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Gibbs v. Runnels

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 6, 2009

ANTHONY JAMES GIBBS, PETITIONER,
v.
D. L. RUNNELS, WARDEN, ET AL., RESPONDENTS.

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 1999 judgment of conviction entered against him in Sacramento County Superior Court on charges of four counts of lewd and lascivious conduct with a minor and three counts of pandering. He seeks relief on the grounds that: (1) his right to due process was violated by juror misconduct; (2) the prosecutor committed misconduct; and (3) his trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural and Factual Background*fn1

A jury convicted [petitioner] Anthony Gibbs of four counts of lewd and lascivious conduct and three counts of pandering involving Jonnisha A. [Petitioner] received a total prison sentence of 13 years . . .

In January 1996, [petitioner] and Jonnisha, then 14 years old, began a sexual relationship. This sexual relationship continued until Jonnisha was 16 years old.

In April and May 1998, while [petitioner] was in the Sacramento County Jail, he wrote letters to Jonnisha discussing prostitution. In these letters [petitioner] instructed Jonnisha on prostitution, including where to go, what to say, and what to charge for sexual acts.

In September 1998, after [petitioner] was released from custody, he helped Jonnisha find locations to be a prostitute, set charges for sex acts, bought her condoms, and provided her with personal protection. Jonnisha began prostituting herself in Sacramento.

On September 15, 1998, Jonnisha picked up an undercover officer. She and the officer drove to a nearby motel and entered a room in the motel. The officer revealed his identity and placed Jonnisha under arrest. While searching the motel room, an assisting officer found the defendant dressed in his underwear and sitting in the bathroom.

II. Analysis

A. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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. § 2254(d).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

B. Petitioner's Claims

1. Juror Misconduct

Petitioner's first claim is that his right to due process was violated by juror misconduct.

Petitioner raised this claim in a petition for a writ of habeas corpus filed in the Sacramento County Superior Court. Answer, Ex. G. Citing In re Dixon, 41 Cal.2d 756, 759 (1953) and In re Harris, 5 Cal.4th 813, 829, the Superior Court denied petitioner's claim of juror misconduct on the ground that it "could have been raised on appeal." Answer, Ex. H. Petitioner subsequently raised his claim of juror misconduct in a habeas corpus petition filed in the California Court of Appeal. Answer, Ex. I. The California Court of Appeal denied the petition with at citation to In re Hillery, 202 Cal.App.2d 293 (1962).*fn2 Answer, Ex. J. Petitioner raised his juror misconduct claim again in a petition for a writ of habeas corpus filed in the California Supreme Court. Answer, Ex. K. That petition was summarily denied by order dated July 30, 2003. Answer, Ex. L.

Respondents argue that the Superior Court's citation to In re Dixon constitutes a procedural bar precluding this court from considering the merits of petitioner's claim of juror misconduct. Answer at 11-14. The court will address this contention below.

a. Procedural Default

State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.")

The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground. Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005); Bennett, 322 F.3d at 585-86. The Dixon bar may be "independent" as applied in this case. See Bennett, 322 F.3d at 581-83. However, respondents have not met their burden of demonstrating that the Dixon bar is "adequate," having been regularly and consistently applied in habeas actions post-1993.*fn3 322 F.3d at 583-86. See also Wyrick v. Newland, No. C 03-5623 JSW, 2007 WL 760529, at *5-6 (N.D. Cal. Mar. 9, 2007) (rejecting argument that citation to Dixon constituted adequate procedural bar and finding that the state had failed to meet its burden of proof under Bennett of establishing the adequacy of the procedural bar to preclude federal review). This court finds respondents' claim of procedural default unpersuasive. Accordingly, the court will address petitioner's claim of juror misconduct on the merits.

As explained above, after the California Superior Court rejected petitioner's claim of juror misconduct on procedural grounds, petitioner raised the claim again in habeas petitions filed in the California Court of Appeal and the California Supreme Court. The Court of Appeal exercised its discretion to deny the claim because it had not been raised in the Superior Court.

The Supreme Court summarily denied the petition, thereby adopting the reasoning of the Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground" and where "the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits" ). Because all of the California courts to consider petitioner's claim of juror misconduct denied the claim on procedural grounds and not on the merits, the claim must now be reviewed de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003) (when a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (same). Accordingly, this court will review de novo petitioner's claim of juror misconduct.

b. Petitioner's Claim

Petitioner claims that his conviction should be reversed because of juror misconduct. Specifically, he claims that one of his jurors lied during voir dire and was exposed to improper "extra-judicial contacts & statements." Pet. at 5.

The state court record reflects that after the jury verdict was rendered but before sentencing proceedings began, the trial court summoned one of petitioner's jurors (Juror No. 6) for questioning because petitioner had told his trial counsel that the juror was a former friend of his. Reporter's Transcript on Appeal (RT) at 426-28. Upon being questioned, the juror informed the trial court that, although she recognized petitioner's face when she first saw him in the courtroom, she had never met him before and did not know his name. Id. at 430-31. She stated that she found out after the trial that petitioner was a friend of her cousin's. Id. at 431.

She testified:

I do not know [petitioner]. I have never known [petitioner]. I have seen his face, yes, but I do not know him. I never had a conversation with him, nothing.

Id. at 435. Juror No. 6 also testified that petitioner did not know her. Id. at 436. She stated that if she had known petitioner, she would "have known to dismiss [herself] from the . . . trial." Id. at 435. When asked why she didn't inform the court that she recognized petitioner's face, she responded that she "didn't think it was important because I don't know him." Id. at 445. She explained that the judge asked the jurors if they "knew the Defendant. I don't know the Defendant." Id. at 446.

The juror also stated that, the day before deliberations began, a woman who she believed to be petitioner's mother approached her in the elevator, asked her whether she was "EJ's cousin," and told her that "EJ said vote no on all counts." Id. at 432, 434. The juror immediately pulled her arm from the woman's grasp and said, "Ma'am, I am not allowed to discuss this case." Id. The woman "tried to hold [her] in the elevator for a few seconds," but the juror pulled her arm from the woman's grasp again and repeated that she was not allowed to discuss the case. Id. When asked why she didn't inform the court about this incident, especially in light of the court's admonition to advise the court if there was any reason a juror could not be fair or impartial, the juror responded that she didn't know petitioner and "when his mother approached me, I just disregarded it." Id. at 446. She explained that she "didn't take into consideration what [the woman] had said" and she "didn't feel that it was important." Id. at 448.

