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LITTLE v. RUNNELS

United States District Court, N.D. California


August 13, 2004.

ANTOINE LITTLE, Petitioner,
v.
D.L. RUNNELS, Warden, Respondent.

The opinion of the court was delivered by: MARTIN JENKINS, District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Antoine Little ("petitioner"), a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. The Court ordered respondent to show cause why the petition should not be granted on the basis of petitioner's cognizable claims. Respondent filed an answer accompanied by a memorandum and exhibits contending that the petition should be denied. Petitioner filed a traverse.

BACKGROUND*fn1

  This case concerns the robbery of a Round Table pizza restaurant. William Little ("William") and petitioner, along with their codefendant, Terence Tyson ("Tyson"), were tried together for the crimes charged as a result of the robbery.

  At trial, Jose Martinez ("Martinez") testified that he worked at the Round Table pizza restaurant on South White Road in San Jose. At about 11:30 p.m., on February 8, 1996, five people were present in the restaurant; it was about one-half hour after the restaurant had closed. At this time, a black man entered the restaurant, looked at Martinez and his supervisor, laughed, and said he wanted to use the telephone. Martinez said that the restaurant was closed and that the man would have to leave.

  Subsequently, Martinez went out the back door to empty the garbage and saw a large brown car, like an LTD, parked near the back door. As Martinez reached down to pick up the garbage, he felt a gun on his right ear. When he turned his head, he saw a 9 mm. gun, held by a black man. Four other men subsequently appeared. The gunman told Martinez not to move, and asked him how many people were inside the restaurant. Martinez said that there were between three and five people inside, that the manager had already left, and that there was only $30 in the cash register. Martinez identified one of the men holding a gun as Tyson.

  Four of the men entered the restaurant, with the fifth remaining outside with Martinez. The man with the gun put the gun in Martinez's mouth, told Martinez to look down and be still. About six minutes later, the four robbers ran out, stating that they had the money. The man who had held Martinez at gunpoint jumped into the car and pulled it around. The others got into the car and it sped away. Martinez returned to the restaurant and called 911. When the police arrived at the scene, Martinez told them that five black men had robbed the restaurant, fled in a brown car, and described for the officers the direction the robbers had gone.

  San Jose Police Officer Richard Gonzalez was on patrol at the time of the robbery. He received a dispatch of a brown Ford LTD with five black men. Gonzalez spotted a brown Thunderbird, and saw two black men in the front seat, and two or more bent over in the back seat. When Gonzalez activated his lights, the car initially slowed but then accelerated and ultimately crashed into some shrubs and a mailbox. Two black men jumped out and ran, and as the car rolled backward, three more black men jumped out. One of the men ran away, but then ran back toward the officer's car. Gonzalez illuminated him with a spotlight, and later identified him as Tyson. Tyson was wearing only his T-shirt and underwear.

  Officer Gonzalez subsequently searched the car, and found a black weight belt with the words "William Little" on it. He also found William Little's driver's license, a semi-automatic .38 caliber pistol, and a large bag of cash later identified by Lanay Stearns, the shift supervisor at Round Table. On the roadway near the car, Gonzalez found a .38 caliber six-shot revolver. San Jose police officers testified that no fingerprints were found on the guns or ammunition, or on the suspect car matching any of the defendants.

  Edward Rico testified that he was a manager for Pacific Bell, and lived nearby at 3460 Clover Oak in San Jose. On the same morning of the robbery, he heard sirens and noise. When he got up, he saw a face in the yard lit by a light from a passing police car. Rico yelled for the man to leave the yard and then called 911. When police responded, the man was gone. Soon after, Rico's dog started growling toward the backyard. Rico let his dog out and the person appeared, saying not to shoot. Rico told his dog to sit, and called 911 again. Police responded once more and arrested the man, who turned out to be petitioner. Officer Gonzalez found a pair of gloves in the driveway.

