Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Brown v. Tilton


March 27, 2007


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

[Dkt No. 95]


Petitioner Tommy Ray Brown ("Brown") seeks habeas corpus relief pursuant 28 U.S.C. § 2254 from his December 1990 state criminal conviction. Magistrate Judge William McCurine, Jr. prepared a Report and Recommendation ("R&R") (Dkt No. 95) recommending the court deny Brown's First Amended Petition, filed April 13, 2004 (Dkt No. 59). Brown filed extensive Objections to the R&R. Dkt No. 100. Respondent filed a brief Reply. Dkt No. 99. For the reasons discussed below, the R&R is ADOPTED, with MODIFIED AND AUGMENTED analysis, and the First Amended Petition is DENIED.*fn1


The R&R traces the factual background and procedural history surrounding Brown's conviction in December 4, 1990 of murder, attempted murder, robbery, vehicle taking, and shooting at an inhabited building, and his post-conviction proceedings in state court.*fn2 Dkt No. 95, pp. 2-3. Brown's direct appeal was denied, as well as his six state habeas petitions.*fn3 He is serving a sentence of 30 years to life, plus 16 years. See Dkt No. 65, 2:10.

Brown first filed his federal habeas petition in January 1998. The petition is accordingly governed by the Anti-Terrorism And Effective Death Penalty Act of 1996 ("AEDPA"). Respondent answered the petition, and Brown filed a Traverse. Dkt No. 9, 10, 15. Brown unsuccessfully moved for leave to conduct discovery and for expansion of the record. Both sides provided supplemental briefing and declarations. Dkt Nos. 16, 27. On December 22, 1998, District Judge Napoleon A. Jones adopted Magistrate Judge Ruben B. Brooks' R&R to deny Brown's habeas petition on grounds the federal petition was untimely filed. Dkt No. 32. Judgment was entered for Respondent. Dkt No. 33. Brown unsuccessfully moved for reconsideration, then appealed. Dkt Nos. 35-39.

The Ninth Circuit reversed and remanded on grounds denial of access to personal legal materials can entitle a petitioner to equitable tolling in proper circumstances, contrary to Judge Jones' conclusion.*fn4 Dkt No. 44. That court found the district court did not conduct sufficient fact finding to establish how complete Brown's denial of access was or how long it lasted, and remanded for development of the record. That court also found a calculation error caused the tolled period the district court had recognized to be 30 days too short.

This case was reassigned to the undersigned District Judge on October 20, 2003 and to Magistrate Judge McCurine on January 21, 2004. Dkt Nos. 46, 50. On February 13, 2004, Judge McCurine entered an Order reopening the case and setting a briefing schedule for Respondent to file a Motion To Dismiss or an Answer to the petition. Dkt No. 51. He instructed, among other things, that if Respondent "contends the Petition should be dismissed because it was not filed within the one-year statute of limitations, Respondent shall address the concerns raised by the Ninth Circuit." Dkt No. 51, 2:15-17 (emphasis omitted). "If Respondent does not renew its motion to dismiss on the basis that the Petition was not filed within the one-year statute of limitations, Respondent shall clearly and expressly indicate that the statute of limitations defense is waived." Id. 3:9-11.

This court granted Brown leave to file a First Amended Petition ("Petition"'), and he did so on April 13, 2004. Dkt No. 58-59. The Petition alleges he was denied due process and a fair trial:

(1) from systematic prosecutorial misconduct (misstatements of law, eliciting inflammatory and irrelevant evidence, referring openly to facts outside the record, impugning defense counsel, expressing personal animus against petitioner, using voice and body to intimidate witnesses, and reference to gang affiliation to inflame the jury); (2) use of improper gang expert testimony; (3) admitting irrelevant and prejudicial gang evidence; (4) allowing prosecutor to prove petitioner previously served prison time; (5) denial of his request to substitute trial counsel and denial of his request for a continuance so he could prepare for self-representation; (6) denial of right to substitute trial counsel; (7) ineffective assistance of trial counsel (for various evidentiary, tactical, and investigatory failings); and (8) an erroneous jury instruction. Judge McCurine issued a new scheduling Order in consideration of the amended Petition. Dkt No. 62. That Order reiterated Respondent's options as well as the admonition Respondent address the Ninth Circuit's opinion or expressly waive the statute of limitations defense.

Brown moved on April 26, 2004 for an evidentiary hearing on the merits of his Petition and for appointment of counsel. Dkt No. 65. Judge McCurine denied the motion without prejudice. Dkt No. 67. He found the ineffective assistance of counsel ("IAC") claim did not require an evidentiary hearing because the argument his counsel "failed to investigate witnesses, conduct background checks on . . .witnesses, and failure to have [an] investigator testify," even if proved, would not sustain his IAC claim. Id. 2:7-11. He also found Brown's argument a copy of the AEDPA was not available in the prison law library in September 1998 to be both premature and speculative unless and until Respondent filed a motion to dismiss on statute of limitations grounds. Id. 2:23-26.

Respondent filed an Answer to the Petition on June 23, 2004, purporting to incorporate a renewed motion to dismiss: "Respondent reasserts the motion to dismiss the petition because it is barred by the statute of limitations." Dkt No. 71, 10:21-22, 2:26 ("Petition is barred by the one year statutory limitations period of AEDPA"). Brown's Traverse addresses the statute of limitations issue:

Petitioner denies IV. of the answer at p. 2, the petition is not barred by the one-year statute (A.E.D.P.A.) filing period. Furthermore, the respondent failed to comply with this court order of 4-20-04 at p. (1), respondent did not file a motion to dismiss on this issue thereby rendering this issue moot.

Traverse, Dkt No. 74 2:1-5.

