United States District Court, S.D. California
November 10, 2005.
FRANCISCO IBARRA, Petitioner,
ROBERT HERNANDEZ, Warden, Respondent.
The opinion of the court was delivered by: MARILYN HUFF, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING
REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS
Petitioner, a state prisoner appearing pro se, filed a
First Amended Petition for Writ of Habeas Corpus ("First Amended
Petition") challenging his conviction pursuant to
28 U.S.C. § 2254. On March 5, 2005, Respondent moved to dismiss the
First Amended Petition as procedurally defaulted. Petitioner filed an
opposition on June 20, 2005. On July 28, 2005, the Magistrate
Judge filed a Report and Recommendation for Order Granting Motion
to Dismiss Petition for a Writ of Habeas Corpus. After careful
consideration, the Court DENIES the petition for writ of habeas
corpus and ADOPTS the report and recommendation granting
Respondent's motion to dismiss.
On October 18, 1999, Petitioner was convicted of attempted
transportation of a controlled substance while a principal was
armed with a firearm. Petitioner was personally armed with a
firearm, and the crime involved than four kilograms of cocaine in
violation of California Health & Safety Code sections 11352(a),
11370.4(a)(2) and California Penal Code sections 12022(a)(1), (c). Petitioner was also convicted of
attempted purchase or possession of a controlled substance for
sale while a principal was armed with a firearm. Petitioner was
personally armed with a firearm in violation of California Health
& Safety Code section 11351 and California Penal Code sections
664, 12022(a)(1), 12022(c). Petitioner was convicted with armed
criminal action in violation of California Penal Code section
12023, and attempted armed robbery in violation of California
Penal Code sections 664, 211, 12022(a)(1). (Lodgment 1(c) at 2.)
Petitioner was convicted of three counts of conspiracy to
commit these offenses and was subject to enhanced sentencing
because a principal was armed with a firearm in violation of
California Penal Code sections 182, 12022(a)(1). (Id. at 1.)
Furthermore, the jury found that Petitioner was substantially
involved in the planning, direction, execution or financing in
two of the counts of conspiracy and that the amount of cocaine
exceeded four kilograms in violation of California Health &
Safety Code section 11370.4(a)(2). (Id.) The trial court
sentenced Petitioner to 14 years in prison. (First Am. Pet. at
Petitioner appealed both his conviction and sentence to the
California Court of Appeal. (Lodgment 1(c).) In this appeal
Petitioner asserted eight claims: (1) insufficiency of the
evidence, (2) improper admission of testimony in English
regarding conversations held in Spanish; (3) abuse of discretion
in allowing the prosecution to play a prejudicial video; (4)
prosecutorial misconduct; (5) failure to properly instruct the
jury on specific intent; (6) failure to issue requested jury
instructions; (7) failure to properly instruct the jury about
prerequisite findings regarding an accomplice; and (8) failure to
strike two of three conspiracy convictions. (Id.) On November
5, 2001, the Court of Appeal struck two of the conspiracy
convictions but affirmed Petitioner's other convictions. (Id.
In a letter dated November 8, 2001, Petitioner's appellate
counsel advised Petitioner of the option of filing a petition to
appeal the Court of Appeal's decision to the California Supreme
Court and of the requisite filing period. (Pet'r Opp'n to Mot. to
Dismiss ("Pet'r Opp'n"), Ex. B.) Petitioner asserts that he filed
a petition seeking direct review in November or December of 2001.*fn1 (Id. at 2, 6.) However,
the Supreme Court of California did not receive that petition.
(See id., Exs. C & D.) Around August 1, 2002, Petitioner filed
a petition that the California Supreme Court received on August
12, 2002. (Id., Exs. C, D.) That petition repeated only four of
the claims Petitioner asserted in the Court of Appeal: (1)
insufficiency of the evidence; (2) violation of due process by
admitting testimony in English regarding conversations held in
Spanish; (3) abuse of discretion in allowing the prosecution to
play a prejudicial video; and (4) failure to properly instruct
the jury on specific intent.*fn2 (Id., Ex. C at 2, 5-6,
9.) In a letter dated August 30, 2002, the clerk of the
California Supreme Court rejected the August 12th petition,
informing Petitioner that this petition for direct review was
untimely and suggesting that Petitioner seek habeas relief.
(Id., Ex. D.) Petitioner did not file a petition for certiorari
in the United States Supreme Court.
On January 16, 2003, Petitioner filed a petition for a writ of
habeas corpus with the California Supreme Court. (Lodgment 2(a).)
This petition revived all eight of the claims Petitioner made in
the Court of Appeal including the claim concerning the two
conspiracy convictions stricken by the Court of Appeal. (Id.)
On September 17, 2003, the court summarily denied these claims
with a citation to In re Waltreus, 62 Cal. 2d 218 (1965).
On October 29, 2003, Petitioner initiated this action by filing
a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Pursuant to the Court's order filed on November 6, 2003,
Petitioner filed a first amended petition on September 16, 2004.
