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Ayala v. Ayers

April 16, 2008

RONALDO MEDRANO AYALA, PETITIONER,
v.
ROBERT L. AYERS, JR., WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS GROUP FOUR CLAIMS; GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT; DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT; AND DENYING PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING

Respondent has filed a motion for summary judgment on the Group Four Claims (Claims 10-11, 37-50, 67, and 70-71 of the Second Amended Petition). Respondent has also filed a motion to dismiss the majority of the Group Four Claims on the basis of state procedural bars and/or pursuant to Teague v. Lane, 489 U.S. 288 (1989). Petitioner has filed a motion for summary judgment, or, in the alternative, for evidentiary hearings on these same claims. Given the very extensive briefing and the nature of the claims, the Court finds these motions fully suitable for decision on the papers without oral argument. For the reasons discussed below, Respondent's motion for summary judgment is GRANTED, Respondent's Motion to Dismiss is GRANTED in part and DENIED in part, and Petitioner's motion for summary judgment and/or an evidentiary hearing is DENIED.

I. BACKGROUND

On April 17, 1997, Petitioner filed his automatic appeal with the California Supreme Court, and filed a reply brief on April 27, 1998. On July 23, 1998, Petitioner filed a habeas petition with the California Supreme Court. On June 8, 2000, the California Supreme Court denied the appeal. See People v. Ayala, 23 Cal. 4th 225 (2000). On June 8, 2000, the California Supreme Court also summarily denied the habeas petition without comment. Subsequently, Petitioner filed a Petition for a Writ of Certiorari in the United States Supreme Court, which was denied on March 5, 2001.

On May 3, 2002, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. Shortly thereafter, the Court dismissed without prejudice certain claims presented in the Petition in order to permit Petitioner to exhaust those claims in state court. The Court stayed the federal proceedings pending the exhaustion of state court remedies.

On September 23, 2002, Petitioner filed a First Amended Petition for a Writ of Habeas Corpus in the California Supreme Court. On September 10, 2003, the California Supreme Court denied the petition.

On November 14, 2003, Petitioner filed his First Amended Petition for a Writ of Habeas Corpus in this case. He subsequently filed a Second Amended Petition for a Writ of Habeas Corpus, the operative pleading in this action.

II. PROCEDURAL DEFAULT

When a state court's rejection of a federal claim is based on a violation of a state procedural rule that is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).A state procedural rule is adequate if it has been "firmly established and regularly followed" by the state court. Ford v. Georgia, 498 U.S. 411, 424 (1991). The procedural rule is independent if it is not "interwoven with the federal law." Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). If a state procedural ground is an adequate and independent ground for dismissal, habeas corpus relief is unavailable in federal court unless a petitioner can show cause for the default and resulting prejudice, or show that a failure to consider the claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.

In the instant case, Petitioner filed his automatic appeal on April 17, 1997, and filed his first state habeas petition on July 23, 1998. Petitioner then raised the contested claims in a second state (exhaustion) petition, filed on September 23, 2002. The September 10, 2003 California Supreme Court order denying the second state petition concluded that Claims 10, 11, 38, 40, 41, 42, 45, 46, 48, 49, 50, 70, and 71 are "procedurally barred, separately and independently, as untimely. In re Robbins, 18 Cal. 4th at 780-781 (1998); In re Clark, 5 Cal. 4th 750, 763-799 (1993)." The California Supreme Court also barred Claim 39 as untimely, excluding "insofar as it refers to permitting evidence to be introduced of other unadjudicated prior crimes." The court also found that Claims 10, 11, 38, 40, 41, 42, 45, 46, 48, 49, 50, 70, and 71 are "procedurally barred, separately and independently, as successive. In re Clark, 5 Cal. 4th at 767-768; In re Horowitz, 33 Cal. 2d 534, 546-547 (1949)." The court also barred Claim 39 as successive, again excluding from the procedural bar a portion of that claim "insofar as it refers to permitting evidence to be introduced of other unadjudicated prior crimes."

The California Supreme Court additionally found Claims 11, 38 ("insofar as it refers to Walter Joe Lewis and invokes the Sixth and Fourteenth Amendments to the United States Constitution"), 39 ("insofar as it refers to permitting evidence to be introduced of petitioner's killing John Casas in prison"), 42, and 46 "procedurally barred, separately and independently, as repetitive of a claim raised on appeal. In re Harris, 5 Cal. 4th at 824-849; In re Waltreus, 62 Cal. 2d 218, 225 (1965)." Finally, the court found Claims 10, 38 ("under the Fifth Amendment to the United States Constitution as applied to the states through the due process clause of the Fourteenth Amendment and under California constitutional provisions, insofar as it refers to not permitting adequate cross-examination of Walter Joe Lewis, and also insofar as it refers to Richard Christiansen"), 40, 41, 45, 48, 49, 50, and 71 "procedurally barred, separately and independently, as pretermitted because they could have been, but were not, raised on appeal. In re Harris, 5 Cal. 4th 813, 824-829; In re Dixon (1953) 41 Cal. 2d 756, 759." The California Supreme Court also denied all of Petitioner's claims on the merits.

A. Repetitive (In re Waltreus)

Waltreus 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 habeas corpus." In re Harris, 5 Cal. 4th at 829. In Waltreus, the California Supreme Court stated "habeas corpus ordinarily cannot serve as a second appeal." Waltreus, 62 Cal. 2d at 225.

The Ninth Circuit has repeatedly held that the rule announced in Waltreus "is not sufficient to bar federal relief." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996); Maxwell v. Sumner, 673 F.2d 1031, 1034-35 (9th Cir. 1982); LaCrosse v. Kernan, 244 F.3d, 702, 705 n.11 (9th Cir. 2001). In Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996), the Ninth Circuit explained, "[A] Waltreus denial on state habeas has no bearing on [a habeas petitioner's] ability to raise a claim in federal court." The Ninth Circuit reiterated this conclusion in Hill v. Roe, 321 F.3d 787, 798 (9th Cir. 2003), stating, "[t]he California Supreme Court's reliance on In re Waltreus does not bar federal review."

In accordance with Ninth Circuit precedent, the Court holds that the Waltreus rule is not sufficient to bar federal review of Petitioner's claims.

