United States District Court, N.D. California
February 10, 2004.
JUAN A. MERCED, Petitioner,
JOSEPH L. McGRATH, WARDEN, PELICAN BAY STATE PRISON, Respondent
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER
Petitioner Juan A. Merced ("Merced") has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Merced was convicted
by a jury for attempted premeditated murder of a peace officer involving
the personal use of a firearm and being a post convicted felon in
possession of a firearm. After finding true allegations that Merced had
eight prior felony convictions, the trial court sentenced Merced to state
prison for a total term of sixty five years to life. The
California Court of Appeal affirmed the judgment. The California Supreme
Court denied review. Upon receipt of Merced's petition, the court issued
an order to show cause why a writ of habeas corpus should not be granted.
Respondent filed an answer to the order to show cause, and petitioner
filed a timely traverse. Having reviewed the memoranda submitted by the
parties, the Court DENIES petitioner's writ of habeas corpus.
Merced was first tried in February and March 1999. His first trial was
declared a mistrial after the jury was unable to reach a unanimous
verdict. Merced was retried beginning in June 1999. At his second trial,
Merced was convicted on the attempted murder and possession of a firearm
charges. At the beginning of the second trial, the parties stipulated
that all rulings on pretrial motions in the first trial would be apply in
the second trial. None of the petitioner's claims for habeas relief arise
out of the first trial. Therefore, except for that part of the record
relating to the first trial court's denial of Merced's pretrial motion to
strike his prior convictions, this Court was not required to review the
I. Uncontested Testimony
On September 24, 1996, Officer Christopher Crabtree was on patrol. He
noticed a black male, around twenty five to thirty years
old, five feet ten inches to six feet tall, about
200 pounds wearing a thick blue puffy jacket and a blue cap, walking with
another man near Niles Market in Oakland. A bottle in one hand and a cup
in the other, the man appeared to be drinking. Crabtree saw him brush up
against a lady with small children. He stopped and got out of his patrol
car to investigate. He asked the man for identification. The man handed
him a Gold Star check cashing card with a name, "Juan Merced,"
and a picture. Crabtree radioed police dispatch that he was "Code Four,"
indicating he did not need assistance. Then, seeing the man reach under
his shirt, Crabtree grabbed at the area where the man was reaching. He
felt a gun. Failing to wrest it away, Crabtree backed up and reached for
his own gun. As he did so, the man said "Don't do it, motherfucker"
several times, pointed his gun at Crabtree, and pulled the trigger. The
gun misfired. Crabtree sought cover behind his patrol car. The man fired
at him, grazing his head. They exchanged gunfire and the man
fled. Crabtree saw him run down 23rd Avenue and turn left on East 15th
Street, but then lost sight of him. He went back to his car. He picked up
the check cashing card, which was laying on the ground where he
had dropped it. He radioed in the name on the card, "Juan Merced," and a
description of the suspect.
Shortly after hearing shots, Sophia Jones, who lived in an apartment
building at 2312
East 15th Street, saw Merced run into her building. A friend,
Tamika Madison, who had been in Jones' apartment on the second floor,
came out and told Jones that Merced wanted her and that he had a gun. The
police subsequently surrounded the building. Officer Mark Neely was shown
the Gold Star check cashing card by another officer. He, then,
entered the building. He went to Jones' apartment on the second floor and
knocked on the door. A shirtless Merced answered. He told Neely his name
was Reggie Freeman. When the officer asked him if he knew "Juan Merced,"
he said "Juan" was his brother. After comparing the photograph on the
card to Merced, Officer Neely arrested him. The officer also picked up a
shirt, which matched the description of clothing that the man who shot
Officer Crabtree had been described as wearing. During a subsequent
search of the apartment, officers found a single. 38 caliber bullet
laying on a child's bed and a. 38 caliber revolver in a closet. The
revolver contained five spent casings and one live cartridge with a dent
in the primer. Subsequent tests determined that a bullet retrieved from
Officer Crabtree's car had been fired from the gun found in the
apartment. A gunshot residue test of Merced's hands indicated that he had
either apparently fired a weapon, or handled a weapon that had gunshot
residue on it, or was near a weapon that was discharged that deposited
the gunshot residue on his hands.
Maletia Luckett lives on the third floor of the same building as Jones.
On September 24, she heard gunshots. At the time, she was in her
apartment with her boyfriend, Phillip Williams, and his fourteen year
old brother, Joel Williams. A few minutes after she heard the
gunshots, she left her apartment and went downstairs. She saw Merced
sitting in front of Jones' apartment on the second floor. He was
perspiring and looking worried. He was wearing a dark sweatshirt with his
ponytail laying in the hood. After looking outside for her son, Luckett
returned to her apartment. As she went upstairs, she saw Merced again. He
was still outside of Jones' apartment. Police subsequently came to
Luckett's apartment. They entered and searched it. Phillip and Joel
Williams were handcuffed and taken to the police station for questioning.
They were tested for gunshot residue and released. Traces of gunshot
residue were found on Joel's hands. No traces were found on Phillip's
Merced's trial, Luckett testified that Joel was in the bathroom in
her apartment at the time she heard the gunshots.
While Merced was in jail, he sent a letter to his wife. The letter was
intercepted by the Alameda County Sheriffs's Department. It read:
Hello Luv. I need you to find or get a
male to read the following to that
misfit who is testifying on me. Don't
make the call from the house and give no names! Be
sure to destroy this when finished.
(Home No. . . . /Work No. . . .)
Listen up, there is a guy who works at Niles
Market that is lying on this black guy that is in
jail on a cop shooting. If the black guy goes to
jail or is convicted we will get the entire
family!! When you go to trial you had better tell
the jury that the black guy didn't shoot
the cop, a Mexican did!!
Luv, read it just like that: I used the term
black instead of Afrikan because it's
common knowledge that I use it ("Afrikan"). Do
this from a pay phone that's
not close or near the house. Be
sure to flush/burn this paper when you
finish, and baby, let this punk know that we aint
bull shitte!! Use a male that I've
never spoke with over the phone and make
sure you can trust him. Luv You.