At one point during the juror's questioning, the trial judge stated, "my interest is whether this witness knew [petitioner] at the time she served on the jury, and the answer to that question seems to me plainly no from this witness." Id. at 440-41. The court did not rule on whether misconduct had occurred, but gave petitioner's trial counsel time to consider whether to file a motion for new trial on the basis of juror misconduct. Id. at 455-56. No motion for new trial was filed on this basis.

c. Applicable Law -- Actual or Presumed Juror Bias

The Sixth Amendment right to a jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Due process requires that the defendant be tried by "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). Jurors are objectionable if they have formed such deep and strong impressions that they will not listen to testimony with an open mind. Irvin, 816 U.S. at 722 n.3. A defendant is denied the right to an impartial jury if even one juror is biased or prejudiced. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979). Thus, "[t]he presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice." Gonzalez, 214 F.3d at 1111 (quoting Dyer, 151 F.3d at 973 n.2).

Courts have analyzed juror bias under two theories, actual bias and implied (or presumed) bias, either of which may support a challenge of a prospective juror for cause. Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007). Actual bias is "'bias in fact' -- the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." Gonzalez, 214 F.3d at 1112 (quoting United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). "Although actual bias is the more common grounds for excusing jurors for cause, '[i]n extraordinary cases, courts may presume bias based upon the circumstances.'" Gonzalez, 214 F.3d at 1112 (quoting Dyer, 151 F.3d at 981). See also McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556-57 (1984). Thus, the Ninth Circuit has, in several cases, presumed bias from "the 'potential for substantial emotional involvement, adversely affecting impartiality,' inherent in certain relationships." Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)). See also Green, 232 F.3d at 676; Gonzalez, 214 F.3d at 1112-14; Dyer, 151 F.3d at 981-82; Eubanks, 591 F.2d at 517.*fn4

The distinction between actual and implied bias has been explained as follows:

Unlike the inquiry for actual bias, in which we examine the juror's answers on voir dire for evidence that she was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced. Accordingly, we have held that prejudice is to be presumed where the relationship between the prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.

Gonzalez, 214 F.3d at 1112 (citations and internal quotes omitted) (emphasis in original). Accordingly, implied bias may be found despite a juror's denial of any partiality. Torres, 128 F.3d at 45 ("And in determining whether a prospective juror is impliedly biased, 'his statements upon voir dire [about his ability to be impartial] are totally irrelevant.'"); Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir. 1996); United States v. Nell, 526 F.2d 1223, 1229 n.8 (5th Cir. 1976) (The concept of implied or presumed bias arises from "situations in which the circumstances point so sharply to bias in a particular juror that even his own denials must be discounted."). Implied bias is bias conclusively presumed as a matter of law. United States v. Wood, 299 U.S. 123, 133 (1936); United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2000) (citing Torres, 128 F.3d at 45). On collateral review, a petitioner alleging juror misconduct must show that the alleged error " 'had substantial and injurious effect or influence in determining the jury's verdict.'" Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

In McDonough, a juror failed to inform the trial court, after a question on voir dire seeking to elicit information about previous injuries to members of the juror's immediate family that resulted in disability or prolonged pain, that his son had sustained such an injury. 464 U.S. at 550. The juror explained that he did not believe his son's injury (a broken leg) was relevant to the trial court's inquiry because it did not result in disability or prolonged pain. Id. at 552 n.3. In declining to order a new trial on the basis of juror bias, the United States Supreme Court explained:

To invalidate the result of a three-week trial because of a juror's mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.

Id. at 555. The Supreme Court held in that case that "to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556.

In Fields, a juror in a rape trial disclosed on voir dire that his wife had been assaulted and beaten, but failed to specify that she had also been raped. When questioned after the verdict at an evidentiary hearing before the federal district court about this voir dire answer, the juror explained that when he volunteered that his wife had been assaulted and beaten, he expected for people in the courtroom to understand that she had been sexually abused. Fields, 503 F.3d at 765. The juror testified that, if asked, he would have said that he could be fair and impartial. Id.

He explained that he told the truth when he stated he would base his decision strictly on the evidence presented, and stated that he did his best to be a fair juror. Id. The district court found that the juror was not dishonest during voir dire, that he was not actually biased, and that application of the implied bias doctrine in the absence of juror dishonesty would be a new rule barred by Teague v. Lane, 489 U.S. 288 (1989). Fields, 503 F.3d at 763. The Court of Appeals for the Ninth Circuit agreed, concluding, first, that the juror did not respond dishonestly on voir dire and did not intend to mislead the trial court when he used the word "assault" instead of "rape" and "kidnap" to describe what had happened to his wife. Id. at 767. To the extent the juror may have been mistaken in assuming that the words he used would make it apparent that his wife had also been raped, the Ninth Circuit concluded that this was "an honest mistake for a layperson to make." Id. The Ninth Circuit also concluded that there was no evidence the juror harbored "actual bias" and that the facts indicated the juror had remained impartial, notwithstanding what had happened to his wife. Id. at 767-68.

Finally, the Ninth Circuit found that the juror in question did not harbor implied bias. The court noted that the United States Supreme Court has never held that a juror was impliedly biased in the absence of juror dishonesty. Id. at 771. In addition, the Ninth Circuit has recognized that "it is an unresolved question whether dishonesty is a necessary predicate to a finding of juror bias." Id. The court in Fields also noted that the similarity of experiences involving the juror and the defendant was due to the juror's wife's experience, not his own. The court stated, "[a]lthough we have recognized that bias may be implied where close relatives of a juror "have been personally involved in a situation involving a similar fact pattern . . . we have never done so when the juror was honest on voir dire." Id. at 773. The Ninth Circuit concluded:

Given [the juror's] honest response on voir dire that revealed a potentially disqualifying relationship, but not an extreme or extraordinary one, and the results of the evidentiary hearing which disclosed no actual bias, we see no basis for inferring bias now as a matter of law.

Id. at 775.

d. Petitioner's Relationship with Juror No. 6

There is no evidence in this case that Juror No. 6 harbored actual bias, or "a state of mind that leads to an inference that the person will not act with entire impartiality." Gonzalez, 214 F.3d at 1112. Petitioner argues that Juror No. 6 withheld the fact that she recognized petitioner because she was afraid that "revelation of that information might thwart her desire to sit on petitioner's case." Traverse at 16. There is no evidence of that in the record and the court rejects this argument. Rather, petitioner's claim regarding the juror's failure to inform the trial judge that she recognized petitioner's face essentially involves McDonough - style bias, which turns on the truthfulness of the juror's responses on voir dire, and implied (or presumptive) bias resulting from petitioner's relationship, if any, with Juror No. 6.