B. Untimely and Successive (In re Robbins and In re Clark)

In their briefing on Respondent's Motion to Dismiss Group Three Claims based on procedural bars, the parties relied upon the motion papers previously submitted in support of the Group Two claims. In the Court's Order dated September 27, 2007, the Court conducted an analysis of the California Supreme Court's application of the untimeliness and successiveness procedural bars (In re Clark and In re Robbins) and found that California's untimeliness and successiveness procedural bars were inadequate to bar consideration of Petitioner's Group Three claims on the merits.

In the briefing filed in support of the motions on the Group Four claims, the parties again rely primarily on the papers previously submitted in support of the Group Two Motions. Therefore, as with the Group Three claims, this Court cannot conclude that the application of these procedural rules is sufficient to prohibit the consideration of these claims on the merits. Therefore, the procedural bars imposed by the California Supreme Court in its September 10, 2003 order on the grounds of untimeliness and successiveness will not bar this Court from considering those claims on the merits.

C. Pretermitted (In re Dixon)

The California Supreme Court has held that "[t]he general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." In re Dixon, 41 Cal. 2d at 759.

1. Independence

A state procedural rule is "independent" if it is not interwoven with federal law. LaCrosse, 244 F.3d at 704. "A state law ground is so interwoven if 'the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'" Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).

In 1998, the California Supreme Court declared that it would no longer consider federal law when denying a habeas claim as procedurally defaulted. In re Robbins, 18 Cal. 4th at 811-12.

Moreover, in Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003), the Ninth Circuit stated:

[W]e respect the California Supreme Court's sovereign right to interpret its state constitution independent of the federal law. Applying Robbins prospectively, we [conclude] that the California Supreme Court's post-Robbins denial of [a] state petition for lack of diligence (untimeliness) was not interwoven with federal law and therefore is an independent procedural ground.

Although Bennett concerned only the untimeliness (Clark) bar, the analysis in that case compels the same result for claims barred pursuant to the rule established by Dixon. The pre-Robbins application of the two procedural bars was similar in that the invocation of either Dixon or Clark required the state court to determine if there existed fundamental constitutional error that would excuse the petitioner's default, and such an analysis necessarily involved the consideration of federal law. Bennett, 322 F.3d at 581-82. See also LaCrosse, 244 F.3d at 707 (observing that consideration of federal law in barring claims as pretermitted is "analogous" to consideration of federal law in barring claims as untimely).

While the Ninth Circuit has yet to specifically determine whether a post-Robbins application of the Dixon rule is independent of federal law, the Ninth Circuit has generally stated, "[t]he California Supreme Court has adopted in Robbins a stance from which it will now decline to consider federal law when deciding whether claims are procedurally defaulted." Park, 202 F.3d at 1152. Furthermore, in Protsman v. Pliler, 318 F. Supp. 2d 1004, 1007-08 (S.D. Cal. 2004), the court found a post-Robbins application of Dixon to be independent of federal law. The Court agrees with that conclusion.

Petitioner's state habeas petition was filed in the California Supreme Court on September 23, 2002, and the court denied the petition on September 10, 2003, well after the Robbins decision was issued in 1998. Thus, the state court's decision invoking Dixon was independent of federal law.

2. Adequacy

A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established" at the time of the default. Calderon (Bean), 96 F.3d at 1129. In Bennett, the Ninth Circuit adopted a new burden-shifting test for determining the adequacy of a state procedural bar. The Ninth Circuit held that:

[T]he ultimate burden of proving the adequacy of the California state bar is upon the State of California. . . . 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. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's. [¶] Accordingly, because it is the State who seeks dismissal based on the procedural bar, it is the State who must bear the burden of demonstrating that the bar is applicable . . . .

Bennett, 322 F.3d at 585-86.

A court cannot prevent a petitioner from seeking habeas relief on alleged violations of his federal constitutional rights unless the state procedural rule that purports to bar adjudication on the merits is a "firmly established and regularly followed state practice." Ford, 498 U.S. at 423-24 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958)). If a state procedure is not consistently applied before a petitioner runs afoul of it, then the rule cannot fairly prevent federal review of that petitioner's claims, for a procedural bar "must be sufficiently clear as to put a petitioner on notice that he must raise all claims or risk default . . . ." Bargas v. Burns, 179 F.3d 1207, 1212 (9th Cir. 1999).

While the independence of a procedural rule is examined at the time at which it is to be applied, (see Park, 202 F.3d at 1151, 1153), the adequacy of a rule is determined at the time of a petitioner's default. See Fields v. Calderon, 125 F.3d 757, 760-61 (9th Cir. 1997). See also Calderon v. United States District Court (Hayes), 103 F.3d 72, 75 (9th Cir. 1996).

a. Respondent's Initial Pleading Requirement

Under Bennett, the state must first "adequately ple[a]d the existence of an independent and adequate state procedural ground as an affirmative defense." Id. at 586. Respondent's initial burden is modest, and he is required only to plead the existence of a procedural bar that is applicable to the claims at issue. See King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006). See also Rule 5, Rules Governing Section 2254 Cases in the United States District Courts (providing that a respondent's answer to a petition "must state whether any claim in the petition is barred by . . . a procedural bar.").

In the Answer to the Second Amended Petition, Respondent identified each of Petitioner's claims that he asserts was procedurally defaulted under Dixon. (Answer at 52, 103-04, 112-13, 114-15, 127, 135-36, 138, 141-42, 171.) He repeated his assertions of procedural default for each of these claims in his Motion to Dismiss the Group Four Claims. (Respondent's Motion to Dismiss Group Four Claims ["Resp.'s MTD."] at 2,16-17, 30, 38-39, 78, 97, 100, 106, 114.)

Respondent has therefore satisfied his initial burden of pleading the "affirmative defense" of a procedural bar for these claims. Bennett, 322 F.3d at 586.

b. Petitioner's Interim Burden

Once the state properly pleads the existence of an independent and adequate procedural bar, the burden shifts to the petitioner to place that defense in issue, and "[t]his must be done, at a minimum, by specific allegations by the petitioner as to the adequacy of the state procedure. The scope of the state's burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner." Bennett, 322 F.3d at 584-85.

