged quality as necessarily prevents a fair trial. See McKinney, 993 F.2d at 1384-85; Jammal, 926 F.2d at 920-21.

In order to obtain habeas relief on the basis of evidentiary error, petitioner must show that the error was one of constitutional dimension and that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). The court must find that the error had ""a substantial and injurious effect' on the verdict."' Dillard v. Roe, 244 F.3d 758, 767 n 7 (9th Cir 2001) (quoting Brecht, 507 US at 623).

Here, the California Court of Appeal rejected petitioner's claim on the ground that, even if the trial court erred in admitting the evidence of prior offenses to prove identity and motive, petitioner was not prejudiced by the error. The court explained:

There are several reasons why defendant was not prejudiced by erroneous admission of the prior offenses to prove identity. First, that the Butners' windows had been broken could hardly have been kept out of evidence. James [Butner] identified defendant as his assailant at least partly due to viewing him through a transparent dropcloth. The jury needed some explanation about why James was looking through a dropcloth instead of his front door's window. Also, the vandalisms helped corroborate that James would not have opened the door at 5:00 a.m. if he had not recognized the person on the doorstep. Two recent vandalisms would have made most householders more fearful of opening the door to a stranger at an unusual hour. Thus, the vandalism of the Butners' residence was admissible for purposes other than identity.
Second, the evidence of these other offenses is not dramatic or inflammatory compared to the evidence of the charged offense. Compared to a surprise hammer blow in the face, evidence of broken windows was unlikely to evoke an emotional response from jurors.
Third, if defendant is correct that the prior offenses were not probative of identity, the jury was still let with strong evidence of identity, namely James' positive and repeated identification of defendant based on prior acquaintance. It is likely given the relative strength of this evidence that the jury relied on James' identification and not the prior offenses to establish defendant's identity and guilt of assault.
We conclude that defendant was not prejudiced by erroneous admission of evidence of prior offenses to prove identity.
People v. O'Neal, No H021675, slip op at 9-10 (Cal Ct App. Jan 29, 2002) (citations omitted).

The California Court of Appeal's application of the Brecht prejudice standard was not objectively unreasonable. See 28 U.S.C. § 2254 (d). Although there were some inconsistencies between James Butner's initial description of his assailant and petitioner (e.g., petitioner did not have a moustache), Butner unequivocally and repeatedly identified petitioner as his assailant. In view of this relatively strong evidence that petitioner was the perpetrator, it cannot be said that the admission of evidence of the prior acts of vandalism had a substantial and injurious effect on the verdict. Even if this court agreed with petitioner that the admission of evidence of the prior offenses had a substantial and injurious effect on the verdict, it is at least reasonable to conclude that it did not, which means that the state court's determination to that effect must stand. Early v. Packer, 123 So. Ct 362, 366 (2002).

In addition, petitioner is not entitled to federal habeas relief on his due process claim because the state court's rejection of the claim cannot be said to violate due process under clearly established Supreme Court precedent. See Williams v Taylor, 529 U.S. 362, 412 (2000) (Under § 2254(d), "[c]learly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision."); see also Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir 2001) ("[T]he question.., is not whether [state law] violates due process as that concept might be extrapolated from the decisions of the Supreme Court. Rather, it is whether [state law] violates due process under "clearly established' federal law."). As the Ninth Circuit has acknowledged, "the Supreme Court has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes." Garceau v. Woodford, 275 F.3d 770, 774 (9th Cir 2001), overruled on other grounds by Woodford v. Garceau, 123 S Ct 1389 (2003). In light of the limiting instruction given in this case, the state courts' rejection of petitioner's due process claim is in fact more in conformity with, rather that in violation of, clearly established Supreme Court precedent. See Spencer v. Texas, 385 U.S. 554, 558, 563-64 (1967) (holding that it is not a violation of due process to admit other crimes evidence, for purposes other than to show conduct in conformity therewith, where the jury is given a limiting instruction "that it should not consider the prior conviction as any evidence of the defendant's guilt on the charge on which he was being tried").