The first amended petition asserts four claims: (1) insufficiency
of the evidence; (2) violation of due process by admitting
testimony in English regarding conversations held in Spanish; (3)
abuse of discretion in allowing the prosecution to play a
prejudicial video; and (4) failure to properly instruct the jury
on specific intent.
On March 5, 2005, Respondent filed a motion to dismiss the
first amended petition arguing that the claims are procedurally defaulted. On June 20,
2005, Petitioner filed an opposition contending that his claims
are not procedurally defaulted because he attempted to file a
timely petition for direct review. The Magistrate Judge filed a
report and recommendation granting Respondent's motion to dismiss
the petition on July 28, 2005.
The following factual background is taken from the court of
appeal opinion in People v. Ibarra, unpublished opinion
(Cal.Ct.App., 4th Dist., Div. 1, Nov. 5, 2001). The Court presumes
these factual determinations are correct pursuant to
28 U.S.C.A. § 2254(e)(1).
On January 8, 1999, about 9:00 a.m., a confidential
informant was in a car repair shop north of downtown
Los Angeles working on his car when Moises Mota
entered the shop and asked some men in the shop where
he could buy some drugs. Mota was referred to the
informant who had a reputation for being a drug
dealer. Mota told the informant he wanted to purchase
five kilos of cocaine. The informant told Mota he
knew someone who could supply the cocaine but that he
would have to telephone him. The informant called
Sergeant Jose Nava of the Imperial County Narcotics
Task Force and told Nava that Mota and an
unidentified associate wanted to purchase five kilos
of cocaine for $65,000.
About 1:45 p.m., Nava spoke to Mota on the telephone.
Mota told Nava he was from Seattle, had been in Los
Angeles for about a week trying to buy drugs, and
wanted to buy five kilos. Nava said he could deliver
the five kilos to Mota the following day in Ontario,
but Mota said he wanted to take delivery that day and
would be willing to pick up the kilos in Indio
because he had a cousin who lived there. Nava agreed.
The "cousin" was Juan Sanchez who had known Mota
about four months and Ibarra about three months. Mota
contacted Sanchez, first indicating that he was going
to buy drugs and later indicating that he was going
to steal drugs.*fn3 Mota wanted Sanchez's
assistance because Sanchez was familiar with the
area. Mota offered to pay Sanchez $5,000 for his
assistance. Sanchez knew Mota and Ibarra were drug
thieves because they told him they had stolen drugs
before. Sanchez brought a gun he had bought about two
weeks earlier on the streets of Los Angeles. Sanchez
carried the gun because they had invited him to help
steal the cocaine. The plan was to convince the drug dealer to come to Sanchez's
house*fn4 where they would steal the drugs.
About 5:20 p.m. that day, Mota called Nava and told
him they were stuck in traffic in Riverside. About
two hours later, Mota called Nava, said that he was
at his cousin's house in Thousand Palms and wanted
Nava to come to that house. Nava refused to go to the
house. Mota again asked Nava to come to the house
because they were carrying so much money. Nava again
refused. Nava's practice was not to go to a house (or
even a hotel room) that he did not know because it
was too dangerous. Finally, Mota agreed to meet Nava
at a truck stop and Mota put Sanchez on the phone to
get the directions to the truck stop.
About 8:00 p.m., Nava and his partner, German Duran,
met Mota at the truck stop. Mota said that he was not
ready to complete the transaction because he did not
have the money and wanted to complete the deal the
next day. Nava pretended to be angry about Mota
wasting time and money by insisting the deal be done
that night. Nava and Duran left.
About an hour later, Sanchez called Nava and asked if
he and Mota had reached an agreement. Nava said no
and complained about Mota wasting his time. Nava also
commented that Mota had appeared nervous and scared.
Sanchez said Mota was nervous because he was not
familiar with the area. Sanchez told Nava that they
would be willing to go to Nava's ranch to conduct the
deal. Nava agreed.
The next morning about 9:00 a.m., Nava paged Mota who
shortly thereafter returned his call. Nava instructed
Mota to meet the informant at the truck stop and told
him the informant would take Mota to Nava's ranch.
About 1:15 p.m., Mota Sanchez and Ibarra met with
Nava at the parking lot of the Firehouse Café.
Sanchez was driving, Mota was in the front passenger
seat and Ibarra was in the right rear passenger seat.
Nava asked who was in charge. Sanchez indicated Mota
was in charge. Nava and Mota walked about 20 yards
away from Ibarra and Sanchez. Nava asked if this was
a one-time purchase or whether there would be future
purchases. Mota indicated that if everything went
well, he would be buying five to eight kilos of
cocaine per week, but first he needed to see one kilo
to check out the quality of the cocaine. Nava
suggested Mota go with him to pick up the kilo but
Sanchez came up to Nava and Mota and said they should
be going to a house whre they could conduct the
transaction in private. Nava told Sanchez that he was
not going to go to anybody's house for a first
transaction and again asked Mota to go with him to
pick up the kilo and ceck out its quality. Mota again
refused, but Sanchez agreed to go with Nava. Sanchez
and Nava got into Nava's car and drove about two
blocks to where Duran was waiting with a kilo of
cocaine taken from "the reverse sting stock." Nava
instructed Duran to bring the kilo over to the
Firehouse Cafe parking lot so that Sanchez could
examine it. Nava and Sanchez returned to the
Firehouse Café. When Duran arrived, Sanchez got into Duran's car.