In measuring the effectiveness of any procedural bar, the state must establish that the bar was truly adequate on the date the default was "committed." Calderon (Hayes), 103 F.3d at 74. In Hayes, the Ninth Circuit found that a petitioner defaulted when he had the opportunity to raise the claims on direct appeal or in a first state habeas petition but failed to do so. Id. In this case, Petitioner's procedural default with respect to the Dixon bar occurred on April 17, 1997, the date on which Petitioner filed his opening brief on direct appeal.

The Ninth Circuit has held that the procedural bars relating to untimely and successive claims "were not firmly established and consistently applied at least prior to 1993." Cooper v. Calderon, 255 F.3d 1104, 1111 (9th Cir. 2001). See also Fields, 125 F.3d at 765. Petitioner has noted that where the Ninth Circuit has previously found a procedural rule to be too ambiguous to bar federal review during a specific time period, simply "contesting the adequacy" of that rule is sufficient to meet a petitioner's burden under Bennett. King, 464 F.3d at 967. However, the Ninth Circuit found that the Dixon bar was inadequate prior to the issuance of Harris in 1993, rendering the King decision of limited use to the instant issue of whether the Dixon rule was adequate at the time of Petitioner's default in 1997. The Ninth Circuit's decision in Park v. California, 202 F.3d 1146 (9th Cir. 2000), lends no support to Petitioner's argument because the Park court held that the Dixon rule was not independent at the time of the petitioner's default and made no ruling on whether the rule was adequate. Id. at 1152-53.

In the Group Four merits briefing, Petitioner specifically refers the Court to the procedural default arguments he previously advanced in connection with the Group Two Claims. (See Petitioner's Group Four Opposition ["Petr's Opp."] at 130.) In the Group Two Reply brief, Petitioner details the outcomes of a number of capital habeas cases in an attempt to demonstrate inconsistent application of the procedural bar rules in California. (Petr's Group Two Reply at 54-56, 65-66.) Petitioner presented the Court with citations to 94 capital habeas petitions decided by the California Supreme Court in which procedural defaults due to untimeliness and successiveness occurred or arguably could have occurred between 1985 and 2004. (Petr's Group Two Reply at 54-55.)

Petitioner asserts that the California Supreme Court was also inconsistent in applying the Dixon procedural bar in capital habeas cases as demonstrated by the state court's inconsistent application of the untimeliness and successiveness procedural bars. Petitioner explains, "At the outset, it should be noted that at least as a practical matter, it is not possible to undertake the same sort of study of the court's practice with regard to Dixon defaults as can be conducted with respect to Clark defaults." (Petr's Group Two Reply at 66.) Petitioner acknowledges that he does not offer any case citations to support his allegations regarding Dixon, maintaining that "[a]scertaining whether a Dixon default could have been imposed, but has not been, is an entirely different matter [from the untimeliness and successiveness defaults]. Each claim in the petition must be reviewed and analyzed to determine whether it is based entirely on the trial record. And, this would not be limited to the 94 cases identified above, but would necessarily include the far greater number of petitions filed during the pendency of the automatic appeal. This undertaking would not only be time-consuming and expensive, but is precisely the sort of undertaking Bennett prohibits." (Petr's Group Two Reply at 66-67.) Petitioner adds, "It strains credulity to suggest, as Respondent must, that despite the overwhelming evidence that the California Supreme Court does not apply Clark evenhandedly, it applies Dixon in an altogether evenhanded manner." Id.

The Court disagrees with Petitioner's contention that Dixon is not amenable to the analytical framework set forth by the Ninth Circuit, and takes judicial notice of several cases in which California district courts have found the state court's application of the Dixon bar to be inconsistent. See Vaughn v. Adams, 2006 WL 1439400 (E.D. Cal. May 22, 2006) (explaining, "Petitioner cites fourteen cases wherein the California Supreme Court issued a silent 'postcard' denial, without reference to the Dixon bar, despite the fact that the Petitioners had failed to raise all the claims in the direct appeal," and finding this showing sufficient to meet petitioner's interim burden under Bennett); Monarrez v. Alameda, 2005 WL 2333462 (C.D. Cal. Sept. 22, 2005) (noting that in addition to citing an appellate court decision that failed to apply Dixon when it should have been applied, "Petitioner also directs the court's attention to his own survey of 210 non-capital habeas corpus petitions . . . showing inconsistent application of the Dixon rule by the California Supreme Court in that the Dixon bar was applied in only 19 cases, less than 10 percent of those decided," and finding that the petitioner had met his interim burden under Bennett).

Based on these cases, the Court is persuaded that the interim burden has been satisfied in this case.

c. Respondent's Ultimate Burden to Prove Adequacy of Procedural Bars

The Ninth Circuit has stated the government holds the "ultimate burden" of pleading and proving the independence and adequacy of the state procedural bar. Bennett, 322 F.3d at 585-86. Respondent has not provided the Court with any evidence to demonstrate that the Dixon procedural bar is consistently applied, and thus has not met the "ultimate burden" under Bennett of proving the adequacy of the procedural rules relied on by the California Supreme Court in the denial of Claims 10, 38, 40, 41, 45, 48, 49, 50, and 71. Thus, the Court cannot conclude that the application of the procedural rules in question is sufficient to prohibit the consideration of these claims on the merits.

D. Conclusion

The Court finds that the Waltreus rule is not sufficient to bar federal review of claims 11, 38, 39, 42 and 46. The Court further finds that Respondent has failed to carry his ultimate burden of demonstrating that the untimeliness, successiveness, and pretermitted (Dixon) bars are consistently applied. Therefore, the Court cannot conclude those procedural bars are sufficient to prohibit the consideration of Claims 10, 11, 38, 40, 41, 42, 45, 46, 48, 49, 50, 70, and 71 on the merits.

