United States District Court, N.D. California
August 13, 2004.
ANTOINE LITTLE, Petitioner,
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.
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
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
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.
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
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
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
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
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.
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
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
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. . . .
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
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
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
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
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."
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
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
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.