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GRIFFEY v. HUBBARD

United States District Court, N.D. California


April 29, 2004.

TERY TY GRIFFEY, Plaintiff, V. SUE HUBBARD, Defendant

The opinion of the court was delivered by: FERN SMITH, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Before the Court is Tery Ty Griffey's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Griffey argues that he was denied due process of law by his counsel's ineffective assistance and by the Superior Court's admission of evidence of his prior criminal conduct, instruction of the jury according to the then-current California Jury Instruction ("CALJIC") 2.50.01 (1998), and allowance of the prosecution's peremptory challenge of African-American venirepersons. The Court has reviewed the parties' submissions and DENIES Griffey's petition.

I. BACKGROUND

  In 1998, Griffey was charged with rape and assault. (Ex. 1 at 84-85). Before trial, the Superior Court ruled that evidence of Griffey's prior criminal conduct was admissible under California Evidence Code sections 1101(b) and 1108. (Ex. 2 at 10:25-11:20). Thereafter, the parties selected a jury. (Ex. 1 at 148). During voir dire, Griffey's counsel objected to the prosecutor's peremptory challenges. (Ex. 2 at 54:10-55:20). "I am going to bring a Wheeler motion with respect to the peremptory challenge of Ms. Saunders I believe that there has been a systematic effort here to eliminate African-Americans from this jury. . . . There are currently no other African-Americans sitting on the panel that are in the jury box." (Id.). The Superior Court clarified that the prosecutor `"will be called upon only after you have convinced me that there has been a deliberate and willful exclusion of African-Americans." (Id. at 55:25-27). Griffey's counsel responded, "Well, clearly the facts — the fact is clear that the only two African-Americans who have not been excused for cause have been struck by peremptory challenge." (Id. at 55:28-56:2). And, the Superior Court ruled on Griffey's motion:

I was surprised at the challenge of Ms. Saunders. . . . [A]fter essentially a full day and a little more of jury selection, two African-American jurors have been challenged for cause [sic]. One in my mind was justifiable; one in my mind is questionable. I do not think that the assertion . . . rises to the level of a demonstration of racial prejudice in an exercise of challenges solely because of the race of the challenged jurors . . . The motion is denied.
(Id. at 56:10-57:2).

  At the conclusion of Griffey's trial, the Superior Court instructed the jury, in part, according to CALJIC 2.50.01 (1998), CALJIC 2.50.1 (1998), and CALJIC 2.50.2 (1998):

If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he [] is accused.
Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a sexual offense other than that for which he is on trial.
"Preponderance of the evidence" means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that me evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.
(Ex. 1 at 257-58, 262, 263) (brackets omitted); (Ex. 2 at 577:14-16, 577:23-578:2, 579:15-18).*fn1 The jury then returned a verdict, convicting Griffey of rape and assault. (Ex. 1 at 214-216).

  Griffey timely appealed his conviction. He argued to the California Court of Appeal that his counsel provided him ineffective assistance and that the Superior Court denied him a fair trial by allowing the prosecutor to peremptorily challenge African-American venirepersons, by admitting evidence of his prior criminal conduct, by excluding evidence of the victim's other sexual encounters, by allowing testimony about battered women's syndrome, and by instructing the jury with CALJIC 2.50.01 (1998). (Ex. 3 [a] at 5-5 5); (Ex. 3 [b] at 3-7). The California Court of Appeal affirmed Griffey's conviction. (Ex. 6). The court considered Griffey's voir dire motion under the "strong likelihood" standard articulated in People v. Wheeler, 22 Cal.3d 258 (Cal. 1978), because his attorney did not refer the Superior Court to Batson v. Kentucky, 476 U.S. 79, 84 (1986). (Ex. 6 at 5 n.8).*fn2 Applying the Wheeler analysis, the Court of Appeal found that the Superior Court did not commit error. (Ex. 6 at 5-8). And, although the court approved of the Superior Court's admission of Griffey's prior criminal conduct, it found CALJIC 2.50.01 (1998) unconstitutional. (Id. at 8-28). The Court of Appeal, nevertheless, affirmed Griffey's conviction under a harmless error analysis because the "evidence is so overwhelming that we find it beyond a reasonable doubt the jury would have reached the same verdict in the absence of the improper presumption permitted by the erroneous instructions." (Id. at 28-30). The California Supreme Court refused Griffey's appeal. (Ex. 9). Griffey now petitions this Court for a writ of habeas corpus, arguing that his counsel provided him ineffective assistance and that the Superior Court erred by instructing the jury according to CALJIC 2.50.01 (1998), by admitting evidence of Griffey's prior criminal conduct, and by allowing the prosecutor's peremptory challenges. (Pet. at 4:6-6:12).