II. Contested Eyewitness Testimony
The prosecution presented three eyewitnesses who identified Merced as
the man who shot Officer Crabtree. First, Emiliano Valenzuela testified
that, just as he was leaving Niles Market, he heard shots and saw a man
carrying a gun running away. Later that day, he picked a picture of
Merced out of a photo lineup. At Merced's preliminary hearing, Valenzuela
could not identify Merced in the courtroom. At trial, he testified that
after the shooting (but before the photo lineup) he had seen the police
take Merced out of the apartment building in handcuffs. Second, the day
after the incident, Officer Crabtree picked Merced's photo out of a photo
lineup. At trial, he testified that he was "absolutely positive" Merced
was the man who pulled the gun on him. Finally, Mick Hara, the manager of
Niles Market, testified that, shortly before the shooting, he saw Merced
and another man buy brandy in his store; that he later saw the appellant
talking to Officer Crabtree; and that, after hearing shots, he saw
Merced, with a gun, running away from the scene. On the day of the
shooting, Hara picked Merced's photo out of a photo lineup shown to him
by the police. At trial, he testified that although he had at first
indicated he was "75 percent" certain that the
person in the photo he picked out was the right man, he became "a
hundred percent" certain. Hara also described a watch that Merced was
wearing. Both Crabtree and Hara described the shooter as having had a
The prosecution also called Wanda Brannon, a branch manager for Gold
Star Check Cashing. She testified that a check cashing card had
been issued to Juan Merced. Based on the data card and customer
maintenance record for that card, she said it had never been reported
lost or stolen.
The defense challenged the eyewitness identifications of Merced.
Crabtree and Hara picked Merced's picture out of the photo lineup after
viewing his picture on the check cashing card. The defense
contended, without offering any substantiation, that Merced had lost his
card. On the day of the shooting, Crabtree told another officer that the
person who shot him was a "light skinned male Hispanic or even
Puerto Rican." At trial, Hara described the suspect as appearing light
skinned and gave inconsistent testimony about the color of the
Carles Buie testified for the defense. Buie watched the shooting from a
phone booth forty feet away. He said he did not get a clear view of the
shooter's face, but the shooter was "definitely taller than the
defendant." Under cross examination, Buie, who does not wear
glasses, reluctantly acknowledged that he needs glasses to see far away.
He also admitted having been convicted of three prior felonies. The
defense also elicited testimony from Sophia Jones that a person by the
name of "Boogie," who was "tall, not really slim, kind of big boned, long
hair, high yellow light skin complected" and had a "long pony
tail braid," hung out on 23rd Avenue. In closing, the defense noted that
"the defendant (Merced) is not light complected." Conflicting testimony
was also presented concerning the color and type of shirt the shooter was
wearing and whether it was the shirt that police found in Jones'
apartment at the time of Merced's arrest.
III. The Verdict
The jury asked to see Merced's Gold Star check cashing card,
the data card and customer maintenance record for that card, two photo
lineups used to identify Merced, and
three pictures of Joel Williams.
The jury found Merced guilty of attempted premeditated murder of a
peace officer involving the personal use of a firearm and being a post
convicted felon in possession of a firearm. The trial judge
sentenced Merced to consecutive sentences of twenty five years to
life for attempted murder of a peace officer plus a ten year
aggravated term for use of a firearm; twenty five years for being
a felon in possession of a gun; and a five year term for having a
felony prior felony conviction. In total, Merced was sentenced to sixty
five years to life.
Petitioner appealed his conviction to the California Court of Appeal,
which affirmed in December 2001. He then appealed to the California
Supreme Court, which denied his petition for review.
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 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." 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 `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. See
Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (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.
Clark, 331 F.3d at 1069.
I. Exclusion of Prospective Juror
Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment
rights to Due Process and a Fair Trial were violated when the trial court
excused prospective juror Andrew Black based on his statement that he
believed in the concept of jury nullification.
Question No. 64 on the jury questionnaire asked: "Is there any matter
that has not been covered by this questionnaire that you feel you should
mention at this time that might affect your ability to be a fair and
impartial juror in this case?" Black answered: "I recognize and believe
injury nullification where appropriate." The trial court subsequently
asked Black: "If you are selected on this jury, and if I instructed you
as to the law that implies [sic: applies] in the state of California and
it went against your conscience for whatever reason, is it reasonable for
me to assume that you would not follow the law as I dictate it to you?"
Black answered: "It's reasonable for you to assume that." Based on that
answer, the trial court excused Black. The trial court explained:
". . . he's not inclined to follow the Court's instructions that he
must follow if he's selected as a juror. He has a right not to, but I
right not to let him sit if he's going to engage injury
nullification." Reporter's Transcript ("RT"), 93-94. Defendant objected.
Id at 95.
On appeal, petitioner renewed his objections. The Court of Appeal noted
that the California Supreme Court had recently "held that a juror may be
removed from a jury if it appears `in the record "as a demonstrable
reality" that the juror is refusing to deliberate or follow the law in an
effort to exercise the naked power known as jury nullification. . . ."
People v. Merced, No. A088418, slip op. at 5 (Cal. Ct. App.
Dec. 2. 2001) (citing People v. Williams, 25 Cal.4th 441, 461
(2001) and People v. Cleveland, 25 Cal.4th 466, 474-475
(2001)). Petitioner argued that the "demonstrable reality" standard
should have been applied in reviewing the trial court's decision to
excuse prospective juror Black. The Court of Appeal found "[t]here is
nothing in either People v. Williams or People v.
Cleveland that suggests the Supreme Court intended to impose the
`demonstrable reality standard' upon both situations [the excusal of a
juror during trial and the excusal of a prospective juror before trial],
thus overturning the well established rule that the excusal of a
prospective juror for cause will be overturned only if abuse of
discretion is found." Merced, slip op. at 6. The Court of
Appeal held that, in excusing Black, the trial court did not abuse its
The trial court here could have viewed Mr. B.'s
answer "It's reasonable for you to assume
that" as fair warning that the prospective
juror might not follow the law as instructed by
the court. That answer, on top of Mr. B.'s
volunteered belief in jury nullification, was more
than an adequate basis on which the court could
decide that seating Mr. B. would present an
unacceptable risk that yet a third trial might be
required. Mr. B.'s answer is more than an adequate
basis for finding no abuse of discretion. The same
result is allowed under the federal standard,
i.e., "that a prospective juror may be excused if
the juror's voir dire responses convey a `definite
impression' [citation] that the juror's views
"would `prevent or substantially impair the
performance of his duties as a juror in accordance
with his instructions and his oath.'"