After a review of the record, the court concludes that petitioner has failed to demonstrate that Juror No. 6 harbored implied bias. There is no evidence in the record that the juror responded dishonestly or intended to mislead the trial court when she stated on voir dire that she did not know petitioner. As she explained later, she recognized petitioner's face but she did not know him, had never spoken to him, and did not even know his name. The trial judge specifically mentioned that it was plain the juror did not know petitioner at the time she served on the jury. Under these circumstances, it was not unreasonable for Juror No. 6 to conclude that she could truthfully deny she knew the defendant in this case and that the mere fact she recognized his face was not important enough to disclose. Certainly, her answers on voir dire are not dishonest. In the absence of dishonesty, this court cannot find that Juror No. 6 harbored bias. McDonough, 464 U.S. at 556; Fields, 503 F.3d at 763. Nor did the nature of the relationship between petitioner and Juror No. 6 constitute a valid basis for a challenge for cause,*fn5 carry the "potential for substantial emotional involvement, adversely affecting impartiality," Tinsley, 895 F.2d 527, or make it "highly unlikely that the average person could remain impartial in his deliberations." Gonzalez, 214 F.3d at 1112. This simply is not the type of "extraordinary" case where bias may be implied or presumed.

In any event, as stated by the Ninth Circuit in Fields, "[t]o the extent that events or information bearing on [the juror's] honesty in voir dire or impartiality as a juror came after he was empaneled, the evidentiary hearing held by the district court afforded Fields an opportunity to show that [the juror] was not a fair and impartial juror." 503 F.3d at 773. The same is true here. The interview with Juror No. 6 did not reveal any impartiality or bias. See Dyer, 151 F.3d at 973 (observing that it follows from the holding in McDonough that "an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality"). There is no evidence before this court that the presence of Juror No. 6 on petitioner's jury prejudiced petitioner to the extent that he did not receive a fair trial. Accordingly, petitioner's claim that his right to a fair trial was violated because Juror No. 6 harbored bias must be denied.

e. Applicable Law -- Receipt of Extraneous Information

The receipt of prejudicial extraneous influences on a jury constitutes misconduct which may result in the reversal of a conviction. See Parker v. Gladden, 385 U.S. 363, 364-65 (1966) (bailiff's prejudicial comments overheard by several jurors that the defendant was "wicked" and "guilty" and that "if there is anything wrong (in finding petitioner guilty) the Supreme Court will correct it" warranted reversal). "Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox v. United States, 146 U.S. 140, 150 (1892) (murder conviction overturned on Sixth Amendment grounds in part because the bailiff had told the jury during deliberations that "this is the third fellow [the defendant] has killed"). Accordingly, "any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial[.]" Remmer v. United States, 347 U.S. 227, 229 (1954) (conviction reversed under Mattox when it was shown that during the trial someone told the jury foreman that he could profit by acquitting the defendant). However, "the government may overcome the presumption [of prejudice] by making a strong contrary showing." Caliendo v. Warden, California Men's Colony, 365 F.3d 691, 696 (9th Cir. 2004). See also United States v. Armstrong, 654 F.2d 1328, 1331-33 (9th Cir. 1981) (upholding guilty verdicts but applying the Mattox presumption where a juror's husband had taken two obscene phone calls at home from an unidentified third party who said, "Tell your wife to stop hassling my brother-in-law at court"); United States v. O'Brien, 972 F.2d 12, 13-15 (1st Cir. 1992) (upholding a guilty verdict but applying the Mattox presumption where a police officer who was a potential prosecution witness, but who did not testify, spoke with three jurors during a recess about matters unrelated to the case); United States v. Betner, 489 F.2d 116, 117-19 (5th Cir. 1974) (ordering a new trial under Mattox because the prosecutor conversed with the jury panel during a recess and the trial court failed to conduct an adequate hearing).

The Mattox rule applies when an unauthorized communication with a juror crosses a low threshold to create the potential for prejudice. A communication is possibly prejudicial, not de minimis, if it raises a risk of influencing the verdict. Prejudice is presumed under these circumstances, and the defendant's motion for a new trial must be granted unless the prosecution shows that there is no reasonable possibility that the communication will influence the verdict.

Caliendo, 365 F.3d at 697. Relevant factors in determining whether a communication raised a risk of influencing the verdict include "the length and nature of the contact, the identity and role at trial of the parties involved, evidence of actual impact on the juror, and the possibility of eliminating prejudice through a limiting instruction." Id. at 697 -698.

"On collateral review, trial errors - such as extraneous information that was considered by the jury - are generally subject to a 'harmless error' analysis, namely, whether the error had 'substantial and injurious' effect or influence in determining the jury's verdict." Estrada v. Scribner 512 F.3d 1227, 1235 (9th Cir. 2008) (citing Jeffries v. Wood, 114 F.3d 1484, 1491 (9th Cir. 1997)) (citing Brecht, 507 U.S. at 638). See also Rushen v. Spain, 464 U.S. 114, 115-19 & n.3 (1983) (affirming state court's determination that a juror's ex parte communication with trial judge was harmless beyond a reasonable doubt); Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (applying "harmless-error" standard when a venire member stated during voir dire that he had read in a newspaper that the defendant had "pleaded guilty at one time and changed it"). Cf. Caliendo, 365 F.3d 691, 695-98 (9th Cir. 2004) (prejudice presumed where three jurors had an improper twenty-minute conversation, factually unrelated to the trial, with a key prosecution witness).

f. The Incident Involving Juror No. 6 and Petitioner's Mother

Even assuming arguendo that the contact between Juror No. 6 and petitioner's mother created the potential for prejudice and constituted juror misconduct, the court concludes that the incident did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 623. Indeed, there is no evidence that the very brief conversation had any influence at all on the verdict. First, unlike many of the cases cited above, petitioner's mother was not a witness, an interested party, or a court officer. Accordingly, her statements did not carry any aura of authority. Second, there is no evidence Juror No. 6 conveyed the remarks to any other juror or that they influenced the vote of Juror No. 6 herself. She specifically informed the trial court that she "disregarded" what the woman told her and "didn't feel that it was important." RT at 448. Last, the case against petitioner was substantial and there is no evidence the jury verdict was close. A reviewing court must look to the following factors to determine whether a defendant has suffered prejudice from juror misconduct:

(1) whether the material was actually received, and if so, how;

(2) the length of time it was available to the jury;

(3) the extent to which the juror discussed and considered it;

(4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and

(5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.

