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COTTON v. PLILER

United States District Court, N.D. California


March 16, 2004.

MARCUS HENRY COTTON, Petitioner,
v.
CHERYL K. PLILER, Respondent

The opinion of the court was delivered by: CHARLES BREYER, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda of residential robbery, possession of a firearm by a person previously adjudged a ward of the juvenile court, and one count of first degree burglary, with enhancements as to the robbery and burglary counts. Petitioner was sentenced to sixteen years and eight months in state prison.

On April 29, 2002, the California Court of Appeal affirmed the judgment and on, July 17, 2002, the Supreme Court of the 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 April 7, 2003, the court found that the petition, liberally construed, stated cognizable claims under section 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. Page 2

  FACTUAL BACKGROUND

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

The victim of the offenses, Brandon Wolf, testified that at about 9:00 p.m. on October 5, 2000, he parked his truck on the street in front of his apartment residence at 160-17th Street in Oakland. As Wolf walked toward the front door of the apartment building, he noticed a young, "African-American male" in dark clothing approach him along the sidewalk. After Wolf unlocked the front door and took a "step or so" into the building, the man said "excuse me," then pushed the door open behind Wolf and put a gun to his face from inches away. At trial, Wolf positively identified the man holding the gun as appellant. Wolf recalled that appellant held the gun on the left side of his body, but was uncertain if the gun was in his left hand.
Appellant directed Wolf to, "Give me the backpack." Appellant repeated toe command three or four times before Wolf understood "what he was saying." Wolf reacted by backing up with his "hands in the air saying, okay until he tripped on "a small set of stairs" and fell to the ground on his back. As Wolf remained on the ground with the gun still pointed at him, he handed his dark blue and yellow backpack to appellant. Appellant took the backpack and turned around to leave, but immediately "turned back" and "said give me your wallet." Wolf extracted his wallet from his pants pocket and dropped it on the ground just as both he and appellant "looked up" to observe someone coming down the stairs." when Wolf "looked back" appellant was "already out the door" of the building and headed "up 17th Street toward Jackson." Appellant departed with the backpack which contained Wolfs keys, sunglasses, Palm Pilot, earphones, checkbook, and prescription bottle, but left the wallet behind.
Within five minutes of the robbery, Officers Jeff McCort and Mike Valladon of the Oakland Police Department arrived at the apartment building in response to the report of a robbery. They contacted Wolf, who explained "what had happened," and provided a description of the robber as 25 to 26 years old, African-American, 5'10" tall, 150 to 170 pounds, wearing a dark beanie or knit cap. Wolf added that the robber used a small, silver pistol.
  The description was immediately dispatched to other patrol units in the area. Officer Vinton Johnson responded to the report of a "robbery that had just occurred on 17th Street." Within a minute of the report, Officer Johnson was "flagged down by a citizen," Pablo Delgadilo, on the 1400 block of Jackson Street. Delgadilo, a security guard for the Hill Castle Apartments at 1431 Jackson Street, had been monitoring the closed circuit television cameras in the building at about 9:00 that evening. He noticed a man walk rapidly along the back fence behind the building, then jump over the fence and disappear. The man appeared to be "stuffing something into his backpack or duffle bag. Delgadilo unsuccessfully attempted to contact 911, but "was able to flag down a police car" in front of the building at the corner of 14th and Jackson. Delgadilo told Officer Johnson that he thought someone was "breaking into vehicles" in the apartment building parking lot. Delgadilo described the suspect as an African-American male, 20 to 30 years old, maybe 540", 180 pounds, with very short hair, wearing dark pants and a white shirt. Page 3

 