Duran showed the kilo to Sanchez, including cutting
open the package to expose the cocaine. Sanchez
looked at it and said, "Yeah, this is good stuff."
Sanchez asked if he could take a sample. Duran said
no (because he had orders to allow no samples) but
Sanchez nevertheless took some of the cocaine out of
the package and put it in his pocket. Sanchez walked
over to where Nava, Mota and Ibarra were standing and
told Mota it appeared to be good merchandise. Mota
said they would have to get the money and would
About 1:15 p.m., Mota contacted Nava, said they did
not want to conduct the transaction at Nava's ranch
because they had seen border patrol units in the
area, and again requested Nava to conduct the
transaction at Sanchez's house, offering Nava an
additional $300 per kilo if he so agreed. Nava told
Mota the deal was off if the transaction were not
conducted at his ranch. Sanchez then got on the
phone, asked if Nava would be willing to do the
transaction closer to their home and offered to pay
more money if Nava agreed. Nava agreed, saying he
would contact them and have them meet at the truck
stop with the informant who would then take them to
About 4:00 p.m., with the assistance of the
informant, Nava met with Mota, Sanchez and Ibarra at
a convenience store in Coachella. Ibarra was driving,
Sanchez was in the front passenger seat and Mota was
in the back seat. Duran was present, as was the
informant. Members of the Imperial County Narcotics
Task Force were in the surrounding area.
Nava asked Mota who he should talk to. Mota indicated
Nava should talk to Sanchez. Nava and Sanchez walked
to the front of the vehicle. While Nava spoke with
Sanchez, Duran stood outside the vehicle talking with
Ibarra. Duran asked Ibarra what the weather was like
in Washington (where he were supposedly from). When
Ibarra said that it was pretty cold, Duran asked if
it ever snowed there. Ibarra responded, "Sometimes it
does." Duran then asked "if there was snow in
Washington, why would they come [to Southern
California] to buy snow," "snow" being a slang word
for cocaine. Ibarra answered that the cocaine was
cheaper in Southern California, and when Duran asked
how much a kilo cost in Washington, Ibarra answered
Meanwhile, Nava had told Sanchez that he needed to
see the money before he turned over the cocaine, and
had indicated the cocaine was in a car located 400 to
500 yards away. They returned to the defendants' car,
where Sanchez told Mota what Nava had said. Mota said
he was not going to conduct a transaction in that
parking lot since they had not seen the five kilos.
Nava asked Mota if they had the money and when Mota
said they did, Nava asked to see it. Mota told
Sanchez (who was sitting in the front passenger seat)
to show Nava the money. Sanchez picked up a black
plastic bag off the floor of the vehicle and pulled
out a bundle of money. Nava saw that it was a "dummy
roll," with $50 bills on the top and bottom and $20
bills in the middle. Nava asked to see the rest of
the money. When they responded no and said they were
not going to do the transaction there, Nava gave the
arrest signal because he believed it was "rip," i.e.,
that Mota, Sanchez and Ibarra were intending to steal
the drugs and possibly harm him and Duran.
Ibarra, Sanchez and Mota were armed with loaded
handguns. The money in the black pastic bag amounted
to about $6,000 far less than the agreed price of $80,000 ($65,000 plus an extra $300 per kilo for
driving it north to Coachella). There were five
bundles of money, each with $50 bills on the outside.
Four of the rolls had $1 bills in the middle.
Nava's belief that this was a rip was based on not
only on the fact that they had shown him a dummy roll
and refused to show him the rest of the money, but
also because of Mota's nervousness and the fact that
they had repeatedly tried to get him to conduct the
deal at their house despite his clear refusals. If it
had been a "legitimate transaction," all the money
would have been there, they would have shown him the
money, he would have shown them the drugs and the
exchange would have been made. Nava testified the
amount of cocaine involved indicated that it was
being purchased for resale.
The petition presents four claims: (1) insufficiency of the
evidence; (2) violation of due process by admitting testimony in
English regarding conversations held in Spanish; (3) abuse of
discretion in allowing the prosecution to play a prejudicial
video; and (4) failure to properly instruct the jury on specific
A. Scope of Review
28 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application 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). As amended, the AEDPA now reads:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
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 State court proceeding.
28 U.S.C.A. § 2254(d) (emphasis added).
To obtain federal habeas relief, Petitioner must satisfy either
§ 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor,
529 U.S. 362, 403 (2000). The threshold question is whether the rule of law was clearly established at the time
petitioner's state court conviction became final. Williams v.
