The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING THE PETITION FOR A WRIT OF
Petitioner is a California prisoner who filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
After an initial review, the Court ordered respondent to show cause why
the petition should not be granted. Respondent has filed an answer
accompanied by a memorandum and exhibits contending that the petition
should be denied. Petitioner has not filed a traverse.
The California Court of Appeal summarized the facts of the case as
For present purposes, it is sufficient to state
that the victim, 15-year-old Christina, passed out
in petitioner's car after consuming alcoholic
beverages purchased by petitioner. She had met
petitioner that evening at a party in a motel.
When she awoke, the car was parked; the car seat
had been reclined; her clothes had been removed,
except for her bra and panties; and petitioner was
on top of her. He was wearing only his boxer
shorts and his penis was touching the outside of
her vagina. Christina thought that petitioner's
penis entered her vagina "[a] little bit"
Christina screamed and tried to push petitioner
off of her. At some point, petitioner ripped off
her underwear. He put his hand on Christina's
throat and told her to "shut the fuck up."
Petitioner eventually got off Christina. He told
her that he would give her money if she did not
report him to the police. Christina did not accept
any money from petitioner.
Petitioner drove Christina back to the motel
where she was staying with her 18-year-old
girlfriend Come. Christina told Come that
petitioner had raped her and Come called the
See People v. Bryant, No. A096649, slip op. at 1-2
(Cal. Ct. App. Aug. 30, 2002) (Respt. Exh. 4) (hereinafter "Slip Op.").
A jury convicted petitioner of attempted rape by intoxication and
misdemeanor battery, and found that petitioner had a prior conviction.
The trial court sentenced petitioner to five years in state prison. The
California Court of Appeal affirmed on appeal, denying the two claims
discussed herein. The Supreme Court of California denied the petition for
review in a one-line opinion.
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);
Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state
conviction or sentence on the basis of a claim that was reviewed 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); Williams v. Taylor, 120 S.Ct. 1495, 1523
(2000). Habeas relief is warranted only if the constitutional error at
issue had a "`substantial and injurious effect or influence in
determining the jury's verdict.'" Penry v. Johnson,
121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619,
638 (1993)). A federal court must presume the correctness of the state
court's factual findings. 28 U.S.C. § 2254(e)(1).
Petitioner claims that the trial court violated his right to due
process by issuing the following California model jury instruction
regarding evidence of a defendant's adoptive admissions:
If you should find from the evidence that there
was an occasion when the defendant, one, under
conditions which reasonably afforded him an
opportunity to reply, two, made false, evasive or
contradictory statements in the face or an
accusation expressed directly to him, charging
him with the crimes for which this defendant
is now on trial or tending to connect him with its
commission, and three, that he heard the
accusation and understood its nature, then the
circumstance of his conduct on that occasion may
be considered against him as indicating and
admission that the accusation thus made was true.
Evidence of an accusatory statement is not
received for the purpose of proving its truth, but
only as it supplies meaning to the conduct of the
accused in the face of it. Unless you find that
the defendant's conduct at the time indicated an
admission that the accusatory statement was true,
you must entirely disregard that statement.
CALJIC No. 2.71.5. The day after the rape, petitioner was interviewed
by Detective Eubanks. Petitioner initially denied having sex with the
victim. Eubanks continued the interview, and he lied to petitioner about
the existence of DNA evidence on the victim's body, about having spoken
to friends of petitioner, about petitioner's pubic hairs being found on
the victim's underpants, and about petitioner receiving better treatment
if he admitted his crime. Petitioner subsequently admitted to sexual
contact with the victim. At trial, Eubanks admitted that he lied to
petitioner during the interview. Eubanks explained that this was an
interrogation technique designed to test the truth of petitioner's
initial statement that he did not have sex with the victim.
Petitioner argues that CALJIC 2.71.5 should not have allowed the jury
to consider his adoptive admissions in response to the lies Eubanks told
during the interrogation. Petitioner states that the jury should not have
been allowed to use petitioner's adoptive admissions to evaluate
petitioner's credibility "while treating [Eubanks's] falsehoods with
impunity." Petitioner cites no Supreme Court or precedent, or any other
authority, and this Court is aware of none, which prohibits as a matter
of due process the use of adoptive admissions made in response to false
statements by a police officer. Supreme Court
precedents is required for habeas relief to be granted pursuant to
28 U.S.C. § 2254(d)(1). Williams (Terry) v. Taylor,
529 U.S. 362, 412 (2000) (holding that federal habeas relief must be based
on the decisions of United States Supreme Court).
In any event, the general rule regarding jury instructions is that to
obtain federal collateral relief for errors in the jury charge, 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, 71-72 (1991). 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.
Id. In the context of this case, the instruction did not render
the trial unfair. As the California Court of Appeal correctly stated, the
truth of Eubanks's statements was not relevant. The only relevance of
Eubanks's statements was that petitioner believed them to be true and
responded to those statements by changing his initial story, and
admitting that he had sex with the victim Because petitioner believed
Eubanks was telling the truth, the jury could reasonably infer from his
responses to Eubanks's statements that petitioner's initial claims of
innocence were untrue. Petitioner argues that the jury could have been
"confused" by the instruction, but the instruction itself specifically
informed the jury that it could not consider Eubanks's statements for
their truth. In any case, even if the jury had considered whether