The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge
ORDER: (1) ADOPTING AS MODIFIED THE UNITED STATES MAGISTRATE JUDGE; (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND APPEALABILITY FINDINGS AND CONCLUSIONS OF (3) ISSUING A CERTIFICATE OF
Petitioner is a California prisoner proceeding pro se and in forma pauperis with a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 4.) Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Ruben B. Brooks, which recommends denying the Petition. (Doc. No. 20.) No objections to the R&R have been filed.
The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that:
"A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2006). For the following reasons, the Court adopts as modified the findings and conclusions of the Magistrate Judge as set forth below, denies habeas relief, and issues a Certificate of Appealability.
In claims 1, 4, 5 and 6, Petitioner alleges numerous instances of ineffective assistance of appellate counsel. The Magistrate Judge conducted a thorough review of the record and found that Petitioner had failed to demonstrate either deficient performance or prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984), with respect to any of the alleged instances of ineffective assistance of counsel. (R&R at 24-59, 61-62.) The Court adopts in full the findings and conclusions of the Magistrate Judge with respect to these claims. In addition, the Court modifies the findings and conclusions as follows. Petitioner claims that appellate counsel was deficient in failing to raise a claim that trial counsel was ineffective in failing to obtain the surveillance video from the Jack in the Box restaurant. (First Amended Petition ["FAP"] at 3, 11.) He contends the video would have shown the victim entered the restaurant from the direction of the Texaco gas station and went straight into the bathroom, that she did not have bruises on her body, and that her clothes were neat and not messed up. (Id. at 6.) The R&R found that, assuming the videotape existed, testimony from the manager of the Jack in the Box that the victim's clothes were "neat and not messed up or torn," and that the manager saw only "slight redness on one of the victim's wrists," provided the same impeaching evidence as the video. (R&R at 30.) The Court adopts this finding, and adds that Petitioner has failed to show he was prejudiced as a result of not being able to use the video (assuming it existed) to show that the victim went to the restroom before she approached the employees at the counter, or that she entered the restaurant from the direction of the gas station. The restaurant employees testified that they first noticed the victim when she approached the counter and asked them to call the police. (Lodgment No. 3. Reporter's Tr. at 36, 49.) Both Petitioner and the victim testified that the victim exited Petitioner's vehicle while it was in the restaurant parking lot and went directly into the restaurant. (Id. at 427, 535-39.) Petitioner has not satisfied the Strickland standard because he has identified no basis for a finding that evidence that the victim went to the bathroom before approaching the counter and asking the employees to call the police would have affected the jury verdict, and because evidence that the victim came from the direction of the gas station would have actually impeached Petitioner's own testimony that she entered from the restaurant parking lot. Petitioner also contends the bias of the trial judge is demonstrated in part by the numerous adverse rulings during trial. To the extent the R&R concluded that rulings by a state court judge cannot under any circumstances demonstrate judicial bias (see R&R at 54-55), or that only California law is relevant to that determination (id.), the Court declines to adopt that conclusion. See Liteky v. United States, 510 U.S. 540, 555 (1994) (recognizing existence of exceptions to general rule that judicial rulings almost never constitute a valid basis for bias). However, the Court agrees with the Magistrate Judge that none of the rulings identified by Petitioner demonstrates bias, and adopts those findings in full.
The last reasoned decision of the state courts as to Petitioner's ineffective assistance of counsel claims is the state appellate court opinion denying his state habeas petition. (Lodgment No. 17, In re Mendoza, No. D041991 (Cal.App.Ct. July 14, 2003.) That court denied the claims on the basis that Petitioner failed to show either deficient performance or prejudice under Strickland. (Id. at 2.) Applying 28 U.S.C. 2254(d) to the state court opinion, it is clear that the state court's application of the Strickland prejudice test to deny these claims was objectively reasonable because Petitioner has not satisfied the Strickland standards for the reasons set forth in the R&R. Thus, habeas relief is denied as to claims 1, 4, 5 and 6.
