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CUNNINGHAM v. HALL

United States District Court, S.D. California


October 19, 2005.

LAFAYETTE CUNNINGHAM, Petitioner,
v.
JAMES E. HALL, Warden, and Bill LOCKYER, Attorney General of the State of California, Respondents.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER (1) OVERRULING PETITIONER'S OBJECTIONS; (2) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (3) DENYING PETITIONER'S MOTION FOR JUDICIAL NOTICE; AND (4) DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Lafayette Cunningham ("Petitioner"), a state prisoner appearing pro se, has filed a petition for writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1) and CivLR HC.2 of this District, the Honorable Leo S. Papas, United States Magistrate Judge, submitted a Report and Recommendation ("Report"), recommending that the instant Petition be denied in its entirety. Petitioner filed Objections to the Report. Respondent did not file a Reply to Petitioner's Objections. Having fully reviewed the matters presented, this Court OVERRULES Petitioner's Objections, ADOPTS the Report, DENIES the Petition for writ of habeas corpus relief and DENIES the Motion for Judicial Notice. BACKGROUND

On March 18, 2001, the California Superior Court sentenced Petitioner to state prison for nine years after being convicted for possession and sale of cocaine. Lodg. No. 1 at 84. The evidence presented that resulted in Petitioner's conviction included an informant's testimony and a videotape from a camera attached to the informant's clothing during the drug transaction. Lodg. No. 2 at 2-3. On August 7, 2002, the California Court of Appeal affirmed the judgment on direct appeal. Lodg. No. 2. The California Supreme Court denied a petition for review on October 16, 2002. Lodg. No. 4. Petitioner's writ of habeas corpus filed in the California Supreme Court was denied on July 14, 2004. Lodg. No. 6. Petitioner filed the instant petition on August 27, 2004. Doc. No. 1. Respondent filed an Answer on November 24, 2004 (Doc. No. 12), and Petitioner filed a Traverse on February 2, 2005. Doc. No. 18. In his petition, Petitioner alleged: (1) actual innocence; (2) ineffective assistance of counsel; (3) prosecutorial misconduct and fundamental unfairness; (4) erroneous denial of a Marsden motion seeking self-representation; and (5) the cumulative affect of trial errors caused a fundamentally unfair trial. Doc. No. 1. Magistrate Judge Papas' Report, recommending that the instant Petition be denied in its entirety, and that Petitioner's Motion for Judicial Notice be denied, was filed on March 3, 2005. Doc. No. 19. Petitioner filed his Objections to the Report on April 1, 2005. Doc. No. 20. No Reply to the Petitioner's Objections was filed.

  DISCUSSION

  1. Legal Standard

  a. Scope of Review of Magistrate Judge's Report and Recommendation

  The District Court's role in reviewing a Magistrate Judge's Report and Recommendation is set forth in 28 U.S.C. § 636 (b)(1). Under this statute, the District Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or part, the findings or recommendation made by the magistrate [judge]." It is well settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a District Court may adopt those parts of a Magistrate Judge's Report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).

  b. Scope of Review of Federal Habeas Petitions

  Federal habeas review is granted only if the state court's denial of relief: (1) resulted in a decision that was either "contrary to," or was an "unreasonable application" of, "clearly established federal law" as set forth by the United States Supreme Court; or (2) was based on an "unreasonable determination" of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254.

  2. Analysis

  The Magistrate Judge's Report found that Petitioner is not entitled to habeas relief as to any claim presented by the Petitioner. Furthermore, the court found that Petitioner failed to make a sufficient showing in regards to his request to expand the record with his Motion for Judicial Notice. Report at 31. Therefore, the Magistrate Judge recommended that both the Petition and the Motion for Judicial Notice be denied. On April 1, 2005, Petitioner filed an Objection to the Magistrate Judge's Report.