III. TEAGUE V. LANE

The United States Supreme Court, addressing perceived inconsistencies in its prior retroactivity jurisprudence, held that "new" constitutional rules of criminal procedure will not be applied retroactively to cases on collateral review unless they fall within two narrow exceptions. Teague v. Lane, 489 U.S. 288 (1989). A new rule is one that "breaks new ground or imposes a new obligation on the States or the Federal Government" or one whose "result was not dictated by precedent existing at the time defendant's conviction became final." Id. at 301. The two exceptions to the Teague rule are: (1) rules placing certain kinds of private individual conduct beyond the power of the criminal law to prohibit, and (2) procedures implicit in the concept of ordered liberty without which the likelihood of an accurate conviction is seriously diminished. Penry v. Lynaugh, 492 U.S. 302, 305 (1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304 (2002); Graham v. Collins, 506 U.S. 461, 478 (1993).

When the state properly argues that a "defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague v. Lane before considering the merits of the claim." Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Under Teague, habeas relief is generally unavailable if based "on a rule announced after [a petitioner's] conviction and sentence became final." Id. The first step in a Teague analysis, therefore, is to determine whether a petitioner is seeking the benefit of a constitutional rule announced after his or her conviction became final. Id. at 389-90.

In the Answer to the Second Amended Petition ("Answer"), Respondent asserts the Teague bar for eighteen claims - every claim in Group Four except for Claim 44.However, the state only makes brief mention of Teague in regard to Claims 38, 41, 42, 45, 46, 50, and 70. Respondent's argument on those claims (in the combined pleadings and briefs filed with this Court) generally consists of the contention that "Petitioner fails to show that the claim does not rest upon a new rule barred under Teague v. Lane."

The Ninth Circuit recently expressed its view on the duties placed on the state to properly raise and plead a claim made under Teague:

If a state seriously wishes to press Teague upon us, at a minimum Teague should be identified as an issue (indeed the first issue) on appeal, the new rule of constitutional law that falls within its proscription should be articulated, the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent, and an argument should be made why the rule contended for is not within one of Teague's exceptions.

Arredondo v. Ortiz, 365 F.3d 778, 781-782 (9th Cir. 2004).

Respondent first references Teague in the Answer. However, Respondent fails to properly develop his Teague argument with respect to Claims 38, 41, 42, 45, 46, 50, and 70 in the merits briefing. The Ninth Circuit places the burden on the state to articulate and present this argument, and Respondent's burden to raise and plead a Teague claim is not satisfied by little more than a one-line citation to Teague. Therefore, the Court will not conduct an analysis on whether the above seven claims are barred under Teague v. Lane.

The Court points out that despite Respondent's assertions to the contrary, Petitioner does not have the burden of demonstrating that each claim pled in his habeas petition does not rest upon a new rule barred under Teague v. Lane. (See Answer at 52, 52-53, 53, 101, 104, 106, 113, 115, 119, 120, 127, 132, 134, 136, 138, 142, 163, 169, 171.) ("Petitioner fails to show that the claim does not rest upon a new rule barred under Teague v. Lane.") The Ninth Circuit clearly and squarely places the duty to raise and prove any Teague issues in the lap of the state. Additionally, the Ninth Circuit has been unwilling to require a Petitioner to present a case "involving identical facts, circumstances and legal issues" in order to clear the Teague threshold. Keating v. Hood, 191 F.3d 1053, 1061 n.11 (9th Cir. 1999); abrogated on other grounds, Mancuso v. Olivarez, 292 F.3d 939 (9th Cir. 2002).

Applying Ninth Circuit case law, it is arguable whether Respondent's arguments in connection with Claims 10, 11, 37, 39, 40, 43, 47, 48, 49, 67, and 71 are sufficient to "press Teague upon us." Arredondo, 365 F.3d at 781.Nevertheless, in the interest of providing a thorough record for the Court of Appeals, and being mindful of the Court's role as a fact-finding body, the Court will engage in a Teague analysis on these claims.

The Teague issue will be independently examined for each of these claims in the merits section of this order.

The Court notes the California Supreme Court denied Petitioner's direct appeal on June 8, 2000, and denied rehearing on August 23, 2000. The United States Supreme Court denied certiorari on March 5, 2001, at which time Petitioner's conviction became final. Snook v. Wood, 89 F.3d 605, 612 (9th Cir. 1996.) Under Teague, Petitioner may not avail himself of a decision announced after his conviction was finalized, nor may he advocate a decision by this court which would create a new rule of criminal procedure.

IV. STANDARD OF REVIEW

A. Standard of Review under AEDPA

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus 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.

28 U.S.C. § 2254(a) (emphasis added).

In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the United States Supreme Court held that the new provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") "generally apply only to cases filed after the Act became effective." In capital habeas actions, cases are typically commenced by the filing of requests for appointment of counsel and stays of execution of the petitioners' death sentences. Petitioner filed his request for appointment of counsel and stay of execution on April 27, 2001 and filed his petition with this Court on May 3, 2002. AEDPA became effective on April 24, 1996, when the President signed it into law. See id. Accordingly, AEDPA applies to this case.

Relevant to this case are the changes AEDPA rendered to 28 U.S.C. § 2254(d), which 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 the State court proceeding.

28 U.S.C.A. § 2254(d)(1)-(2).

A decision is "contrary to" clearly established law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. See Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision involves an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004).

Even when the federal court undertakes an independent review of the record in the absence of a reasoned state court decision, the federal court must "still defer to the state court's ultimate decision." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). If the state court decision does not furnish any analytical foundation, the review must focus on Supreme Court cases to determine "whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law." Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2001). Federal courts also look to Ninth Circuit law for persuasive authority in applying Supreme Court law and to determine whether a particular state court decision is an "unreasonable application" of Supreme Court precedent. Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

B. Standard for Evidentiary Hearing

AEDPA also limited the circumstances under which district courts may grant an evidentiary hearing. Section 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the applicant shows that--

(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 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Under AEDPA, when determining whether to grant an evidentiary hearing, the district court must first ascertain whether the petitioner has failed to develop the factual basis of a claim in state court. Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005). As explained by the Supreme Court:

For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met.

Williams v. Taylor, 529 U.S. 420, 437 (2000).

If the petitioner has not failed to develop the facts in state court, an evidentiary hearing is required if (1) the petitioner establishes a colorable claim for relief -- i.e., petitioner alleges facts that, if proven, would entitle him to habeas relief; and (2) the petitioner did not receive a full and fair opportunity to develop those facts. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005). The second requirement is met by a showing that:

(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing.

Townsend v. Sain, 372 U.S. 293, 312 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).