Taylor, 520 U.S. 362, 406 (2000). Clearly established federal
law, as determined by the Supreme Court of the United States
"refers to the holdings, as opposed to the dicta, of this Court's
decisions as of the time of the relevant state-court decision.
Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 71
(2003). However, Ninth Circuit case law may be "persuasive
authority for purposes of determining whether a particular state
court decision is an `unreasonable application' of Supreme Court
law, and also may help us determine what law is `clearly
established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.
2000). Only after the clearly established Federal law is
identified can the court determine whether the state court's
application of that law "resulted in a decision that was contrary
to, or involved an unreasonable application of" that clearly
established Federal law. See Lockyer, 538 U.S. at 71-72.
A state court decision is "contrary to our clearly established
precedent if the state court applies a rule that contradicts the
governing law set forth in our cases" or "if the state court
confronts a set of facts that are materially indistinguishable
from a decision of this Court and nevertheless arrives at a
result different from our precedent." Williams,
529 U.S. at 405-406. "A state-court decision involves an unreasonable
application of this Court's precedent if the state court
identifies the correct governing legal rule from this Court's
cases but unreasonably applies it to the facts of the particular
state prisoner's case" or "if the state court either unreasonably
extends a legal principle from our precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply." Id. at 407.
Under Williams, an application of federal law is unreasonable
only if it is "objectively unreasonable." Id. at 409.
Further, a state court's decision results in a "decision that
was based on an unreasonable determination of the facts in light
of the evidence presented in State court proceeding" if it "is so
clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997)
Where there is no reasoned decision from the state's highest
court, the Court "looks through" to the underlying appellate
court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06
(1991). However, a state court need not cite Supreme Court
precedent when resolving a habeas corpus claim. Early v.
Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the
reasoning nor the result of the state-court decision contradicts
[Supreme Court precedent,]" id., the state court decision will
not be "contrary to" clearly established federal law.
B. Insufficiency of the Evidence
A federal court in a habeas corpus proceeding has a duty to
determine whether the evidence presented at trial could
reasonably support the guilty verdict. Jackson v. Virginia,
443 U.S. 307, 318 (1979). This standard does not require the federal
court to evaluate whether it believes the evidence shows that
Petitioner was guilty beyond a reasonable doubt; rather, "the
relevant question is 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." Id. at 318-19 (emphasis added).
Petitioner contends there was insufficient evidence to
establish he entered into an agreement with Mota and Sanchez to
commit a conspiracy. Petitioner was convicted of conspiracy to
commit robbery, conspiracy to sell or transport cocaine, and
conspiracy to purchase or possess cocaine for sale. The court of
appeal concluded that there was sufficient evidence to support
his conviction of conspiracy and attempted robbery. (Lodgment
1(c) at 9-13.)
Conspiracy requires "(1) an agreement between two or more
persons; (2) with the specific intent to agree to commit a public
offense; (3) with the further specific intent to commit that
offense; and (e) an overt act committed by one or more of the
parties for the purpose of accomplishing the object of the
agreement or conspiracy." People v. Liu, 46 Cal. App. 4th 1119, 1128 (1999).
According to Sanchez' interview conducted after his arrest, he
stated that Mota and Ibarra invited him to participate in the
plan to steal the drugs because he had knowledge of the local
area. (Lodgment 4(f), RT Transcript at 563.) He stated that the
reason he had a weapon was to take the drugs from the drug
dealers by force if needed. (Id.) Sanchez stated that he knew
Mota and Ibarra had previously stolen drugs before. (Id.)
Sanchez's statements were corroborated by the repeated attempts
by Mota and Sanchez to get Nava to conduct the sale at Sanchez'
house despite Nava's refusal; the dummy rolls of money; the
defendants' lack of money to purchase the five kilos of cocaine
and the fact that Ibarra, Mota and Sanchez were all armed with
concealed, loaded weapons when they were arrested. In addition,
Ibarra, Mota and Sanchez arrived together when the drug
transaction was to occur and Ibarra was present during
conversations about the drug transaction and was knowledgeable
about what was occurring. (Lodgment 4(f), RT Transcript at
538-576 (Sanchez's testimony)).
This evidence was sufficient to show that an agreement existed
among Mota, Sanchez and Ibarra to use force to steal the drugs
from Nava. Therefore, there was sufficient evidence to support
Petitioner's convictions for conspiracy to commit robbery,
conspiracy to purchase or possess cocaine for sale and conspiracy
to transport cocaine.
2. Attempted Robbery
"Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear." Cal.
Penal Code § 211. A crime of attempt occurs "when there is a
specific intent to commit a crime and a direct but ineffectual
act done towards its commission." People v. Bonner,
80 Cal. App. 4th 759, 765 (2000). The act must be more than mere
preparation and need not be the last act toward the commission of
the crime. Id.