Id. (quoting People v. Holt. 15 Cal.4th 619
, 650-651 (1997).
The California Court of Appeal rejected, "as fraught with practical
perils," Id. at 7, petitioner's argument that, because Black's
response was not sufficiently unambiguous to identify him as a potential
nullifier in this specific case, the trial court was obligated to follow
up and explore Black's views with respect to the particulars of the case.
The Court of Appeal also suggested that doing so would be contrary to
[T]o give a prospective juror a thumbnail sketch
of the case based on evidence not yet
heard and often not known to the court at that
time and then ask whether that scenario
would cause the person to nullify is in plain
effect asking a juror to prejudge the case. That
is not only contrary to statute and entrenched
practice . . . it amounts to misconduct for a
Id. at 7 (citations omitted).
On habeas review, this Court is restricted to considering whether the
Court of Appeal's ruling was contrary to, or involved an unreasonable
application of, clearly established federal law. Liberally construed,
Merced offers three grounds for his claim that the exclusion of juror
Black violates his federal rights to Due Process and a Fair Trial.
A. Jury Nullification
Petitioner argues that because a court may not instruct a criminal jury
that they do not have the power of nullification, "it must follow that
the court also does not have the authority to remove from the jury any
prospective jurors who state during voir dire that they are aware of the
power of nullification." Petition ("Pet.") at 12.
The Supreme Court has clearly established that "it is the duty of
juries in criminal cases to take the law from the court, and apply that
law to the facts as they find them to be from the evidence." Sparf
v. United States, 156 U.S. 51, 102 (1895). "Nullification is, by
definition, a violation of a juror's oath to apply the law as instructed
by the court in the words of the standard oath administered to
jurors in the federal courts, to `render a true verdict according to the
law and the evidence.'" United States v. Thomas. 116 F.3d 606, 614 (2d
Cir. 1997) (quoting the Federal Judicial Center, Benchbook For U.S.
District Court Judges 225 (4th ed. 1996)). Trial courts have the duty to
forestall or prevent jurors from engaging in nullification "whether by
firm instruction or admonition or, where it does not interfere with
guaranteed rights or the need to protect the secrecy of jury
deliberations, . . . by dismissal of an offending juror from the
venire or the jury." Id. at 616.
Petitioner relies on United States v. Sepulveda. 15 F.3d 1161 (1st Cir.
1993) to support his argument. However, Sepulveda did not
suggest that trial judges do not have the power to instruct
juries that they do not have the power to nullify. To the
contrary, in Sepulveda the First Circuit noted that "[t]he
applicable rule is that, although jurors possess
the raw power to set an accused free for any reason or for no
reason, their duty is to apply the law as given to them by the court."
Id. at 1190.
Based on Black's answers to the questionnaire and the direct question
during voir dire, it was reasonable for the trial judge to fear that, if
seated, Black might not follow the Court's instructions and the law.
Therefore, the Court of Appeal's holding that, in deciding to exclude
Black from the jury, the trial court was acting within its discretion is
not contrary to, or an unreasonable application of, established federal
B. Right to a Diverse Jury
Petitioner argues, alternatively, that excusing a prospective juror who
was black and believed in the doctrine of jury nullification deprived him
"of the diversity which the Constitution recognizes as an important
element of the right to trial." Pet. at 13.
The selection of a jury from a representative cross section of the
community is an essential component of the Sixth Amendment right to a
jury trial. Taylor v. Louisiana, 419 U.S. 522, 528 (1975). The
representative cross section requirement is violated by the systematic
exclusion of women, Id. at 531, and racial minorities,
Smith v. Texas, 311 U.S. 128, 130 (1940), from juries. However,
it is axiomatic that a criminal defendant is "not entitled to a jury of
any particular composition." Taylor, 419 U.S. at 538; see
also United States v. Rosenthal, 266 F. Supp.2d 1068, 1082-83 (N.D.
Cal. 2003) (noting that a defendant is no more entitled to a jury that
holds a particular viewpoint than one that is all white or all Catholic).
"Nothing in Taylor . . . suggests that the right to a representative
jury includes the right to be tried by jurors who have explicitly
indicated an inability to follow the law and instructions of the trial
judge." Lockett v. Ohio, 438 U.S. 586, 596-97 (1978).
While noting that the prospective juror who was excused was
African-American, Pet at 13, petitioner does not argue that race was a
factor in his exclusion. Nor does he offer any evidence to suggest that
African-Americans were otherwise excluded from serving on his jury. The
Court, therefore, finds that there is no valid basis for a claim that
Black's exclusion violated petitioner's constitutional right to a
C. Right to an Impartial Jury
In his traverse, petitioner restates his claim as follows: "Petitioner
does not argue that he had a right to a nullifying juror or jury, but
rather, that he had a right to Mr. Black as a fair and impartial juror
who was qualified to sit on his jury, and as to whom no just cause for
dismissal appears in the record, because his comments about jury
nullification were general and theoretical, and not related to
petitioner's case." Traverse ("Trav.") at 3.
The right to jury trial guarantees the accused "a fair trial by a panel
of impartial, `indifferent jurors.' " Nebraska Press Association v.
Stuart, 427 U.S. 539, 551 (1976) (citing In re Murchison,
349 U.S. 133, 136 (1955)); Dyer v. Calderon. 151 F.3d 970, 973
(9th Cir. 1998). A juror is considered to be impartial "only if he can
lay aside his opinion and render a verdict based on the evidence
presented in court." Patton v. Yount, 467 U.S. 1025, 1037 n.12
(1984). Because the Constitution lays down no particular tests and
procedure to ascertain impartiality, courts have "broad discretion and
duty . . . to see that the jury as finally selected is subject to no
solid basis of objection on the score of impartiality." Frazier v.
United States, 335 U.S. 497, 511 (1948); United States v.