V. DISCUSSION

The Group Four claims consist of allegations of a multitude of trial court errors at all stages of Petitioner's case - during pre-trial hearings and motions, voir dire, the guilt and penalty phases of trial, and in post-trial proceedings. The Court incorporates the Group Three Order's overview of the evidence presented during the guilt and penalty phases of trial. (Doc. No. 236.) For the reasons set forth below, the Court finds that none of the Group Four claims merits habeas relief.

A. Claim 10 - Acts of Prison Violence as Penalty Phase Aggravation

Claim 10 alleges that the trial court erred in admitting evidence of unadjudicated prison assaults and murder in the penalty phase, and that the prosecutor engaged in misconduct in introducing those crimes into evidence, in violation of Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. Petitioner alleges that these acts, which included the Williams, Christiansen and Macugay assaults and the Casas murder, were actually the product of the state's intentional encouragement and/or conditioning of prison violence among inmates.

1. Teague

Respondent asserts, "Petitioner's new rule, which would foreclose the admission of penalty phase evidence based on the creation of a 'hostile environment,' is not dictated by existing precedent." Respondent adds, "Specifically, Petitioner fails to point to any established rule of criminal procedure that prohibits the admission of penalty phase evidence of a defendant's prior acts of violence because the state indirectly allowed such acts by creating a hostile environment." (Resp.'s MTD at 2-3.)

Petitioner responds, "Here, the question is whether Respondent has met his burden of demonstrating that Petitioner is seeking to apply a 'new rule' to the facts of this claim. He cites no authority for that proposition, and does not purport to rely on any case at all; rather, he simply conclusorily states that there is no 'rule of criminal procedure' which requires the exclusion of jailhouse-created acts of violence from consideration by the jury as aggravating factors. While there may not be a statutory criminal rule of procedure, long-held Constitutional law is readily applied to these facts." (Petr's Opp. at 11.)

The Supreme Court explains that "[s]entencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior." Nichols v. United States, 511 U.S. 738, 747 (1994). The Ninth Circuit has held that a sentencer may rely on prior criminal conduct not resulting in a conviction if the evidence in question has "some minimal indicium of reliability beyond mere allegation." McDowell v. Calderon, 107 F.3d 1351, 1366 (9th Cir. 1997), amended 116 F.3d 364 (9th Cir. 1997), vacated in part by 130 F.3d 833, 835 (9th Cir. 1997) (en banc).

In this claim, Petitioner asserts the trial court erred in allowing evidence of his prior criminal conduct, not because of any failure to meet the "minimal indicium of reliability," but because the acts were the product of the state's encouragement of prison violence among inmates. Petitioner is seeking to create a new rule of criminal procedure, one whose "result was not dictated by precedent existing at the time defendant's conviction became final." Teague, 489 U.S. at 301. Furthermore, Petitioner's proposed rule does not satisfy either exception to Teague. See Penry, 492 U.S. at 305; Graham, 506 U.S. at 478.

However, even assuming Claim 10 would not be barred under Teague, it is without merit for the reasons set forth below.

2. Merits

Petitioner asserts that his Constitutional rights were violated when the prosecution was allowed to present in aggravation acts of prison violence that prison authorities knowingly created or allowed to occur. Petitioner alleges that the prisons in which he was housed at the time of the Williams, Christiansen, and Macugay assaults and the Casas murder encouraged and condoned racial violence, which led to these assaults.

In support of this contention, Petitioner relies on a portion of Wallace Williams' penalty phase testimony, in which Williams testified:

Q: After the incident of November 23rd, 1975, that you had been describing, were you approached by any officers in the course of investigating what had happened on that day?

A: If I recall correctly there was a Sergeant Perkins approached me, and from my understanding it was like he was trying to agitate me because he thought that I was resisted upon. So it was a thing like trying to get me to do something else in return.

Q: In your experience was that kind of agitation by - - well, did that kind of agitation by staff occur in the tension that existed in lockup in 1975?

A: From what I could witness from my own point of view, yes. (RT 17208.)

The Court is not persuaded that, as Petitioner contends, this claim posits "nothing more than an extension of the kinds of prosecutorial misconduct which has been found to be constitutionally infirm." (Petr's Opp. at 12.) The legal authority Petitioner cites in support of this claim is distinguishable. Unlike the facts of United States v. Henry, 447 U.S. 264, 274 (1980), this case does not involve a situation where the government created a situation to induce Petitioner to make incriminating statements outside the presence of counsel. See also Massiah v. United States, 377 U.S. 201 (1964); Maine v. Moulton, 474 U.S. 159 (1985). Moreover, Petitioner has failed to establish that the state engaged in any "outrageous government conduct." Greene v. United States, 454 F.2d 783 (9th Cir. 1971).

Petitioner has failed to establish that the government engaged in behavior as to the assaults and murder, requiring the preclusion of the evidence at issue. The testimony from Williams alone was vague and speculative. Furthermore, there was no evidence that prison officials encouraged the other assaults or Casas's murder. In any event, the jury heard and considered Williams's allegation of officer agitation.

The state court's denial of this claim was neither contrary to nor an unreasonable application of clearly established federal law. Williams, 529 U.S. at 412-13. Therefore, habeas relief is not warranted on this claim.

B. Claim 11 - Non-Statutory Aggravation

Claim 11 asserts the prosecutor introduced non-statutory factors in aggravation during both the guilt and penalty phase proceedings, in the form of references to Petitioner's alleged membership in or affiliation with the Mexican Mafia prison gang, in violation of Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

1. Teague

Respondent contends that "[t]o the extent Petitioner could show the prosecution was precluded from introducing evidence that bore upon an aggravating factor because it constituted a 'bad act,' such a conclusion would constitute a prohibited new rule barred under Teague v. Lane, 489 U.S. at 288." (Resp.'s MTD at 6.)

