FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus, challenging his Sacramento County conviction for possession of heroin while in prison, a violation of California Penal Code § 4573.6, and the resulting three strikes sentence he received of twenty-five years to life.
After a review of the record, this court accepts the Court of Appeal's factual summary as an accurate reflection of the evidence presented to the jury in this case:*fn1
On September 21, 1998, correctional officers at California State Prison Sacramento investigated four inmates for possession of controlled substances. As part of that investigation, a group of officers--including Sergeants Phillips and Minniefield and Officers Stotts, Roberts, and Duke--confronted defendant at the door to his cell and conducted a patdown search for contraband. The officers asked defendant to open his mouth, which he did, but when they asked him to lift his tongue, he told them he could not do so because he was "tongue-tied." The officers then escorted defendant to a holding cell, where he was strip searched. He was then taken to the medical clinic so a medical technician, Michelson, could search his mouth with a tongue depressor. Sergeant Phillips and Officers Roberts and Duke were present when Michelson searched defendant's mouth. Sergeant Phillips testified three bindles were extracted from defendant's mouth and noted in his report that defendant claimed to have swallowed a fourth bindle. Officer Roberts testified two bindles came out of defendant's mouth as Michelson was using the tongue depressor, defendant spit a third bindle into a paper towel Officer Roberts was holding, and defendant then made a gulping or swallowing gesture. Officer Duke testified Michelson retrieved two or three bindles from defendant's mouth. Michelson testified she saw four bindles in defendant's mouth, and three were either extracted or spit out and the fourth he swallowed.
The bindles recovered from defendant's mouth were small squares of wrapped cellophane containing a brown substance. Officer Roberts gave them to Officer Stotts, who field tested the substance in the bindles. The substance tested positive for heroin. Later laboratory tests confirmed that one of the bindles contained 0.03 grams of heroin and a second bindle contained 0.02 grams of heroin. The third bindle did not contain a sufficient amount of the substance to test and therefore was not analyzed.
From the medical clinic, defendant was taken to a holding cell, then to the contraband watch area, where he was placed on body cavity surveillance, also known as "potty watch." On body cavity surveillance, an inmate is kept under 24-hour surveillance and his feces is searched for contraband. [footnote omitted]
On September 25, Officers Machado and Phelps were on duty in the cavity surveillance room watching defendant and another inmate. Defendant was allowed to defecate, and Officer Machado searched his feces for contraband, with Sergeant Rendon and Officer Phelps watching. Officer Machado testified he found a piece of rolled up cellophane containing a whitish substance in defendant's feces, and the other two officers testified they observed that discovery. Officer Shimmin was called to the surveillance room to field test the substance and determined it was amphetamine. Laboratory tests later determined the substance was 0.06 grams of methamphetamine.
Defendant remained on body cavity surveillance until October 12. Officer Evans testified that on October 2, after defendant had been undressed and placed on the portable toilet, he saw an object in defendant's hand, which defendant threw to the floor when Evans asked what it was. [footnote omitted] Officer Evans retrieved the object, which he found to be two bindles covered by a single piece of cellophane wrap. One bindle contained a white powdery substance and the other contained a brown tar-like substance. Although the substance in these bindles field tested positive for heroin, subsequent laboratory tests determined the bindles did not contain any controlled substance, although one did contain a chemical found in cough medicine.
Lieutenant Michaels (then Sergeant Michaels) testified he found a small bindle with a white powdery substance in defendant's feces on October 4. Lieutenant Michaels field tested the substance, although he did not testify as to the results of that field test. Laboratory tests later determined the bindle did not contain any controlled substance. A criminalist testified the substance might be sugar or Ibuprofen.
Defendant was charged in a single count with possessing heroin and methamphetamine while in prison between September 21 and September 25, 1998. (Pen. Code § 4573.6.) The complaint, later deemed an information, also alleged defendant had 18 prior felony convictions. Before jury voir dire, the trial on the prior conviction allegations was bifurcated from the trial on the possession charge.