No activity appears in the docket between the July 23, 2004 Traverse and March 16, 2005, when Judge McCurine set a May 18, 2005 evidentiary hearing "limited to those issues raised by the Ninth Circuit Court of Appeals" and appointing counsel for Brown for that hearing only, revisiting Brown's April 26, 2004 requests. Dkt No. 76, 2:1-9. The hearing was continued several times, with intervening telephonic status conferences. The court permitted Brown to file a motion to discover when the prison library received the AEDPA materials, and limited discovery was authorized. Dkt Nos. 84, 88. On August 18, 2005, Judge McCurine authorized the filing of an Amended Answer and Traverse, denying Brown's discovery motion as "now moot." Dkt No. 90. Respondent filed a First Amended Answer to the First Amended Petition on August 30, 2005, but asserted no statute of limitations defense.*fn5 Dkt Nos. 91, 92. The court finds the statute of limitations defense has been abandoned, albeit not in the manner prescribed in the April 2004 scheduling Order.*fn6 Dkt No. 62, ¶ 6.

Brown moved on January 12, 2006 (filed the same day as the R&R) for an evidentiary hearing on the underlying merits of his IAC claims, proceeding pro se. Dkt No. 96. Judge McCurine denied that motion without prejudice, applying Rule 6(a) of the Rules Governing § 2254 cases, on grounds: the court was not persuaded the discovery Brown sought would substantiate his claim of IAC; most of the discovery he sought had been produced at trial; and his habeas petition could be fairly decided on the merits without that discovery.*fn7 Dkt No. 98. This court concurs with that assessment.

The R&R recommends the Petition be denied on all grounds Brown raises. Dkt No. 95. Respondent filed Objections to the R&R solely to request correction of the R&R caption*fn8 and to summarily reassert the contention most of Brown's claims are procedurally defaulted, "as set forth in the Answer." Dkt No. 99. Brown filed extensive objections to the R&R, rearguing the merits of his Petition and stating the R&R was "unreasonable" in its determinations, or the magistrate judge "was mistaken" or "in error" in recommending rejection of each ground addressed in the R&R. Dkt No. 100, e.g. 2:10, 12:2. 8:12, 12:21, 14:19. In addition, Brown objects Judge McCurine failed to address his alleged Sixth Amendment Confrontation Clause violation.


A. Legal Standards

1. R&R Review

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 judge may also "receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. The district court "shall make a de novo determination of those portions of [a magistrate judge's R&R] to which objection is made." 28 U.S.C. § 636(b)(1); Rule 72(b); see United States v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections); Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995) (the court reviews de novo the magistrate judge's conclusions of law).

2. Application Of AEDPA Standards

Title 28 United States Code § 2254(a) ("Section 2254") habeas proceedings measure state convictions against federal constitutional requirements applicable to the states:

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.

Federal courts review state prisoners' petitions filed after April 24, 1996 under AEDPA. AEDPA imposed more stringent standards than previously governed federal habeas review. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A writ petition will not now be granted unless the state court decision is "contrary to or involved an unreasonable application of" federal law. In applying 28 U.S.C. § 2254 (a), (d)(1)-(2) of AEDPA, for purposes of determining what constitutes "clearly established federal law," the courts rely on United States Supreme Court holdings (as opposed to dicta) as they existed at the time the state court rendered the relevant decision. Williams v. Taylor, 529 U.S. 362, 412, 405, 413 (2000); see also Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999) (the petitioner must identify United States Supreme Court decisions that address his claims). Ninth Circuit authority may be considered "for its persuasive authority in applying Supreme Court law." Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled on other grounds, Andrade, 538 U.S. at 71 (federal courts are not required to review state court decisions de novo before applying AEDPA standards, overruling the two-step consideration of habeas petitions required by Van Tran).

(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) (emphasis added); see Williams, 529 U.S. at 411 (under the "unreasonable application" clause, the test is objective unreasonableness, not whether the determination was "erroneous" or "incorrect"); see also Andrade, 538 U.S. at 75-76.

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). Only errors of federal constitutional magnitude will support federal intervention in state judicial proceedings to correct such errors. Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990). A federal reviewing court presumes that determinations of factual issues made by a state court are correct, with the burden on the petitioner to rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(2). In limited circumstances, an evidentiary hearing may be held in federal court to develop the factual basis of a claim, but only when:

(A) the claim relies on --(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added).

In this case, the R&R applied "the less deferential pre-AEDPA standard of review" to seven of Brown's eight claims, excepting only the Sixth Claim (alleging fair trial violations when the trial court denied his request to substitute trial counsel):

Before turning to the merits of Petitioner's claims, the proper standard of review must be addressed. Because claims one through six, and number eight have been exhausted on the basis of state procedural grounds, the substance of these federal habeas claims have [sic] not been considered by the state supreme court. Although some of these claims had been reviewed on the merits by state courts during appellate proceedings, the state courts have not reviewed the merits of these claims during any of the state habeas proceedings which have served to exhaust such claims. Accordingly, this Court must apply the less deferential pre-AEDPA standard of review, which provides for deference to the factual findings of a state court, but requires a de novo review of both legal questions and mixed questions of law and fact. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993). Petitioner's sixth claim will be reviewed under AEDPA, as that claim was raised in Petitioner's first habeas petition filed in 1992 and rejected by the state in a reasoned opinion.[*fn9]

R&R, Dkt. No. 95, 11:27-12:10 (emphasis added).

However, AEDPA applies to all federal habeas petitions pending on or filed after its effective date in April 1996. Lindh, 521 U.S. at 327; see Woodford v. Garceau, 538 U.S. 202, 207 (2003) (AEDPA does not apply if the state prisoner had (1) an application for habeas relief, (2) before a federal court, (3) seeking an adjudication on the merits, (4) before April 24, 1996). Brown first filed his federal petition on January 7, 1998. The entire Petition is accordingly subject to AEDPA standards. The R&R acknowledges, "some of these claims had been reviewed on the merits by state courts during appellate proceedings." R&R 12:2-3. AEDPA recites it applies to "any claim that was adjudicated on the merits in State court proceedings" (28 U.S.C. § 2254(d) (emphasis added)), not only to claims addressed in state habeas proceedings and not only if the state supreme court itself reached the merits.*fn10 See R&R 12:2-5. This court accordingly applies AEDPA standards to all portions of the Petition any reviewing state court adjudicated on the merits in any of Brown's post-conviction proceedings.