  San Jose Police Officer James Sims helped set up the perimeter around the Round Table restaurant. He saw a man walking down the street in a white T-shirt, underwear and socks, whom he identified as Tyson. San Jose Police Sergeant Tony Colon also arrived at the restaurant. He picked up Martinez, and drove him for a show-up identification procedure, while advising Martinez that the individuals he would see would not necessarily be suspects. Martinez identified petitioner, Tyson, and another suspect named Floyd Purdy as participating in the robbery. When Martinez identified Tyson, Tyson was wearing only undershorts and a T-shirt. However, Martinez identified Tyson as the one who had been wearing a gray sweatshirt. Also, when Martinez spotted the Thunderbird being towed away, he spontaneously blurted out that was the car used in the robbery.

  George Zellner lived near the Round Table restaurant with his wife and daughter. Between 11 p.m. and midnight on the night of the robbery, he saw a person walking in his backyard. When he called to the person, the person jumped over his fence. When Zellner saw police cars in front of his house, he told them about the individual and then went back to bed. Later two officers with a canine awoke him, and he took them to his backyard. San Jose Police Officer Lew Smith of the canine unit was one of the officers who went into the backyard of the Zellner house. His dog alerted on a shed in the backyard. The door flew off the shed, and the dog entered. After he heard a man screaming, Officer Smith called off the dog, and two other officers yelled at the man to get his hands up. Officer Smith identified William Little as the man in the shed.

  David Brooks ("Brooks") testified that he was a friend of William's. Brooks identified exhibit 5, a black .38 caliber automatic pistol as his gun. The last time he had seen the gun it was on the floor of William's Thunderbird. He had placed it there because he and William had intended to go to a shooting range.

  San Jose Policeman Mark Heller testified that he transported petitioner to the station. The officer testified that the police radio was on, and there may have been broadcast discussion about the robbery. The officer also stated that he might have informed petitioner that he was under arrest for the armed robbery. According the Heller, while in the car, petitioner asked, "How many people did they catch?" Several minutes later, petitioner asked Heller, "How much money was taken?"

  At the station, petitioner was taken to the photo room at the processing center and read his Miranda rights. Petitioner waived his rights, and appeared to be giving a statement freely and voluntarily. Officer Heller prefaced his first question by saying that petitioner had been identified as a robbery suspect. The officer then asked petitioner if he was there. Petitioner smiled, and replied, "I can't say." Officer Heller asked no further questions because he believed it would have been futile. Officer Heller continued to pre-process petitioner, walking back and forth into the room where petitioner was present. Petitioner had "plenty of time" to make any additional statements.

  Fernando Maciel ("Maciel") was called to testify about a different robbery at a Round Table pizza parlor nearby that had occurred four days previously, on February 4, 1996. Maciel testified that he was a supervisor, and that he had helped close the restaurant at about 11 p.m. As he was counting the till, he felt someone next to him. He looked and saw a black male with a gun pointed at Maciel's hip. The individual told him to give him all the money and to be calm. While the man took the money from the register, Maciel saw a second black man with a ski mask going into the office. Maciel also saw a third robber in the store. As the robbers left, they told Maciel to get down and count to 300. Maciel did and then called 911.

  On February 12, police brought a 16-photo spread to Maciel, and Maciel picked petitioner out of the spread, stating that he was 75 to 80 percent sure of his identification. Maciel stated that he had glanced at petitioner repeatedly while petitioner was getting the money over a period of three to five minutes. At trial, Maciel stated he was only 50 percent sure of the identification because of the lapse of time.

  John Silvers ("Silvers"), age 19, was working with Maciel at the time of the robbery on February 4, 1996. He was taking out the garbage through the rear door at closing time, and three black men entered as he was opening the door. As Silvers said, "Hi," one of the men pulled a gun, and Silvers was pulled by the shirt and told that it was a stick-up. The individuals took him aside and asked him for information about the number of employees present, the alarm, and the cash registers. A revolver was pointed at Silvers's throat. After three or four minutes, the group walked Silvers into the restaurant, and told him to tell everyone present to lie on the floor. Silvers complied. After the robbery, Silvers recalled that as they left, the robbers said, "Thank you for shopping at Round Table," and then instructed those persons present to count to 300. Silvers was subsequently shown a 16-photo lineup by police, but he picked none of the defendants. However, at trial, he testified that petitioner "looks close to" one of the robbers although "I can't be 100 percent sure."*fn2

  At trial, Martinez originally identified Tyson as the individual who had come into the restaurant asking to use the telephone. Martinez later testified that he was mistaken, and that it was William Little who had entered the store to ask for the telephone. Martinez testified that the individual who held the gun to his ear outside the store was not present in court. Martinez did identify Tyson as one of the robbers who entered the restaurant, and stated that he saw Tyson holding a gun. According to Martinez, another one of the men was wearing a stocking mask, was light-skinned, and had pudgy cheeks. Martinez identified this individual as petitioner.