  II. JURISDICTION AND VENUE

  This Court has jurisdiction and venue because Griffey seeks habeas corpus relief from a conviction by a state court located within this judicial district See 28S U.S.C. §§ 1331, 2241(d), 2254. III. LEGAL STANDARD

  The Court entertains a petition for habeas corpus relief from a state court judgment "only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Habeas corpus relief is appropriate if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412-13 (2000); see also 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 law, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied.") (citation omitted). A habeas corpus proceeding is not a second criminal trial; "federal courts are not to run roughshod over the considered findings and judgments of the state courts that conducted the original trial and heard the initial appeals." Williams, 529 U.S. at 382-83. The state court's factual determinations are entitled to a presumption of correctness, which can be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Only where the state court did not make factual findings or analyze the federal claims will this Court will conduct an independent — but not de novo — review of the record to determine whether the state court's decision was "objectively reasonable." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); see also Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (holding that petitioners bear the burden of showing that habeas corpus relief is appropriate); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (holding that a habeas corpus court reviews the last reasoned state court judgment).

  IV. ANALYSIS

 A. Prior Criminal Conduct Evidence

  The Superior Court did not commit error sufficient to support habeas corpus relief by admitting evidence of Griffey's prior criminal conduct. The Constitution provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. State rules of criminal procedure, though, do not violate the Due Process Clause because another method may seem to be fairer or wiser or to give a surer promise of protection. Spencer v. Texas, 385 U.S. 554, 564 (1967) (quotation mark omitted). Such procedure "is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York, 432 U.S. 197, 201-202 (1977) (quotation marks omitted). Historical practice serves as the Court's primary guide in determining whether a particular principle is "fundamental." Montana v. Egelhoff, 518 U.S. 37, 43 (1996); Dowling v. United States, 493 U.S. 342, 352 (1990).

  Griffey attacks the constitutionality of California Evidence Code section 1108: "The trial court committed error by admitting testimony regarding a prior sexual offense (sexual battery) against another woman. . . . The admission of such evidence was for the purpose of showing that [Griffey] had a propensity to commit sex offenses, and thereby deprived [him] of due process of law under the Fourteenth Amendment." (Pet. at 5:3-11); (Griffey Br. at 13:7-10). This, however, is insufficient grounds for habeas corpus relief. The Supreme Court has expressly declined to decide "whether a state law would violate the Due Process Clause if it permitted the use of prior crimes evidence to show propensity to commit a charged crime." Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991); Garceau v. Woodford, 275 F.3d 769, 774-75 (9th Cir. 2001), rev `don other grounds, 538 U.S. 202 (2003). As such, there is no clearly established Supreme Court precedent, an essential predicate to habeas corpus relief. See 28 U.S.C. § 2254(d)(1). Moreover, federal courts do not grant habeas corpus relief "based on a belief that the trial judge incorrectly interpreted the California Evidence Code in ruling that . . . evidence was admissible as bad acts evidence. . . ." Estelle, 502 U.S. at 72. Griffey, therefore, is not entitled to habeas corpus relief on his prior criminal conduct claim.

 B. Peremptory Challenges

  The Superior Court did not commit constitutional error by allowing the prosecutor's peremptory challenges. The Constitution provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause prohibits a state from deliberately denying a person's participation as a juror (through peremptory strikes or otherwise) solely on account of their race or on the assumption that particular jurors as a racial group will be unable impartially to consider the state's case against a defendant of their race. Batson, 476 U.S. at 84, 89.

  1. Adequate and Independent State Grounds

  The "adequate and independent state grounds" defense bars habeas corpus relief when a state court has declined to address federal claims because the petitioner failed to meet a state procedural requirement. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Here, the Court of Appeal did not address Griffey's federal claim because he only raised a Wheeler objection at trial. (Ex. 6 at 5 n.8). The state argues that this creates a procedural bar. (State Br. at 22:19-25:8). The California Supreme Court, however, has rejected the Court of Appeal's approach. See People v. Yeoman, 31 Cal.4th 93 (Cal. 2003). In Yeoman, the Court held that a defendant preserves his Batson claim by raising a Wheeler objection. Id. at 117-18 ("[T]o consider defendant's claim under Batson is more consistent with fairness and good appellate practice than to deny the claim as waived."). Otherwise stated, the Court of Appeal's refusal to analyze Griffey's Batson claim is not an adequate state ground and cannot be a procedural bar.