Torres, 128 F.3d 38, 43 (2d Cir. 1997) (the trial judge has the
authority and responsibility, either sua sponte or upon counsel's motion,
to dismiss prospective jurors for cause). Because determinations of
impartiality may be based in large part upon demeanor, the Ninth Circuit
typically reviews a court's findings regarding actual juror bias for
manifest error or abuse of discretion. See United States v.
Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995).
The trial judge did not, on his own initiative, inquire into the
prospective jurors' beliefs about jury nullification. Instead, Black
volunteered his belief in jury nullification in response to an open
ended question asking about matters "that affect your ability to
be a fair and impartial juror." Given that fact, the trial judge had an
understandable reason to be concerned that Black's views on jury
nullification might limit his ability to be fair and impartial. Moreover,
petitioner does not provide any other evidence that would suggest the
trial judge conducted the juror selection process in a way that excluded
fair and impartial jurors. Nor does petitioner argue that the jury that
was actually seated was not fair and
impartial There is, thus, no basis for habeas relief on this claim.
II. Jury Instructions
Petitioner claims that the trial court violated his federal
constitutional rights by committing four instructional errors. First,
petitioner argues that an instruction that pinpointed specific evidence
of consciousness of guilt lessened or shifted the prosecutor's burden of
proof. Second, petitioner argues that the trial court erred in failing to
instruct, sua sponte, the jury that Officer Crabtree had attempted to
intimidate defense witness Buie. Third, petitioner argues that the trial
court erred in failing to give, sua sponte, an instruction on third
party culpability. Finally, petitioner claims that by giving the
instruction on consciousness of guilt, while failing to give instructions
on witness intimidation and third party culpability, the trial court
violated a constitutional right to absolute equality between prosecution
and defense injury instructions.
To obtain federal collateral relief for instructional error, a
petitioner must show that the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process.
Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v.
Naughten, 414 U.S. 141, 147 (1973). The instruction may not be
judged in artificial isolation, but must be considered in the context of
the instructions as a whole and the trial record. Estelle, 502
U.S. at 72. The court must inquire whether there is a "reasonable
likelihood" that the jury has applied the challenged instruction in a way
that violates the Constitution. Id. 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, to grant habeas relief the court also
must determine that the error "`had substantial and injurious effect or
influence in determining the jury's verdict.'" Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).
A. Consciousness of Guilt Instruction
At the request of the prosecution, the trial court instructed the jury
on consciousness of guilt as follows:
If you find that the defendant attempted to
suppress evidence against himself in any manner,
such as by the intimidation of a witness, by
removing his clothing, or by concealing a gun,
this attempt may be considered by you as a
circumstance tending to show a consciousness of
guilt. However, that conduct is not sufficient by
itself to prove guilt and its weight and
significance, if any, are for you to decide.
RT at 2156.
At trial, the defense objected to this instruction. The objection was
overruled. Petitioner argues that the instruction "improperly pinpointed
particular evidence in the case, to the advantage of the prosecution."
Pet. at 14.
On appeal, petitioner contended that the California Supreme Court had
ruled in People v. Wright 45 Cal.3d 1126 (1988), that "a
defense pinpoint instruction is improperly argumentative if it directs
the jury's attention to specific evidence and `implies the conclusion to
be drawn from that evidence.'" Appellant's Opening Brief ("App. Br.") at
21 (quoting People v. Harris, 47 Cal.3d 1047, 1098, n.31
(1989). Therefore, in petitioner's view, the prosecution must not be
entitled to instructions that pinpoint evidence. App. Br. at 23. After
noting that Merced's interpretation of Wright had been repudiated by the
California Supreme Court in People v. Jackson,
13 Cal.4th 1164, 1223-24 (1996), the California Court of Appeal rejected his
In his habeas petition, petitioner now argues that the instruction
violated federal constitutional law because "it tended to lighten the
prosecution's burden of proof by placing the trial court's imprimatur on
matters that should have simply been the subject of prosecutorial
argument." Pet. at 17.
The Due Process Clause of the Fourteenth Amendment protects the accused
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged. In
re Winship, 397 U.S. 358, 364 (1970). This constitutional principle
prohibits the state from using evidentiary presumptions in a jury charge
that have the effect of relieving the state of its burden of persuasion
beyond a reasonable doubt of every essential element of a crime. See
Yates v. Evatt, 500 U.S. 391, 400-02 (1991) (instructions that
"malice is implied or presumed" from the willful, deliberate,
and intentional doing of an unlawful act and from the use of a
deadly weapon are constitutionally impermissible); Carella v.
California, 491 U.S. 263, 265-66 (1989) (instructions that a person
"shall be presumed to have embezzled" a vehicle if it is not returned
within 5 days of the expiration of the rental agreement and that "intent
to commit theft by fraud is presumed" from failure to return rented
property within 20 days of demand are constitutionally impermissible).
In this case, the consciousness of guilt instruction given by the trial
court was not contrary to, or an unreasonable application of, federal
constitutional law. The instruction was permissive, not mandatory.
See Francis v. Franklin, 471 U.S. 307, 314 (1985) (permissive
inference does not relieve the state of its burden of persuasion because
it still requires the state to convince the jury that the suggested
conclusion should be inferred base (on the predicate facts proved). It
identified actions by the defendant that the jury could reasonably
determine to be evidence of consciousness of guilt. The instruction did
not lessen the burden on the prosecution to persuade the jury that the
defendant did, in fact, take those actions. Moreover, the instruction
included the admonition that conduct suggesting consciousness of guilt
"is not sufficient by itself to prove guilt and its weight and
significance, if any, are for you to decide." The trial court also gave
the jury separate instructions on reasonable doubt including:
. . . each fact which is essential to complete
a set of circumstances necessary to establish the
defendant's guilt must be proved beyond a
reasonable doubt. In other words, before an
inference essential to establish guilt may be
found to have been proved beyond a reasonable
doubt, each fact or circumstance on which the
inference necessarily rests must be proved beyond
a reasonable doubt.
A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case
of a reasonable doubt whether his guilt is
satisfactorily shown, he is entitled to a verdict
of not guilty. This presumption places upon the
People the burden of proving him guilty beyond a
RT at 2154, 2161.
At trial, the defense had an opportunity to challenge the evidence
presented that the defendant intimidated a witness, removed clothing, and
hid a gun. It did, in fact, vigorously challenge the prosecution's claim
that Merced wore the shirt found in Jones' apartment.