Estrada, 512 F.3d at 1238 (quoting Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000)). None of these factors supports a finding of prejudice in this case. Accordingly, petitioner is not entitled to relief on this claim of juror misconduct.

2. Prosecutorial Misconduct

Petitioner's next claim is that the prosecutor committed misconduct during closing and rebuttal argument. Petitioner raised this claim in the same habeas petitions in which he raised his claim of juror misconduct, described above, and it was denied on the same grounds. Respondents argue that the Superior Court's citation to In re Dixon constitutes a procedural bar precluding this court from considering the merits of petitioner's claim of prosecutorial misconduct. Answer at 11-14. For the reasons explained above, this court concludes that petitioner's claim of prosecutorial misconduct is not barred from federal review. Accordingly, the court will address this claim on the merits, using de novo review.

a. Applicable Law

A criminal defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986). However, such misconduct does not, per se, violate a petitioner's constitutional rights. Blodgett, 5 F.3d at 1191 (citing Darden, 477 U.S. at 181, and Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). Claims of prosecutorial misconduct are reviewed "'on the merits, examining the entire proceedings to determine whether the prosecutor's [actions] so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (citation omitted). See also Greer v. Miller, 483 U.S. 756, 765 (1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Turner v Calderon, 281 F.3d 851, 868 (9th Cir. 2002). Relief on such claims is limited to cases in which the petitioner can establish that prosecutorial misconduct resulted in actual prejudice. Johnson, 63 F.3d at 930 (citing Brecht, 507 U.S. at 637-38); see also Darden, 477 U.S. at 181-83; Turner, 281 F.3d at 868. Put another way, prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Finally, it is the petitioner's burden to state facts that point to a real possibility of constitutional error in this regard. See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).

In considering claims of prosecutorial misconduct involving allegations of improper argument the court is to examine the likely effect of the statements in the context in which they were made and determine whether the comments so infected the trial with unfairness as to render the resulting conviction a denial of due process. Turner, 281 F.3d at 868; Sandoval v. Calderon, 241 F.3d 765, 778 (9th Cir. 2001); see also Donnelly, 416 U.S. at 643; Darden, 477 U.S. at 181-83. Thus, in order to determine whether a prosecutor engaged in misconduct in closing argument, it is necessary to examine the entire proceedings to place the remarks in context. See United States v. Robinson, 485 U.S. 25, 33 (1988) ("[P]rosecutorial comment must be examined in context. . . ."); Greer, 483 U.S. at 765-66; Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998).

b. Vouching

Petitioner first claims that the prosecutor improperly vouched for the credibility of the victim, who was a witness for the prosecution. Pet. at 5. He specifically objects to the following argument:

The fact is, that this is not something that she contrived, but rather this is something that she was drawn into by the Defendant.

So when you get right down to it, not too many people are going to lie about going out and becoming prostitutes.

When we lie and stretch the truth, it's about the good stuff. You should have seen so and so on the golf course the over [sic] day, shot a 68, or you should have seen the fish I hooked. It was fantastic. Or you should have seen me in that red dress at the Christmas party, I looked good. Or you should have seen my son come home and he got everything right on that piece of paper. He got every examination question, even arithmetic exam, even though his father isn't very good with arithmetic, he got them all right.

These are things you brag about.

But you don't brag about becoming a prostitute. You don't go to 14 strangers and make this stuff up.

RT at 344-45.

It is improper for the prosecution to vouch for the credibility of a government witness. United States v. Young, 470 U.S. 1, 18 (1985). "Improper vouching typically occurs in two situations: (1) the prosecutor places the prestige of the government behind a witness by expressing his or her personal belief in the veracity of the witness, or (2) the prosecutor indicates that information not presented to the jury supports the witness's testimony." United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007) (quoting United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). See also United States v. Garcia-Guizar, 160 F.3d 511, 520 (9th Cir. 1998). In evaluating a claim of prosecutorial misconduct, "a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." King v. Schriro 537 F.3d 1062, 1070 -1071 (9th Cir. 2008) (quoting Donnelly, 416 U.S. at 647-48).

The court concludes that the prosecutor's remarks, quoted above, did not constitute improper vouching. The comments neither placed the government's sanction on the victim's testimony nor implied that information not in evidence showed what the truth really was. He pointed to nothing concrete that would bolster the victim's testimony, nor did he imply that a credibility determination had been made by his office, the court, or anyone else. He did not stand behind the truthfulness of the victim's testimony, provide personal assurances of her veracity, suggest or refer to something that was not in the record, or invite the jurors to rely on the integrity of the government. At most, the prosecutor was making the common sense argument that most people do not brag about something they are ashamed of. This does not constitute vouching.

Even if the prosecutor's statements were improper, they did not rise to the level of a due process violation. The jurors were specifically instructed that their duty was to decide the case solely on the basis of the evidence received at trial and any facts to which the attorneys had agreed or stipulated. Clerk's Transcript on Appeal (CT) at 176, 189. The jury was also instructed that arguments and statements by lawyers are not evidence. Id. at 188. "Such instructions dilute the potential prejudice arising from improper comments." United States v. Koon, 34 F.3d 1416, 1445 (9th Cir. 1994), rev'd on other grounds, 518 U.S. 81 (1996); see also United States v. Necoechea, 986 F.2d 1273, 1283 (9th Cir. 1993) ("Likewise, the vouching that occurred during closing argument was effectively neutralized by the court's instruction that comments of counsel are not evidence.").

Because the prosecutor's statements did not rise to the level of vouching and did not render the trial fundamentally unfair, petitioner is not entitled to relief on this claim.

c. Personal Opinion of Petitioner's Guilt

Petitioner argues that the prosecutor committed misconduct by expressing his opinion that petitioner was guilty. He specifically objects to the prosecutor's statement that prior to petitioner's arrest he had "tak[en] himself with all of his guilt and all of his faults and all of his flaws into that bathroom and wait there for the sex act to take place . . ." RT at 358.

It is improper for a prosecutor to express his personal opinion about a defendant's guilt. Young, 470 U.S. at 19. This is because "such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." Id. at 18-19.