The evidence demonstrates that Petitioner entered an agreement
with Sanchez and Mota to rob Nava of the cocaine. He had a concealed weapon at the
final meeting, drove Mota and Sanchez to the final meeting, Mota
and Sanchez had dummy rolls of money and lacked funds to pay for
five kilos of cocaine and repeatedly attempted to lure Nava to
Sanchez's house. Accordingly, the evidence presented could
reasonably support a guilty verdict as to attempted robbery.
Based on the evidence at trial, the Court concludes that 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
Jackson, 443 U.S. at 318-19. Accordingly, habeas relief is not
warranted on this claim.
C. Violation of Due Process by Admitting Testimony in English
Regarding Spanish Conversations
Petitioner argues that the informant Nava's translated
testimony in English regarding the statement of the
co-conspirators made in Spanish is hearsay and violated his due
process right to confrontation and cross-examination. The court
of appeal held that no reversal is merited on this claim.
(Lodgment 1(c) at 17.)
Under the Sixth Amendment, in all criminal cases, a defendant
has a constitutional right to confront and cross-examine the
witnesses against him. U.S. Const. amend VI; Pointer v. Texas,
380 U.S. 400, 403-405 (1965). The Ninth Circuit has held that the
admission of undercover agents' testimony as to defendant's
translated statements did not violate the confrontation clause.
United States v. Nazemian, 948 F.2d 522, 528 (1991). The court
explained that a court should analysis on a case-by-case basis
whether the translated statements should be considered the
statements of the speaker. Id. at 527. The court held that the
fact the interpreter was provided by the government is not
dispositive of bias on the part of the interpreter. Id. at 527.
There must be specific evidence of bias. Id.
Applying the reasoning and standard set forth in Nazemian,
the California Supreme Court held that admitting the officers'
testimony repeating translated statements did not violate due
process or the confrontation clause. Correa v. Superior Court,
27 Cal. 4th 444, 466 (2002). The court explained that contemporaneously
translated statements do not add a layer of hearsay, if the
statements are fairly attributable to a declarant since the
translator serves as a language conduit. Id. at 448.
At trial, Petitioner objected to Nava testifying in English and
requested for a translator. (Lodgment 4(d) at 275-76; 283-85.)
The prosecution then proceeded to lay a foundation regarding
Nava's Spanish abilities. (Id. at 276-78.) Nava testified that
Spanish was spoken in his home, that he has spoken Spanish during
his work as a deputy sergeant for the past thirty years, that he
had no problems communicating with Mota and Sanchez in Spanish
and was familiar with Spanish drug slang. (Id.) The Court
overruled Petitioner's objections concluding that a sufficient
foundation had been laid that Nava had sufficient fluency in
Spanish and that Nava had a vast amount of experience in the
subject matter. (Id. at 287-88.) The trial court indicated that
Petitioner was entitled to examine Nava as to exactly what Mota
and Sanchez said in Spanish and call a Spanish language expert to
challenge Nava's interpretation. (Id. at 289.)
Nava is the person who heard the statements spoken in Spanish
and is the person who testified about those statements. He was
directly recounting the declarant's statement that he heard and
understood. A foundation that he was proficient in the Spanish
language, especially in his work as a deputy sergeant for the
past 30 years, was established. Petitioner had the opportunity to
cross-examine Nava as to the accuracy of his understanding as to
what Mota and Sanchez said. Therefore, there was no violation of
Petitioner's right to confrontation and cross-examination.
Accordingly, the Court concludes that the state court's decision
was not "contrary to, or involved an unreasonable application of,
clearly established Federal law." See 28 U.S.C.A. § 2254(d)(1).
D. Abuse of Discretion in Allowing the Prosecution to Play a
Petitioner argues that the trial court abused its discretion
when it admitted the videotape of the weapons' test. Respondent
disagrees. A federal court reviewing a state habeas petition may not
"`engage in a finely tuned review of the wisdom of state
evidentiary rules.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(quoting Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983)).
"[A] state court's evidentiary ruling, even if erroneous, is
grounds for federal habeas relief only if it is so fundamentally
unfair as to violate due process." Spivey v. Rocha,
194 F.3d 971, 977 (9th Cir. 1999).
Here, the court of appeal held that evidence to show that the
guns were operational was relevant to support the inference that
Petitioner and the others had an intent to take the drugs by use
of force or fear, which is an element of robbery. Although the
court of appeal believed that the videotape was cumulative and
unnecessary and whether the guns were operational was a minor,
collateral issue, no reversal was merited. (Lodgment 1(c) at
18-19.) The Court agrees. As the court of appeal noted, there was
no dispute as to whether Petitioner and the others were armed and
that the weapons had not been brandished or fired. The issue in
the case was whether Petitioner entered into conspiracies with
Mota and Sanchez and had participated in an attempted robbery.