  Defense Case

  Maretris Eley ("Eley") testified that she had known William for about 10 months, and was his girlfriend. On the night of the crime, she paged William at about 11:15 p.m., and at about 11:30 p.m., they talked on the telephone for about 10 minutes. At about 11:45, she again paged William, but received no call back. She testified that she had never talked to William about the case.

  William testified that he was the stepbrother of petitioner, as the two shared the same mother. On the night of the robbery, he planned to go to a shooting range with his friend Brooks. Brooks accidentally left his handgun in William's car. Between 9:30 and 9:45, William was paged by petitioner and went to petitioner's house. He then drove petitioner to a video game arcade. When they left, at about 11 p.m., they gave a ride to two individuals, one called "Big Country" and the other one unnamed. They drove around looking for a KFC restaurant in the same plaza as the Round Table pizza restaurant. When they arrived, they discovered that the KFC was closed.

  About that time, Eley paged William. He wanted to call her back and the Round Table pizza restaurant looked open, so he drove towards it. However, he drove around to the back because petitioner wanted to smoke some marijuana. The other two individuals wanted to join petitioner. William walked to the front of the restaurant and entered to use the phone. Martinez told them it was closed, and directed William to the outside pay telephone.

  William went to the pay telephone and called Eley, and spoke with her for 8-12 minutes. He then walked back to the car but no one was there. He started the car, and the other three got in. Petitioner was arguing with one of the other individuals about a pager. As William drove away, he was aware that the pistol was still on the floor of the car.

  As they drove, a police car made a U-turn and followed the car. William knew he would go to jail if he were pulled over by the police because he was not supposed to be around guns. He told petitioner to get the pistol and to throw it out of the car. However, petitioner could not find the pistol. William was going to pull over but petitioner said they were "dirty." At that point, William heard someone in the backseat put a bullet into the chamber of a gun. Being afraid of that noise, William drove away fast but lost control of the car and crashed. William jumped out of the car and ran, until he ended up in a shed. He was found by the police and arrested. William testified that Tyson was never in the car but admitted that he was familiar with Tyson from the neighborhood. William admitted that he had been convicted in 1989 of assault with a firearm.

  Lora Vanness ("Vanness") testified that at the time of the robbery she had known Tyson for about six to seven months. Tyson had called her at 11:00 or 11:30 on the night of the robbery. As a result of that call, Vanness expected Tyson to visit her that evening. Tyson did not show up.

  Petitioner testified that he was picked up by his brother William at around 9:45 in William's Thunderbird. The two drove to the video game arcade. At the arcade, he met "Big Country" whom had previously met in jail. Big Country was with another individual named "Peanut." Big Country asked for a ride to go talk with a "Mexican" who was near a 7-11, across from Round Table. They ended up near the back of the Round Table restaurant. When William left to use the telephone, the other three were standing near a garbage container. They smoked a joint. An individual whom petitioner knew as Jose Martinez exited the back door. Big Country addressed Martinez by name, Martinez smelled the marijuana, came over, and asked if they wanted to buy some marijuana. Petitioner gave Martinez $50 in cash for an ounce of marijuana. Martinez walked to a blue car, and came back with a baggie of marijuana. The two consummated the transaction. William was not present at the time.

  Petitioner was dissatisfied with the amount of marijuana in the bag and complained. Big Country said that Martinez had done a similar thing to him, and petitioner demanded half of his money back. Big Country also demanded his money back from the previous transaction. Big Country punched Martinez in the mouth, Peanut came around the car with a pistol, and Martinez started to run. Petitioner chased him because he wanted his money back. Petitioner chased Martinez down an ally but then lost sight of Martinez. As he was running, he dropped his pager, and it broke when it hit the ground. When petitioner returned to the car a few minutes later after trying to get his pager to work, William was back in the car. No one else was present. As petitioner got back in the car, Peanut and Big Country returned to the car, and got into the back seat without saying anything.