3. Constitutional Errors

"Trial errors" of even constitutional magnitude can be deemed harmless, whereas "structural errors" require reversal of the conviction because they infect the entire trial process, and thus they cannot be deemed harmless. Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991). Most constitutional errors are of the trial type, and most "can be harmless." Id. at 306. These "occur during the presentation of the case to the jury" and are amenable to harmless-error analysis because the error "may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial]." Brecht v. Abrahamson, 507 U.S. 619, 629 (1993), quoting Fulminante, 499 U.S. at 307-08. For example, the Supreme Court classifies even the admission of an involuntary confession as trial-type error. Id. at 306-11. Trial errors are analyzed under the Brecht standard. The Supreme Court has identified only a handful of structural errors. Deprivation of the right to counsel or a biased judge are examples of structural error. Fulminante, 499 U.S. at 306-10. Brown's Petition alleges only trial errors.

4. Exhaustion

"A petitioner has satisfied the exhaustion requirement if: (1) he has 'fairly presented' his federal claim to the highest state court with jurisdiction to consider it, . . . or (2) he demonstrates that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Respondent argued Brown failed to exhaust his federal claims because he did not present the federal basis of most of them to the state supreme court before bringing his federal Petition. A'd Ans. P&A pp. 7-8. The R&R demonstrates his claims are exhausted, notwithstanding Respondent's argument. No remedies remained available to Brown at the time he filed his amended Petition. See Gray v. Netherland, 518 U.S. 152, 161 (1996) (the exhaustion requirement may be satisfied "if it is clear that [petitioner's] claims are now procedurally barred under [state] law"); Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (claim may be considered exhausted if it is obviously procedurally barred), citing Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) ("the district court correctly concluded that [petitioner's] claims were nonetheless exhausted because 'a return to state court would be futile"). This court ADOPTS the recommendation Brown's claims be deemed exhausted as evidenced, inter alia, by the California Supreme Court's 2001 denial of his untimely and successive sixth habeas petition.

5. Procedural Default

When an adequate and independent ground for a state court's rejection of a federal claim involves a violation of certain state procedural requirements, a habeas petitioner is said to have procedurally defaulted his claim, and the federal courts cannot reach the merits of the federal claim. Coleman v. Thompson, 501 U.S. 722, 729 (1991) (federal courts lack jurisdiction to review a judgment of a state court which rests on a state law ground that is independent of the federal question and adequate to support the judgment). However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (citations omitted).

To be an "independent" state procedural rule , the state law basis for the decision must not be interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris, 489 U.S. at 265. To be "adequate," the state procedural rule must be strictly or regularly followed and consistently applied. See Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996). Unless the state court's decision clearly rests on an independent and adequate state ground, it is presumed that the state denial was based at least in part upon federal grounds invoked, and the petitioner may seek relief in federal court. Siripongs v. Calderon, 35 F.3d 1308, 1317 (9th Cir. 1994). The state court's mere citation to a case without elaboration does not necessarily satisfy the "clear and express statement" component of a procedural default finding. "[I]f it is unclear whether the state court dismissed the petition because of a state law procedural default or on the merits of the petitioner's federal constitutional claims, a federal court may review the merits of the claims presented." Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000), citing Siripongs, 35 F.3d at 1317. The ultimate burden of proof as to adequacy lies with the respondent because the state is in a better position to determine whether a particular rule is consistently applied. Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003) (holding that California's untimeliness bar is independent but remanding to determine whether it is adequate).

The R&R recommends the court find Brown's claims are not procedurally defaulted, rejecting Respondent's representations in the Answer, although the analysis is not expanded. R&R, Dkt No. 95, pp. 10-11. Respondent's Objections to the R&R summarily state: "Respondent continues to contend that most of the claims are procedurally defaulted, as set forth in the Answer." Resp.'s Obj. 2:4-5. Respondent broadly generalizes:

Despite the passage of more than ten years, Petitioner has not given the courts a chance to rule on his federal Constitutional claims. The time has passed, and this Petition should be dismissed as being procedurally defaulted.

Answer 8:17-19.

Respondent's papers do not explicitly identify a particular state procedural rule(s) Brown violated, do not demonstrate the procedural violation is a rule consistently applied and therefore "adequate" to support the result, do not show such a rule is "independent" of federal law or that the state's highest court "clearly" relied on the procedural violation as grounds for denying petitioner relief, or differentiate with particularity those federal claims presented to the state courts from those not presented.*fn11 Accordingly, Respondent does not lay the foundation for a finding Brown's federal claims are procedurally defaulted and therefore not cognizable on federal habeas review. As Respondent does not carry its burden to show procedural default of specific claims on adequate and independent state law grounds, the court ADOPTS the R&R conclusion Respondent "fails to address the independence or adequacy of the state procedural bars as applied to this case." R&R 11:21-22. The burden never shifted to Brown to "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The court OVERRULES Respondent's summary objection to the R&R conclusion Brown's claims are not procedurally defaulted.

B. Petition Grounds For Habeas Relief 1. Ground One: Prosecutorial Misconduct

a. Standards

Prosecutorial misconduct does not automatically invalidate a conviction.*fn12 A habeas petition will be granted for prosecutorial misconduct only when the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The court applies the standard in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) to make that determination.*fn13 Brecht, 507 U.S. at 623, 637 ("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'"), quoting and adopting harmless error standard of Kotteakos v. United States, 328 U.S. 750, 776 (1946).

b. Allegations Of Error Addressed In R&R

Brown argues several theories of prosecutorial misconduct, in the presentation of evidence and in closing argument, he contends warrant federal habeas relief. Only if the conduct rendered his trial so unfair as to deny him due process, no matter how improper the prosecutor's behavior may have been, will this theory support a finding Brown's federal constitutional rights were violated. See Smith v. Phillips, 455 U.S. 209, 220 n. 10 (1982) ("Even in cases of egregious prosecutorial misconduct, such as the knowing use of perjured testimony, we have required a new trial only when the tainted evidence was material to the case"). The R&R does not articulate its review of the state court determinations on the issues under AEDPA (i.e., whether the decisions were contrary to or an unreasonable application of clearly established by the United States Supreme Court), but rather appears to have conducted a de novo review as if the merits had not been reached in any state reviewing court. The state court's reasoned decision on Brown's prosecutorial misconduct theories is provided as Attachment A to Lodgment 12, the July 23, 1992 decision of the California Court of Appeal affirming Brown's conviction, at pages 7-11.

