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Scales v. Harrison

February 1, 2007


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


Petitioner Randy Anthony Scales ("Scales"), a state prisoner proceeding through counsel with a 28 U.S.C. § 2254 habeas petition ("Petition"), challenges his conviction of first degree robbery after a jury trial in San Diego County Superior Court. As summarized in Magistrate Judge Jan M. Adler's Report and Recommendation ("R&R"), he received an enhancement for use of a deadly weapon (knife) in the commission of the robbery, and the trial court found true Scales had five serious felony convictions, two prior prison terms, and nine prior "strike" convictions. He was sentenced to 51 years to life in prison.

The Petition challenges Scales' confinement as a violation of his rights under the United States Constitution in three particulars. Ground One asserts he was denied his Sixth Amendment right of confrontation when the trial testimony of the Spanish-speaking victim was not fully translated into English. Ground Two asserts the trial court erred in ruling that illegal immigration is not an act of moral turpitude for impeachment purposes and excluding that evidence. Ground Three asserts his Fifth Amendment right to remain silent was violated when the prosecutor elicited testimony of Scales' purportedly post-Miranda silence. Judge Adler's thorough R&R recommends Scales' Petition be denied with prejudice. Scales' counsel filed timely Objections to the R&R. For the reasons discussed below, the Objections are OVERRULED, the R&R is ADOPTED, and the Petition is ordered DISMISSED WITH PREJUDICE.


A. Reports And Recommendations

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED.R.CIV.P. ("Rule") 72(b); see 28 U.S.C. § 636(b)(1). The district court "shall make a de novo determination upon the record . . . of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." Id.; United States v. Raddatz, 447 U.S. 667, 676 (1980) (the court must make a de novo determination of the factual findings to which there are objections). The court also reviews de novo the magistrate judge's conclusions of law. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995).

B. Federal Habeas Claims By State Prisoners

Title 28 United States Code § 2254(a) sets forth the scope of review for federal habeas claims: "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." Section 2254 habeas proceedings measure state convictions against federal constitutional requirements applicable to the states, and only errors of federal constitutional magnitude will support federal intervention in state judicial proceedings to correct such errors. See Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990). Errors of state law cannot support federal habeas corpus relief, and federal courts may not re-examine state court determinations on state law issues. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (a state's interpretation of its laws or rules provides no basis for federal habeas corpus relief because no federal constitutional question arises).

Federal courts review petitions for habeas relief from state prisoners filed in federal court after April 24, 1996 under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 327 (1997). A writ petition subject to AEDPA standards will not be granted unless the state court decision adjudicating a claim on the merits is "contrary to or involved an unreasonable application of" federal law as that law has been determined by the United States Supreme Court. See Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

(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 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).

Under the "unreasonable application" clause, the test is objective unreasonableness, irrespective of whether the decision was "erroneous" or "incorrect." Williams v. Taylor, 529 U.S. 362, 411 (2000); Lockyear v. Andrade, 538 U.S. 63, 75-76 (2003). A federal reviewing court must presume that a determination of a factual issue made by a state court is correct. 28 U.S.C. § 2254(e)(1). Petitioners have "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(2).


Scales' prosecution arose from an early-morning incident in August 2001. Hector Quiroz, the eventual robbery victim, went to an apartment to buy marijuana with a woman, Kim Bryant, he met late at night at a restaurant. Bryant and another woman at the apartment had a beer with Quiroz in the kitchen and offered to have sex with him for $30 while they waited for the marijuana to be delivered. Quiroz told them he had only $10, which he had given to Bryant for the drugs. The women left the room, then Scales and another man appeared. Scales retrieved a kitchen knife and brandished it, telling Quiroz he needed to pay them in order to have sex with the women. Quiroz repeated he had only $10 with him. Scales had Bryant search Quiroz and, after forcing him to remove some of his clothing, they found and took $110 from him. Scales let Quiroz leave. He ran from the apartment, flagged down a police officer. Using gestures, he communicated he had been robbed at knifepoint. He ultimately offered conflicting versions in subsequent interviews of how he came to be in the apartment and the number of people involved in the incident, among other things.

The R&R sets forth the facts and procedural background of this case through extensive quotations from the California Court of Appeal's statements of the underlying facts, that court's identification of the pertinent evidence presented at trial, and the testimonial excerpts of record challenged in Scales' Petition. In his Objections, Scales expressly "adopts the Magistrate Judge's procedural and factual summary," except as noted in his Objections arguments. Obj. 1:10-11. This court does not reproduce the undisputed excerpts of record, except insofar as necessary to address Scales' objections "to the unreasonable inferences drawn from the state appellate court's factual determinations in order [for the R&R] to conclude that the state appellate court decision was not contrary to clearly established Supreme Court law" and to the purportedly "unreasonable application of those factual determinations to established Supreme Court law." Obj. 1:11-14.


A. Ground One: Untranslated Testimony

Quiroz testified at Scales' trial in Spanish, using a translator. Scales represents five of his jurors understood both English and Spanish. He contends that on six occasions, Quiroz -- "the prosecution's star witness" and robbery victim -- responded to the prosecutor's narrow question with "rambling answers which were not fully translated." Pet. p. 6. Scales characterizes those instances as violations of his Sixth Amendment right to confront the witness because his counsel was precluded from cross-examination on the untranslated portions of Quiroz's trial testimony and argues those portions of the testimony should not have been admitted.

The record reflects the trial court expressly acknowledged the non-responsive nature of the portions of Quiroz's answers when he continued to speak after giving a responsive answer, an implicit sustaining of the defense objection. The court also admonished Quiroz to confine his answers to the narrow question asked:

Q: When the money was take from you, were you afraid?

A: Yes. (Witness continues speaking in Spanish, ...

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