Thus, when viewed in the context of the instructions as a whole and
the trial record, it was not unreasonable for the Court of Appeal to find
that the consciousness of guilt instruction given by the trial court did
not shift the burden of proof. There is, therefore, no reasonable
likelihood that the jury applied the instruction in a way that violated
the U.S. Constitution.
B. Failure to Instruct on Witness Intimidation and Third
Petitioner also argues that the trial court erred by failing to give,
sua sponte, two instructions: an instruction on witness intimidation, and
an instruction on third party culpability.
A state trial court's refusal to give an instruction does not alone
raise a ground cognizable in a federal habeas corpus proceeding.
Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The
error must so infect the trial that the defendant was deprived of the
fair trial guaranteed by the Fourteenth Amendment. Id. Whether
a constitutional violation has occurred will depend upon the evidence in
the case and the overall instructions given to the jury. Duckett v.
Godinez, 67 F.3d 734, 745 (9th Cir. 1995). Due process does not
require that an instruction be given unless the evidence supports it.
Hopper v. Evans, 456 U.S. 605, 611 (1982); Miller v.
Stagner, 757 F.2d 988, 993 (9th Cir. 1985), amended,
768 F.2d 1090 (9th Cir. 1985). The omission of an instruction is less likely
to be prejudicial than a misstatement of the law. Walker v.
Endell, 850 F.2d 470, 475 (9th Cir. 1987) (citing Henderson v.
Kibbe, 431 U.S. 145, 155 (1977)). Thus, a habeas petitioner whose
claim involves a failure to give a particular instruction bears an
"especially heavy burden." Villafuerte v. Stewart,
111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson. 431 U.S. at 155). The
significance of the omission of such an instruction may be evaluated by
comparison with the instructions that were given. Murtishaw v.
Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson. 431
U.S. at 156).
It is well established that a criminal defendant is entitled to
adequate instructions on the defense's theory of the case. Conde v.
Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's
request for instruction on simple kidnaping where such instruction was
supported by the evidence). "However, `[i]t is not reversible error to
reject a defendant's
proposed instruction on his theory of the case if other
instructions, in their entirety, adequately cover that defense theory.'"
United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996)
(quoting United States v. Dees, 34 F.3d 838, 842 (9th Cir.
1. Witness Intimidation Instruction
Petitioner argues that the trial court erred in failing to instruct the
jury that Officer Crabtree had attempted to intimidate defense witness
Buie. Petitioner's first trial ended with a hung jury. After that trial,
Crabtree confronted Buie and angrily told him that he "blew the case for
me." RT at 1855-56. At the second trial, Buie testified about this
incident. He also testified that he had reported it to Crabtree's
supervisor and the court. RT at 1857. In his appeal, petitioner argued
that the trial court should have instructed the jury that, prior to
trial, Officer Crabtree attempted to intimidate defense witness Buie. He
suggested that an "appropriate instruction" would have been: "If you find
that Officer Crabtree attempted to suppress evidence by confronting
and/or intimidating Carles Buie in this case, you may draw an inference
adverse to the prosecution. Such an adverse inference may be sufficient
by itself to raise a reasonable doubt as to the defendant's guilt." App.
Br. at 33; Pet. at 23.
The California Court of Appeal held that "[t]he trial court had no sua
sponte duty to reframe the instruction as defendant implies; the court
was only required to consider it upon request by defendant."
Merced, slip op. at 13 (citing People v. Johnson.
3 Cal.4th 1183, 1235-36 (1992)). Since the defendant did not request such an
instruction at trial, the Court of Appeal found no error.
In his petition, petitioner renews his argument that California law
entitled the defense to such an instruction. He contends that California
Evidence Code section 413 authorizes the trier of fact to consider a
party's "willful suppression of evidence" in determining what inferences
to draw in a given case. Pet. at 21. Petitioner argues further that
California trial courts have a wide range of discretion to fashion
sanctions when the prosecution destroys or attempts to destroy evidence.
Id. (citing People v. Zamora. 28 Cal.3d 88, 99 (1980);
People v. Wimberly, 5 Cal.App.4th 773, 793 (1992); and
People v. Sassounian, 182 Cal.App.3d 361, 395 (1986)).
The three cases petitioner cites do establish that California trial
courts have a wide range of discretion to fashion sanctions when the
prosecution destroys or attempts to destroy evidence. But those cases are
not inconsistent with the Court of Appeal's holding that, under
California law, a defendant is only entitled to such an instruction if he
requests it. See Johnson, 3 Cal.4th at 1236 (citing
People v. Crandell, 46 Cal.3d 833, 870 (1988)).
Even if the alleged failure to instruct had involved a misapplication
of state law, that would not be a sufficient basis for federal habeas
relief. See Gilmore v. Taylor, 508 U.S. 333, 342 (1993)
(quoting Estelle, 502 U.S. at 62 (noting that outside of the
capital context, the Supreme Court has never said that the possibility of
a jury misapplying state law gives rise to federal constitutional
Petitioner argues that the failure to instruct the jury on the alleged
attempt to suppress evidence raises a federal constitutional issue
because the willful destruction or suppression of evidence is a violation
of petitioner's rights. Pet. at 23. Assuming arguendo that petitioner's
claim was not waived by his failure to object at trial, it still fails.
Neither the petition for habeas relief nor the trial record support a
finding that Crabtree's comments constituted a willful attempt by the
prosecution to suppress Buie's testimony. Moreover, in contrast with
Zamora, Wimberly, and Sassounian, no records were
destroyed before Merced's trial. After his encounter with Crabtree, Buie
still testified and he told the same story in the second trial
that he told during the first trial.
Petitioner further suggests that because Buie testified that he had
informed Crabtree's supervisors and the trial court about Crabtree's
actions, and neither the police nor the court took any action on Buie's
complaint, a reasonable juror might have concluded that the court did not
regard Crabtree's actions as serious or that Buie was not telling the
truth. Pet. at 23-24. This speculation is not supported by the record. In
contrast, the record does include other grounds especially Buie's
felony record (RT at 1859) and his attempt to deny that he needed glasses
to see long distances (RT at 1862-6) for the jury to have doubted
Thus, when viewed in the context of the entire trial, there is not a
likelihood that the trial court's failure to instruct the jury
regarding Crabtree's alleged attempt to intimidate Buie so infected the
trial as to deny him his constitutional right to a fair trial.