Petitioner contends in claim 3 that his retrial violated the double jeopardy protections of the federal Constitution. (FAP at 15-17.) The R&R found that the trial judge's decision to declare a mistrial was neither contrary to, nor involved an unreasonable application of, clearly established federal law. (R&R at 20.) This claim was not raised on appeal, but was presented to the state supreme court in a habeas petition (Lodgment No. 18 at 15-17), which was denied without citation or a statement of reasons. (Lodgment No 19.) The claim was presented to the state appellate court in a habeas petition (Lodgment No. 16 at 15-17), but not in the habeas petition filed in the superior court (Lodgment Nos. 14-15). The appellate court denied the claim, stating:
Habeas corpus cannot serve as a second appeal, and matters raised and rejected on appeal are not cognizable in a state habeas corpus proceeding in the absence of special circumstances. (In re Huffman (1986) 42 Cal.3d 552, 554-555.) As to the claims he did not raise in his appeal, he has not shown special circumstances that would excuse his failure to do so. "(C)courts will presume that a litigant received sufficient review of his or her legal claims, both constitutional and otherwise, on direct appeal. Where an issue was available on direct appeal, the mere assertion that one has been denied a 'fundamental' constitutional right can no longer justify a post-conviction, postappeal collateral attack, especially where the possibility exists of raising the issue via the ineffective assistance of counsel doctrine. Only where the claimed constitutional error is both clear and fundamental, and strikes at the heart of the trial process, is an opportunity for a third chance at judicial review (trial, appeal, postappeal habeas corpus) justified. (Citation.)" (In re Harris (1993) 5 Cal.4th 813, 834.)
(Lodgment No. 17, In re Mendoza, No. D041991, slip op. at 2.)
Respondent contends that any incidents occurring in the first trial are irrelevant to a double jeopardy claim, and argues that the Court should refuse to entertain the claim on that basis. (Answer at 10.) Respondent's argument acts as a waiver of any possible procedural default arising from the appellate court's denial of the claim on the basis that Petitioner failed to present the claim on direct appeal. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). However, even if the Court is required to conduct a de novo review of the double jeopardy claim for that reason, (see Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002)), habeas relief is not warranted.
Petitioner claims that his double jeopardy rights were violated because the trial judge abused his discretion in declaring a mistrial when it appeared additional deliberations might produce a verdict after ten of the jurors indicated they were prepared to vote to acquit on the remaining charges and the other two jurors were undecided, and that his trial counsel rendered ineffective assistance in failing to object to a mistrial or advise him to enter a plea of once in jeopardy. (FAP at 15-17.) The record reflects that the jury in the first trial informed the trial judge that they were unable to reach a verdict on three counts and were at an impasse. (Lodgment No. 2, Clerk's Tr. at 327.) The trial judge asked each juror whether with further deliberations the jury might reach a verdict on the remaining counts, ten jurors answered no and two jurors answered yes. (Id.) The Magistrate Judge read the record in this regard correctly (R&R at 16-17), and the Court adopts the findings and conclusions of the Magistrate Judge with respect to the judicial bias and ineffective assistance of counsel aspects of claim 3 in full, and denies habeas relief for the reasons stated in the R&R. (R&R at 17-24.)
The R&R did not address the aspect of the double jeopardy claim that retrial was barred because the elements of the three offenses for which Petitioner was convicted at the second trial were necessarily decided in his favor at the first trial when he was acquitted of the other offenses. (FAP at 24 & Ex. F, citing People v. Fields, 13 Cal.4th 289 (1996) (recognizing that the Double Jeopardy Clause of the Fifth Amendment and its counterpart in the California Constitution incorporate the "implied acquittal" doctrine).) Petitioner was acquitted at the first trial of kidnapping during a carjacking, kidnapping for robbery, kidnapping for rape, and carjacking. (R&R at 6.) The jury was unable to reach a verdict on the offenses of robbery, false imprisonment by violence, and sexual battery by restraint, and he was convicted of the latter three charges upon retrial. (Id.) The fact that the jury acquitted Petitioner of the kidnapping and carjacking charges is consistent with a finding that ...