  As they drove away, Big Country said that he saw the police. Petitioner had the marijuana and was afraid of going to jail, and was also aware that Brooks' gun was in the car. Petitioner told William to get rid of the pistol. Petitioner reached under the seat but the pistol was gone. When the car crashed, petitioner jumped out and ran. He threw away the marijuana and then was found by the dog and arrested.

  Petitioner admitted that in 1993 he had been convicted of a serious felony involving theft. It was stipulated that on April 3, 1996, Jose Martinez misidentified himself and gave a false birthdate for himself to the police. Bifurcated Trial On Gang Enhancement

  San Jose Police Detective Lemar Dunson ("Dunson") testified that he had been in the San Jose Police gang unit for two and a half years, after three and a half years on patrol. He had investigated 300 or more cases. The court qualified him as an expert, and Dunson testified that the Mount Pleasant Hoods were a 14-member gang, identified as a "Blood" gang, which claims the color red. Detective Dunson testified that he had personally spoken with Tyson as part of a 1993 robbery investigation, and Tyson had personally admitted to Dunson that he was an active member of the Mount Pleasant Hood Gang. San Jose Police Investigator Charles Hahn was stipulated to be an expert in gangs. Investigator Hahn testified that William had admitted to him personally that William was a member of the Mount Pleasant Hood Gang during an investigation in 1989 into a turf war with another gang.

  Dunson talked to the witnesses, the investigating officers, and had read reports on this case. He opined that the robbery of the Round Table restaurant was a gang crime. He based his opinion on the fact that Tyson was a validated gang member, and another officer had validated that William was a gang member. He believed petitioner was connected to the gang because William, a gang member, was petitioner's half brother, and because the current crime was committed with two active gang members. Dunson further testified that a "takeover" robbery is "unique," and that such a crime, committed in a territory claimed by the Mount Pleasant Hoods, had a very organized character. Specifically, the robbers organized themselves into operatives who went into the store and took it over, lookouts, and the getaway driver. Such a crime is not committed unless there is a high degree of trust and understanding between the individuals committing the crime. Such crimes were a trend among local gangs, who were copying fellow gang members from Los Angeles. Such crimes involve a high level of risk, and gained much respect and admiration in the community for the gang. Thus, beyond the money gained in the robbery, the gang gains status, which aids in the recruiting of new gang members.

  Detective Dunson also testified that petitioner had been convicted of armed robbery in 1993. It was stipulated that the Mount Pleasant Hoods were a gang for the purposes of section 186.22, subdivision (f). After a jury trial, William and petitioner were convicted of robbery (Pen. Code, § 211); two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)); and two counts of false imprisonment (Pen. Code § 236). Various enhancements, including prior convictions and gang enhancement, were found to be true as to both William and petitioner. The Court of Appeals struck one of the enhancements imposed upon the two men, and in all other respects affirmed the judgment. Petitioner's total unstayed sentence was for 31 years and 8 months. Petitioner's direct appeal to the Supreme Court of California failed.

  DISCUSSION

  A. Standard of Review

  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); William 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).

  B. Legal Claims

  1. Evidence of Past Uncharged Crimes

  Petitioner claims that the admission of evidence of past uncharged crimes violated his right to due process. The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). The due process inquiry in federal habeas review is whether the admission of 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, 784 F.2d at 990. "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). In Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990), the court held that admission of uncharged crimes did not violate due process where the trial court gave a limiting instruction to jury, and evidence was relevant to defendant's intent. In a similar case, Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985), there was likewise no due process violation where evidence was admitted of past uncharged offenses, and the judge admonished the jury to consider the past offenses only as evidence of intent, not as evidence of bad character.