2. Third Party Culpability Instruction
Petitioner argues that the trial court erred in failing to give, sua
sponte, an instruction on third party culpability. At trial, the defense
suggested that two other individuals might have been the man who shot
Officer Crabtree. In the case of Joel Williams, the only evidence the
defense offered was a positive gunshot residue test. RT at 1779. In the
case of a man identified only as "Boogie," the only evidence offered by
the defense was Sophia Jones' testimony that Boogie frequented the area
of the shooting, RT at 764, that his build and complexion were similar to
the description of the shooter given by Buie, RT at 764-65, and that she
saw Boogie sometime before the shooting. RT at 765. Based on this
evidence, petitioner suggests that the trial court had a duty, sua
sponte, to instruct the jury on third party culpability. In his petition,
he suggests that an appropriate instruction would have been the
Evidence has been offered that a third party is
the perpetrator of the charged offense. It is not
required that the defendant prove this fact beyond
a reasonable doubt. In order for the defendant to
be entitled to a verdict of acquittal, it is only
required that such evidence raise a reasonable
doubt in your minds of the defendant's guilt.
Pet. at 25.
Petitioner argues that the trial court's failure to issue such an
instruction may have led one or more jurors to believe that, rather than
merely needing to raise a reasonable doubt as to Merced's guilt, the
defense had the burden to prove third party culpability by at least a
preponderance of the evidence. Pet. at 26.
The California Court of Appeal rejected Merced's argument on two
grounds. First, it determined that the suggested instruction would have
been a "pinpoint instruction"; and it found that "[p]inpoint instructions
are not included in a trial court's sua sponte duties of instruction but
must be requested." Merced, slip op. at 14 (citing People v.
14 Cal.4th 668, 778 (1997). Second, it found that the absence of the
instruction was not prejudicial. The court explained:
The jury knew from his closing arguments that
defendant was presenting a misidentification
defense and claiming that "Boogie" or Joel
Williams was the actual culprit. The trial court
instructed the jury with CALJIC No. 2.90 that the
prosecution had to prove defendant's guilt beyond
a reasonable doubt. The jury was instructed with
CALJIC No. 2.91 that, "The burden is on the People
to prove beyond a reasonable doubt that the
defendant is the person who committed the crime
with which he is charged. If after considering the
circumstances of the identification and any other
evidence in this case you have a reasonable doubt
whether the defendant was the person who committed
the crime, you must give the defendant the benefit
of the doubt and find him not guilty." Any error
in these circumstances would be harmless.
On habeas review of jury instructions, this Court must first determine
whether there is a "reasonable likelihood" the jury applied the
instructions in a way that prevented consideration of constitutionally
relevant evidence. Coleman, 525 U.S. at 146. Viewed in the
context of the instructions and trial as a whole, the California Court of
Appeal did not err in rejecting petitioner's claim.
At trial, petitioner's defense rested on a theory of misidentification.
To support that theory, the defense argued that the eyewitness
identifications made by Hara and Crabtree were tainted because they saw
Merced's picture on his check cashing card, RT at 524-25, 1017,
1021; that while Merced was black, Crabtree and Buie had described the
shooter as having had a light complexion and being Hispanic, RT at 1730,
1896; and that Buie described the shooter as taller and thinner than
Merced, RT at 1849. In his closing, defense counsel argued: "You know, it
has to be . . . taken for granted that whoever the shooter is looks
similar to Mr. Merced. I mean no one is coming in here to set him up. So
your question in the jury room is it Merced or is it someone that looks
very similar to Mr. Merced." RT at 2061.
Since the fact that Officer Crabtree was shot was undisputed, the
misidentification defense necessarily implied third party culpability.
But the actual evidence and the theory of third party culpability
presented by the defense were limited. In closing, the defense suggested,
without having offered any evidence, that the gunshot residue may have
deposited on Joel Williams' hands by a third party who handed him a
gun that had been fired. RT at 2084-85. The defense also suggested that
"Boogie," who might have resembled Buie's description of the shooter, and
may have been seen in the vicinity of Niles Market, might have had
something to do with the shooting. RT at 2091.
To find error sufficient to grant habeas relief, this Court would have
to conclude that the trial court's failure to instruct on third party
culpability made it "reasonably likely" that the jury ignored
constitutionally relevant evidence. The trial record does not support
such a finding. As the California Court of Appeal found, the trial
court's instructions as a whole more than adequately instructed the jury
on the need to find the defendant guilty beyond a reasonable doubt. In
addition, the trial court gave detailed instructions on eyewitness
identification. RT at 2162-63. There is no reasonable basis to believe
that if the jury had been given the proposed instruction, it would have
changed the way the jury considered the defense's evidence and arguments
that the shooter might have been "Boogie," Joel Williams, or someone else
who might have handed a gun to Joel Williams.
Since the trial court's failure to instruct the jury on third party
culpability did not constitute error, it is not necessary to review the
California Court of Appeal's holding that the trial court had a duty, sua
sponte, to give such an instruction.
C. Instructional Impartiality
In his traverse, petitioner suggests that the "core" of his argument is
"that, under the United States Constitution, there must be absolute
impartiality as between the people and the defendant in the matter of
instructions." Trav. at 4.
The petitioner relies for authority on People v. Moore,
43 Cal.2d 517, 526-27 (1954) ("There should be absolute impartiality
as between the People and defendant in the matter of instructions");
Reagan v. United States, 157 U.S. 301, 310 (1895)
("The court should be impartial between the government and the defendant");
and, by analogy, Wardius v. Oregon, 412 U.S. 470,
475 (1973) ("discovery must be a two way street"). While the
petitioner states what would seem to be a general principle of fairness,
there is no decision of the United States Supreme Court that establishes
the dicta in Moore and Reagan as federal law. There
is, therefore, no basis to find that the Supreme Court has
established the constitutional right to instructional impartiality that
the petitioner seeks to assert. Moreover, this Court has determined that
the California Court of Appeal correctly found no errors in the
instructions given by the trial court in this case.