  2. Merits of Griffey's Voir Dire Motion

  Unless a state court applied the wrong legal standard, a federal court normally applies a "statutory presumption of correctness" and does not disturb the state court's fact-specific Batson determination. Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002) (citation omitted). California courts following Wheeler prior to Cox often applied the wrong legal standard by requiring defendants to show a "strong likelihood" of discrimination rather than just an "inference." Id. As in those cases, the Court of Appeal here denied Griffey's claims by expressly employing Wheeler's incorrect standard. (Ex. 6 at 5). This Court, consequently, applies a de novo review to Griffey's Batson claims. Fernandez, 286 F.3d at 1077.

  The Batson analysis begins by a defendant establishing a prima facie case. Batson, 476 U.S. at 96. A prima facie case requires a showing that defendant is a member of a cognizable group, that the state removed members of his group from the venire, and that the circumstances raise an "inference" of racial motivation. Id. Here, the Superior Court found that Griffey is a member of a cognizable group and that the state removed members of his group from the venire. (Ex. 2 at 56:10-57:2). Although "a pattern of exclusion of minority venirepersons provides support for an inference of discrimination,' two challenges out of two venirepersons, "standing alone, may not be sufficient to support an inference of discrimination." Fernandez, 286 F.3d at 1078. Griffey argues that the prosecutor's challenges of African-Americans do not stand alone because the peremptory challenges ensured that no African-Americans remained in the venire. (Ex. 2 at 56:1-2). The systematic removal of all jurors of Griffey's race, coupled with the Superior Court's statement that it "was surprised at the challenge of Ms. Saunders, "calling it "questionable," (Id. at 56:15, 22), establishes a prima facie case.

  Batson next requires the state to articulate a legitimate, race-neutral basis for the peremptory challenges. Batson, 476 U.S. at 97. "At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. 352, 360 (1991); see also Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curium) ("a legitimate reason is not a reason that makes sense, but a reason that does not deny Equal Protection."). Here, the prosecutor's explanation is as follows:

Regarding Mr. Baskerville, . . . as he explained to us, has been charged with an assault which was reduced to a battery this year He then later on explained to us that this was a domestic violence situation. Obviously, there is grave concern on my part that his feelings from that case would bleed over to this case and would cause him to be unfair or impartial. Ms. Saunders testified that she had a brother that had been arrested for drug-related charges. I cannot take the risk that feelings or any kind of emotions about those issues would then bleed over into her viewing of police testimony in this case. That is why I struck her as a juror.
(Ex. 2 at 57:23-58:8). The state's explanations satisfy its burden because they are facially valid.

  In light of Griffey'sprima facie case and the state's race-neutral explanations, the Court is left to determine whether there was purposeful discrimination (i.e., whether it believes the prosecutor's explanations). Batson, 476 U.S. at 98. "Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Hernandez, 500 U.S. at 359-60 (quotation marks and ellipses omitted). On the record before the Court, the prosecutor's proffered reasons for striking the African-American venirepersons appear subjectively reasonable. And, although the Superior Court's decision is not entitled to statutory deference, it is entitled to prudential deference because the Batson analysis "largely will turn on evaluation of credibility." Id. at 365. As the decisive question is whether the prosecutor's explanation should be believed, the Court has little evidence beyond the prosecutor's demeanor and credibility, which are findings "peculiarly within a trial judge's province." Id. Here, the Superior Court expressly found that the prosecutor's peremptory challenges did not rise to racial prejudice. (Ex. 2 at 55:23-26). Griffey, therefore, is not entitled to habeas corpus relief on his Batson claim.

 C. Jury Instruction

  The Superior Court did not commit constitutional error by instructing the jury according to CALJIC 2.50.01 (1998). Again, the Constitution provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. The Due Process Clause incorporates the Fifth Amendment's requirement that the prosecution bear the burden of proving all elements of the charged offense "beyond a reasonable doubt," In re Winship, 397 U.S. 358, 364 (1970), and the Sixth Amendment's requirement that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ." U.S. Const. amend. VI; Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).

  Griffey argues that CALJIC 2.50.01 (1998) violates the Due Process Clause because it allowed the jury to convict him by a standard less than reasonable doubt. A jury instruction warrants habeas corpus relief not merely because "the instruction is undesirable, erroneous, or even universally condemned, but [because] it violated some right." Cupp v. Naughten, 414 U.S. 141, 146 (1973). Permissive inferences, for example, are acceptable unless "under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 157(1979). A permissive inference cannot "undermine the factfinder's responsibility at trial, based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt." Id. at 156.