2. Restitution fine

Petitioner claims that the trial court improperly ordered him to pay $14,771.70 in direct victim restitution to James Butner "for losses incurred for (1) the broken windows because [petitioner] was neither charged with nor convicted of the vandalism, and for (2) installation of the elaborate and expensive security system for his home." According to petitioner, "[t]he amount order[e]d was beyond what was reasonable."

The Butners asked reimbursement for the following amounts, among others: $2,532.42 to replace windows, lights, and their front door, all broken in the vandalism on November 30 and December 2, 1999; $6,701.88 to install rolling metal shutters on all their windows; $144.08 for a steel side door on the garage; $2,000 for a wrought iron enclosure for their front entry; and $400.00 for four weeks of video surveillance. In a sealed letter to the court, they expressed concern about retaliation by petitioner upon his release from prison.

The trial court sustained petitioner's objection to paying $54.75 for slashed tires, saying there was no evidence that petitioner was responsible, but overruled petitioner's objection to paying for the security measures and the replacement windows. The court explained: "Regarding the security provisions that Mr. and Mrs. Butner had to take with regard to their home — let me just add that the defendant was not tried and convicted of malicious mischief, just the assault; however, he was convicted of the assault. The assault occurred at a time when the victim was least expecting it, at five o'clock in the morning, at his home while in his home. And I think it's an appropriate response by him and his wife to secure their home against any further type of invasion such as the one that occurred in this case by utilizing security devices to protect himself and her. And that would be the case whether or not Mr. O'Neal broke the windows on another occasion or slashed the tires. He specifically was not convicted of that, just the assault. But the fact he was convicted of the assault justifies him bearing the restitution for the increased security measures they had to take." The court concluded, "I find that the extra security provisions that the Butners took to their home was reasonable and that you are liable for the cost of those necessary improvements to protect them in their security and their peace of mind."

The California Court of Appeal found that the restitution order at issue was authorized under state law — which, among other things, authorizes restitution for economic loss incurred as the result of the defendant's criminal conduct — and was reasonable. See People v. O'Neal, No H021675, slip op at 11-15 (Cal Ct App. Jan 29, 2002) (citing Cal Const, art I, § 28(b); Cal Penal Code § 1202.4). The court explained that petitioner's "apparently unprovoked and irrational assault by hammer on James Butner in his own home deprived the Butners of peace of mind and security in their own home" and, therefore, "[t]heir attempts to regain security through home security measures and video surveillance reasonably appear to be economic losses incurred as the result of the assault of which defendant was convicted." Id at 13. And, as to the costs of replacing windows, lights and a door broken by vandalism, the court also found the Butners' expenses reasonable because (1) under state law "a restitution award may be ordered so long as it is established that by a preponderance of the evidence at a sentencing hearing that a defendant's criminal conduct caused the victim's economic loss, whether or not the conduct resulted in a conviction or even a criminal charge," and (2) there was "substantial evidence" on the record that petitioner "had vandalized the Butners' residence." Id at 15.

Federal habeas relief is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Engle v. Isaac, 456 U.S. 107, 119 (1982). It is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle, 456 US at 119; Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir 1994).

The constitutional guarantee of due process is applicable at sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977). A federal court therefore may vacate a state sentence imposed in violation of due process; for example, if a state trial judge (1) imposed a sentence in excess of state law, see Walker v. Endell, 850 F.2d 470, 476 (9th Cir 1987); or (2) enhanced a sentence based on materially false or unreliable information, or based on a conviction infected by constitutional error, see United States v. Hanna, 49 F.3d 572, 577 (9th Cir 1995); Walker, 850 F.2d at 477. However, federal courts must defer to the state courts' interpretation of state sentencing laws. Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir 1994).

Petitioner's claim that the state trial court improperly ordered him to pay $14,771.70 in direct victim restitution to James Butner is without merit. Even if the state courts erred in their application of state sentencing law, it is well-established that federal habeas relief is unavailable for violations of state law or alleged error in the interpretation or application of state law. See Estelle, 502 US at 67-68; Peltier, 15 F.3d at 861-62. Petitioner's contention that the restitution order was "beyond what was reasonable" does not compel a different result. The California Court of Appeal's rejection of petitioner restitution claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d).*fn1


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.


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