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.
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,
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).
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.
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 ...