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GRIFFEY v. HUBBARD

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 ...


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