  Before trial in this case, the prosecution proffered evidence that petitioner had been identified as one of three young black men who had robbed a Round Table Pizza restaurant four days before the charged robbery. Because there were factors in the prior robbery that were strikingly similar to the method of the robbery charged in the instant case, the trial court found the prior robbery to be probative of a common scheme and plan. The robbers in the prior robbery, as in the current robbery, entered a Round Table Pizza restaurant through the rear door at just about closing time, around 11 p.m. In each case, the robbers secured a victim and asked him about who was present and where the money was located. In each case, the robbers performed individualized tasks where some occupied those in the restaurant, and others collected money. As the robbers left, they called out to the occupants of the restaurant that they must "count to 300" before they called the police. In addition to being similar, one witness in the previous robbery identified petitioner as a participant.

  Due to the similarities between the robberies, it is clear that the past crimes evidence was probative and relevant of intent insofar as it demonstrated a common scheme or plan. In addition, the trial court issued a jury instruction which limited the use of the evidence to the issue of intent, and prohibited the jury from considering it to be evidence of bad character. That instruction read:

What I'm reading to you now is basically what I think are the critical issues that you need to be aware of in evaluating this testimony. . . . Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is now on trial. Such evidence if believed was not received and may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes.
Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show a characteristic method, plan or scheme in the commission of criminal act [sic] similar to the method, plan or scheme used in the commission of the offense in this case, which would further tend to show the existence of the intent which is a necessary element of the crime charged or a motive for the commission of the crime charged.
For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. . . .
RT 598-600*fn3
  As in Gordon and Butcher, the evidence of the prior offenses in this case was probative of the issue of intent, insofar as it demonstrated a common scheme and plan, and the trial court issued a limiting instruction prohibiting the jury from considering the evidence to show petitioner's bad character or predisposition. Consequently, the admission of the evidence did not render the trial fundamentally unfair so as to violate petitioner's right to due process.

  Petitioner's argument that the instruction misstated California law is not a basis for federal habeas relief. A writ of habeas corpus is available under § 2254(a) "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). The writ is unavailable to address violations of state law or alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 71-72 (1991) (a challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings); Engle, 456 U.S. at 119.

  2. Ineffective Assistance of Counsel

  Petitioner contends that his counsel provided ineffective assistance by: (a) allowing error to occur under Doyle v. Ohio, 426 U.S. 610 (1976), without any objection; (b) failing to introduce exculpatory evidence; (c) failing to present available evidence showing a violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (d) failing to object to prosecution's rebuttal.

  A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim based on ineffectiveness of counsel, petitioner must establish two distinct elements. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See id. at 688. The relevant inquiry is not what defense counsel could have presented, but rather whether the choices made by defense counsel were reasonable. See Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

  a. Doyle Error

  Petitioner first argues that his counsel was incompetent by allowing Doyle error to occur without any objection. In Doyle, the United States Supreme Court held that the prosecution may not use for impeachment purposes a defendant's post-Miranda silence. Doyle, 426 U.S. at 617. The prosecution used petitioner's post-arrest silence in this case to impeach his testimony at trial that there had been a marijuana deal with Martinez.

  Counsel did not act unreasonably in failing to make a Doyle objection. Whether there was Doyle error turns on whether or not petitioner asserted his Miranda rights in the first place. See id. at. 610. Petitioner was brought to the station and read his rights. Petitioner then waived his rights, but when Officer Heller prefaced his first question by saying that petitioner had been identified as a robbery suspect and then asked if petitioner was there, petitioner smiled and replied, "I can't say." The Miranda court held, "[i]f the individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must case." Miranda, 384 U.S. 436 at 473-474. Relying on this, petitioner contends that by saying, "I can't say," he invoked his right to remain silent. However, in Davis v. U.S., 512 U.S. 452 (1994), the United States Supreme Court held that an ambiguous invocation of the right to remain silent does not require that the police cease questioning. In Davis, the suspect said, "[m]aybe I should talk to a lawyer," which was insufficient to reassert defendant's rights. Id. at 455. The "I can't say" statement in this case was similarly too ambiguous to constitute an invocation of petitioner's rights.