At trial, defendant testified no bindles came out of his mouth in the medical clinic on September 21. He also presented the testimony of the other inmate who was in body cavity surveillance on September 25. That inmate claimed he saw Officer Machado make a motion like he was taking something out of his pocket before he claimed to have found the bindle in defendant's feces. Regarding the incident on October 2, defendant claimed Officer Evans had lied because defendant did not have anything in his hand on that day and did not throw anything. Defendant also testified that Lieutenant Michaels's testimony regarding his discovery of a bindle on October 4 was not true. Defendant suggested Lieutenant Michaels was biased against him because several years earlier he had testified in a federal court case brought by another inmate against Michaels and others.
The court gave the jury verdict forms that allowed the jury to find defendant either guilty or not guilty of possessing "heroin and methamphetamine" as charged in the information. According to page 48 of the written instructions, however, the verdict forms should have allowed the jury to find defendant either guilty or not guilty of "unlawful possession of heroin and/or methamphetamine." (Italics added.)
When the jury returned its guilty verdict, the jury foreperson had lined through the word "and" on the verdict form between "heroin" and "methamphetamine" and had written in the word "or." In explanation, the foreperson had written on the verdict form "per page 48 of jury instructions." When the court later asked the jury whether they unanimously found defendant guilty of possessing heroin, methamphetamine, or both, all 12 jurors agreed they had found defendant guilty of possessing heroin.
The court sentenced defendant to a three strikes term of 25 years to life.
Lodged Document (Lodg. Doc.) No. 1 at 2-6.
After the Court of Appeal affirmed petitioner's conviction, he sought review in the California Supreme Court, which denied his petition for review on October 30, 2002. Lodg. Doc. No. 6.
Thereafter petitioner unsuccessfully sought state habeas relief from the Court of Appeal and the California Supreme Court. Lodg. Docs. 7-10.
II. Standards Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a 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). 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) (referenced herein in as "§ 2254(d)" or "AEDPA"). See Ramirez v. Castro, 365 F.3d 755, 773-75 (9th Cir. 2004) (Ninth Circuit affirmed lower court's grant of habeas relief under 28 U.S.C. § 2254 after determining that petitioner was in custody in violation of his Eighth Amendment rights and that § 2254(d) does not preclude relief); see also Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003) (Supreme Court found relief precluded under § 2254(d) and therefore did not address the merits of petitioner's Eighth Amendment claim).*fn2 Courts are not required to address the merits of a particular claim, but may simply deny a habeas application on the ground that relief is precluded by 28 U.S.C. § 2254(d). Lockyer, 538 U.S. at 71 (overruling Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir. 2000) in which the Ninth Circuit required district courts to review state court decisions for error before determining whether relief is precluded by § 2254(d)). It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999).
III. Truncated Opportunity To Present A Defense (Appeal Issues I & II)*fn3
During the hearing on the motions in limine, defense counsel outlined his defense theory:
. . . I believe that what occurred from September 21st . . . to October 12th and the three different incidents that occurred that they . . . said showed controlled substances coming out of my client's feces, I have gone ahead and with expert testimony, with expert evidence that I've tendered to the prosecution, shown that the likelihood of that is very, very small.
RT 28-29. When the court asked if counsel was claiming that the officers had put drugs in petitioner's mouth, counsel replied, "I would say that what the officers are saying is not credible. . . . What they indicate that they found on September 21st they did not find." RT 31. The court rephrased it as "it's all a part of one conspiracy, or your whole defense theory is all of this is not true, it's fabricated, that they were out to get him and they did these different things. . . ." Counsel agreed, "that's our theory of the defense . . . ." RT 32.
To bolster this theory, defense counsel sought to introduce evidence that officers charged petitioner with possessing a hypodermic syringe that had belonged to another inmate and that the substance obtained from petitioner's feces on October 4 was ibuprofen, which had been prescribed for and was given to petitioner for pain. RT 535-550 (hypodermic), 636-651 (ibuprofen). Petitioner challenges the trial court's refusal to allow him to present this evidence as a violation of his right to present his defense. He also argues appellate counsel was ineffective in failing to argue that trial counsel was ineffective in his unsuccessful attempt to have this evidence admitted.
In general, a state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional right or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).