Officer Johnson searched the parking lot to investigate Delgadilo's complaint. Although the officer did not encounter anyone, he discovered Wolf's blue and yellow backpack and a black sweatshirt that resembled the one worn by the robber, both of which had been concealed behind some oil drums. Inside the backpack were Wolf's prescription bottle and keys. Johnson advised the field units investigating the robbery that the suspect "was no longer wearing a sweat shirt," but rather was dressed in a white T-shirt, and had fled northbound on Jackson away from the parking lot of the Hill Castle Apartments. Johnson and other officers also "setup a perimeter around the area" between 14th and 17th, and Jackson and Alice Streets, to surround the suspect.
Less than a minute later, Officer Nicole Elder observed an African-American male that matched the description of the robber emerge from between two buildings on the 1400 block of Jackson. Officer Elder ran after the man as her partner notified other officers that a possible suspect was approaching 17th and Jackson. As the man "got closer to the Lakehurst Motel" at 1569 Jackson, he began a "slow jog into the hotel there." From a position at the corner of 17th and Jackson Street about 10 to 20 feet away, Officer McCort also saw a "male Black, wearing a white T-shirt, black pants" walk into a hotel at 1569 Jackson. He was not carrying anything in his hands.
The officers quickly followed the suspect into the hotel before the door closed, and heard him "running up the stairs." He did not respond to commands to stop. The officers learned from the desk clerk that the man who just ran through the lobby and up the stairs lived in room 314, so they cautiously proceeded to that unit, arriving there 10 to 15 minutes later.
Appellant responded to the officer's knocks on the door, "yawning and scratching his eyes." Officer McCort testified that he recognized appellant as the man he "followed into the hotel." Appellant was wearing only a pair of boxer shorts, and "said he had been sleeping." In response to an inquiry by the officers, appellant acknowledged "he was on California Youth Authority parole," and had "just gotten out." The officers then pushed the door open and entered the room to undertake a search. Appellant was arrested, handcuffed and placed in a prone position on the floor while the search was conducted.
Wolf's Palm Pilot and checkbook were found in appellant's hotel room. Under the bed, Officer Elder discovered a small unloaded handgun with an empty magazine clip, and a black nylon cap, inside a collapsible, insulated, plastic soda or beer cooler, about "12 inches by 12 inches" in size. She also recovered pants and a T-shirt, still warm, from the bathroom floor, that resembled the clothes worn by the suspect.
  About 25 to 30 minutes after the robbery occurred, while Officer Valladon was still taking a statement from Wolf, he learned that a suspect had been detained. He transported Wolf to Lakehurst Motel "to do a field show up." Officer Valladon told Wolf "other officers had stopped somebody," who "may or may not be the person" that robbed him. Appellant was taken to the police vehicle in which Wolf was seated, and Officer Valladon shined a "spotlight on him." Although appellant was not wearing the same clothes, wolf immediately said, "That's mm. That's the guy." Officer Valladon asked if Wolf was "absolutely certain." Wolf Page 4 replied, "I'm positive. I won't forget the face. It's burned in my memory." Wolf also identified his Palm Pilot and checkbook seized from appellant's hotel room.

 

Appellant testified in his defense that on the date of the robbery of Wolf he was 18 years old, close to 6'l" tall, and weighed 207 pounds. He is right-handed. He lived in room 314, a studio apartment, at the Lakehurst Motel. His rent was $595 per month, of which he was personally responsible for $285; the remainder was paid as a rent subsidy through his employment as an Administrative Aid[e] at the Mentoring Center in Oakland. In addition to his rent subsidy, appellant received wages of $9 per hour for between 20 and 40 hours of work per week. Appellant had a flexible work schedule, as he was also required to attend Laney College as part of the Mentoring Center program. Appellant further testified that he had a credit card with available credit of $465, and a total of approximately $500 in checking and savings accounts.
On the evening of October 5, 2000, appellant walked from his studio apartment to a nearby convenience store to purchase chips and soda. On the way, he encountered his "stepbrother" Tramaine Bradford on 14th Street. Appellant was not well acquainted with Bradford, having "only met him a couple of times" in the past. Appellant and Bradford are "[a]bout the same" height and weight, with similar haircuts. Bradford was wearing "dark pants" and a "dark top" or sweatshirt, whereas appellant was dressed in dark jeans and a white T-shirt. Appellant asked Bradford, "to walk to the store with him. Appellant purchased soda and chips in the convenience store, which he placed in his dark blue insulated bag. From the store, appellant and Bradford walked "down Madison" to 17th Street. Bradford indicated to appellant that he needed money, and mentioned he "was going to check dude out," referring to Wolf, who had just parked his Range Rover at the end of the block on 17th Street. Appellant was not sure what Bradford meant, but said, "See ya," and they separated. As appellant walked on 17th Street towards his apartment on Jackson he did not pay attention to Bradford.
When appellant reached Alice Street on 17th, he heard footsteps and glanced back to see Bradford running at him from behind. Appellant "just kept walking," but then felt a "tug" on his bag as Bradford apparently "put something up in there." Before Bradford "took off down 17th" toward Broadway, he told appellant, "hold this for me, I'm going to get it from you later, Don't trip."
A "couple of seconds" later, appellant saw a police car "speed down Alice Street" toward him, then turn right on 17th. When a second police car appeared, appellant "started thinking" that Bradford had done "something bad, although he "didn't know exactly what happened." Another police car advanced upon appellant and directed a spotlight at him. Appellant feared the police though he "was somehow involved with what happened." He was on "juvenile parole," so he did not "want to be a part of it." He decided to avoid contact with the police and "get home to dispose of "the stuff Bradford had placed in his bag.
  Appellant walked from Alice Street into an alley, then "jumped a couple of fences" as he tried to reach Jackson Street. In the parking lot behind the Hill Castle Apartment building, appellant decided to conceal the Page 5 blue bag down the side of his pants. Appellant tripped among some "crates and stun" as he ran toward the rear wall of the parking lot. The bag fell out of his pants, and he transferred it to a more comfortable position under his shirt. Appellant decided against scaling the wall, and instead ran across the parking lot, jumped over a lower fence, and proceeded on Jackson Street. In front of his apartment building appellant noticed a police officer, but `ignored him." After appellant was admitted to the building by the front desk clerk, he "ran all the way up the stairs to the third floor."

