The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND TERMINATING ALL PENDING MOTIONS
Petitioner Dewayne Anthony Jiles, a prisoner of the State of California, filed this petition for a writ of habeas corpus challenging the validity of his State conviction. Respondent has filed an answer to the petition along with a memorandum of points and authorities and exhibits in support thereof, and Petitioner has filed a traverse. The Court now addresses the merits of the petition.
On July 22, 1998, Petitioner was convicted by a Contra Costa County Superior Court jury of two counts of first degree burglary (Cal. Pen. Code §§ 459/460(a))*fn1 and two counts of receiving stolen property (§ 496(a)). The trial court also found true eleven prior strike felony convictions (§ 1170.2(b)-(c)), two serious felony enhancements (§ 667(a)), and two prior prison term enhancements (§ 667.5(b)). The court sentenced Petitioner to State prison for a total term of sixty years to life.
The judgment of conviction was affirmed on appeal on November 23, 1999. No petition for review was filed in the California Supreme Court. Petitioner's State habeas corpus petition was denied by the California Supreme Court without citation or comment on January 30, 2001.
Petitioner filed his federal habeas corpus petition on May 17, 2001. The Court ordered Respondent to answer the following claims: (1) whether sufficient evidence supported the trial court's finding that the 1986 prior conviction constituted a serious felony under California Penal Code section 1192.7(c) and also a strike under Penal Code section 667(d)(1), and whether counsel on appeal provided ineffective assistance by failing to argue that there was insufficient evidence to support the prior conviction; (2) whether sufficient evidence supported the conviction for burglary on count one; (3) whether Petitioner's conviction on counts of burglary and receiving stolen property for the same property constituted a violation of due process; (4) whether the trial court's denial of the admission of evidence of third party culpability constituted a violation of due process; and (5) whether the trial court's failure to grant a mistrial due to prosecutorial misconduct constituted a violation of due process.
The following statement of underlying facts is taken from the unpublished opinion of the California Court of Appeal. The facts are discussed in more detail as relevant to each asserted claim for relief:
Appellant lived at 2405 Pecan Street in Antioch with his fiancée Sharmele Browne. On July 19, 1997, the home of John Tallman and his girlfriend Tamara Edwards at 2401 Pecan Street was burglarized. On this same date, at a second-hand jewelry store approximately five miles from the burgled residence, appellant pawned Ms. Edwards's wedding band that was taken in the burglary. Other items taken in the Tallman-Edwards burglary were found in October 1997 by a new tenant at 2405 Pecan Street. Appellant and Ms. Browne had moved from this address three days after the Pinter burglary.
On September 24, 1997, the home of Frank Pinter at 2404 Redwood Drive was burglarized. A back fence separated Pinter's home from appellant's residence. Entry had been accomplished by breaking a window. Appellant's fingerprint was found on a glass shard from the broken window. Coins consistent with those taken in the Pinter burglary were pawned by appellant at the same second-hand jewelry store that he had used to pawn Ms. Edwards's wedding band.
People v. Jiles, A084204, 2 (Nov. 23, 1999) (Answer, Exh. A).
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in State court unless the State court's adjudication of the claims: "(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).
"Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000).
"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 413.
"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.
To determine whether habeas relief is warranted, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000); see Packer v. Hill, 291 F.3d 569, 578-79 (9th Cir.) (where State supreme court denied habeas petition without comment federal court looks to last reasoned decision of a State court as the basis of the State court's judgment), rev'd on other grounds by Early v. Packer, 537 U.S. 3 (2002). In the present case, the California Court of Appeal was the highest State court to address the merits of Petitioner's claims of prosecutorial misconduct and trial court error based on improper questioning of witnesses, and the claim that he cannot be convicted both of burglary and receiving the stolen property that was taken in the burglary. Petitioner's other claims were not addressed in State court in a reasoned decision. Rather, they were denied summarily by the California Supreme Court on habeas corpus. Where the State court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim, a review of the record is the only means of deciding whether the State court's decision was objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). When confronted with such a decision, a federal court should conduct "an independent review of the record" to determine whether the State court's decision was an unreasonable application of clearly established federal law. Id.