Brown's prosecutorial misconduct grounds addressed in the R&R are: "asked leading questions, made erroneous inferences, and generally mistreated witnesses on the stand" (R&R 12:27-28, citing Pet. P&A pp. 17-33); inserted his own testimony in the questioning of Derrick Edwards (who testified Brown had been shot in the stomach not long before the incident and trial, and whom the prosecutor impeached by asking if he was aware no recent gunshot wound was found on Brown) (R&R p. 13, citing RT 462); was "belicose" or "overly aggressive" in handling witnesses (R&R p. 13, citing Pet. P&A pp. 17-22); made a sarcastic comment to witness Edwards and to witness Kimico Houston impugning their veracity (R&R p. 13, citing Pet. P&A p. 18); and misconduct in his confrontational cross-examination of Brown, which in some instances drew sustained objections (R&R pp. 13-14). The R&R concluded none of the instances reviewed "materially tainted the trial such that [Brown's] due process rights were violated." R&R 14:4-5, citing Smith, 455 U.S. at 219.

Similarly, the R&R concludes that Brown's assignment of prejudicial error to portions of the prosecutor's closing argument did not amount to misconduct and fell within the "wide latitude" generally accorded closing arguments. R&R 14:6-20. Brown specifically challenges the prosecutor's references to: Brown's gang affiliation and criminal record; his theory that Brown's motives for the shooting were based on his earlier meeting with the victim; the inference that defense witnesses had motivations to lie; and the inference that Brown potentially lied about his alibis. R&R 14:7-12, citing RT 894-962. In his Objections to this portion of the R&R, Brown reargues his Petition and simply disagrees with the R&R finding of substantial evidence to support the outcome. Pet. Obj. pp. 4-7. The R&R found "[n]one of the prosecutor's arguments appear[s] to reference evidence not otherwise admitted at the trial," citing the gang affiliation and criminal record. R&R 14:12-14. Even when the prosecutor's closing arguments "infer conclusions from circumstantial evidence, the inferences appear reasonably grounded and they were not represented as factual evidence." R&R 14:16-19. The R&R cites Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999) in support of its conclusion the Darden standard is not met because "even assuming the prosecutor's actions did amount to misconduct, there is no showing by the Petitioner, nor does the record offer any reason to find, that the prosecutor's conduct adduced material evidence that tainted the trial because the underlying facts overwhelmingly support the jury's verdict." R&R 14:22-15:3.

The court has considered Brown's Objections and has reviewed de novo relevant portions of the record, the evidence against him, and the parties' briefing on the foregoing prosecutorial misconduct theories, and finds those trial errors did not have "substantial and injurious effect or influence in determining the jury's verdict." O'Neal v. McAninch, 513 U.S. 432, 436, 445 (1995). The state court adjudications did not result in "decision[s] that [were] based on an erroneous determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Those instances of alleged misconduct, singly or in combination, were harmless under Brecht, and the conviction is supported by substantial evidence. Accordingly, with respect to the theories of prosecutorial misconduct the R&R addresses, the court OVERRULES Brown's objections and ADOPTS the R&R recommendation habeas relief is not warranted on those Ground One theories.

c. Prosecutorial Misconduct In Violation Of Confrontation Clause

Brown objects the R&R did not address his assertion the prosecutor violated his Confrontation Clause rights. The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Brown's Petition assigns, in passing, prejudicial error to the prosecutor's use of certain hearsay statements the trial court admitted over defense counsel's hearsay objection, asserted as one instance in his list of several examples of alleged prosecutorial misconduct in support of Ground One.

The Magistrate Judge never addressed the violation of the "Confrontation Clause," when the (prosecutor) read portions of the police report of 'Willie Jackson' during cross examination of petitioner. (See R.T. 881-82). This was a clear violation of the confrontation clause, and prosecutorial misconduct. This deprived the petitioner of a fair trial as this hearsay evidence gave the inference that petitioner['s] alibi was made up. . . . [¶] Here in this case the prosecutor did not attempt to call Willie Jackson, as a witness. This statement that was read to the jury was inadmissible, the trial court also committed "plain error" when it overruled the defense objection. . . .[¶] This statement was extremely prejudicial, as it went to the heart of petitioner['s] alibi, that petitioner gave a party for his cousin Willie Jackson, and petitioner was at that party. The police report suggested there was no party. This issue alone warrants reversal not [sic] only did the prosecutor exhibit misconduct by violating the confrontation clause within the 6th amendment of the U.S. Const., but also the trial court committed "plain error," when allowing this evidence over a defense objection . . . .[*fn14 ]

Brown's Obj. 9:19-10:12, citing Pointer v. Texas, 380 U.S. 400, 403 (1965), Maryland v. Craig, 497 U.S. 836-46 (1990), Tennessee v. Street, 471 U.S. 409, 417 (1985).

Brown also criticizes the prosecutor's subsequent use of Jackson's hearsay statements to police in closing argument to refute Brown's alibi as a component of his Confrontation Clause issue. Brown quotes the argument:

You know what is funny about Junior's party? Everybody went there except Junior. Where is Junior, the birthday boy? He's not here. Why? Because the party didn't happen. Don't bring Junior in, man. He already told the cops and they know the story.

Pet. Brief 25:12-16, citing RT 918-919 (transcript of prosecutor's closing argument).

Even under a liberal reading of the Amended Petition, however, Brown has not adequately raised a Confrontation Clause claim. Ground One alleges at most on that issue prosecutorial misuse of the Jackson hearsay, in a list of other examples. His Petition does not allege improper admission of testimonial hearsay violated his federal constitutional rights, but only as a purportedly erroneous denial of an evidentiary objection which permitted the prosecutor to allude to that evidence in closing argument. He complains the prosecutor misused the hearsay to cast doubt on Brown's alibi defense, but only as an example among others he identifies of purported prosecutorial misconduct. The only explicit allusion from which a Confrontation Clause issue could be inferred appears in footnote 19 of Brown's brief: "Petitioner's alibi was that he was at the birthday party for his cousin Junior." Pet. Brief 26:22-23, n. 19.