  The Court begins by determining whether CALJIC 2.50.01 (1998) is clearly erroneous (per se unconstitutional) or merely ambiguous (unconstitutional if the jury was "reasonably likely" to have applied the instruction in an unconstitutional manner). Calderon v. Coleman, 525 U.S. 141, 147 (1998); Boyde v. California, 494 U.S. 370, 380 (1990); Murtishaw v. Woodford, 255 F.3d 926, 968 (9th Cir. 2001). Again, the contested instruction reads, in part, as follows:

If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant has a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he [] is accused. . . . Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a sexual offense other than that for which he is on trial.
(Ex. 1 at 257-58, 262) (brackets omitted); (Ex. 2 at 577:14-16, 577:23-578:2, 579:15-21). Griffey argues that this instruction is clearly erroneous because it submits "a case to the jury on alternative theories," one of which is unconstitutional. (Griffey Br. at 8:7-9:5). The instant jury instruction, however, is not erroneous on its face, but is ambiguous whether a jury can use it to circumvent the proper standard of guilt. See Sterling v. Roe, No. 02-16129, 60 Fed. Appx. 54, at *1 (9th Cir. Feb. 26, 2003); Smith v. Pliler, 278 F. Supp.2d 1060, 1076-1077 (N.D. Cal. 2003); Schroeder v. Lewis, No. C 01-3722, 2003 WL 22768415, at *7 (N.D. Cal. Nov. 20, 2003); Unway v. Castro, No. C 01-0339, 2002 WL 31867795, at *5 (N.D. Cal. Dec. 17, 2002); Sterling v. Roe, No. C 01-03809, 2002 WL 826807, at * 11 (N.D. Cal. Apr. 21, 2002).

  The Court reviews an ambiguous instruction to determine whether "in the context of the instructions as a whole and the trial record . . . there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde, 494 U.S. at 380). "The Boyde analysis does not inquire into the actual effect of the error on the jury's verdict; it merely asks whether constitutional error has occurred." Calderon, 525 U.S. at 147. The Superior Court's instruction appears to permit the jury to make a two-step inference of the ultimate fact of guilt based on an incorrect burden of proof: jurors may infer — based solely on a preponderance of the evidence — that Griffey had a disposition or propensity to commit sex crimes; based on the inference that Griffey had such a criminal propensity, jurors may infer that he "did commit the crime or crimes of which he's accused." Basically, CALJIC 2.50.01 (1998), when read with CALJIC 2.50.1 (1998), seems to authorize the jury to determine guilt based on a preponderance of the evidence that he committed previous offenses.

  The Superior Court, however, did not provide this instruction in isolation. Its other instructions and the remainder of the record clarified the potentially misleading instructions and cured any unconstitutional ambiguity. See Estelle, 502 U.S. at 72. The Superior Court, importantly, reinforced that "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." (Ex. 1 at 238); (Ex. 2 at 572:5-13). The Superior Court's burden of proof instruction contains mandatory language ("defendant's guilt must be proved beyond a reasonable doubt"), while the CALJIC 2.50.01(1998) merely permits the jury to make an inference ("you may, but are not required to, infer that the defendant has a disposition to commit sexual offenses"). Together, they clarify that the mandatory burden of proof instruction trumps the discretionary one. Sterling, 2002 WL 826807 at *15. The Superior Court directed such a consideration by instructing the jury to "not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in the light of all others." (Ex. 1 at 229); (Ex. 2 at 569:4-7); see also Weeks v. Angelone, 528 U.S. 225, 234 (2000) (presuming that juries follow their instructions). During his closing argument, Griffey's attorney helped clarify any potential confusion by emphasizing and fully explaining the proper burden of proof. (Ex. 2 at 615:5-616:13). Griffey, therefore, has not shown a reasonable likelihood that the jury applied the Superior Court's instructions in an unconstitutional manner and is not entitled to habeas corpus relief.

 D. Assistance of Counsel

  Griffey claims ineffective assistance of counsel: "To the extent defense counsel failed to further develop the factual basis and to preserve the record with regard to the foregoing errors, petitioner was deprived of effective assistance of counsel as guaranteed by the Sixth Amendment." (Pet. at 6:10-13). This conclusory catchall, however, is not sufficiently specific. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). The Court, additionally, has reviewed the record and finds that Griffey's trial and appellate representation did not fall "below an objective standard of reasonableness." See Strickland v. Washington, 466 U.S. 668, 688 (1984). Griffey, as such, has shown no ineffective assistance of counsel and is not entitled to habeas corpus relief.

  V. CONCLUSION

  For the reasons set forth above, Griffey's petition for a writ of habeas corpus is DENIED.

  IT IS SO ORDERED.


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