The Supreme Court has explored a criminal defendant's right to present a defense in a cluster of cases. In Washington v. Texas, 388 U.S. 14 (1967), the Court struck down a Texas statute that forbade a defendant from calling a co-perpetrator as a witness. The Court said that the defendant's right to compulsory process was violated when the state enforced its procedure preventing defendant from presenting a witness with relevant and material testimony. Id. at 22.
In Chambers v. Mississippi, 410 U.S. 284 (1973), the Court reversed Chambers' conviction because the trial court excluded, as hearsay, testimony from several witnesses prepared to testify that a man named McDonald had confessed to the murder with which Chambers was charged. The Court found the state had applied its hearsay rule "mechanistically to defeat the ends of justice" when it rejected the proffered evidence, which "bore persuasive assurances of trustworthiness" and was "critical to Chambers' defense." Id. at 302.
In Rock v. Arkansas, 483 U.S. 44 (1987), the Court considered a ruling permitting the defendant to testify about killing her husband, but not to describe what she had remembered during hypnosis. The Court recognized that a state could not enforce a rule that "arbitrarily excludes material portions of [a witness's] testimony" but recognized that "the right to present relevant testimony is not without limitation." Id. at 55-56.
In United States v. Scheffer, 523 U.S. 303 (1998), the Court considered Military Rule of Evidence 707, which made polygraph evidence inadmissible in court-martial proceedings. As it had in Rock, the Court examined the accommodation between a defendant's right to present a defense and the government's interests in ensuring that reliable evidence is presented and avoiding litigation collateral to the purpose of the trial. Scheffer, 523 U.S. at 308-09. The Court observed that rules excluding evidence "do not abridge an accused's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve." Id. at 308 (internal quotations omitted).
The Court's most recent examination of a defendant's right to present a defense is Holmes v. South Carolina, 547 U.S. 319 (2006). In that case, the South Carolina court had excluded evidence that another person had committed the murder with which Holmes was charged because the strength of the prosecution's forensic evidence meant, in its view, that the proffered third party culpability evidence did not raise a reasonable inference as to Holmes' innocence. The Court acknowledged that well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.
Id. at 326. The Court ultimately found that the trial court erred in relying only on the prosecution's evidence to gauge the relevance of the proffered defense testimony.
These cases show that while the Supreme Court is solicitous of a defendant's right to present evidence germane to his theory of the defense, it has also expressed its "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts. In any given criminal case the trial judge is called upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of evidence. . . . [T]he Constitution leaves to the judges who must make these decisions wide latitude to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues. Crane v. Kentucky, 476 U.S. 683, 989-90 (1986) (internal quotations omitted).
If the exclusion of evidence amounts to constitutional error, the erroneous exclusion of the evidence must have had "a substantial and injurious effect" on the verdict in order to justify federal habeas relief. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Habeas petitioners must therefore establish that the error resulted in actual prejudice. See id.
A. Hypodermic Incident (Appeal Issue I)
On September 21, 1998, Correctional Officer Michael Duke was part of the team dispatched to take petitioner and three other inmates from their cells to determine whether they had drugs. RT 535. According to Duke, Officer Roberts put inmate Hill in a holding cell after searching it for contraband; when Hill was removed from that cell, officers found an inmate-manufactured hypodermic needle. RT 536. After this needle was removed from the cell, petitioner was placed in the cell. Id. When defense counsel asked if Hill had been "written up for that hypodermic kit," the court sustained the prosecutor's objection. RT 540. The court also sustained the prosecutor's objection when counsel asked Duke if petitioner "was charged with a hypodermic kit that was found in that cell." RT 541.
Counsel then called Sergeant Minniefield, who supervised Duke and Roberts during the incident on September 21. The court sustained the prosecutor's objection to counsel's questions about Hill's and petitioner's placement in a holding cell. RT 543.
Outside the jury's presence, counsel made the following offer of proof: My client was brought with three other people to that location.
What happened was--is on another inmate they found in a cell, that my client had nothing to do with, think [sic] found this syringe.
Later on they had a hearing which indicated that--that was a hearing for Hill and what happened at that hearing was they decided to dump the case against Hill and they put the syringe on my client despite the evidence to the contrary.