The prosecutor's comments in this case do not rise to the level of a personal opinion that petitioner was guilty. The prosecutor did not suggest that he was relying on any information outside the evidence introduced at trial to support the charges against petitioner, nor did he put the government's imprimatur on any opinion of petitioner's guilt. Even if the comments were improper, the prosecutor's fleeting use of the word "guilt" did not "undermine the fairness of the trial and contribute to a miscarriage of justice." Id. at 20. As noted above, the jury was instructed that arguments by the attorneys were not evidence and that they must decide the issue of petitioner's guilt based on the evidence introduced at trial. These instructions neutralized any prejudice that might have been occasioned by the prosecutor's brief remark.

For all of these reasons, petitioner is not entitled to relief on this claim.

d. Inflammatory Comments

Petitioner claims that the prosecutor committed misconduct by virtue of several inflammatory comments he made during his closing argument. Petitioner specifically objects to the prosecutor's statements that: (1) the victim was a "number one candidate for predators like [petitioner];" (2) "when you look at the definition in the dictionary for pimp, his face will be there;" (3) petitioner was "someone who is trading in human life;" (4) petitioner was guilty "because he's a sexual predator;" (5) "it will stop when the people tell this predator it will stop;" (6) "you have a duty to tell this man over here that we're not going to take it any more, that we're not going to let you break the law and be a predator to children, our children;" (7) "[w]hether you make the extra determination in your mind that he's a predator is irrelevant, but the fact that he's a predator is a fact that's born out;" (8) petitioner was "worthless;" and (9) this case was "an incredibly tragic one." RT at 356-57, 358, 360, 363-64, 391.

After a review of the entire closing argument, this court concludes that the prosecutor's comments in closing argument did not constitute misconduct. In fashioning closing arguments, prosecutors are allowed "reasonably wide latitude," United States v. Birges, 723 F.2d 666, 671-72 (9th Cir. 1984), and are free to argue "reasonable inferences from the evidence." United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). See also Ducket v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995). "[Prosecutors] may strike 'hard blows,' based upon the testimony and its inferences, although they may not, of course, employ argument which could be fairly characterized as foul or unfair." United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972).

Although it might have been harsh to refer to petitioner as a "predator," the argument was not "foul or unfair." In essence, the prosecutor was arguing that petitioner had preyed on the underage victim. This was a fair inference from the evidence introduced at petitioner's trial. See Necoechea, 986 F.2d at 1282 (not "foul" to refer to defendant as a "dope dealer" even though purpose of the trial was to determine whether the defendant was a drug dealer); United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir.1986) (not misconduct for the prosecutor to ask, "what kind of family man sells heroin that kids inject?").

The court also notes that the prosecutor made the following remarks in his rebuttal argument:

Ladies and gentlemen, . . . we don't have to prove to you his client is a predator.

Whether he's a predator or not, the elements are there still for pimping and pandering. Whether you make the extra determination in your mind that he's a predator is irrelevant, but the fact that he's a predator is a fact that's born out.

RT at 391. The prosecutor later stated that he would "try not to use the word predator;" that the jury should "cool down" if anything he had said "inflamed [their] passions;" that the jury should "look at the case calmly, reflect on the case clearly;" and that the jurors should "push aside any kind of passion I might exhume based upon the fact that I am advocate in this case." Id. at 391. These comments further neutralized any damage that might have been caused by the prosecutor's remarks, focused the jurors on their duty to determine only whether petitioner was guilty of the crimes charged, and dispelled any insinuation that petitioner had been convicted or was being charged with being a sexual predator.

The court also concludes that the prosecutor's other remarks did not rise to the level of misconduct. His statements that petitioner was "worthless," that this case was "tragic," and that petitioner was a "pimp," although harsh, did not render petitioner's trial fundamentally unfair. See Darden, 477 U.S. at 180 n.10, 11 & 12; 182 (not improper argument where prosecutors called the defendant an "animal," asserted that he should be kept on a leash, expressed their wish that his face had been blown off during his crimes, and argued that he deserved the death penalty to prevent him from ever terrorizing the public again); Comer v. Schriro, 463 F.3d 934 (9th Cir. 2006) (argument not improper where prosecutor called defendant "monster," "filth," and a "reincarnation of the devil," because the argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent); Dubria v. Smith, 224 F.3d 995, 1004 (9th Cir. 2000) (prosecutor's reference to defense argument as "a piece of garbage" and defendant as "a liar" found not to be improper). The prosecutor did not misstate any evidence or implicate important constitutional rights. In addition, as noted above, the trial court instructed the jurors that their decision was to be made on the basis of the evidence alone, that the arguments of counsel were not evidence, and that they were not to be influenced by sympathy or prejudice. CT at 176. Under these circumstances, and for all of the foregoing reasons, the prosecutor's remarks were not constitutionally impermissible. Darden, 477 U.S. at 182; Comer, 463 F.3d at 960 -961. Accordingly, petitioner is not entitled to relief on this claim.

e. Comment on Petitioner's Failure to Testify

Petitioner claims that the prosecutor improperly commented on his failure to testify when he stated that: (1) the evidence against petitioner "appear[ed] to be uncontradicted" because "there's no indication of it otherwise;" (2) the evidence was "uncontroverted" that all of the victim's money went to petitioner; (3) the evidence was "uncontroverted" that petitioner "had a sexual relationship with a girl who was 14 years old;" and (4) "when you're deciding Counts 1 through 8, it's clear the evidence is uncontroverted, that the Defendant was having a sexual relationship with the victim in this case." RT at 340, 358, 363, 390.

The Fifth Amendment prohibits a prosecutor from commenting to the jury regarding the defendant's failure to testify at trial. See Griffin v. California, 380 U.S. 609, 615 (1965). A prosecutorial comment in argument runs contrary to the Griffin rule "if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987). However, relief is to be granted on such a claim only "'where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for the conviction, and where there is evidence that could have supported acquittal.'" Id. (citations omitted). See also Beardslee v. Woodford, 358 F.3d 560, 587 (9th Cir. 2004); United States v. Olano, 62 F.3d 1180, 1196 (9th Cir. 1995); Blodgett, 5 F.3d at 1192. Conversely, relief will not be granted where the prosecutorial comment is a single, isolated incident, does not stress the inference of guilt from silence as a basis for the verdict and is followed by a curative instruction. Lincoln, 807 F.2d at 809.