III. Prosecutor's Comment on Failure to Refute Test Results
Petitioner argues that his right to be convicted only on proof beyond a
reasonable doubt was violated when the trial court allowed the prosecutor
to comment in closing argument on the defense's failure to rebut expert
testimony on gunshot residue tests and ballistics analysis of the gun and
bullets. Pet. at 29. Alternatively, he argues that permitting such
comments "chills the exercise of appellant's right to counsel." Pet. at
At trial, the prosecutor elicited testimony that the gunshot residue
kits were available to the defense for analysis, RT at 1767-68, that the
reports and findings of the prosecution's ballistic expert were available
to the defense, RT at 1526, and that prosecution reports had been
forwarded to the lab where Michelle Fox, who testified for the defense,
and Charles Morton, who was consulted by the defense, worked, RT at 1527.
The defense moved for a mistrial on the ground that allowing evidence
about the availability of the gunshot residue kits for testing violated
Due Process by shifting the burden of proof. RT at 1965-66. The motion
In his closing argument, the prosecutor argued:
Now, the gun and the slug are totally
uncontradicted evidence. You know that when Ron
Nicholas analyzed that gun and that slug that was
recovered from the car that he took the photos of
those ballistics comparisons or those firearms
comparisons, gave them to Michele Fox, who was his
[the defense's] witness, who and then Ron
Nichols got it back from Charles Morton at
And you can bet that if there was something
wrong with that evidence you would have heard
about it. So it is undisputed that that slug that
was found in police car 1314 was fired from the
gun defendant hid in apartment five.
. . .
I was talking about the gun that the defendant
hid matching the slug from the car that Chris
Crabtree was driving, and I left off by saying
that you know, that the photos from that
ballistics comparison was sent to Forensic
Analytical, to Michele Fox or given to her, and
returned by Charles Morton to Ron Nichols. And you
know darn well that if there was a problem with
exam that [the defense attorney] would have
brought it to your attention.
RT at 2017-18.
At the request of the defense, the trial court gave the following
The fact, if established, that the defense has the
opportunity to conduct a laboratory test on any
physical evidence in this case does not relieve
the People from their continuing burden of proving
that the defendant is guilty of the crimes charged
beyond a reasonable doubt.
RT at 2159.
The California Court of Appeal found that the prosecutor's comments
were "neither comment upon, nor adverse instruction about, defendant's
failure to take the stand." Merced, slip op. at 15. The Court
of Appeal explained:
The net effect of the instruction and the
prosecutor's argument was not an express or
implied reference to the defendant's silence, nor
a shifting of the burden as defendant claims, but
fair comment concerning the state of the evidence.
Griffin [V. California, 380 U.S. 609
(1965)] does not "extend to bar prosecution
comments based upon the state of the evidence or
upon the failure of the defense to introduce
material evidence or call anticipated witnesses."
Id. at 16 (quoting People v. Bradford,
15 Cal.4th 1229
, 1339 (1997). With regard to petitioner's burden shifting
argument, the Court of Appeal noted that the trial court "expressly"
instructed the jury that the defense's failure to test physical evidence
did not reduce the prosecution's burden of proof. Id. at 16.
On habeas review, this Court is restricted to considering whether the
Court of Appeal's ruling was contrary to, or involved an unreasonable
application of, clearly established federal law.
The Due Process Clause of the Fourteenth Amendment protects the accused
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.
Winship, 397 U.S. at 358. The Fifth Amendment "forbids either
comment by the prosecution on the accused's silence or instructions by
the court that such silence is evidence of guilt." Griffin, 380
U.S. at 615. However, "courts have long maintained a distinction between
comments about the lack of explanation provided by the defense
and comments about the lack of explanation furnished by the
United States v. Mayans, 17 F.3d 1174, 1185 (9th Cir.
1994). A prosecutor may comment on a "defendant's failure to present
exculpatory evidence, as long as it is not phrased to call attention to
defendant's own failure to testify." United States v. Mende,
43 F.3d 1298, 1301 (9th Cir. 1995) (citing United States v.
Lopez-Alvarez, 907 F.2d 583, 595-96 (9th Cir. 1992)). "A
prosecutor's comment on a defendant's failure to call a witness does not
shift the burden of proof, and is therefore permissible, so long as the
prosecutor does not violate the defendant's Fifth Amendment rights by
commenting on the defendant's failure to testify." United States v.
Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000). "The test we use to
determine whether there is a Griffin violation is whether the
language used was manifestly intended or was of such a character that the
jury would naturally and necessarily take it to be a comment on the
failure to testify." United States v. Tam, 240 F.3d 797, 805
(9th Cir. 2001).
The California Court of Appeal's interpretation of Griffin was not
contrary to, or an unreasonable application, of federal law. The
prosecutor's comments did not refer to the defendant's failure to
testify. They referred only to the defense's failure to call an expert
witness to rebut the ballistic and gunshot residue evidence presented by
the prosecution. Moreover, the trial court specifically instructed the
jury that the fact that the defense had an opportunity to test the
physical evidence did not relieve the prosecution of its "continuing
burden of proving that the defendant is guilty of the crimes charged
beyond a reasonable doubt."
The petitioner argues, alternatively, that allowing the prosecutor to
comment on the defense's failure to call expert witnesses chills the
petitioner's right to counsel. However, petitioner cites no legal
authority for this claim. The Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense. Crane v.
Kentucky, 476 U.S. 683, 690 (1986). The Supreme Court has
established a limited right to expert assistance. Ake v.
Oklahoma, 470 U.S. 68, 83-87 (1994) (where the state presents
evidence of a defendant's future dangerousness in a capital sentencing
proceeding, due process entitles a defendant to the assistance of a
psychiatrist). Some courts have suggested that the right to counsel
includes the right to expert assistance. E.g. Bush v. McCollum,
231 F. Supp. 560,
565 (D.C.Tex. 1964) (the right to counsel is meaningless if the
lawyer is unable to make an effective defense because he has no funds to
provide the specialized testimony which the case requires). But
petitioner does not claim that he was denied an opportunity to present
expert testimony. Nor is there any evidence in the record that he was
deterred from seeking expert advice or presenting expert testimony
because of the possibility that the prosecution might comment on the
failure of those experts to testify. To the contrary, the defense did
retain experts on ballistics and gunshot residue and chose not to call
them as witnesses. The California Court of Appeal's holding, therefore,
was not contrary to, or an unreasonable application of, established
IV. Prior Convictions
Petitioner argues that his prior felony convictions, which established
the predicate offense for his conviction for possession of a firearm and
the basis for his consecutive sentences, were constitutionally invalid
because the trial court, in his prior case, accepted his guilty pleas
without properly determining that a factual basis existed for each plea.