  Moreover, even if petitioner's "I can't say" statement was an invocation of his right to remain silent, counsel's failure to make a Doyle objection did not prejudice him under Strickland. The prosecution's use of petitioner's post arrest silence to impeach him was not a significant part of the case. Petitioner's story about the marijuana deal was not very credible and was largely uncorroborated as there was no evidence of marijuana or of Martinez being punched in the mouth over the alleged transaction. Moreover, as the California Court of Appeal found, this was not a case where the evidence of petitioner's guilt was close. Petitioner was identified by the victim as being one of the robbers There was also strong circumstantial evidence linking petitioner to the location of the robbery and to the car identified in the robbery: petitioner admitted to being at the Round Table the night of the robbery, petitioner was found hiding in Rico's yard which was near the robbery, and there was evidence linking petitioner to the previous similar robbery that happened four days before. Under these circumstances, there is not a reasonable probability that, but for counsel's failure to make a Doyle objection, petitioner's trial would have been different. Therefore, petitioner's first claim for ineffective assistance of counsel fails.

  b. Failure to Object to Prosecution's Rebuttal

  Petitioner claims that his counsel was incompetent in failing to object to the prosecutor's rebuttal argument which improperly raised the issues of petitioner's silence at the police station. The State Court of Appeal rejected the basis for the argument, finding that any error was harmless. The Court has found above, that Doyle error did not occur and that even if it did, petitioner was not prejudiced by counsel's failure to raise an objection. For the same reasons, counsel's failure to make a Doyle objection to the prosecutor's rebuttal was neither incompetent nor prejudicial.

  c. Failure to Introduce Exculpatory Evidence

  Next, petitioner contends that counsel acted ineffectively in failing to introduce exculpatory evidence that petitioner patronized the Round Table Pizza restaurant that was robbed four days before the charged crime. Petitioner argues that counsel could have used this evidence to argue that the witness, Silvers, who worked at the Round Table, falsely believed that petitioner was involved in that robbery.

  To establish deficient performance by counsel, petitioner must show that counsel's representation fell below an objective standard of reasonableness under the prevailing professional norms. See Strickland, 466 U.S. at 688. The relevant inquiry is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). In this case, it was reasonable for petitioner's counsel to avoid the topic of the uncharged robbery completely as a strategy to keep the prosecution from questioning petitioner about it or from creating a subtrial as to the previous robbery. This would only emphasize the prior robbery to the jury. In fact, this strategy was successful because the prosecutor at trial avoided the topic of the prior robbery on cross-examination. Because there is a reasonable tactical purpose in counsel's not presenting evidence regarding the prior robbery, petitioner cannot establish incompetence under Strickland and, it is unnecessary for this Court to address the prejudice prong. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). Petitioner's third claim of ineffective assistance of counsel fails.

  d. Miranda Violation

  Finally, petitioner claims that counsel should have prevented the admission of the statement petitioner made in the police car on the way to the station on the grounds that they were part of a custodial interrogation and he had not received any Miranda warnings. See Miranda, 384 U.S. at 436 (requiring that a person subjected to custodial interrogation be advised that he has the right to remain silent, that statements made can be used against him, that he has the right to counsel, and that he has the right to have counsel appointed). "[I]nterrogation means questioning or `its functional equivalent,' including `words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" Pope v. Zenon, 69 F.3d 1018, 1023 (9th Cir. 1995).

  The officer testified that the police radio was on, and that there may have been broadcast discussion about the robbery. The officer also stated that he might have informed petitioner that he was under arrest for the armed robbery. According to the officer, while in the car, petitioner asked, "How many people did they catch?" and several minutes later asked, "How much money was taken?" In this case, there was no Miranda violation because there was no interrogation. A spontaneous statement does not require a Miranda warning because it is not made under "Interrogation." Beaty v. Stewart, 303 F.3d 975, 991 (9th Cir. 2002). Moreover, even if these statements were the product of a custodial interrogation, the claim of ineffective assistance of counsel fails for lack of prejudice. Any possibility of prejudice from petitioner's statements was negated when the prosecution conceded in closing argument that the statements had no inculpatory value, and admitted that it was perfectly reasonable for petitioner to ask those type of questions in response to the radio announcements. Because the prosecution gave no weight to petitioner's statements, even if there had been a Miranda violation to which counsel should have objected, petitioner has not established prejudice. Accordingly, this claim of ineffective assistance of counsel also fails.