The Supreme Court has held that the introduction of a defendant's gang affiliation at trial may establish a constitutional violation if the introduction of the evidence was irrelevant to the charged offenses or the evidence offered in aggravation. Dawson v. Delaware, 503 U.S. 159 (1992). Petitioner alleges that arguments and testimony regarding his affiliation with a prison gang, referred to at trial as the Mexican Mafia, EME or the "Southern Group," was erroneously introduced during the guilt and penalty phases of his trial. The Supreme Court has held that a decision is not new if "it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." Penry, 492 U.S. at 314. Dawson was clearly established federal law at the time Petitioner's conviction was finalized, and the fact pattern proposed here is not "so novel" that it seeks to extend United States Supreme Court precedent. See Stringer v. Black, 503 U.S. 222, 229-32 (1992). Petitioner's claim is not barred under Teague.

2. Merits

Petitioner alleges that "[d]uring closing argument in the guilt phase of Petitioner's trial, the prosecution made numerous references to facts not in evidence, including Petitioner's affiliation with the 'Southern Group' of a prison gang, that certain witnesses feared retribution from this 'Southern Group' and that Petitioner had influence over this 'Southern Group.'" (Petitioner's Memorandum in Support of Motion for Summary Judgment and/or Evidentiary Hearing ["Petr's Mem."] at 42.)

Petitioner's claim is not supported by citation to the record, and the Court's examination of the prosecutor's closing guilt phase arguments find no references to any "Southern Group." However, Petitioner's claim is not entirely without factual foundation. During the guilt phase of trial, witness Rafael Mendoza-Lopez testified that Petitioner had influence over a "southern group" of inmates. (RT 16415-18.) However, the prosecutor only elicited this testimony after defense counsel opened the door by inquiring after Mendoza Lopez's own gang affiliation. (RT 16378-80.) During the guilt phase closing, the prosecution stated that witness Castillo was "frightened of what the defendant stood for" and was frightened "of those people who associated with the defendant." (RT 16607-08.) Later in the closing arguments, the prosecutor stated that Mendoza Lopez was afraid of being killed "either by the defendant or by those with whom the defendant associates." (RT 16659.)

During the penalty phase presentation, the prosecution called a witness who testified that Petitioner went to stand with other members of the Mexican Mafia after the Christiansen assault. (RT 17350.) Alex Macugay, the victim of a prison assault, testified that he tried to stay away from the Southern Group of inmates, which included Petitioner, because Macugay was himself from the North. (RT 17392.) During penalty-phase closing arguments, the prosecutor stated that after the Christiansen attack, Petitioner went to stand "where there were a group of other members of the Mexican Mafia standing around," implying that Petitioner was a member of the group. (RT 19060.)

However, it is clear that defense counsel made a tactical decision to allow references to gangs during the penalty phase. During a conference outside the presence of the jury, defense counsel explained:

I should make it clear, I think, as a matter of record, that as a tactical decision I think the defense has decided to present evidence in this regard because it is our position essentially that the -- that the way in which the climate of fear was created by the evidence presented at the guilt phase I think is worse than simply fully presenting this issue to the jury and allowing the jury to decide what it will with a full understanding of the circumstances that existed in prison during the 70's and the early 1980's. (RT 17281.) Given defense counsels' deliberate strategy to allow gang references during the penalty phase and the fact that any explicit references to gangs in the case came only after the defense opened the door, there was no trial court error in admitting the evidence.

Relying on Dawson v. Delaware, 503 U.S. 159 (1992), Petitioner argues that evidence of his gang membership was irrelevant to the issues in his penalty phase proceedings and that the introduction of the evidence violated his constitutional rights. However, in addition to trial counsels' express decision to introduce the evidence of gangs during the penalty phase, the jury was instructed on the circumstances in aggravation they were allowed to consider. The trial court specifically informed the jury: "You are not permitted to consider any factor as aggravating unless it is specified on the list of factors you have been given previously." (RT 19032; CT 5375.)

In Dawson, the Supreme Court found that the introduction of a defendant's gang affiliation at trial constituted a violation of that petitioner's constitutional rights because the gang evidence was irrelevant to the charged offenses or the evidence offered in aggravation. However, the Supreme Court allowed that "evidence concerning a defendant's associations might be relevant in proving other aggravating circumstances." Dawson, 503 U.S. at 166. Evidence of Petitioner's gang affiliation was not offered as a non-statutory factor in aggravation; instead, it was offered as context for the statutory aggravating factors of the Christiansen and Macugay assaults. Upon consideration of the legitimate purpose of the gang references, coupled with the fact that defense counsel opened the door to these references, the Court concludes that the state court did not err in rejecting this claim on appeal.

Petitioner makes an additional argument that the prosecution failed to provide him with notice of the aggravating evidence prior to trial, as required under California Penal Code § 190.3. However, according to Respondent, nine months prior to jury selection, the prosecution apprised Petitioner they would seek to introduce the Casas homicide and the three prison assaults as factors in aggravation. (CT 2159.) Petitioner does not dispute this.

Petitioner has failed to establish a violation of his constitutional rights, and the state court adjudication of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Williams, 429 U.S. at 412-13. Petitioner is not entitled to habeas relief on this claim.

C. Claim 37 - Use of Magnetometer Outside Courtroom

Claim 37 alleges that the trial court erred in ordering heightened security measures in the courtroom without first conducting an evidentiary hearing where a proper record could be created regarding the need for such measures, resulting in a violation of Petitioner's Fifth, Sixth, Eighth and Fourteenth Amendment rights.

1. Teague

Respondent's argument primarily consists of the contention that "[t]o the extent Petitioner could show the State must justify the use of a magnetometer, such a rule would constitute a new rule of criminal procedure barred under Teague v. Lane, 489 U.S. at 288." (Resp.'s MTD at 12.)

However, Petitioner contends that the placement of a metal detector outside a courtroom should be examined under the same rules that govern other security measures -- e.g., the use of a security courtroom, the placement of security personnel in the courtroom, or shackling of the defendant during court proceedings - and that the state must justify the use of such measures prior to their implementation.

The use of "security measures" in a courtroom is governed by the Supreme Court's decision in Holbrook v. Flynn, 475 U.S. 560 (1986), which is not a "new" rule under Teague. In Holbrook, the Supreme Court held that an "inherently prejudicial" security practice must be justified by an essential state interest, but did not specifically require a trial court to conduct an evidentiary hearing to reach such a conclusion. In the instant claim, Petitioner's argument centers on his assertion that due process required a hearing before the magnetometer was used. Because clearly established federal law does not currently require such a hearing, it appears that "granting the relief sought would create a new rule because the prior decision is applied in a novel setting, thereby extending the precedent." Stringer, 503 U.S. at 228. Therefore, Petitioner is advocating a decision by the Court that would constitute a new rule of procedure barred under Teague.