There was sufficient evidence in the record to support those
convictions. If the videotape had not been shown, the jury's
verdict would not have been any different. Accordingly, the Court
concludes that Petitioner has not shown that the evidentiary
ruling was fundamentally unfair to violate due process. As a
result, the Court denies Petitioner's request for relief as to
E. Trial Court's Failure to Properly Instruct the Jury on an
Element of Conspiracy
Petitioner argues that the trial court failed to properly
instruct the jury on an element for a conspiracy conviction
because the court omitted the requirement of a specific intent to
commit the offense. The court of appeal held that although the
trial court did not instruct the jury as to the one element of
the conspiracy, "specific intent to agreement to commit the crime
of robbery" it was inconceivable that the jury could have been
misled that Petitioner was not required to have a specific intent
to commit the crime based on the instructions that were given. (Lodgment 1(c)
at 21-26.) Therefore, the court of appeal held that reversal was
not merited. (Id.)
In Cupp v. Naughten, 414 U.S. 141 (1973), the United States
Supreme Court presented the standard for jury instruction error
in habeas cases. The only question for a federal habeas court is
whether, "under the circumstances as a whole and given the
evidence in the case, the failure to give the requested
instruction rendered the trial so fundamentally unfair as to
violate federal due process." Duckett v. Godinez, 67 F.3d 734,
746 (1995) (citing Cupp, 414 U.S. at 147). A single jury
instruction "may not be judged in artificial isolation, but must
be viewed in the context of the overall charge." Cupp,
414 U.S. at 146-47. "An omission . . . is less likely to be prejudicial
than a misstatement of the law" and the petitioner bears an
"especially heavy" burden. Henderson v. Kibbe, 431 U.S. 145,
An erroneous jury instruction that omits an element of an
offense is subject to a harmless error analysis. Neder v.
United States, 527 U.S. 1, 9-11 (1999); Evanchyk v. Stewart,
340 F.3d 933, 940 (2003). Under Brecht, "the standard for determining
whether habeas relief must be granted is whether the . . . error
`had substantial and injurious effect or influence in determining
the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623,
637(1993). Neither party has the burden of proving or disproving
that the error had the requisite influence on the jury's verdict.
See O'Neal v. McAninch, 513 U.S. 432, 436 (1995); Thompson v.
Borg, 74 F.3d 1571, 1575 (1996). Instead, the reviewing judge
examines the record and asks, "Do I, the judge, think that the
error substantially influenced the jury's decision?" O'Neal,
513 U.S. at 436; Thompson, 74 F.3d at 1575. If the judge has
"grave doubt" about whether the error had a substantial and
injurious effect on the verdict, the error is not harmless.
O'Neal, 513 U.S. at 436; Thompson, 74 F.3d at 1575.
The Court concludes that the trial court's error did not
substantially influence the jury's decision. Although the jury
was not instructed on the requirement of "with the further
specific intent to commit that crime," the jury was instructed
that "[t]he alleged conspiracy in Count One is an agreement entered into between two
of more persons with the specific intent to agree to commit the
crime of Robbery. . . ." The jury was instructed that it needed
to find that Petitioner entered into an agreement with the
specific intent to commit the crime which would infer that
Petitioner must have had the specific intent to commit that
crime. The court concludes that the modification did not have a
"substantial and injurious effect" on the jury's verdict.
Accordingly, the state court's decision was not "contrary to, or
involved an unreasonable application of, clearly established
Federal law." See 28 U.S.C.A. § 2254(d)(1).
F. Procedural Default
1. Review of Magistrate Judge's Report and Recommendation
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 in part, the
findings or recommendations made by the magistrate."
28 U.S.C. § 636(b)(1). The Court also reviews de novo the magistrate
judge's conclusions of law. Barilla v. Ervin, 886 F.2d 1514,
1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified School
Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
2. Procedural Default
Respondent moves to dismiss the petition arguing that the
claims have been procedurally defaulted and barred from federal
review because Petitioner failed to file a timely petition for
direct review of his claims in the California Supreme Court.
"The procedural default doctrine `bar[s] federal habeas when a
state court declines to address a prisoner's federal claims
because the prisoner has failed to meet a state procedural
requirement.'" Calderon v. United States District Court (Bean),
96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). The doctrine "`is a
specific application of the general adequate and independent
state grounds doctrine.'" Id. (quoting Wells v. Maass,
28 F.3d 1005, 1008 (9th Cir. 1994)). Under the adequate and
independent state grounds doctrine, federal courts "`will not
review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent of the federal question and adequate
to support the judgment.'" Id. (quoting Coleman,
501 U.S. at 729); see also LaCrosse v. Kernan, 244 F.3d 702, 704 (9th
Cir. 2001); Park v. California, 202 F.3d 1146, 1151 (9th Cir.
Procedural default applies when "`a state court has been
presented with the federal claim,' but declines to reach the
issue for procedural reasons, or `if it is clear that the state
court would hold the claim procedurally barred.'" Franklin v.
Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). When a claim is
procedurally barred, a petition is dismissed in district court
because the "petitioner has no further recourse in state court."
Id. at 1231.