  3. Jury Instruction Regarding Motive

  Petitioner claims that the standard motive instruction CALJIC No. 2.51 in the context of this case was not supported by the evidence and that the trial court violated his right to due process by issuing the instruction. Petitioner's reasoning is that under People v. Scheer, 68 Cal. App. 4th 1009, 1018 (1998), "motive" refers to the defendant's reason for committing the crime. Petitioner argues that the Court of Appeal incorrectly framed the issue and relied on evidence of why he was at the restaurant to establish motive instead of why and for what reasons petitioner committed the crime. No evidence of why petitioner committed the robbery was proffered and therefore petitioner contends that the reading of the jury instruction in this case violated his right to due process.

  A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-71 (1991). Faulty jury instructions will justify habeas relief only if the instructions by themselves so infect the entire trial that the resulting conviction violates due process. See id., 502 U.S. at 72. In that regard, "[i]t is well established that 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. (citations omitted). The instructions must be more than just erroneous; petitioner must show that there was a reasonable likelihood that in light of the instructions as a whole, the jury applied the challenged instructions in such a way that his constitutional rights were violated. See Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en banc); see also McGuire, 502 U.S. at 72. A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred, however. See Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, a habeas petitioner is not entitled to relief unless the record demonstrates that the instructional error "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state prisoners seeking federal habeas relief must establish that the error resulted in "actual prejudice." See id.

  In this case, petitioner is not able to meet the "actual prejudice" test. See id. The evidence against petitioner was strong. There was evidence linking petitioner to the previous similar robbery that happened four days before, and evidence linking petitioner to the location and car used in the robbery on the night in question. In addition, Martinez gave an eyewitness identification of petitioner. Furthermore, petitioner's defense was weak as there was no corroboration or evidence of any marijuana deal. Therefore petitioner would have likely been convicted even without the instruction regarding motive. Since the instructional error did not prejudice petitioner by "hav[ing] substantial and injurious effect or influence in determining the jury's verdict," habeas relief is not available on this claim.

  4. Cumulative Error

  Petitioner claims that he is entitled to habeas relief based on the cumulative prejudice arising from all of his claims of error. Petitioner has cited no Supreme Court decision, and the Court is not aware of any, that recognizes "cumulative error" as an independent constitutional violation. In the absence of Supreme Court authority, habeas relief is not available under 28 U.S.C. § 2254. See Williams v. Taylor, 120 S. Ct. at 1523. Moreover, to the extent such a claim has been recognized, cumulative error is most likely to be found where the government's case is weak. See Thomas v. Hubbard, 273 F.3d 1164, 1179-81 (9th Cir. 2002); Walker v. Engle, 703 F.2d 959, 961-962, 968 (6th Cir. 1983). Here, the government's case was buttressed by an eyewitness identification, evidence linking petitioner to the previous similar robbery that happened four days before, and evidence linking petitioner to the location and car used in the robbery on the night in question. Furthermore, petitioner's defense was weak. Petitioner's story about the marijuana deal was not very credible and was largely uncorroborated as there was no evidence of marijuana nor of Martinez being punched in the mouth over the alleged transaction. For these reasons, petitioner's claim for habeas relief based on cumulative error is denied.

  5. Review of Court of Appeals Decision

  Petitioner claims that "review" is necessary to establish minimum guidelines for court of appeal decisions consistent with the due process guarantee, arguing that the California Court of Appeal insufficiently considered the issues. Petitioner cites Evitts v. Lucey, 469 U.S. 387 (1985) in support of his argument that the right of appeal is an important step in the adjudication of guilt or innocence, subject to due process of law. See Evitts, 469 U.S. at 404 (holding that there is a violation of due process when a circuit court decides an appeal in a way that is arbitrary with respect to the issues involved). The Court is aware of no Supreme Court precedent or any other federal law, and petitioner cites none, which constitutionally requires a state court to address all the issues raised by the parties. As explained above, habeas relief is only available on the basis of a violation of federal law, as set forth by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); see Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000) ("Section 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence.") The claim that the Court of Appeal must address federal claims, in absence of a Supreme Court authority so requiring, is not a basis for habeas relief. See, e.g., La Crosse v. Kernan, 244 F.3d 702, 707-708 (9th Cir. 2001) (holding that the absence of Supreme Court authority that a defendant has a right to be present during readback of testimony renders habeas relief unavailable on such a claim under 28 U.S.C. § 2254(d)(1)). In any event, a review of the briefs and opinion in the California Court of Appeal show that the court did address all seven of petitioner's claims on appeal. Therefore, federal habeas relief is not warranted on this claim.