RT 548. The court told defense counsel that the incident was not relevant and would just "muddy up the case, confuse the jury." RT 549. Counsel argued that it "goes to the credibility of the officers." Id.
The Court of Appeal rejected this contention:
[D]efense counsel's offer of proof was far too vague to establish the relevance of the proposed testimony. Counsel was allowed to elicit from Officer Duke testimony that an inmate-made hypodermic needle was found in a holding cell after Hill was removed . . . and before defendant was placed there. In his offer of proof, counsel then suggested he could elicit testimony that at "a hearing for Hill . . . they decided to dump the case against Hill and they put the syringe on my client despite the evidence to the contrary." According to defense counsel, this evidence was relevant to "the credibility of the officers as to the incident on the 21st." Due to its vagueness, however, the offer of proof fails to show any connection between the alleged decision to charge defendant with possession of the syringe and the credibility of the three officers who testified they saw three bindles removed from defendant's mouth on September 21. Defense counsel did not offer to prove who it was who purportedly "decided to. . . put the syringe on" defendant or what connection these unidentified individuals had to the four witnesses who testified about finding the bindles in defendant's mouth. That some unidentified "they" allegedly decided to charge defendant with possession of the syringe does not have any tendency in reason to prove Sergeant Phillips and Officers Roberts and Duke--not to mention medical technician Michelson--were all lying when they testified about the bindles found in defendant's mouth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . If defendant had evidence Sergeant Phillips and Officers Roberts and Duke were the otherwise unidentified "they" who were responsible for falsely charging him with possessing the syringe, there is no reason to believe the trial court would not have allowed him to elicit that evidence before the jury if defendant had made that evidence apparent to the trial court in a specific offer of proof.
Lodg. Doc. 1 at 10-12.*fn4
The state courts did not exclude this evidence as the result of a mechanistic or arbitrary rule of evidence, but rather considered trial counsel's offer of proof and found that it lacked sufficient detail to make it relevant to the frame-up defense petitioner pursued. As the Court of Appeal noted, defense counsel attributed the incident to an unnamed, unidentified "they" but did not explain "their" connection to those who found the bindles in his mouth. LaGrand v. Stewart, 133 F.3d 1253, 1267 (9th Cir. 1998) (no error when state courts did not apply mechanistic or arbitrary rules but rather evaluated the proffer and found it unreliable). Trial counsel was unable to connect this claim of alleged malfeasance by unspecified officers to the credibility of those who had been present when the bindles were extracted from petitioner's mouth.
In his traverse, petitioner identifies a Lieutenant Moore as the correctional official who dismissed the disciplinary charges against Hill and charged petitioner with the possession of the syringe two months after the bindles were found in petitioner's mouth. Traverse at 13. This belated offer does not advance the claim, for this information was not presented to the state courts and, even now, petitioner does not demonstrate or even suggest any connection between Moore's alleged action in November and the incident in September.
The state court did not apply federal law unreasonably in rejecting this claim. B. Ibuprofen (Appeal Issue II)
On October 4, Sergeant Michaels retrieved a small cellophane bindle containing a white powdery substance from petitioner's feces. RT 427-428. The prosecution's criminalist determined the powder was not a controlled substance and agreed it might be Ibuprofen. RT 501.
Over defense objection, the prosecutor called Correctional Officer Buda as an expert witness about drug trafficking in prison. RT 462-463, 468. Buda testified that inmates who sell drugs in prison sometimes sell phony drugs, known as bunk, in place of or in addition to the real thing. RT 481-482. He acknowledged, though, that it would be uncommon for an inmate to possess three bindles of drugs and a fourth of bunk at the same time. RT 482.
Defense counsel sought to call a forensic chemist to testify that the bindle petitioner excreted on October 4 contained Ibuprofen, which had been prescribed for petitioner.
RT 636. He argued that this testimony was necessary in light of Buda's testimony about bunk. RT 637. Counsel also argued that because Lieutenant Michaels classified it as methamphetamine after a field test, the fact that it was actually Ibuprofen supported the defense theory of a retaliatory conspiracy against petitioner. RT 646-648. The trial court ruled that the testimony was not relevant and confused the issues in the case. RT 651.
