FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner challenges his 2001 conviction for second degree murder in the Butte County Superior Court, which resulted in a sentence of 45 years to life. The following exhausted claims are presented in the second amended petition:
A. The prosecutor presented false or misleading witness testimony;
B. The prosecutor improperly coached witnesses;
C. The prosecutor failed to disclose impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963);
D. The prosecutor made prejudicial, misleading statements to the press prior to trial;
E. The trial judge was biased due to a conflict of interest;
F. Petitioner was compelled to testify in violation of the Fifth Amendment;
G. His right to present a complete defense was violated;
H. The trial judge implied his guilt and denied him a fair trial by commenting in the jury's presence that petitioner was present in custody;
I. Trial counsel rendered ineffective assistance of counsel;
J. Petitioner's right to a unanimous jury verdict was violated; and
K. The prosecutor was biased due to a conflict of interest.
Petitioner's arguments, respondent's opposition, and the trial transcript have been
carefully reviewed. For the reasons that appear below, petitioner is not entitled to relief on any of his claims.
The following background facts, including footnotes, were drawn from the unpublished opinion of the California Court of Appeal, Third Appellate District, Case No. C042286:*fn1
Defendant, Kenneth Miller, Charlotte P., and Charlotte's daughter S.P. were entangled in a complicated web of relationships. Defendant and Charlotte P. considered themselves engaged, though she was still married to and living with Clarence P. Before defendant became engaged to Charlotte P., she had had a relationship with Miller. Defendant and Charlotte P. learned that Miller had molested S.P. According to defendant and Charlotte P., Miller sought retribution against Charlotte and S.P. because S.P. had reported the molestation to the police, and it was partly to forestall this retribution that defendant killed Miller.
Prosecution case On the evening of July 29, 2000, Butte County Sheriff's Deputy Eric Christopher and his partner arrived at the Southside Mini Market in Oroville, responding to an anonymous tip that someone wanted on an outstanding warrant was there. Defendant, standing near a phone booth, pointed to another man, Kenneth Miller, walking toward a pickup truck. Christopher ran a warrant check on Miller, but it disclosed nothing. The officers left.
Later that night, around 9:15 p.m., Marty Roephler was in the parking lot outside the Shakey's Pizza Restaurant on Olive Highway in Oroville, where he saw a fight between two men. One man (defendant) appeared to be striking the other (Miller). Miller kept backing away from defendant, sometimes putting his hands up in front of his face and asking defendant to stop. He never swung at defendant.
Roephler saw Miller go down on his hands and knees with his forehead on the ground and his hands covering his face. After looking at Miller for about 30 seconds, defendant reached down and put his hand under Miller. Then defendant stood up, walked away, got into a pickup truck, and drove off. Miller crawled a short way.
A woman driving out of the parking lot said to Roephler, "There's a man behind Shakey's. I think he's dead and his guts are hanging out." Roephler found Miller and tried to wrap his abdomen.
Miller died in the hospital on August 1, 2000. A forensic pathologist determined Miller died of stab wounds and cuts. He had suffered 16 stab wounds. Six, the most severe, were to the abdomen; the others were to his left forehead, his right chest, his hands and arms, the side of his neck, and his chin. He had also suffered six blunt-force injuries, including a large contusion on the back of the head. One of the abdominal cuts, about two and three-fourths inches long, had been made by twisting the knife after it penetrated the abdomen. Any of the abdominal wounds, or the deep cut on the side of Miller's left forehead, could have caused death. The wounds to Miller's hands and arms were probably defensive wounds.
Around 10:00 p.m. on July 29, defendant came to Mark Phelps's house wearing bloody clothes. Defendant said he wanted to clean up, get clean clothes and a gun from Phelps, and "get out of there." Defendant put a hunting knife on his pickup truck and used Phelps's garden hose to clean himself off.
After Phelps got a clean shirt and a firearm, he dialed 911, leaving the phone off the hook. As he went back out, he saw the police arriving and defendant brushing the hunting knife off the truck. Deputy Christopher, dispatched to investigate the 911 hang up call, recognized defendant's truck from the mini mart. He saw defendant washing himself with the hose. Defendant joked that it looked like the officers were following him.
Phelps told Christopher defendant arrived with blood on him and said he had killed someone. (Not wanting to look like a "rat," Phelps asked Christopher to make Phelps also appear to be a suspect.) Defendant said the blood on his clothes came from cleaning salmon, but Christopher thought there was too much blood for that. Christopher detained defendant, then retrieved the hunting knife from a planter box where Phelps had told him it was. En route to the county jail, defendant said several times to a deputy: "Off the record, I hope that son of a bitch dies." At the jail, the intake officer overheard defendant saying on the telephone, "Kenny had run into [defendant's] knife a few times" and, "wouldn't be molesting any children ever again"; defendant also said he was looking at 25 years to life, if not death, and would be charged with attempted murder or murder.