This court concludes that no error of constitutional magnitude occurred here. The prosecutor was essentially commenting on the fact that the defense presented no witnesses to rebut the factual allegations raised by the trial testimony. A prosecutor is entitled to comment on a defendant's failure to present witnesses so long as it is not phrased to call attention to the defendant's own failure to testify. United States v. Hill, 953 F.2d 452, 460 (9th Cir.1991). See also United States v. Ponce, 51 F.3d 820, 831 (9th Cir. 1995) (not an improper comment on defendant's failure to testify where prosecutor argued, "But I ask you to look at the various things that the defense attorneys did not show you. Look at the things the defense attorneys did not offer you"); United States v. Kessi, 868 F.2d 1097, 1106 (9th Cir. 1989) ("It is permissible for the prosecutor to call attention to [defendant's] failure to present exculpatory evidence so long as he does not comment on the decision not to testify"). The prosecutor's comments in this case do not suggest that petitioner should have testified. Thus, they are permissible. See United States v. Wasserteil, 641 F.2d 704, 709-10 (9th Cir. 1981) ("'[a] comment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant's Fifth Amendment privilege.'" (quoting United States v. Dearden, 546 F.2d 622, 625 (5th Cir. 1977)).

The court notes that petitioner's jury received the following instruction: A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.

In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against him on any such essential element.

CT at 201-02. This instruction clearly informed the jurors that they could not treat petitioner's silence as substantive evidence of guilt, that they were not to draw any negative inference from petitioner's failure to testify, and that they could not penalize petitioner for failing to fill in material gaps in the evidence. In any event, the prosecutor's comments in his closing argument did not ask the jury to draw an adverse inference based on petitioner's election not to testify. Given these circumstances, petitioner has failed to show prejudicial error by virtue of the prosecutor's comments. See Rice v. Wood, 77 F.3d 1138, 1143 (9th Cir. 1996) (Griffin error is amenable to harmless-error analysis). Accordingly, petitioner is not entitled to relief on this claim.

f. Misleading Jurors about the Law

Petitioner claims that the prosecutor committed misconduct by allegedly misleading the jury about the meaning of "reasonable doubt." Pet. at 5; Traverse at 29-30. He specifically objects to the following argument:

The issue here is what the level of certainty is, and it is not beyond all doubt whatsoever, and it is not beyond a reasonable doubt, and I am going to weigh you down with about two minutes of instructions that the Court is going to give you, but just so we're clear.

Reasonable doubt is defined as follows --

THE COURT: It is beyond a reasonable doubt, okay.

MR. PONGRANTZ (petitioner's trial counsel): Yes, Your Honor, that's clear.

Reasonable doubt is defined as follows: It's not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt.

Is the sun going to rise tomorrow? Who knows. It's possible it may not. It's possible the world comes to an end. Anything is possible.

But what we're talking about here is what's reasonable doubt. And reasonable doubt is defined as the state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

RT at 385.

Viewing the record as a whole, including the instruction given to petitioner's jury defining reasonable doubt,*fn6 the court does not find constitutional error resulting from these comments by the prosecutor. Any inadvertent error made by the prosecutor when he stated that "it is not beyond a reasonable doubt" was cleared up by the court's immediate correction that "it is beyond a reasonable doubt" and the prosecutor's response, "Yes, Your Honor, that's clear." The concept of reasonable doubt was adequately explained to petitioner's jury. Accordingly, petitioner's claim that his due process rights were violated when the prosecutor mis-spoke must be denied.

g. Cumulative Errors

Petitioner questions whether "cumulative errors" by the prosecutor violated his Fifth Amendment right to a fair trial. Pet. at 5; Traverse at 30. The Ninth Circuit has concluded that under clearly established United States Supreme Court precedent the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). "The fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense 'far less persuasive,' Chambers, 410 U.S. at 294, and thereby had a 'substantial and injurious effect or influence' on the jury's verdict." Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S. at 637). See also Necoechea, 986 F.2d at 1283 ("although individual errors looked at separately may not rise to the level of reversible error, their cumulative effect may nevertheless be so prejudicial as to require reversal").

This court has addressed each of petitioner's claims of prosecutorial error and has concluded that no error of constitutional magnitude occurred at his trial in state court. This court also concludes that the alleged errors, even when considered together, did not render petitioner's defense "far less persuasive," nor did they have a "substantial and injurious effect or influence on the jury's verdict." In addition, the court notes that petitioner's counsel raised no objection to the prosecutor's closing remarks. This fact, while not dispositive, is relevant to an assessment of fundamental unfairness. Apparently, even petitioner's counsel did not perceive any undue impropriety in the prosecutor's remarks.

For these reasons, petitioner is not entitled to relief on his claim that the cumulative effect of prosecutorial errors violated his right to due process.

3. Ineffective Assistance of Counsel

Petitioner claims that his trial and appellate counsel rendered ineffective assistance. After setting forth the applicable legal principles, the court will analyze these claims in turn below.

a. Legal Standards

The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See, Strickland, 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).

In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). However, that deference "is predicated on counsel's performance of sufficient investigation and preparation to make reasonably informed, reasonably sound judgments." Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc).

The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). However, an indigent defendant "does not have a constitutional right to compel appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). Counsel "must be allowed to decide what issues are to be pressed." Id. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998) (Counsel is not required to file "kitchen-sink briefs" because it "is not necessary, and is not even particularly good appellate advocacy.") There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Thus, counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434.

The petitioner must also show prejudice from the inadequate performance. To establish prejudice in this context, petitioner must demonstrate that, but for counsel's errors, he probably would have prevailed on appeal. Id. at 1434 n.9.

b. State Court Opinion

The last reasoned decision on petitioner's claims of ineffective assistance of counsel is the decision of the California Superior Court on habeas review. Answer, Ex. G. The Superior Court denied the claims with the following reasoning:

A. Trial Counsel

Petitioner claims that trial counsel failed to file a motion to suppress based on lack of standing, but that there was evidence of standing. He also claims that counsel failed to investigate the issue of juror misconduct, failed to ask for a jury instruction about a witness's drug use, elicited damaging testimony from prosecution witnesses, and failed to object to the prosecutor's closing and rebuttal. None of these claims is supported by any evidence. There are no transcripts attached; nor is there any outside evidence to support, for example, that Petitioner had standing to object to the search. Therefore, the claim is without merit.

B. Appellate Counsel

Petitioner claims that appellate counsel refused to raise the issue of juror misconduct. It appears that the issue was not raised on appeal. However, there is no evidence to support Petitioner's contention that it was wrongfully omitted from the appeal. There is, again, no evidence of what the alleged misconduct consisted of or how it prejudiced the outcome of the trial. Therefore, there has been no showing that appellate counsel's conduct was insufficient.