Even if the State court's ruling is contrary to or an unreasonable application of Supreme Court precedent, that error justifies habeas relief only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
I. SUFFICIENCY OF EVIDENCE TO SUPPORT THE TALLMAN-EDWARDS BURGLARY CONVICTION IN COUNT ONE
In order to prove the crime of burglary under California Penal Code section 459, each of the following elements must be proved: (1) a person entered a building, and (2) at the time of that entry, that person had the specific intent to steal and take away someone else's property, and intended to deprive the owner permanently of that property. See California Jury Instructions Criminal (CALJIC) No. 14.50. Petitioner alleges that the evidence introduced to prove he burglarized the Tallman-Edwards residence was legally insufficient because it was circumstantial and showed only that he lived next door to the Tallman-Edwards residence and had been in possession of an item taken from the residence and sold it to a pawn shop in close proximity to the estimated time of the theft. Petitioner did not raise this claim on appeal and the State supreme court denied the claim on habeas review without citation or comment. Because there is no reasoned State court opinion which discusses the claim, this Court conducts an independent review of the record to determine whether the supreme court's summary denial of the claim was an unreasonable application of clearly established federal law. See Himes, 336 F.3d at 853.
B. Applicable Federal Law
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A State prisoner who alleges that the evidence in support of his State conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324.
A federal court reviewing collaterally a State court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The federal court "determines only whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838 (1984).*fn2
If confronted by a record that supports conflicting inferences, a federal habeas court "must presume -- even if it does not affirmatively appear on the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. A jury's credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of circumstances, Jackson does not permit a federal habeas court to revisit credibility determinations. See id. at 952 (credibility contest between victim alleging sexual molestation and defendant vehemently denying allegations of wrong-doing not a basis for revisiting jury's obvious credibility determination); see also People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) (upholding conviction for sexual molestation based entirely on uncorroborated testimony of victim).
The prosecution need not affirmatively rule out every hypothesis except that of guilt. Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326); see, e.g., Davis v. Woodford, 384 F.3d 628, 639-41 (9th Cir. 2004) (finding sufficient evidence of premeditation). The existence of some small doubt based on an unsupported yet unrebutted hypothesis of innocence therefore is not sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir. 1994) (three hypotheses regarding petitioner's fingerprints which government failed to rebut unsupported by evidence and therefore insufficient to invalidate conviction).
Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion and speculation, however, cannot support logical inferences. Id.
At trial, the following evidence was adduced with respect to the Tallman-Edwards burglary:
Petitioner lived with his fiancée at 2405 Pecan Street, Antioch, next door to John Tallman and Tamara Edwards, who resided at 2401 Pecan Street. (RT 152-53, 285.) The Tallman-Edwards house was burglarized on July 19, 1997, while the couple was away on a boating trip. They left about 2:00 p.m., and made a lot of noise doing so. (RT 153, 158, 193.) At 4:00 p.m. the same day, Petitioner pawned items of jewelry, including part of a wedding band, belonging to Ms. Edwards. (RT 302-03, 310.) The pawnshop owner remembered Petitioner because "he acted almost in a comical type manner." (RT 308, 339.) Scuff marks were discovered on the rear fence, suggesting the burglar came over it before breaking in a rear bedroom window. (RT 153, 156, 159, 193, 587.)
Other property belonging to the victims was discovered later in the garage of Petitioner's rented house by the subsequent tenant. (RT 160-61, 164-65, 174.) Confronted with one of these items -- a jewelry box -- Petitioner claimed he had gotten it, with the jewelry still inside, from a "dope fiend" at a park in nearby Pittsburg. (RT 498.) He pawned the jewelry, even though "he kind of knew the shit was stolen." (RT 500, 648.) He was not working at the time, so he pawned the jewelry to generate income. (RT 500.)
After changing her story several times, Petitioner's fiancée claimed that Petitioner was with her at a Walnut Creek hospital that day. (RT 460, et seq.) However, the timing of her visit to the hospital would have made it almost physically impossible for Petitioner to have been at both the hospital and the pawn shop at the times indicated in the hospital and pawn shop records. (RT 386-87.)
Evidence connecting Petitioner to the subsequent Pinter robbery also was adduced, in the form of his fingerprint on a glass shard from the rear neighbor's shattered window, (RT 480, 482), and his subsequent pawning of coins belonging to Pinter at the same pawnshop. Under California law, evidence proving Petitioner committed the Pinter burglary could be considered as an additional circumstance tending to prove he also committed the Tallman-Edwards robbery. See Cal. Evid. Code § 1101(b); People v. Sinclair, 39 Cal. App. 3d 891, 898-99 (1974).