The court has reviewed the trial transcript to identify the timing and manner of the prosecutor's use of the Jackson hearsay. Jackson's statement was introduced or alluded to twice during the trial, once by Sergeant Raybold and again when the prosecutor read to Brown the statement Jackson made to Raybold, during Brown's cross-examination. Jackson's statement contradicted Brown's alibi that he had given Jackson a party, and that Jackson and others were with him at the time of the homicide. However, Sergeant Raybold also testified Brown himself had given two different alibis, the first that he was out of town at the time of the shooing and later the party alibi.*fn15 The cross-examination of Brown to which the closing argument referred appears at RT 881-882 (emphasis added):

Q: Who is this cousin that you gave a party for?

A: Willie Jackson.

Q: Willie Jackson?

A: That's correct.

Q: Is that the same guy that [police detective] Grant Raybold talked to later? Is he a cousin?

A: That's correct.

Q: It is not Willy R. Brown, a.k.a. Junior?

A: No, it is not.

Q: How old is he?

A: Yes [sic]. That is hypothetical. But he used the wrong name. It is Jackson and not Brown.

Q: You know what he told Grant Raybold, don't you?

A: Yes. And he didn't want to talk to the police. That is why he told them that.

Q: What did he tell Grant?

A: You got it. You read it.

MR. RICHARDSON [defense counsel]: Objection. That is hearsay what this witness told Grant Raybold.

THE COURT: Objection overruled.

BY MR. WILLIAMS [the prosecutor]:

Q: He told him, "I says I wasn't with Tommy Brown. I didn't attend any party." He told them that, didn't he?

A: That's correct.

Q: Why would he lie?

A: Because he didn't want to talk to the police. Go ahead and finish reading everything that he said.

Q: Why wouldn't he want to talk to the police?

A: You can see in the report. It says at the end.

THE COURT: There is no question.

"Statements taken by police officers in the course of interrogations are . . . testimonial . . . ." Crawford v. Washington, 541 U.S. 36, 52, 53 (2004) ("even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class"). Even if Brown's Amended Petition were liberally construed to raise a Confrontation Clause claim,*fn16 the court finds no basis for habeas relief.*fn17

In Crawford, the United States Supreme Court articulated a new Sixth Amendment Confrontation Clause test applicable to testimonial hearsay, overruling the previously-controlling articulation in Ohio v. Roberts, 448 U.S. 56 (1980). The Crawford Court held that where testimonial hearsay evidence is at issue in a criminal trial, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68. The Roberts test "conditions the admissibility of all hearsay evidence on whether it falls under a 'firmly rooted hearsay exception' or bears 'particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 60, quoting Roberts, 448 U.S. at 66. Jackson did not testify at Brown's trial, and his formal statements to police were testimonial, his statements became part of the record at Brown's trial. No one has referred the court to any portion of the record establishing either (1) Jackson's unavailability to testify at trial or (2) that Jackson's statements to an investigating detective were made in circumstances that involved any opportunity for Brown to cross-examine Jackson. Under the Crawford test, Brown's Confrontation Clause challenge (had it been properly raised and supported in state court) to admissibility of that evidence would have facial validity because of the more restrictive rule that "[t]estimonial statements of witnesses absent from trial" are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." Crawford, 541 U.S. at 59.

However, Crawford was decided in 2004. Brown's conviction occurred in 1990, and he filed his federal habeas petition in January 1998. The United States Supreme Court recently held, in Whorton v. Bockting, -- U.S. --, 127 S.Ct. 1173 (U.S. Feb. 28, 2007), that the Crawford decision does not apply retroactively to cases already final on direct review. Accordingly, Brown's Sixth Amendment challenge to the admission of testimonial hearsay at his trial would be decided under the more malleable Roberts test. Under Roberts, testimonial hearsay statements are admissible without offending the Confrontation Clause if the declarant was unavailable to testify and the declarant's statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception or because there were "particularized guarantees of trustworthiness" relating to the statement in question. Roberts, 448 U.S. at 66. Although the trial court overruled defense counsel's hearsay objection, that court recited no firmly-rooted hearsay exception nor any "particularized guarantees of trustworthiness," so neither ground for admitting that testimonial hearsay is satisfied on this record, even under the more lax Roberts test.

Nevertheless, even assuming constitutional error, this court finds the error was harmless. Viewing the record as a whole, this court cannot conclude Jackson's statement had a substantial or injurious effect or influence on the jury's verdict. Brown's own testimony was elicited to explain the conflict between Jackson's statements to police and with his own testimony advancing an alibi defense. He testified Jackson lied to the police when he told them there was no party, in order to avoid having to cooperate or to be implicated in the case. Brown also introduced other evidence in support of his alibi defense. Jackson's statements, informed by Brown's explanation, did not amount to hearsay which destroyed the alibi defense. Credibility is to be determined by the jury, and the verdict was amply supported by the evidence.

Moreover, in his Petition For Review of the Court of Appeal decision affirming his conviction, Brown revisited his list of instances of alleged prosecutorial misconduct, including with respect to the treatment of the Jackson hearsay, but cited only California law as he had in his appeal, without identifying any federal constitutional basis for his claims, and without isolating the Confrontation Clause concern as a separate ground for relief.*fn18 In that petition, Brown stated:

Next the prosecutor "testified" that the birthday party honoree, "Junior," told police he (Junior) was not at a party the evening of the shooting. The court overruled a defense hearsay objection to the prosecutor's testimony. (R.T. 881-882).

Lodg. 12, p. 19; see also Lodg. 12, p. 22 (quoting prosecutor's closing argument allusion to what the absent witness told police).*fn19

In its July 23, 1992 unpublished opinion, the Court of Appeal rejected most of Brown's twenty instances of alleged prosecutorial misconduct. The California Supreme Court denied Brown's petition for review. In particular, with respect to the prosecutor's use of the police report interview of Jackson, the Court of Appeal ruled:

Similarly, he objected to a question asking him to read a portion of a police report of a friend's interview in which the friend said Brown was not at a party the night of the shooting. Brown's objection citing hearsay was overruled. Since he did not cite misconduct or request an admonition, Brown is deemed to have waived any misconduct claim.