Oroville Police Detective Sergeant Mike Wilson interviewed defendant at the jail on the morning of July 30, 2000. Learning the interview would be taped, defendant said he did not want to talk to Wilson. Wilson said they were filing attempted murder charges; defendant asked if it would be only attempted murder because he wished the victim had died. Defendant said Miller had molested a child, S.P., and had "thrown that fact in [defendant's] face." Oroville Police Detective Richard Robertson found two pocket knives with clean blades in Miller's pants pocket. He also found a can of carburetor spray in the glove compartment of defendant's truck.*fn2 Detective Robertson interviewed defendant on August 1 and August 3, 2000. Defendant told the following story: On the night of July 29, he was at the Hideaway Bar when Miller walked in. Miller was angry at defendant's girlfriend Charlotte P. because he thought she was involved in the theft of Miller's Harley Davidson motorcycle. Defendant left with Miller to go to the Southside Mini Mart, from which defendant called the police to get Miller arrested.
After that attempt failed, defendant went with Miller to the home of James Campbell, a friend of defendant with whom he had gone fishing that afternoon. Defendant and Miller drank beer there. Both men got more angry and upset as they drank.
Defendant told Detective Robertson in the first interview (though not in the second) that Miller threatened to "get Charlotte and [S.P.]" four or five times in the course of the evening. Defendant also said that when he and Miller were in prison together, Miller had said he would pay defendant to "take care of" Charlotte. Miller did not know about defendant's relationship with her.
After defendant and Miller left Campbell's house, defendant intended to drive Miller home, but developed engine trouble along the way and stopped behind Shakey's. Defendant parked in a secluded spot because he did not want to be arrested for drunk driving.*fn3 Miller helped him lift the hood, then hit him on the head from behind. They went to the ground and scuffled. Seeing a knife on the ground, defendant grabbed it and stabbed Miller in the arm or stomach. After that things were "blurry." Miller went down on hands and knees. Defendant got in his truck and drove away.
After defendant's arrest he called Campbell and said Campbell's knife was involved in a stabbing. It was Campbell's knife the police found in Phelps's yard.
Defense case S.P., aged 14 at the time of trial, testified that Miller had begun touching her improperly several years before. She eventually told her parents and the police. The night she told the police, she and her parents went to defendant's house because she was afraid of Miller. One afternoon in July 2000 as she walked home, a friend of Miller's named Fred told her Miller was going to go after her and her family.
Charlotte P. testified that defendant was her fiancé. She had employed Miller in the past as a bodyguard in her taxi business.
In late 1999, Charlotte P. and her husband Clarence P. were living together with their three children, including S.P. The marriage was legal only; she and Clarence P. did not have a "married relationship."
One night in that period when defendant was at the P. house, he and Charlotte saw Miller coming out of S.P.'s room. S.P. later told Charlotte and Clarence that Miller was touching her inappropriately and it had been going on for a year. That night Charlotte and S.P. stayed at defendant's house. At some time, someone phoned Charlotte to tell her that Miller had gotten a gun and was coming after her and S.P.
After Miller finished serving time on a probation violation, he went to the P. home, where he said that what the P.s did to him "wasn't cool" and he would get revenge. Charlotte received threatening phone calls. S.P.'s parents sent her to her uncle's house to keep her safe. Charlotte obtained papers for a restraining order against Miller, but did not complete them.
On December 9, 1999, Butte County Sheriff's Detective Victoria Coots interviewed S.P. S.P. identified Miller as the person who had touched her inappropriately.
Detective Coots later interviewed Miller. He told her that Charlotte P. had offered not to press charges as to S.P. if Miller agreed not to press charges against Charlotte P. for embezzlement.
On December 2, 1999, Butte County Sheriff's Deputy Eric Reichel interviewed S.P. at the P. home. S.P. said Miller had been doing it for a year and a half. She did not say he had threatened her. However, Charlotte P. told Reichel that Miller had said he would "take care of" anyone who sent him back to prison. Clarence P. informed Reichel he had heard that Miller had bought a gun.
On the night of defendant's arrest, Clarence P. received defendant's phone call from jail. Defendant sounded "very intoxicated." Clarence P. corroborated the intake officer's account of defendant's words.