However, even assuming Claim 37 would not be barred under Teague, it is without merit for the reasons set forth below.

2. State Court's Decision

The California Supreme Court considered this claim on direct appeal, rejecting it as follows:

Defendant contends that placing a magnetometer (i.e., a metal detector) at the public entrance to the courtroom violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and their equivalent guaranties [sic] in the California Constitution.

The prosecution, stating that defendant had a history of violence and was reported to be a member of a well-known prison gang, some of whose members might wish to attend the trial, moved to have a magnetometer placed outside the courtroom. The motion stated that the security measure was needed to safeguard defendant himself and those who might testify against him. It stated specifically that "Castillo is, as a matter of record, in the witness protection program and past solicitations to kill him are a matter of record." The prosecution noted that it was not requesting that defendant be shackled as long as "there is some reasonable assurance that spectators who may attend the court proceedings are not armed . . ."

Defendant responded to the request on procedural and substantive grounds. He requested an evidentiary hearing to refute the motion's factual allegations. He asserted that his constitutional right to due process of law compelled the trial court to convene such a hearing. And, arguing as a matter of state law, he maintained that a magnetometer's presence would prejudice the jury against him.

Without calling witnesses, the trial court conducted a hearing. After hearing argument, it stated that "[t]his court would be naive, and I think counsel would be naive, to assume that this court has not become aware of allegations that have surfaced concerning the membership in various gangs of various potential witnesses in this case. It's also a known fact that threats allegedly were made as to Mr. Castillo." The court also noted that one potential witnesses had claimed to have been a member of the Mexican Mafia (a prison-based gang also known as La Eme, the Spanish word for the letter "M," and frequently referred to in the trial proceedings by that term), and that another may have been a member of the Aryan Brotherhood, a different prison gang. Describing a magnetometer as "unobtrusive" and "nondiscriminatory," the court decided that it would order one to be used during the evidentiary portion of the trial. It implicitly denied defendant's request for an evidentiary hearing.

Defendant apparently sought a writ of mandate against the order in the Court of Appeal, which rejected it. Thereafter he moved for the trial court to reconsider its decision, but it also refused. Instead, at his request, it instructed the jury, immediately after the alternate jurors had been sworn, to disregard the magnetometer's presence. "[I]t is my policy in serious felony cases to have everyone except jurors pass through a metal detector before entering the courtroom. [¶] Therefore, you can expect that a metal detector will be placed outside the courtroom when the trial begins, and it will remain throughout the course of the trial. [¶] The practices of other judges in this courthouse differ from courtroom to courtroom. You should not view the presence of a metal detector outside this courtroom, or the absence of one outside other courtrooms, as a reflection on either party or any of the witnesses. [¶] It is solely a matter of my personal policy."

In bringing his claim, defendant relies, as he did at trial, on People v. Duran (1976) 16 Cal.3d 282 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1]. Though he labels his claim one of constitutional error, its substance is one of state law error, namely a violation of Duran.

Through Duran and its progeny, it has become settled that "because of its potentially prejudicial impact on the jury, shackling should be ordered only as a last resort and only upon a showing of a manifest need for such restraints. [Citations.] Any restraints should be as 'unobtrusive as possible, although as effective as necessary under the circumstances.' [Citation.] Although these restrictions make the trial court's discretion to order restraints 'relatively narrow' [citation], the court's ruling will be upheld on appeal absent a showing of a manifest abuse of that discretion." (People v. Livaditis (1992) 2 Cal.4th 759, 774 [9 Cal.Rptr.2d 72, 831 P.2d 297].)

But Duran is inapposite. Here, unlike the situation in People v. Duran, supra, 16 Cal.3d 282, defendant was not shackled. Rather, a magnetometer was placed by the courtroom door. Unlike occasions on which the government can be accused of creating a public spectacle or directing suspicion at a criminal defendant by parading him or her in shackles, or driving him or her to court in an ostentatious manner, the trial court's use of a magnetometer was, as it observed, "nondiscriminatory." (Cf. Holbrook v. Flynn (1986) 475 U.S. 560, 567 [106 S.Ct. 1340, 1344-1345, 89 L.Ed.2d 525].)

In People v. Duran, supra, 16 Cal.3d 282, we stated that the presence of armed guards ordinarily "need not be justified by the court or the prosecutor." (Id. at p. 291, fn. 8; see also generally Holbrook v. Flynn, supra, 475 U.S. 560 [discussing the presence of uniformed and armed personnel].) "We believe that the use of a metal detector outside a courtroom, like the use of additional security forces within the courtroom, is not . . . inherently prejudicial . . . Unlike shackling and the display of the defendant in jail garb, the use of a metal detector does not identify the defendant as a person apart or as worthy of fear and suspicion." (People v. Jenkins (2000) 22 Cal.4th 900, 996 [95 Cal.Rptr.2d 377, 997 P.2d 1044].)

To the extent the metal detector's use focused attention on the proceedings, it pointed to the nature of the case, not to defendant's character. (See People v. Miranda (1987) 44 Cal.3d 57, 114-115 [241 Cal.Rptr. 594, 744 P.2d 1127].) The distinction is crucial. Nor did the magnetometer improperly highlight the nature of the case. The jurors already knew they were hearing a multiple murder trial and that "the defendant appearing before them did not arrive there by choice or happenstance." (Holbrook v. Flynn, supra, 475 U.S. 560, 567 [106 S.Ct 1340, 1345].) Hence the magnetometer's presence did not objectionably dramatize the proceedings. The device was, in its neutrality, akin to that of, and indeed likely less dramatic than, the use of armed guards in the courtroom. "A trial court has broad power to maintain courtroom security and orderly proceedings." (People v. Hayes (1999) 21 Cal.4th 1211, 1269 [91 Cal.Rptr.2d 211, 989 P.2d 645].) Accordingly, we review the court's decisions regarding security measures in the courtroom, including deploying a magnetometer at the entrance, for an abuse of discretion. (Ibid.; People v. Jenkins, supra, 22 Cal.4th 990, 997.) We find none. The court was entitled to rely and act on the prosecutor's representations, as an officer of the court, that bringing the case to trial posed certain risks. There was no violation of state law, and because defendant's constitutional claims are predicated on his assertion that state law was violated, they too must fail.