Lodg. No. 12, Attach. A, p. 10.

Challenges to a state trial court's evidentiary rulings are not cognizable on federal habeas review unless the admission or preclusion of evidence violated the petitioner's due process right to a fair trial. McGuire, 502 U.S. at 70; see Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999) ("It is well settled that a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process"). Brown relies on his assertion of evidentiary ruling error in admitting the Jackson hearsay as a basis for belatedly attempting to bootstrap the evidentiary ruling into a Confrontation Clause violation. This court concludes Brown failed to raise a Confrontation Clause claim in state court adequate to preserve the claim as cognizable in subsequent federal habeas proceedings. His criticism of the introduction of Jackson's statements, there and here, arises in the context of the prosecutor's allusion to those statements during closing argument. Brown's trial counsel unsuccessfully objected on hearsay grounds to the prosecutor's discussing Jackson's statements during his cross-examination of Brown -- that there was no party and his inability to vouch for that version of Brown's alibis -- but the trial court overruled the objection. Brown had the opportunity to -- and did -- offer an explanation for Jackson's purported lies to the police.

The court SUSTAINS Brown's Objection that the R&R did not address his contention the Jackson hearsay was erroneously admitted at trial, to the extent a liberal reading of his First Amended Petition could be construed as signaling a Confrontation Clause concern. However, the court OVERRULES his objections on the merits, both as to his assertion he adequately raised the claim as cognizable on federal habeas review and as to his contentions the admission of the hearsay evidence or the prosecutor's allusion to that evidence in closing argument violated due process, and DENIES habeas relief on that theory.

2. Grounds Two, Three, And Four: Evidentiary Issues

Brown's Grounds Two, Three, and Four challenge the admission at trial of gang evidence and evidence of his prison prior. Challenges to a state trial court's evidentiary rulings are not cognizable on federal habeas review unless the admission or preclusion of evidence violated the petitioner's due process right to a fair trial. McGuire, 502 U.S. at 70; see Spivey, 194 F.3d at 977-78 ("It is well settled that a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process"); Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Only if the jury could draw no permissible inference from the challenged evidence can its admission violate due process. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). The evidentiary error must be of constitutional dimensions and have had "'a substantial and injurious effect' on the verdict" in order support habeas relief. Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001), quoting Brecht, 507 U.S. at 623.

Brown asserts as his Petition Ground Two gang expert testimony was improperly allowed because it was neither relevant nor did the case require "expert" testimony. Pet. P&A pp. 34-39. He identifies no clearly established federal law that supports his contention admission of that evidence violated his constitutional rights.*fn20 The court OVERRULES Brown's objections to the R&R recommendation this court find the expert witness testimony was relevant, at a minimum, to corroborate the reasonableness of an eye witness' contention that fear of gang retaliation caused her to misstate facts to authorities until Brown was incarcerated. The expert testimony in Brown's case provided pertinent context for the gang involvement testimony of several witnesses at Brown's trial and contributed to permissible credibility assessments of those witnesses. The R&R recommendation habeas relief be denied on Ground Two is ADOPTED.

Brown's Petition Ground Three alleges the wrongful admission of irrelevant and prejudicial evidence of Brown's own gang affiliation.*fn21 The state court reasonably found admission of gang affiliation was proper "to show witness bias, intimidation, and credibility, and its probative value outweighed any potential prejudicial effect." Pet. Ex. 1, p. 11. The evidence was probative of the credibility of several trial witnesses. For the reasons recited in the R&R, the court finds not only no constitutional violation is supported by that assignment of error, but also defers to the state court's findings that evidence was relevant and probative, irrespective of any negative view the jury may have taken of it. Brown's objections are accordingly OVERRULED, and the R&R recommendation to deny habeas relief on Ground Three is ADOPTED.

Brown's Ground Four alleges evidence of his prior incarceration was improperly admitted and resulted in a due process violation. The state court reasonably found Brown's argument "misstates the record," because the trial court made no ruling on the admission of that evidence, "deferring the issue until it could consider Brown's testimony." Pet. Ex. 1 p. 21. Before he testified at trial, the court ruled admissible Brown's prior felony conviction to impeach his credibility, under CAL. EVID. CODE § 788.

Defense counsel reasonably elicited from Brown on direct examination the testimony that he had been convicted of a felony, to lessen the impact the evidence could have on the jury if presented by the prosecution. Instead of simply responding in the affirmative, Brown added the nature of the felony conviction (burglary) and volunteered: "I went to prison for it." RT 852. Moreover, his brief statement about what happened to him as a result of the admissible evidence of his prior felony conviction cannot reasonably be found to have substantially affected the jury's verdict on this record. Accordingly, Brown's objections are OVERRULED, and the R&R recommendation to deny habeas relief on Ground Four is ADOPTED.

3. Ground Five: Improper Denials Of Continuance Motion And Self-Representation

Brown alleges his federal due process rights were violated when the trial court denied his motion for a continuance of the trial midway through so he could prepare to represent himself. The Sixth Amendment contains "an independent constitutional right of self-representation" in a criminal trial. Faretta v. California, 422 U.S. 806 (1975). When a defendant makes an unequivocal assertion of his right to self-representation within a reasonable time prior to trial and requests to proceed in propria persona, an unconditional right may exist to proceed at trial without the assistance of counsel. However, the right is not absolute, and there is a timeliness component to the decision whether to allow self-representation, particularly when the defendant consented at the outset to be represented by counsel and the presentation of the defense case has begun before the defendant asks to proceed pro se. Id., 422 U.S. at 820-21, 835-36. Brown requested the continuance after the prosecution had rested and his counsel had begun the presentation of his defense. Federal courts deciding habeas petitions do not revisit discretionary decisions of trial courts that do not violate clearly established federal law as articulated by the United States Supreme Court. Brown identifies no such basis for concluding he suffered deprivation of a constitutional right on this theory, especially since his ineffective assistance of counsel claims are insufficient to undermine confidence in his conviction. The R&R recommends the court find the request for continuance and self-representation were "untimely" and therefore "not within Petitioner's 6th Amendment right to represent himself," and Brown does not allege the denial had any "substantial or injurious effect." R&R 17:22-27, citing Brecht, 507 U.S. at 634.