Testifying on his own behalf, defendant said S.P. told him on December 6, 1999, that Miller had been molesting her for two years. He took her and Charlotte P. to his home for protection. That night at the Hideaway Bar defendant heard that someone had seen Miller buy a gun; defendant called Clarence P. to tell him. Clarence P. told defendant Miller had made a threatening phone call to him, saying he was going to "get them."
In January 2000, defendant was sent to Duel Vocational Institute on a parole violation; Miller was there at the time on a probation violation. Ignorant of defendant's relationship with Charlotte P., Miller offered defendant $3,000 plus his Harley Davidson motorcycle to "take care of [Miller's] problem." Defendant, understanding that Miller wanted Charlotte and S.P. murdered, decided to feign interest so as to keep Miller from hiring anyone else.
Defendant broached the subject to Charlotte P. in two letters from prison. In a letter dated January 25, 2000, he said she or Clarence P. should contact the authorities about Miller's threats to hire a killer. In a letter dated June 5, 2000, he said he was worried about S.P.
Defendant was released on July 2, 2000. Almost immediately after, Clarence P. told him Miller had called Clarence with another threat; Clarence had bought a gun. Defendant also learned that a man named Fred Trask had told S.P. that Miller was out to get her.
On the afternoon of July 29, 2000, defendant went fishing with James Campbell and then alone, drinking alcohol as he fished.*fn4 He then went to the Hideaway Bar.
Miller came in. Still unaware of defendant's relationship with Charlotte P., Miller said he was angry with her for stealing his motorcycle while he was incarcerated. He asked if defendant had considered Miller's offer to "take care of" Charlotte and S.P. Defendant and Miller went to the Southside Mini Mart. There, defendant called 911, thinking Miller had an outstanding warrant on the molestation charges. Defendant pointed out Miller to the police when they arrived. Miller pulled two knives out of his pocket and put them in the bed of [the] truck. After checking Miller's identification and discovering no arrest warrant on him, the officers left.*fn5 Though intoxicated, defendant drove Miller to James Campbell's house to borrow money. They continued to drink. At one point Miller went into Campbell's kitchen alone, at which time he could have stolen Campbell's knife.
Wanting to keep Miller away from Charlotte P. and S.P., defendant invited him back to defendant's home. Miller's anger against Charlotte for stealing his motorcycle, and against S.P. for reporting the molestation, seemed to increase.
They left defendant's home in his truck, which soon began to sputter. Defendant pulled into the Shakey's parking lot to fix it. Miller made more threats against Charlotte P. and S.P., saying he would cut " '[t]hose cunts' throats.' " Defendant told him he would have to go through defendant to do it. Miller hit defendant in the back of the head.
A fight ensued. Miller had a knife in his hand. They went down to the ground together. As defendant got up, he saw a knife. He remembered swinging it once at Miller. He remembered little more of the fight. Eventually he left. He did not remember why he went to Marty Phelps's house; nor did he remember asking Phelps for a shirt and a gun. Defendant had not intended to kill Miller, even though he told the police he wished Miller would die.
Mark Larson, a former employer and drinking partner of defendant, testified that defendant called him around 6:00 or 7:00 p.m. on the night of the killing. Defendant's speech was "sloppy," suggesting that he was drunk. (Larson admitted he had never seen defendant drunk.)
A police officer who responded to the scene at Shakey's testified that eyewitness Marty Roephler and his companion described the fight as a "drunken brawl." They said the attacker swung at the other man with a slapping motion.
A private investigator testified that there was a can of carburetor spray in the glove compartment of defendant's truck after his arrest. There was also a diary on the dashboard containing the following entries: "Jan. 8, 00 [ sic ], talked to Kenny Miller. Harley plus 3,000"; "[L]et Char and [S.] know to watch out. Have them contact me ASAP."*fn6 Michael Jennings, the owner of the truck defendant was driving, testified that it had faulty wiring.
Rebuttal Detective Robertson testified that he drove defendant's truck 30 or 40 feet after defendant's arrest and found no mechanical problems. Robertson also testified that when he interviewed Charlotte P. shortly after the crime, she said defendant told her on the telephone he had parked behind Shakey's to drink; he also said Miller had knives and he himself had a knife. Finally, Robertson testified that in defendant's detailed account of the stabbing he had never said he saw a knife in Miller's hand, but only on the ground.
Fred Trask, an acquaintance of Miller, testified that Miller told him someone had taken funds out of Miller's account without permission. Trask denied ever telling anyone that Miller was going to get S.P. or Charlotte P. Miller's parole agent testified that Miller and defendant were in Deuel Vocational Institute at the same time for three weeks in January and February 2000, but were housed in different wings.
(C042286 opinion at 1-6.)
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. ...