We turn next to defendant's procedural claim: that it violated due process to install a magnetometer without an evidentiary hearing. We do not agree that due process requires a contested evidentiary proceeding. It is well known that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." (People v. Tilbury (1991) 54 Cal.3d 56, 68,69 [284 Cal.Rptr. 288, 813 P.2d 1318].) [Internal quotation marks omitted.] We have already explained that defendant's interest in a fair trial was unaffected by installing a magnetometer outside the courtroom: it was a neutral measure that did not focus attention on him. Holding a contested evidentiary hearing would not have been useful: it would have imposed a needless burden on the trial court, which, as we have explained, enjoys wide discretion to maintain courtroom security. It might have resulted in a wasteful minitrial at which witnesses would have had to testify about their gang affiliations or other potential for generating security problems. Neither the federal nor the state Constitution requires such consumption of the parties' and the trial court's time. Indeed, by holding a hearing of any kind, the trial court gave defendant more than he was entitled to. (People v. Hayes, supra, 21 Cal.4th 1211, 1268.)

Ayala, 23 Cal. 4th at 250-53.

3. Merits

In Holbrook v. Flynn, 475 U.S. 560 (1986), the Supreme Court held: Where a petitioner challenges security measures imposed by a state trial court, the task of a federal court considering a habeas petition is not to determine whether it might have been feasible for the State to have employed less conspicuous security measures in the courtroom. . . . All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.

Id. at 572.

Following Holbrook, the Ninth Circuit held that while shackling was an inherently prejudicial practice, the use of a security courtroom was not, and, as a result, no essential state interest was required to justify the practice. See Morgan v. Aispuro, 946 F.2d 1462, 1465 (9th Cir. 1991). The Ninth Circuit later ruled that the presence of three sheriffs guarding a defendant at trial also was not an inherently prejudicial measure. See King v. Rowland, 977 F.2d 1354, 1358 (9th Cir. 1992). A fortiori, use of a magnetometer does not constitute an inherently prejudicial measure.

With respect to the issue of whether the court was required to hold an evidentiary hearing, in Jones v. Meyer, 899 F.2d 883 (9th Cir. 1990), the Ninth Circuit emphasized, "[W]e have never held, and we refuse to hold now, that a trial court must conduct a hearing and make findings before ordering that a defendant be shackled." Id. at 886. If due process does not require a trial court to conduct a formal hearing prior to implementing an "inherently prejudicial practice" such as shackling, certainly the implementation of a less conspicuous security measure cannot require a hearing to satisfy due process.

California state law under Duran requires trial courts to put their reasons for shackling on the record. Although the trial court in this case did not order shackling, the trial court nonetheless articulated the reasons for the metal detector's placement outside the courtroom on the record. See Duran, 16 Cal. 3d 282 (1976). The Court can see no violation of due process in this procedure.

Furthermore, Petitioner was not deprived of his constitutional right to a fair trial, which includes the presumption of innocence. See Norris v. Risley, 918 F.2d 828, 831 (9th Cir. 1990). Although certain courtroom conditions may prejudice this presumption -- see Estelle v. Williams, 425 U.S. 501 (1976) (defendant clothed in prison clothes may affect judgment of the jury); Illinois v. Allen, 397 U.S. 337 (1970) (prejudice may ensue from defendant appearing before the jury bound and gagged) -- mere use of a magnetometer does not.

In rejecting this claim on appeal, the California Supreme Court distinguished the shackling of a defendant from the placing of a metal detector at the entrance to the courtroom. The California Supreme Court noted that the trial court, after hearing argument from both the prosecutor and defense counsel, deliberately chose the metal detector as a less potentially prejudicial means of securing the courtroom and declined to utilize shackling. Petitioner's contention that the failure to conduct a full evidentiary hearing on this issue resulted in a deprivation of due process is without merit.

Moreover, the trial court gave a curative instruction to the jury, on defense counsel's request, offering a neutral reason for the metal detector. Any potential prejudice Petitioner may have suffered from the court's decision to utilize a magnetometer outside the courtroom was ameliorated by the trial court's instruction to the jury:

A final thing I would like to leave you with is that it is my policy in serious felony cases to have everyone except jurors pass through a metal detector before entering the courtroom. Therefore, you can expect that a metal detector will be placed outside the courtroom when the trial begins, and it will remain throughout the course of the trial. The practices of other judges in this courthouse differ from courtroom to courtroom. You should not view the presence of a metal detector outside this courtroom or the absence of one outside other courtrooms, as a reflection on either party or any of the witnesses. It is solely a matter of my personal policy. (RT 11581-82.)

Petitioner has failed to show the state court's rejection of this claim was contrary to or an unreasonable application of federal law, or that it was based on an unreasonable determination of the facts. Williams, 529 U.S. at 412-13. Petitioner is not entitled to habeas relief on this claim.

D. Claim 38 - Penalty Phase Cross-Examination

Claim 38 alleges that the trial court erred in denying Petitioner the right to confront and cross-examine penalty phase prosecution witnesses, including Walter Lewis and Richard Christiansen, with evidence of prior acts of misconduct, in violation of his rights under the Fifth, Sixth and Fourteenth Amendments.

1. State Court's Decision

The California Supreme Court considered this claim on direct appeal, rejecting it as follows:

Defendant claims that the trial court erred under Evidence Code section 352 and that the proceedings violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when the court refused to allow him to inquire of Walter Joe Lewis, whose testimony is summarized ante, 96 Cal.Rptr.2d page 725, 1 P.3d page 42, whether he had made threats and committed violent acts.

Defendant wanted to ask Lewis on cross-examination whether he had committed murder and assaults in prison. He asserted that if his character was on trial in the penalty phase, so should be the adverse witnesses'; but the trial court disagreed. It ruled that impeaching character evidence in the form of specific instances of Lewis's conduct ...


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