  After reviewing Petitioner's Objection, the Court finds that Petitioner does not specifically object to the Magistrate Judge's findings and conclusions as to his first, third, or fifth claim. However, the Court finds that Petitioner does specifically object to the Magistrate Judge's findings and conclusions as to his second and fourth claims and the recommendation that Petitioner's Motion for Judicial Notice be denied.

  a. Claims One, Three, and Five

  As to claim one, the Magistrate Judge found that Petitioner does not satisfy the requirements of demonstrating a claim of actual innocence, under Schlup v. Delo, 513 U.S. 298 (1995), because he relies only on evidence which was either actually produced at trial or was available at trial but not produced. Report at 8. The Magistrate Judge further found that Petitioner was attempting to present a freestanding claim of actual innocence, which is not cognizable on a federal habeas Petition, except perhaps in a capital case where there is no state avenue open to process the claim. See Report at 8, citing Herrera v. Collins, 506 U.S. 390 (1993). Thus, the Magistrate Judge found that Petitioner's first claim fails. As to claim three, the Magistrate Judge found that Petitioner did not allege prosecutorial misconduct of sufficient significance to result in denial of his fundamental right to a fair trial. See Report at 16, citing Greer v. Miller, 483 U.S. 756 (1987). For example, the Magistrate Judge found that "[t]he prosecution was under no duty to discover the identity of the people in the yard and turn that information over to the defense, or to independently determine whether, in the prosecutor's opinion, the audio portion of the videotape, which defense counsel could just as easily listen to, contained exculpatory evidence." Report at 20. Therefore, the Magistrate Judge found Petitioner's third claim to be without merit. Report at 22. As to claim five, the Magistrate Judge found that the cumulative error doctrine, under U.S. v. Frederick, 78 F.3d 1370 (9th Cir. 1996), does not apply in that there were no errors by the state court to accumulate. Report at 26. Furthermore, under the cumulative error doctrine, the defendant is more likely to be prejudiced if the government's case is weak. See Report at 26, citing Frederick, 78 F.3d 1370. The Magistrate Judge also found that the government's case was not weak. Report at 26. Therefore, the Magistrate Judge found Petitioner's fifth claim to be without merit. Report at 27. This Court's independent review of the record reveals that the Magistrate Judge presented a well-reasoned analysis of the first, third, and fifth claims. Accordingly, this Court adopts the Magistrate Judge's findings and conclusions that Petitioner is not entitled to habeas relief as to his first, third, or fifth claims.

  b. Claim Two

  Petitioner objects to the Magistrate Judge's findings regarding his ineffective assistance of counsel contained in claim two. Petitioner asserts that his counsel should have reviewed a videotape that was recorded from a hidden camera on the informant's clothing during the drug transaction, and investigated two individuals on the videotape as possible exculpatory witnesses to the drug transaction. Obj. at 8. Petitioner reiterates his concern that the jury did not hear the audio portions of the videotape. Obj. at 5. The jury viewed the video, although it was difficult to watch because when it was recorded it was hidden on the informant's body and swerved with every movement. Lodg. No. 2 at 10. The jury also heard testimony from experienced agents who had studied the video frame-by-frame and testified that Petitioner was on the videotape. Id. The audio was not presented to the jury because it was of insufficient quality to make a transcript available to the jury, as required under a state evidentiary rule. Lodg. No. 8 at 117-120.

  To show ineffective assistance of counsel, the Petitioner must show: (1) that counsel made errors so serious that defendant did not receive `counsel' as guaranteed by the Sixth Amendment; and (2) counsel's deficient performance prejudiced the defense. See Report at 10, citing Strickland v. Washington, 466 U.S. 668 (1984). Claim two was presented to the state supreme court in a habeas petition, which was denied without opinion. Lodg. No. 6. Because there was no reasoned state court opinion on claim two, the Magistrate Judge conducted an independent review of the record to determine whether the state supreme court decision was objectively reasonable. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). The Magistrate Judge found that even if Petitioner could show that counsel was deficient in failing to identify and interview the two possible witnesses to the drug transaction and failing to determine if the videotape had adequate audio quality, Petitioner provided no information from which the Court could find prejudice. Report at 13. Petitioner was identified by a witness, the informant, who testified to personally knowing the Petitioner. Report at 11-12. Petitioner's allegation that counsel was deficient is based solely on speculation that the two witnesses would have testified that Petitioner was not the person who sold the informant drugs, and speculation that the audio would have been understandable and contained exculpatory evidence.