This court finds no abuse of discretion in the trial court's denial of a continuance so Brown could assume his own representation. His argument that decision denied him a constitutional right is without merit, inasmuch as the need for the requested continuance never materialized. See Marsden hearing discussion, below. Accordingly, the court OVERRULES Brown's objections and ADOPTS the recommendation his Petition be denied on this theory.

4. Ground Six: Denial Of Right To Substitute Trial Counsel

Brown contends he and his trial counsel had a complete breakdown in their relationship. He contends his motion for new counsel under People v. Marsden, 2 Cal.3d 118 (1970) was wrongly and unfairly denied by the trial court.

In Marsden, the California Supreme Court held that a trial court must listen to a criminal defendant's specific reasons for requesting substitute appointed counsel before denying the motion, while recognizing "the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney." Id. at 123-124; see Morris v. Slappy, 461 U.S. 1 (1983) (defendants have no cognizable complaint regarding choice of appointed counsel so long as they are adequately represented); United States v. Rewald , 889 F.2d 836, 856 (9th Cir. 1989) (the / / / right to choice of counsel is restricted to defendants who can retain counsel). Dissatisfaction with one's attorney does not create a right to have new counsel appointed. See Jackson, 921 F.2d 882.

Brown filed a Marsden motion about half way through the trial to have his counsel removed. The Sixth Amendment "requires on the record an appropriate inquiry into the grounds for such a motion, and that the matter be resolved on the merits before the case goes forward." Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) ("a state trial court has no discretion to ignore an indigent defendant's timely motion to relieve an appointed attorney"). Brown received a hearing on the record. Lodg. 8, Nov. 27, 1990. His counsel explained to the court at the outset Brown was unhappy with his questioning of a particular witness, a witness' delayed arrival to testify due to transportation problems, counsel's inability to contact two other witness despite attempts to give notice or subpoenas, and counsel's preparation of certain photographs. Lodg. 8, RT 1-3. "None of these things are satisfying Mr. Brown. He informed me he wants to represent himself and I informed him that I will make the request." Id. 3:9-11. Brown himself addressed the court, identifying those and other tactical decisions in counsel's presentation of his case with which he disagreed. During his colloquy with the judge, he indicated both his desire to represent himself and his desire for a different attorney:

THE COURT: . . . If you are asking to represent yourself in this case --is that what you are asking?

THE DEFENDANT: Yes. I also have contact with attorney Alex Landon and he implicated to me that he would be very happy to step in. THE COURT: There is no chance in the middle of trial he would [be] ready to proceed.

THE DEFENDANT: But he will be able to assist me.

THE COURT: Well maybe he would and maybe he wouldn't. . . . ¶ Is your request that you want to retain Mr. Landon to represent you at this point in time? That is not what I understood was your request.


THE COURT: What is your request?

THE DEFENDANT: Basically to relieve Mr. Richardson.

THE COURT: If I do that, the only other person available to me immediately to represent you is yourself.


THE COURT: Are you requesting to represent yours[elf]?


Lodg. 8, RT 5:22-6:18.

The court then reviewed with Brown the seriousness of the charges against him and discussed the rights explained on the Ferreta form. The judge counseled him of the mistake he viewed it to be for the defendant to try "to represent yourself in the middle of this trial," but acknowledged Brown had the right to do so. Lodg. 8, RT pp. 7-10. He reviewed Brown's education and exposure to legal processes, admonished him the court could not step in to help him or make any objections that an attorney might make on his behalf, the amount of courtroom work left to do to get his case before the jury, and the like. Id. pp. 10-12. The court explored options, but expressed a disinclination to grant a continuance in the middle of the trial. Id. p. 12. Brown's counsel recited on the record his trial preparations, efforts to locate witnesses, personal investment of time in the case, investigator's activity, and willingness to turn over all his materials for Brown to use, with an offer to continue helping, while expressing confusion over Brown's complaints about his representation in light of his conscientiousness in preparing the case. Id. pp. 13-15.

THE COURT: Unless you are prepared to retain your own attorney or represent yourself, I haven't seen any grounds for me to relieve your appointed counsel. . . . There really isn't anything. You don't have a right to just say, "Well, today I don't like what he is doing and therefore, you know, I want somebody else." . . .

THE COURT: Let me say this: (1) I am not granting a continuance of the trial at this point; (2), I need to know, do you want to represent yourself or do you want Mr. Richardson to continue to represent you or are you telling me you have an attorney immediately available that you want to substitute in. We can do that. . . . [Or] I will allow Mr. Richardson to be your Advisory Counsel and so designate him. Those are the choices. . . . [¶] Mr. Brown, have you made a decision as to what you want to do?


THE COURT: What is that?

THE DEFENDANT: I chose at this time not to represent myself but I also would like to be on the record as indicating I am being denied another legal counsel.

THE COURT: The record should reflect that I am denying you the right at this point in these proceedings to request another Court-appointed counsel other than Mr. Richardson.

Lodg. 8, RT 15:10-17:11.

On that record, this court concurs with the R&R conclusion Brown's dissatisfaction with his trial counsel arose from his disagreement with trial tactics, not from any fatal breakdown in communications. No inference can be drawn from the record that his attorney's representation amounted to a constructive denial of counsel. As is evident from the hearing transcript, Brown's claim that he received an inadequate Marsden hearing with constitutionally defective inquiry is without merit. The trial court adequately ascertained the essential elements of the nature and extent of Brown's conflict with his attorney through appropriate inquiry, the manner in which counsel had prepared and was defending the case, and permissibly considered the timeliness of the motion. See Daniels v. Woodford, 428 F.3d 1181, 1198 (9th Cir. 2005). Accordingly, Brown's Objections to the R&R recommended disposition of his Petition Ground Six are OVERRULED, and the R&R is ADOPTED.