The Court of Appeal rejected the claim of error:
We conclude the trial court did not err in excluding the Ibuprofen evidence and that, in any event, exclusion of the evidence was harmless. First, defendant fails to explain why Ibuprofen, reduced to a powder and wrapped in a cellophane bindle, could not be considered "bunk," i.e., a phony narcotic. Furthermore, that defendant was taking Ibuprofen while in body cavity surveillance does not explain why Ibuprofen was found inside a cellophane bindle in defendant's feces. For these reasons, the Ibuprofen evidence would not have countered any inference that may have arisen from Officer Buda's testimony that defendant was in possession of "bunk" as well as actual narcotics.
As for defendant's claim the Ibuprofen evidence would have tended to impeach Lieutenant Michaels's credibility and thereby somehow called [sic] into question the discovery of methamphetamine in the bindles recovered on September 25, even if that were so it would not compel reversal of defendant's conviction. This is so because the jury expressly acknowledged its guilty verdict was based only on defendant's possession of heroin from the bindles found in his mouth on September 21, not on his alleged possession of methamphetamine from the bindles recovered on September 25. Defendant fails to explain how impeaching Lieutenant Michaels's credibility regarding the bindles on October 4 would have any effect on the credibility of the four witnesses who testified to the discovery of the bindles in defendant's mouth on September 21.
Once again, this court cannot find that the state courts applied federal law unreasonably in rejecting this claim. As with the hypodermic evidence, the trial court evaluated the proffer rather than relying on arbitrary rules to exclude the evidence. And, as with the hypodermic evidence, the court's relevance finding is supported by the record. As the Court of Appeal recognized, if the purpose of the Ibuprofen evidence was to counter the prosecution's suggestion that this was "bunk," it fell short, for proof that the substance was Ibuprofen does not otherwise explain why it was excreted wrapped in a cellophane bindle. Moreover, as noted above, the state's criminalist testified that the white powder could have been Ibuprofen and the jury learned that petitioner was taking Ibuprofen during the body cavity surveillance. RT 501, 728.
The evidence was not relevant for a more basic reason: Although defense counsel elicited the fact that Michaels had tested the white powder he recovered on October 4, he never asked Michaels the result of the test. RT 436. Evidence that the substance was Ibuprofen would not have shown Michaels' bias in the absence of Michaels' testimony or other evidence showing the field test he performed was positive for methamphetamine.
In addition, the fact that Lieutenant Michaels may have identified the substance he subjected to a field test on October 4 as methamphetamine rather than Ibuprofen may have suggested his own bias against petitioner; it did not necessarily show that the entire investigation was tainted by his alleged animus against petitioner, as the state court found.
IV. Prosecutorial Misconduct; Improper Testimony; Trial Court Error (Appeal Issues III, IV, V)
The standard of review for prosecutorial misconduct in federal habeas cases is "the narrow one of due process, and not the broad exercise of supervisory power." Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). To prevail on a claim of prosecutorial misconduct, petitioner must show the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). "To constitute a due process violation, the prosecutorial misconduct must be 'of sufficient significance to result in the denial of the defendant's rights to a fair trial.'" Greer v. Miller, 483 U.S. 756 (1987) (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). Moreover, even if an error of constitutional magnitude is found, it will be held harmless unless petitioner can show that it "had a substantial and injurious effect or influence in determining the jury's verdict" or that it involved "a deliberate and especially egregious error" or "combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding" as to warrant habeas relief. Brecht, 507 U.S. at 638 n.9 (1993).
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). A federal court cannot disturb a state court's decision to admit evidence on due process grounds unless the admission of the evidence was "arbitrary or so prejudicial that it rendered the trial fundamentally unfair." See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Under Ninth Circuit law, the admission of "other acts" evidence violates due process only if there were no permissible inferences the factfinder could have drawn from the evidence. See McKinney v. Rees, 993 F.2d 1378, 1381 (9th Cir. 1993) (question is "whether any inferences relevant to a fact of consequence may be drawn from each piece of the evidence, or whether they lead only to impermissible inferences about the defendant's character").
As with prosecutorial misconduct, in order to grant relief, the habeas court must find that the evidentiary error had "'a substantial ...