 

Inside his apartment, appellant removed his clothes so he would not "be wearing the same thing if the police arrived to question him. He decided to throw out any items Bradford had deposited in the blue bag. When appellant opened the bag, he "saw a gun" and "really got scared." He was "going to throw it out the window," but saw police cars and officers on the street below, so he put the gun back in the bag. Appellant then threw the bag and its contents under the bed and pretended to be asleep. Soon thereafter, the police knocked on the door.
People v. Cotton, No. A095556, slip op. at 1-6 (Cal. Ct. App. Apr. 29, 2002) (footnote omitted) (Resp't Ex. 3).

  DISCUSSION

 A. Standard of Review

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

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

  "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application' clause, a federal habeas court may grant the writ if Page 6 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 the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the Unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

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

 B. Claims

  Petitioner raises two claims for relief under section 2254: (1) the trial court erred by improperly admitting evidence of his prior juvenile criminal conduct, and (2) there was prosecutorial misconduct in the closing argument at trial.

  1. Admission of prior juvenile criminal conduct

  Petitioner claims that the admission of evidence underlying his prior juvenile criminal conduct to impeach his credibility at trial violated his constitutional right to due process and to equal protection under the law. The claims are without merit,

a. Admission does not violate due process
  Permitting a jury to hear evidence of prior crimes or bad acts may violate due process. See Marshall v. Lonberger, 459 U.S. 422, 438-39 n.6 (1983); Fritchie v. McCarthy, 664 F.2d 208, 212 (9th Cir. 1981)(citing Spencer v. Texas, 385 U.S. 554, 561 (1967)). However, a federal court cannot disturb on due process grounds a state court's Page 7 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).

  In order to obtain 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), Calderon v. Coleman, 525 U.S. 141, 146 (1998). The court must find that the error had `"a substantial and injurious effect' on the jury's verdict." Id (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946).

  The California Court of Appeal determined that the trial court properly admitted the evidence underlying five of petitioner's juvenile adjudications because state law permits the admission of conduct underlying juvenile adjudications evincing moral turpitude to impeach a defendant's credibility at trial and because the trial court reasonably determined that the evidence's probative value outweighed its potential for prejudice. People v. Cotton, slip op. at 7-11, 14-17. The record in fact shows that the trial court excluded one of petitioner's prior juvenile adjudications as potentially prejudicial and instructed the jury to consider petitioner's past criminal conduct only for the purpose of determining his credibility. See also id. at 10-11, 14-17.

  The California Court of Appeal's rejection of petitioner's improper admission of evidence claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). The Supreme Court has held that a state practice of allowing a jury to hear evidence of prior crimes does not violate due process when the trial court gives a limiting instruction and retains discretion to exclude the admission of particularly prejudicial evidence. See Spencer v. Texas, 385 U.S. 554, 561 (1967). This is exactly what happened here.*fn1 Page 8

  Even if the admission of evidence underlying five of petitioner's juvenile adjudications amounted to constitutional error, the record makes clear that the error did not have a substantial and injurious effect on the jury's verdict. See Brecht, 507 U.S. at 637. The record shows that the victim identified petitioner in court as the man who robbed him and that the victim's checkbook and personal effects were found pursuant to a search in the home of petitioner. It simply cannot be said that the admission of evidence underlying the juvenile adjudications had a substantial and injurious effect on the jury's verdict.

  Petitioner is not entitled to federal habeas relief because the California Court of Appeal rejection of his claim was not contrary to, or involved an unreasonable application

  of, clearly established federal law, as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

  b. Admission does not violate equal protection

  Petitioner claims that the different manner in which adult felony convictions and juvenile adjudications are introduced for impeachment purposes under California law is a violation of equal protection. The claim is without merit.

  "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)(quoting Pyler v. Doe, 457 U.S. 202, 216 (1982)).