"Once the state has adequately pled the existence of an
independent and adequate state procedural ground as an
affirmative defense, the burden to place that defense in issue
shifts to the petitioner." Bennett v. Mueller, 322 F.3d 573,
586 (9th Cir. 2003). Petitioner can overcome application of the
procedural default doctrine altogether by demonstrating either
cause for the default and actual prejudice resulting from the
alleged violation of federal law or a fundamental miscarriage of
justice. Harris v. Reed, 489 U.S. 255, 262 (1989).
The California Supreme Court summarily denied Petitioner's
petition for writ of habeas corpus with a citation to In re
Waltreus, 62 Cal. 2d 218 (1965) (Lodgment 2(b).) Respondent
contends that this Waltreus citation indicates a procedural
default that bars this Court from hearing Petitioner's claims due
to Petitioner's failure to file a timely petition for direct
review by the California Supreme Court. Respondent further claims
that the Ninth Circuit has already found this procedural bar to
be "an adequate and independent state procedural ground barring
federal review. . . ." Forrest v. Vasquez, 75 F.3d 562, 564
(9th Cir. 1996).
The Waltreus rule provides that "in the absence of strong
justification, any issue that was actually raised and rejected
on appeal cannot be renewed in a petition for a writ of habeas
corpus." In re Harris, 5 Cal. 4th 813, 829 (1993) (emphasis in
original); In re Waltreus, 62 Cal. 2d at 225. The United States
Supreme Court has held that a Waltreus citation is neither a
ruling on the merits nor a denial on procedural ground and thus,
does not bar federal review of the claims. Ylst v. Nunnemaker,
501 U.S. 797, 805 (1991).
However, in Forrest v. Vasquez, the Ninth Circuit held, under
the facts of the case, the citation to Waltreus was a
procedural default. Forrest v. Vasquez, 75 F.3d 562, 563 (9th
Cir. 1996). In Forrest, Petitioner appealed his conviction to
the court of appeal. The court of appeal affirmed his conviction.
Petitioner filed a petition for review in the California Supreme
Court but the court denied his application because he did not
timely file a petition for review pursuant to California Rules of
Court 28(b). Petitioner then filed a petition for writ of habeas
corpus in the California Supreme Court alleging the same claim.
The California Supreme Court denied the petition citing In re
The Ninth Circuit explained that Petitioner raised his claim
before the California Court of Appeal but did not timely file a
petition for review before the California Supreme Court. Id. at
563-64. This cost Petitioner his only chance to present his claim
to the California Supreme Court because Waltreus prohibits that
court from reviewing on habeas any claim raised during the direct
appeal process. Id. at 564. In order to exhaust remedies in
state court, under Waltreus, a prisoner should generally file
his claims before the California Supreme Court in a petition for
direct review, instead of a habeas petition. Id. The court held
that the procedural default arose from petitioner's failure to
follow California Rules of Court 28(b).*fn5 Id. at 563.
Similarly, Petitioner presented his claims to the Court of
Appeal on direct review but did not present these same claims to
the California Supreme Court until significantly after the filing
period had passed under California Rules of Court 28. (See
Pet'r Opp'n, Ex. D.) The California Supreme Court rejected
Petitioner's petition for review because it was untimely pursuant to California Rules of Court 28(a) &
(b).*fn6 (See id.) Accordingly, when the court cited
Waltreus in this case, it held that by failing to file a timely
petition for direct review, Petitioner had "deprived the highest
state court of an opportunity to address his claim[s] in the
first instance," thereby barring them as procedurally defaulted.
See Forrest, 75 F.3d at 564.
The Rule 28(b) violation not only cost Petitioner the
opportunity to present his claims to the California Supreme Court
on direct review, it also precluded subsequent collateral review
of those claims. "Waltreus prohibits [the California Supreme
Court] from reviewing on habeas any claim raised during the
appeal process." Forrest, 75 F.3d at 564. Since Petitioner had
raised his claims before the Court of Appeal on direct review,
Waltreus prohibited him from subsequently raising them on
habeas review. Id. Waltreus and Rule 28(e) operate together
as a procedural default to prevent Petitioner from using habeas
relief as a substitute for a direct review. See In re Harris,
5 Cal. 4th at 827 (stating that "a litigant could not forgo a
direct appeal in favor of seeking relief on habeas corpus").
In Ylst, the United States Supreme Court looked through a
Waltreus citation to the last explained state judgment. Ylst,
501 U.S. at 802. The Ninth Circuit has held that this Court need
not employ the "look through" doctrine when the California
Supreme Court invokes Waltreus following an untimely appeal
from a decision in the Court of Appeal. Forrest, 75 F.3d at 564
("[W]e will not look past the California Supreme Court's
unexplained order denying Forrest's application for relief from
default. The `nature' and `surrounding circumstances' of the
unexplained order clearly show that the basis of the decision was
procedural default.") The Supreme Court specifically suggested
this exception in Ylst, where it stated that, though it
presumed that a citation to Waltreus was intended to affirm the
last reasoned appellate decision, the presumption was rebuttable
when the Waltreus denial followed an appeal "plainly out of time."