  The jury was in the position to determine the credibility of the informant's testimony and view the videotape to determine whether the informant approached Petitioner or one of the other individuals present at the time of the drug transaction. Petitioner's speculation that exculpatory evidence could have been provided by the audio from the videotape or from interviewing the two individuals that were also present at the time of the drug transaction is insufficient to establish that he was deprived "of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. This Court's independent review of the record and de novo review of the relevant law brings this Court to conclude that Petitioner did not suffer from ineffective assistance of counsel and is not entitled to habeas relief on this claim. Accordingly, this Court adopts the Magistrate Judge's findings and conclusions that Petitioner is not entitled to habeas relief as to his second claim.

  c. Claim Four

  The Magistrate Judge recommends denial of claim four upon finding that Petitioner's Marsden*fn1 motion was not erroneously denied. Petitioner objects, asserting that the Marsden motion was denied without conducting an adequate inquiry. Obj. at 11-12. Petitioner alleges that the state trial judge did not sufficiently question him at the Marsden motion, which in turn denied Petitioner a fair trial and denied him the right to represent himself, in violation of the Sixth and Fourteenth Amendments. Id.

  The Sixth Amendment requires that the trial court make an inquiry into defendant's grounds for a Marsden motion. Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc); Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982). Although the Sixth Amendment "guarantees defendants in criminal cases the right to adequate representation, [] those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Schell, 218 F.3d at 1025-1026, quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989).

  The transcript of the Marsden hearing was lodged by Respondent (Lodg. No. 9), and carefully reviewed by the Magistrate Judge, who determined there was no basis for Petitioner's claim that his Marsden motion should have been granted. Report at 24-25. In addition to the Magistrate Judge's thorough analysis of claim four, the state appellate court issued an opinion regarding claim four, and found that the trial court did not abuse its discretion in concluding that Petitioner did not make a sufficient showing to justify discharge of his appointed counsel. See Report at 23-24. Claim four was presented to the state supreme court in the petition for review. Lodg. No. 3. That petition was denied by an order which stated: "Petition for review DENIED." Lodg. No. 4. Because the state supreme court did not articulate its rationale for denying claim four, this Court applies the following rebutable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Therefore, the opinion of the state appellate court was reviewed as the last reasoned decision by the state courts.

  The state appellate court denied the claim after making determinations that the trial judge thoroughly listened to and considered Petitioner's reasons why he wanted new counsel. Lodg. No. 2 at 4-5. Petitioner's chief complaint was that defense counsel failed to obtain crucial information about the informant's criminal history. Id. However, defense counsel was aware of informant's prior drug conviction even though he had not yet received a copy of her rap sheet, and the trial court concluded that counsel was ready to proceed. Id. After an independent review of the record and de novo review of the relevant law, this Court finds no instances of ineffective counsel and no basis for Petitioner's claim that his Marsden motion should have been granted.

  The adjudication by the state appellate court of claim four was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts in light of the state court proceedings. Accordingly, this Court adopts the Magistrate Judge's findings and conclusions that Petitioner is not entitled to habeas relief as to his fourth claim.

  d. Motion for Judicial Notice

  Finally, Petitioner objects to the Magistrate Judge's failure to expand the record by not granting his Motion for Judicial Notice. Petitioner believes that the Magistrate Judge should have obtained and listened to the audiotape and determined whether it was audible. Obj. at 5-6. Petitioner also reiterates his belief that a declaration by Elsa Haines should be lodged with the Court. Obj. at 7. Petitioner alleges that Elsa Haines was a witness to the drug transaction and could have provided exculpatory evidence. Id. Petitioner states that he included these items with the habeas petition he filed in the state supreme court, and requests that this Court acquire and lodge these records. Motion for Judicial Notice at 1-2.

  As explained above, Petitioner has failed to demonstrate that the audio portion of the videotape introduced at his trial was of sufficient quality to understand or that it contains exculpatory evidence, and Petitioner fails to explain why he was not presented with an adequate opportunity to review and challenge the contents of the recordings at his trial. Petitioner states that Elsa Haines' declaration would have placed a person named "James" in the yard at the time of the drug transaction, and that "James" and the informant had contact on the day in question. Obj. at 7. Even if Elsa Haines' declaration contains this information, it is not exculpatory. The informant testified that Petitioner gave her the name James at the time of the drug transaction, but that she already knew him prior to that incident and knew him as Lafayette. Lodg. No. 8 at 60-62. The informant further testified that many people do not use their real names on the street. Id. As explained above, the jury was in the position to evaluate the informant's credibility, and the prosecution did not have a weak case. Therefore, the Court denies Petitioner's Motion for Judicial Notice.

  CONCLUSION AND ORDER

  For the reasons set forth above, IT IS HEREBY ORDERED that the Magistrate Judge's Report is ADOPTED in its entirety, Petitioner's objection is OVERRULED, petitioner's motion for judicial notice is DENIED and the instant petition is DENIED IN ITS ENTIRETY.

20051019

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