Answer, Ex. H.

c. Trial Counsel

Petitioner claims that his trial counsel rendered ineffective assistance when he: (1) failed to file a motion to suppress evidence; (2) failed to file a motion for new trial based on juror misconduct; (3) failed to investigate juror misconduct; (4) failed to object to the prosecutor's improper remarks during his closing argument; (5) failed to request a jury instruction regarding the victim's use of drugs; and (6) elicited damaging testimony from the victim. After review, the court concludes that these claims should be denied.

i. Motion to Suppress

As described above in the background section, petitioner wrote several letters to the victim from jail in which he instructed the victim on how to engage in prostitution, including "where to go, what to say, and what to charge for sexual acts." Opinion at 2; Clerk's Augmented Transcript on Appeal (ACT) at 10-43. These letters were discovered in a bag located in the motel room where the victim and petitioner were arrested and were introduced into evidence at petitioner's trial. RT at 294; ACT at 10-43. Petitioner claims that his trial counsel committed misconduct when he failed to file a motion to suppress these letters on Fourth Amendment grounds. Pet. at 5; Traverse at 31-38. He argues that his counsel decided not to file a motion to suppress because he erroneously believed petitioner did not own the bag and therefore had no standing to bring such a motion. Id. Petitioner argues that the evidence clearly established he owned the bag containing the letters and that a motion to suppress would have had merit. Respondent, on the other hand, argues that petitioner has failed to establish prejudice with respect to this claim because a motion to suppress would have been denied even if petitioner had standing to bring one. Answer at 25-27.

The record before the court reflects that petitioner filed a motion for substitute counsel pursuant to People v. Marsden, 2 Cal. 3d 118 (1970). RT at 2; Pet., Ex. C (Reporter's Transcript of Marsden motion). One of the grounds for the Marsden motion was that trial counsel improperly failed to file a motion to suppress the bag containing the letters. Pet., Ex. Cs at 4-5. Petitioner's trial counsel informed the court that he had considered whether to file a suppression motion related to the seized letters but decided it had "very little merit." Id. at 6. Counsel explained his reasoning as follows:

MR. RILEY (petitioner's trial counsel): 1538.5 was not brought, your Honor. I discussed [bringing a motion to suppress] with [petitioner] and I told him in my view it have [sic] very little merit.

THE COURT: What's the state of the law with respect to searching containers?

MR. RILEY: That if it is found in, if it is found in the immediate presence under the defendant's control, that it may be used.

I discussed it with him and told him that, that in my view it had no, no merit along those lines.

He was on parole . . . [¶]

It was a search incident to arrest in the sense that apparently the parole office had not given his consent to the search.

Id. The trial court tentatively denied the Marsden motion but informed petitioner that the court would resolve the issue of whether petitioner's Fourth Amendment rights had been violated by the search and seizure of the bag in any event. Id. at 8.

The trial court subsequently concluded that a motion to suppress the bag containing the letters would not have been successful. RT at 19-23. The court reasoned that petitioner had no standing to bring a motion to suppress because the bag appeared to belong to the victim. Id. at 20. Alternatively, the court reasoned that the search and seizure was proper because it was incident to the arrests of petitioner and the victim. Id. at 20-23. The court concluded:

I'm satisfied there's just not sufficient evidence here to challenge the thing.

The Court will confirm its earlier ruling with respect to Marsden. And similarly, the Court is satisfied that a 1538.5 motion would not have been successful in this matter.

RT at 23.

The conclusion of the trial court that petitioner did not have standing to bring a motion to suppress the bag containing the letters is not an unreasonable construction of the facts before the court. Petitioner provides evidence that there was some men's clothing in the bag and argues that this proves the bag belonged to him. See Pet., Ex. C at 13; RT at 294, 298; Traverse at 31, 34. However, as noted by the trial court, the bag also contained letters written to the victim, providing some evidence that the bag may have belonged to her. Petitioner has provided no conclusive proof that he owned the bag.

Even assuming that petitioner had standing to bring a motion to suppress, the trial court's conclusion (and the conclusion of petitioner's trial counsel) that the search and seizure of the bag was proper as incident to the arrest of the victim and/or petitioner is also reasonable. The record reflects that petitioner and the victim were sharing the small motel room and bathroom where the arrests were conducted, and that the bag was seized as those arrests were taking place. RT at 98, 294, 297-98, 314, 323. Counsel's decision not to file a motion to suppress under those circumstances was not outside the wide range of reasonable professional assistance. See United States v. Smith, 389 F.3d 944 (9th Cir. 2004) (the "search-incident-to-arrest" exception to the warrant requirement permits law enforcement officers to conduct a warrantless search of a person who is arrested and his/her surrounding area; critical inquiry is whether search was roughly contemporaneous with arrest). See also Chimel v. California, 395 U.S. 752, 762-63 (1969) (police are justified in searching an arrestee's person and the area within his immediate control, defined as the area from within which he/she might gain possession of a weapon or destructible evidence). Petitioner's lengthy arguments in the traverse that the search was unlawful because of the factual circumstances under which it was conducted are not supported by the record or any other evidence. See Traverse at 31-34, 36-38.*fn7

Petitioner has failed to failed to demonstrate that his trial counsel's decision not to file a motion to suppress was deficient or that petitioner suffered prejudice as a result of counsel's inaction. Accordingly, he is not entitled to relief on this claim.

ii. Motion for New Trial based on Juror Misconduct

Petitioner next claims that his trial counsel rendered ineffective assistance by failing to file a motion for new trial based on juror misconduct, even though petitioner provided counsel with a "line of questioning to prove Juror 6 knew petitioner & petitioner knew juror & family." Pet. at 6.

Respondent argues that petitioner's claim in this regard is unexhausted. Answer at 27. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each of his claims before presenting them to the federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). By order dated April 26, 2007, this court found that respondent had waived the exhaustion requirement as to petitioner's claim that his trial counsel rendered ineffective assistance by failing to file a motion for new trial based on juror misconduct. Accordingly, the court will consider this claim on the merits.*fn8

The state court record reflects that the trial judge declined to make any rulings regarding juror misconduct after questioning Juror No. 6, preferring to wait until the issue was before him in connection with a motion for new trial. RT at 454. Trial counsel informed the court that he had not decided whether to file such a motion. Id. at 456. A motion for new trial was never filed. For the reasons set forth above, this court has concluded that Juror No. 6 did not commit misconduct. Under these circumstances, trial counsel's decision not to file a motion for new trial on the grounds of juror misconduct did not constitute deficient performance. There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Accordingly, petitioner is not entitled to relief on this claim.

iii. Failure to Investigate Juror Misconduct

Petitioner claims that his trial counsel rendered ineffective assistance by failing to "adequately investigate jury misconduct." Pet. at 6. In the traverse, petitioner argues that his trial counsel was unprepared for the hearing with Juror No. 6, and that his "line of questioning was unpersuasive, ambiguous, and frivolous." Traverse at 35.