Viewing the evidence in the light most favorable to the prosecution, and resolving any conflicting inferences in favor of the prosecution, the Court finds that "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). That is, any rational juror could have found that Petitioner entered the Tallman-Edwards residence and stole items therefrom based upon the evidence of: the proximity of Petitioner's house to the Tallman-Edwards residence, his pawning of Ms. Edwards' wedding ring and other jewelry on the same day of the robbery, his acknowledged possession of a jewelry box belonging to the victims and pawning of the jewelry inside, his weak alibi defense, and his financial situation at the time. The State court's rejection of Petitioner's sufficiency of the evidence claim was not contrary to or an unreasonable application of United States Supreme Court precedent. Accordingly, this claim for habeas corpus relief is DENIED.
II. EXCLUSION OF EVIDENCE OF THIRD-PARTY GUILT
Petitioner argues that the trial court wrongly denied the defense presentation of evidence of third-party culpability. During in limine proceedings, defense counsel moved to present evidence of third-party guilt, specifically, evidence that a teenager named Nathan Leif had committed the Tallman-Edwards burglary. According to the record, the victim, John Tallman, spoke with his paperboy, Eric Prescott, several weeks after the burglary. Prescott said he had heard from other neighborhood juveniles that Nathan "was going around and bragging about having stolen some jewelry and coins." (RT 23.) Tallman reported this to investigating officers. (RT 73.) The officers interviewed Prescott, who said he had heard that Nathan was showing off stolen property in a park. (RT 74.) Nathan was charged in juvenile court with one burglary which occurred three-quarters of a mile away "sometime before." (RT 75.)
The trial court conducted a hearing pursuant to California Evidence Code section 402. Nathan was represented by counsel, who advised him to assert his Fifth Amendment privilege "about any questions about this burglary or about the stolen property."
(RT 76.) He did say that he did not know where Redwood or Pecan Drive was (RT 78), and he did not know Petitioner (RT 79). After the hearing, the court opined that the issue whether Nathan could be called to testify "seem[ed] like a moot point at this point," (RT 80), and defense counsel agreed, stating:
Yeah, I don't, given his testimony, which obviously renders him unavailable on this issue, I don't at this point, have an ability to connect him up through any particular statements I'm aware of to date. (Id.) He further stated that he had no other witnesses to the alleged third-party culpability. (Id.) The trial court then told counsel that if he did discover other evidence of third-party guilt he could approach the bench and another hearing could be held. (RT 81.)
B. Applicable Federal Law
A State court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). Therefore, the defendant must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." See id. "It is not the State which bears the burden of demonstrating that its rule is deeply rooted, but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 47 (quoting Patterson, 432 U.S. at 202) (internal quotations omitted) (emphasis in original) (rule that intoxication may be considered on the question of intent was not so deeply rooted as to be a fundamental principle enshrined by the Fourteenth Amendment).
One of the fundamental rules that may be violated by the erroneous exclusion of critical, corroborative defense evidence is the Sixth Amendment right to present a defense. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Washington v. Texas, 388 U.S. 14, 18-19 (1967)). However, while this right is well established, it does not preclude discretionary limitations on presentations of defense witnesses by the trial court where, for example, a witness has invoked the Fifth Amendment. See Arredondo v. Ortiz, 365 F.3d 778, 783-84 (9th Cir.), cert. denied, 122 S.Ct. 102 (2004).
Respondent argues that the trial court cannot be charged with failing to allow the presentation of evidence of third-party culpability because no such evidence was offered by the defense. Rather, defense counsel conceded that he could not demonstrate a nexus between Nathan and the Tallman-Edwards burglary sufficient to enable him to do so. This interpretation is supported by the record, as set forth above. Moreover, even if counsel had argued that he should be allowed to present Nathan as a witness and the trial court had denied the request, no error occurred. While the right to call witnesses on behalf of the defense is well established, the Supreme Court has indicated that the right is not without limitation and it has never indicated that a trial court has no discretion in determining whether the areas on which a defense witness has properly invoked the Fifth Amendment will so affect the probative value or prejudicial impact of his testimony as a whole that he should not be allowed to take the stand at all. Id. The alternative is for the witness to ...