On November 13, 1986, pursuant to a plea agreement with the prosecuting
attorney, Merced pled guilty to eight felony counts. Clerk's Transcript
("Cl. Tr.") at 641. Merced was represented by counsel. In exchange for
his plea, two kidnaping for robbery allegations were reduced to simple
kidnaping counts, an allegation of assault to commit rape was dismissed,
the sentence for one robbery charge was suspended, and Merced was advised
that the aggregate sentence he would receive would be fifteen years.
Before sentencing, the judge asked Merced if he was aware of the specific
rights he was waiving by pleading guilty; and if he understood that "as a
result of your plea to these serious felony offenses in this case, if you
were to be convicted of these or any other serious felony offense, in the
future, . . . the sentence in your future case would be increased by a
period of five years." Cl. Tr. at 643-44. After Merced answered
affirmatively to these inquiries, the following colloquy took place:
THE COURT: Is there a factual basis for each of
the pleas and the admissions in this matter?
MISS ROUNDEY [Counsel for the Defendant]: Yes,
Your Honor. THE COURT: Is it so stipulated?
MISS FAMULNER [Prosecuting Attorney]: Yes, Your
Cl. Tr. at 645.
Before accepting the plea to the individual charges, the judge made the
following further inquiries:
THE COURT: Is anybody threatening you or forcing
you to enter any of these pleas as this time?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you doing this freely and
THE DEFENDANT: Yes, Your Honor.
THE COURT: Has anybody made any promises to you to
get you to plead today other than what we have
said right here in open court?
THE DEFENDANT: No, Your Honor.
Cl. Tr. at 646. After this exchange, the defendant pled guilty to
each of the charges.
Prior to sentencing, the Alameda County Probation Department submitted
a report to the court indicating that "the defendant denied committing
all of the offenses against him." Cl. Tr. at 655. On January 14, 1987,
the court sentenced Merced pursuant to the plea agreement. Cl. Tr. at
657-63. Merced was represented by counsel. At sentencing, petitioner was
not asked whether there was a factual basis for his pleas. Petitioner
entered no objection to his sentence and did not appeal. He served his
sentence and was released.
Before his first trial, petitioner filed a motion to strike his prior
convictions. The motion was denied. By stipulation, the rulings on
pretrial motions filed in the first trial (which ended in a hung jury)
were controlling in the second trial.
The California Court of Appeal rejected petitioner's challenge to his
prior convictions on two grounds. First, following People v.
McGuire, 1 Cal.App.4th 281 (1991), it held that a stipulation by
counsel satisfied the requirement in California Penal Code section 1192.5
that before accepting guilty pleas the trial court "shall . . . cause
an inquiry to be made of the defendant to satisfy itself . . . that
there is a factual basis for the plea." Merced, slip op. at 17.
Second, it found that "[a] defendant's failure to object at the time of
sentencing estops raising any problems under Penal Code 654 to the
sentence imposed pursuant to a plea bargain." Id.
(citing People v. Hester, 22 Cal.4th 290, 294-95
The constitutional requirement for a valid guilty plea is that "the
plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant." North Carolina v.
Alford, 400 U.S. 25, 31 (1970). Federal Rule of Criminal Procedure
11(b)(3) requires that `[b]efore entering judgment on a guilty plea, the
court must determine that there is a factual basis for the plea." But the
requirements in Rule 11 "are not binding on a state court to the extent
they are not grounded in the Constitution." United States v.
Newman, 912 F.2d 1119, 1123 (9th Cir. 1990). In general, state
courts are not required by the Constitution to ensure that a factual
basis for a guilty plea even exists. See Matthew v. Johnson,
201 F.3d 353, 368 (5th Cir. 2000).
Petitioner argues that a factual basis inquiry is constitutionally
required where, as in this case, the defendant protests his innocence.
His claim is based on footnote 10 in Alford:
Because of the importance of protecting the
innocent and of insuring that guilty pleas are a
product of free and intelligent choice, various
state and federal court decisions properly caution
that pleas coupled with claims of innocence should
not be accepted unless there is a factual basis
for the plea; and until the judge taking the plea
has inquired into and sought to resolve the
conflict between the waiver of trial and the claim
In the federal courts, Fed. Rule Crim. Proc. 11
expressly provides that a court "shall not enter a
judgment upon a plea of guilty unless it is
satisfied that there is a factual basis for the
400 U.S. at 38 (citations omitted). This cautionary dicta does not
create established federal law. See Williams, 529 U.S. at 412
("clearly established federal law" refers to Supreme Court holdings not
dicta). Moreover, petitioner's argument ignores Alford's clear statement
that "[a]n individual accused of crime may voluntarily, knowingly, and
understandably consent to the imposition of a prison sentence even if he
is unwilling or unable to admit his participation in the acts
constituting the crime." 400 U.S. at 37.
In this case, petitioner's only claim to innocence was made in a
pre-sentencing probation report. Petitioner did not make such a claim at
either his plea hearing or his sentencing hearing. As the Court of Appeal
noted, petitioner pled guilty in exchange for a "far less severe
punishment" than he might have otherwise faced. Merced, slip
op. at 17.
He was represented by counsel throughout his plea and sentencing.
The trial judge fulfilled his responsibility to ensure that his waiver of
rights and pleas were voluntary and knowing and petitioner makes
no claim that his plea was not voluntary and knowing. Thus, the Court of
Appeal's finding that the trial court did not err by failing to strike
petitioner's prior convictions is not contrary to, or an unreasonable
application of, established federal law.
For the foregoing reasons, the petition for a writ of habeas corpus is
IT IS SO ORDERED.
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