Ylst, 501 U.S. at 804. Here, since Petitioner clearly submitted
an untimely petition for direct review, the exception applies and
the Court should not look through to the Court of Appeal's
decision. Consequently, the Court concludes that the California
Supreme Court's citation to Waltreus is a procedural bar that
precludes federal habeas review under the circumstances of this
3. Overcoming Procedural Default
Since Respondent has adequately plead the existence of a
procedural default, the burden shifts to Petitioner to
demonstrate that the procedural default should not apply.
Bennett, 322 F.3d at 586. Petitioner may do so by challenging
the adequacy or independence of the procedural bar. Wells,
28 F.3d at 1008. Alternatively, Petitioner can overcome the
procedural default altogether by demonstrating cause and
prejudice or actual innocence. Id.
a. Adequacy and Independence
Petitioner may challenge either the adequacy or the
independence of the Rule 28(e) bar to demonstrate that it should
not prevent this Court from reaching the merits of his claims.
See Coleman, 501 U.S. at 729. To challenge the adequacy,
Petitioner must assert "specific factual allegations that
demonstrate the inadequacy of the state procedure, including
citation to authority demonstrating inconsistent application of
the rule." Bennett, 322 F.3d at 586. Here, Petitioner neither
argued that the Waltreus procedural bar is not consistently
applied, nor supplies any facts or law to support such arguments.
Consequently, Petitioner has failed to demonstrate the inadequacy
of the Rule 28(e) procedural bar.
Nor has Petitioner challenged the independence of the
procedural bar. "For a state procedural rule to be `independent,'
the state law basis of the decision must not be interwoven with
federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir.
2001) citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).
Again, Petitioner has failed to claim that the Rule 28(e) bar is
not independent of federal law, to state facts supporting such a
finding, or to cite any authority stating that Rule 28(e) is
interwoven with federal law. As a result, Petitioner has failed to show that the Rule 28(e)
procedural bar is not independent.
Because Petitioner has failed to demonstrate that the Rule
28(e) bar is either inadequate or not independent, he has not
carried his burden of demonstrating why his federal claims are
not procedurally barred by Rule 28(e). Accordingly, the Court
finds that the Rule 28(e) bar is adequate and independent and
that all of Petitioner's claims are procedurally defaulted.
b. Cause and Prejudice or Actual Innocence
Since Petitioner's claims are procedurally defaulted, the Court
may only reach the merits of Petitioner's claims if Petitioner
can demonstrate either cause and prejudice or actual innocence.
Wells, 28 F.3d at 1009.
i. Cause and Prejudice
Petitioner argues that the Court should excuse his default
because he sent a timely petition for direct review in November
2001, which the California Supreme Court never received. (Pet'r
Opp'n at 2.) The Court may excuse Petitioner's default if
Petitioner can demonstrate a cause for his alleged November 2001
petition not reaching the California Supreme Court. "`Cause'
under the cause and prejudice test must be something external
to the petitioner, something that cannot fairly be attributed to
him. . . ." Coleman, 501 U.S. at 753 (emphasis original). Here
Petitioner implies that the mail system is the external cause for
the default. However, narrowly attributing the cause to the mail
system overlooks the fact that Petitioner failed to avail himself
of numerous subsequent opportunities to avoid the procedural
default.*fn7 Regardless, Petitioner does not state any facts
to support this implied argument, nor does the Court find any in
the record. Because Petitioner has not established sufficient
cause, the Court need not address prejudice and cannot excuse the
default on this basis. See Engle v. Isaac, 456 U.S. 107, 134 fn 443 (1982).
ii. Actual Innocence
Finally, the Court may still reach the merits of Petitioner's
habeas claims if Petitioner can demonstrate that failure to do so
would constitute a fundamental miscarriage of justice. To
demonstrate a potential fundamental miscarriage of justice,
Petitioner must provide new evidence of his actual innocence, and
the evidence must be such that "no reasonable juror would have
convicted him in light of [it]." Wood v. Hall, 130 F.3d 373,
379 (1997) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner has presented no such evidence here, nor has he argued
that he is actually innocent of the crimes for which he was
convicted. Because Petitioner has not adequately demonstrated a
fundamental miscarriage of justice, this exception does not apply
to Petitioner's procedural default.
In sum, the Court finds that all of Petitioner's claims are
procedurally defaulted under California Rules of Court 28(e).
Rule 28(e), as affirmed by Waltreus, is an adequate and
independent state court grounds for the California Supreme
Court's denial of Petitioner's claims, and that Petitioner has
not demonstrated either cause and prejudice or actual innocence.
Accordingly, the Court ADOPTS the report and recommendation
granting Respondent's motion to dismiss.
Based on the above, the Court DENIES the petition for writ of
habeas corpus and ADOPTS the Report and Recommendation granting
Respondent's motion to dismiss. The Clerk of Court shall close
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.