5. Ground Seven: IAC Of Trial And Appellate Counsel*fn22

Brown asserts numerous grounds for his claim he received ineffective assistance of trial counsel. He objects the magistrate judge should have permitted limited discovery and an evidentiary hearing before preparing his recommendation to deny the IAC claims because "facts existed outside of the trial court record" associated with his conflict with his trial counsel that he should have been allowed to develop. Obj. 23:11-22. He vaguely contends "Petitioner was entitle[d] to a factual hearing of some limited sort to prove the claims raised herein, trial counsel deficiencies deprived petitioner of a fair trial."*fn23 Obj. 18:19-25, citing: Strickland, 466 U.S. at 688 (not discussing evidentiary hearings at the cited pinpoint); Siripongs, 35 F.3d at 1318, 1314, 16 (distinguishable in finding a "colorable" claim of IAC in a capital case entitled the petitioner to an evidentiary hearing, where counsel failed to put on any mitigating evidence or to conduct more than a cursory investigation of defendant's background and on the strength of affidavits in the record stating counsel performed in a manner well below accepted standards); and Parrish v. Small, 315 F.3d 1131, 1134 (9th Cir. 2003) (entitlement to evidentiary hearing to develop record whether petitioner was prejudiced by unconstitutional shackling at trial). Brown contends the magistrate judge should have conducted fact-finding, for example, on his claims that his counsel improperly handled the lighting issue and evidence and the investigation of the scene where the crime occurred. Obj. 18:7-25. However, that issue was amply discussed by the Court of Appeal (and in the R&R based on the trial record) with the reasonable conclusions the photographic evidence, the defense investigator's testimony, and the interviews with nearby residents defeat Brown's contention any error of constitutional dimension occurred, let alone that he could demonstrate the prejudice necessary to prevail on this IAC theory.

Federal habeas courts must presume a determination of a factual issue made by a state court is correct. 28 U.S.C. § 2254(e)(1). An evidentiary hearing may be held to develop the factual basis of a claim if the petitioner failed to do so in state court only when (1) the claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or based on a new factual predicate that could not have been previously discovered, and "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2). Brown does not satisfy any of those limited circumstances. No argument he raises suggests he did not or could not have fully developed the factual bases of his claims in his multiple state court proceedings. The court OVERRULES Brown's objection that the magistrate judge erred in not conducting an evidentiary hearing.

The California Court of Appeal, in its July 25, 1992 reasoned, unpublished decision, reviewed and rejected Brown's "14 examples of claimed counsel ineffectiveness." Lodg. 13,*fn24 Pet. Denial p. 4. The California Supreme Court declined review. The Court of Appeal applied the federal constitutional standard articulated in Strickland v. Washington, 466 U.S. 668 (1984) to each of Brown's specific instances of alleged IAC to reasonably conclude Brown failed to meet his burden to show both deficient conduct (i.e., representation that fell below an objective standard of reasonableness under prevailing professional norms) and resulting prejudice.

The R&R revisited Brown's IAC claims on the merits of the particular instances alleged and recommends this court deny relief on Ground Seven. Brown's overarching objection is that the magistrate judge reached "unreasonable" determinations in recommending his Petition be denied on IAC grounds. The court ADOPTS the R&R recommended result with respect to each discrete example of alleged IAC Brown advances and OVERRULES his Objections to each. This court also finds, under AEDPA standards, the state courts' adjudication applying Strickland to the merits of Brown's IAC contentions should not be disturbed because the resulting decision is not "contrary to, or involve[] an unreasonable application of clearly established Federal law," nor did it result 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)(1),(2).

6. Ground Eight: Erroneous Jury Instruction

Brown asserts the trial court deprived him of his due process right to a fair trial by giving CALJIC No. 2.04 "without any evidence supporting the instruction." Obj. 23:27-28. He further argues the magistrate judge's explanation for giving that instruction "is error itself." Id. 24:1-2. CALJIC No. 2.04 advises the jury (emphasis added):

If you find that a defendant attempted to or did persuade a witness to or did fabricate evidence to be produced at the trial, such conduct may be considered by you as a circumstance tending to show consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are matters for your determination.

The giving of an erroneous jury instruction raises a constitutional issue cognizable on federal habeas review only if it so infected the entire trial that it denied the defendant due process. McGuire, 502 U.S. at 72. There must also "be a reasonable likelihood that the jury has applied the challenged jury instruction in a way that violates the Constitution." Id., quoting Boyde v. California, 494 U.S. 370, 380 (1990). Due process is not violated, even if constitutional error occurred, unless the error created a substantial and injurious effect or influence on the jury's verdict. Brecht, 507 U.S. at 637.

In its reasoned decision addressing Brown's ascribing of error to several jury instructions, including CALJIC 2.04, the Court of Appeal relied solely on the California law grounds Brown asserted to find no prejudicial error. The highly conditional, discretionary, and speculative application of CALJIC No. 204 to the evidence, predicated on preliminary findings the jury had first to make before the instruction would have any bearing on their deliberations, prevents any reasonable finding it infected the entire trial so as to raise a federal constitutional concern, even had Brown presented the claim as such. The jury may not have applied the instruction at all. The inference authorized by the instruction would not arise absent the predicate finding of witness intimidation, and the instruction itself prohibits the jury from relying on such a finding as sufficient to prove guilt. If the condition precedent to applying that instruction was not met, they were to ignore the instruction altogether. Brown makes no showing the state court's reasoned decision on the alleged instructional error is contrary to or an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts. Accordingly, Brown's Objections to the R&R's conclusion no due process concern is associated with the giving of that instruction are OVERRULED, and the recommendation to deny federal habeas relief on that ground is ADOPTED.


For the foregoing reasons, IT IS HEREBY ORDERED the R&R recommendations that all Brown's grounds and theories for federal habeas relief be denied is ADOPTED, on the modified reasoning and premises set forth in this Order where they may deviate from or augment the R&R, and the Petition is DENIED in its entirety, terminating this case.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.