  6. Gang Evidence

  Petitioner claims that the admission of gang evidence in his case was improper and that there was a gap in the proof connecting petitioner to gang involvement. He objects to the admission of expert testimony as a basis for the gang enhancement finding, and to other gang-related evidence regarding his prior robbery conviction.

  The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated, or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See id.; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). The due process inquiry in federal habeas review is whether the admission of 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). But note that only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal, 926 F.2d at 920.

  There were permissible inferences that the jury could draw from the gang evidence in this case. Courts have allowed evidence of gang affiliation when it is relevant to a material issues in a case. See United States v. Abel, 469 U.S. 45, 49 (1984) (admissible to show bias); Unites States v. Santiago, 46 F.3d 885 (9th Cir. 1995) (admissible to show motive). In this case, gang evidence was relevant to explain the benefit, if any, which petitioner conferred on the gang, as alleged in the sentence enhancement charge, by taking part in the robbery and assault of the victims. One of the sentence enhancements of which petitioner was charged in this case was that the robbery was performed for the benefit of a street gang under California Penal Code § 186.22. Gang culture is sufficiently beyond the experience of the normal citizen that it was appropriate to use expert testimony under California law. See People v. Champion, 9 Cal.4th 879, 921-22 (1995). Officer Dunson, the expert, was experienced with gangs, and he testified that this robbery would not likely have taken place had the participants been ordinary criminals, instead of gang members. This is because a takeover robbery, like the one in this case, is unique insofar as it requires coordination of numerous individuals, and a high degree of trust amongst them. Moreover, the bravado associated with a takeover robbery is also highly prized by gang members in that it increases their respect in the community and promotes their efforts to recruit new members. Here, the five individuals functioned as a team with specific assignments, which is consistent with a gang operation, two of the participants admitted to being gang members, and the robbery took place in an area claimed by their gang. A jury could make a reasonable inference from this evidence that petitioner was associated with the gang.

  Petitioner's final argument regarding the gang enhancement is that the instructions did not properly convey the specific intent requirement, causing prejudicial error.*fn4 The state court of appeal specifically found that "the instruction, as given, correctly embodied the law because it precisely traced the language of section 186.22," and that it clearly set forth the elements of the enhancement under California state law. Exh. I at 15. This determination of state law by the state appellate courts is binding upon this Court. Hicks v. Feiock, 485 U.S. 624, 629-630 & n. 3 (1988); Sandstrom v. Montana, 422 U.S. 510, 516-517 (1979). This Court cannot disturb the California appellate court's conclusion that the instruction did not misstate California law as to the specific intent requirement of the gang enhancement.

  Moreover, petitioner's argument that the instruction misstated California law does not set forth a basis for federal habeas relief. A writ of habeas corpus is available under § 2254(a) "only on the basis of some transgression of federal law biding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Issac, 456 U.S. 107, 119 (1982)). The writ is unavailable to address violations of state law or alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 71-72 (1991) (a challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings); Engle, 456 U.S. at 119. Petitioner does assert that by misstating state law, the instruction also violated his constitutional right to due process. However, this federal constitutional argument is premised entirely on petitioner's assertion that the instruction misstated California law. As explained above, this Court is bound by the state appellate court's conclusion that the instruction does not actually misstate California law. Consequently, petitioner's federal constitutional arguments rest on a faulty premise, and federal habeas relief is not warranted on this claim.

  CONCLUSION

  In light of the foregoing, the petition for a writ of habeas corpus is DENIED. This order terminates all pending motions and the clerk shall close the file.

  IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE

  () Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  (X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS SO ORDERED AND ADJUDGED

  Pursuant to the order filed August 13, 2004, the Petition for Writ of Habeas Corpus is denied.


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