  Under California law, a witness with a prior juvenile adjudication is impeached Page 9 with evidence of the conduct underlying the adjudication, while a witness with a prior adult felony conviction is impeached with evidence of the judgment itself. People v. Cotton, slip op. at 13. The Court of Appeal explained the reason for this difference in treatment as follows:

The court in Wheeler recognized that the Legislature carefully weighed the distinction between felony convictions and other judgments when it decided to create a hearsay exception for felony convictions only. [Citation.] The professed reason for the singular treatment accorded evidence of a felony conviction for impeachment purposes is that it is `"peculiarly reliable.' The `seriousness of the charge,' . . . encourages its full litigation, and the reasonable doubt standard of conviction ensures `that the question of guilt will be thoroughly considered.' [Citation]" [Citation.]
Id.

  The California Court of Appeal found that the petitioner had "not established a classification that treats similarly situated groups differently." Id. First, the court found that adult and juvenile offenders are "not similarly situated." Id. Second, the court found that petitioner was not treated differently from others similarly situated with him, i.e. other adults with prior juvenile adjudications: "All those, such as [petitioner], who have suffered prior juvenile adjudications of criminal acts are impeached in the same manner: with evidence of the underlying acts rather than the judgment. All witnesses with felony convictions as adults are impeached with the judgment itself under a specific exception to the hearsay rule." Id.

  The California Court of Appeal's rejection of petitioner's equal protection claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The state appellate court reasonably determined that juvenile and adult offenders are not similarly situated. See City of Cleburne, 473 U.S. at 439. Petitioner is not entitled to federal habeas relief on his equal protection claim.

  2. Prosecutorial Misconduct

  Petitioner claim that the prosecutor improperly used demonstrative aids in his Page 10 closing and that this amounted to a violation of his due process right to a fair trial. Not so.

  Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." See id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). Claims of prosecutorial misconduct are reviewed "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995)(citations omitted).

  If the court finds that there was a prosecutorial misconduct, the court must determine whether the constitutional error "had a substantial and injurious effect or influence in determining the jury's verdict, rather than whether it was harmless beyond a reasonable doubt." See Brecht, 507 U.S. at 637. Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual' prejudice." See id. (citing United States v. Lane, 474 U.S. 438, 449 (1986)); Johnson, 63 F.3d at 930 (finding prosecutorial vouching "could not have had substantial impact on the verdict necessary to establish reversible constitutional error" under Brecht).

  In petitioner's trial, the prosecutor used demonstrative aids in closing. Petitioner notes that the prosecutor brought in a bag that was not in evidence, filled it with a bottle of soda and a bag of chips (which were also not in evidence) and argued that nothing more could fit in the bag. Petitioner claims that the use of the demonstrative aids should not have been allowed and amounted to prosecutorial misconduct.

  The California Court of Appeal determined that the prosecutor's "use of the bag Page 11 for illustrative purposes was not deceptive or otherwise improper." People v. Cotton, slip op. at 19. The court found that the prosecutor properly used the bag and other objects to challenge petitioner's credibility. It also found that the paper bag and other objects presented by the prosecutor were substantially similar in size to those described at trial, and that the jury "was aware that the demonstration did not serve as evidence or purport, to exactly reproduce the testimony presented." Id. "[N]o misleading impression or mischaracterization of the record occurred as a result of the prosecutor's demonstration." Id. (citations omitted).

  The California Court of Appeal's rejection of petitioner's prosecutorial misconduct claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). The prosecutor relied on petitioner's testimony in approximately the size of the bag, soda and chips, and illustrated the implausibility of petitioner's testimony by using similar objects. The prosecutor's interpretation of petitioner's testimony was a proper matter for argument, see United States v. Warren, 25 F.3d 890, 895 (9th Cir. 1994), and he properly argued a reasonable inference to be drawn from the evidence, see Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995). In view of this, and that the demonstration was brief and not misleading, it simply cannot be said that the prosecutor's demonstration so infected the trial with unfairness as to make the resulting conviction a denial of due process. Cf. Darden, 477 U.S. at 181; Johnson, 63 F.3d at 929. At minimum, the state court's determination that the prosecutor "did not commit misconduct," People v. Cotton, slip op. at 20, was reasonable, which means that it must stand. See Early v. Packer, 123 S.Ct. 362, 366 (2002).

  Even if the prosecutor's demonstration amounted to unconstitutional misconduct, petitioner would not be entitled to habeas relief because the record makes clear that the error did not have a substantial and injurious effect on the jury's verdict. See Brecht, 507 U.S. at 637. As noted earlier, the victim identified petitioner in court as the man who robbed him and the victim's personal items were found in petitioner's apartment. Accord Page 12 Johnson, 63 F.3d at 930 (finding that in view of the strength of the state's case, the prosecutor's overreaching could not have had the substantial impact on the verdit necessary to establish reversible consitutional error under Brecht).*fn2

  CONCLUSION

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

  IT IS SO ORDERED.


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