After a review of the relevant record, this court concludes that the performance of petitioner's trial counsel during the questioning of Juror No. 6 was well within the wide range of reasonable professional assistance. The juror was thoroughly questioned by counsel about her connection with petitioner and his family and the incident concerning petitioner's mother. Petitioner suggests that counsel should have "subpoenaed school records from Hiram Johnson High School to prove Juror 6 knew petitioner" and "should have called Juror 6 mother and brothers whom knew Juror 6 knew petitioner." Traverse at 38. However, petitioner does not provide any evidence of what the high school records would have revealed or the substance of any witness testimony. Under these circumstances, petitioner cannot demonstrate prejudice with respect to this claim. See Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997) (petitioner's ineffective assistance claim denied where he presented no evidence concerning what counsel would have found had he investigated further, or what lengthier preparation would have accomplished); Ceja v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996) (no ineffective assistance where petitioner failed to explain "what compelling evidence additional interviews would have unearthed or to explain how an investigation of aggravation evidence would have negated the evidence of the multiple gunshot wounds"); United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (no ineffective assistance because of counsel's failure to call a witness where, among other things, there was no evidence in the record that the witness would testify); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (appellant failed to meet prejudice prong of ineffectiveness claim because he offered no indication of what potential witnesses would have testified to or how their testimony might have changed the outcome of the hearing). Cf. Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir. 1999) (petitioner's ineffective assistance claim granted where counsel failed to personally interview witnesses whose testimony, if believed, would have cleared petitioner of murder).

Petitioner has failed to demonstrate either deficient performance or prejudice with respect to this claim. Accordingly, he is not entitled to habeas relief.

iv. Failure to Object to the Prosecutor's Closing Remarks

Petitioner claims that his trial counsel rendered ineffective assistance because of his failure to object to the prosecutor's inflammatory closing remarks, described above in connection with petitioner's claim of prosecutorial misconduct. Pet. at 6; Traverse at 38. Petitioner argues that if counsel had objected to the prosecutor's closing argument, the result of the proceedings would have been different and "it would have preserved petitioner's rights on direct appeal where appellate court may have reversed conviction in the face of constitutional violations or fundamental fairness." Traverse at 38.

Petitioner has failed to demonstrate prejudice with respect to this claim. After a review of the record, this court concludes there is no reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Counsel's failure to object to the prosecutor's closing argument does not "undermine confidence in the outcome" of petitioner's trial. Id. Accordingly, petitioner is not entitled to habeas relief.

v. Failure to Request a Jury Instruction Regarding the Victim's Drug Use

Petitioner claims that his trial counsel rendered ineffective assistance by failing to request jury instructions to the effect that "the prosecution's star witness was a drug addict" and that her testimony should be viewed with caution because she was addicted to drugs and had an incentive to "cooperate so that she would be released to obtain drugs for herself." Traverse at 39.

Petitioner has failed to demonstrate prejudice with respect to this claim. During her cross-examination, the victim admitted that she was a heavy user of crack cocaine and that she supported her cocaine habit with money she earned from prostitution. RT at 230, 250-52.*fn9 In addition, the jurors were instructed that they were the sole judges of the believability of a witness (CT at 196); that they could consider anything that had a tendency to prove or disprove the truthfulness of a witness' testimony, including the ability of the witness to be aware of or remember any matter about which he/she testified, the existence of bias or other motive, and past criminal conduct of a witness amounting to a misdemeanor (id. at 196); and that they should give the testimony of a single witness whatever weight they thought it deserved (id. at 200).

Petitioner's jurors knew, therefore, that the victim was a heavy drug user and a prostitute and that they should give her testimony whatever weight it deserved in light of those considerations. Counsel's failure to request cumulative jury instructions to the effect that the victim was a "drug addict" and that her testimony should be viewed with caution did not result in prejudice. Accordingly, petitioner is not entitled to relief on this claim.

vi. The Victim's Testimony

Petitioner claims that his trial counsel rendered ineffective assistance by eliciting damaging testimony from the victim. Pet. at 6. In the traverse, petitioner argues that trial counsel's "complete line of questioning" of the victim "on and surrounding issues concerning the alleged sexual contact was damaging." Traverse at 38. Petitioner also complains that his trial counsel failed to elicit evidence that would have impeached the victim's testimony. Pet. at 6; Traverse at 38. He argues:

Not once did trial counsel try to impeach [the victim] with the fact that no sexual contact was ever made between petitioner and [the victim]. Nor did counsel ever try to establish the truth that no sexual contact was ever made. Counsel never asked [the victim] if she could identify petitioner's body parts which would be consistent with her co-called knowledge of a sexual relationship with petitioner. Trial counsel failed to establish that no blood samples, saliva samples, tissue samples, or any other evidence was taken to prove a sexual relationship and it was [the victim's] word with no other proof. Instead, trial counsel asked her an onslot (sic) of voyeuristic questions damaging to the defense."

Traverse at 39.

Petitioner has failed to demonstrate prejudice with respect to this claim. There is no evidence that the outcome of the proceedings would have been different if counsel had attempted to impeach the victim with questions designed to disprove her testimony that she and petitioner had a sexual relationship. Indeed, such questions might have backfired. In the absence of evidence that petitioner was prejudiced by trial counsel's performance, he is not entitled to habeas relief.

Petitioner has also failed to establish that his trial counsel's performance with respect to his questioning of the victim was deficient. After a review of the record, the court does not find that counsel's cross-examination was outside the wide range of reasonable professional assistance. Accordingly, petitioner's claim that his trial counsel rendered ineffective assistance in connection with his cross-examination of the victim should also be denied.

d. Appellate Counsel

Petitioner's final claim is that his appellate counsel rendered ineffective assistance because of his failure to raise claims of juror misconduct, ineffective assistance of trial counsel, and prosecutorial misconduct. Pet. at 6; Traverse at 40-42. As described above, this court has concluded that these claims lack merit. Appellate counsel's decision to press claims with arguably more merit than the claims suggested by petitioner was "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). Petitioner has also failed to demonstrate that he probably would have prevailed if his appellate counsel had raised these claims. He has therefore failed to establish prejudice. Miller, 882 F.2d at 2434 n.9.

III. Conclusion

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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