The opinion of the court was delivered by: Robert J. Bryan United States District Judge
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
This matter comes before the court on petitioner's petition for writ of habeas corpus. Dkt. 1. The court has considered the relevant documents and the remainder of the file herein.
Petitioner is a state prisoner currently incarcerated at High Desert State Prison in Susanville, California. He filed this petition for writ of habeas corpus to challenge his 2002 Sacramento County conviction of special circumstance murder and robbery. Respondent filed an answer and relevant portions of the record. Dkt. 21. Petitioner filed a traverse. Dkt. 36. A review of the record shows that the claims do not warrant habeas relief. Accordingly, the petition should be denied and the case dismissed with prejudice.
PROCEDURAL AND FACTUAL HISTORY
Petitioner was charged by complaint on September 20, 2001, with (Count 1) special circumstance murder (Pen. Code §§ 187(a) and 190.2(a)(17)); (Count 2) robbery (Pen. Code § 211); and (Count 3) possession of a firearm by a felon (Pen. Code § 12021(a)). The complaint further alleged that petitioner used a firearm in the commission of the first two counts and had two prior convictions.
On February 8, 2002, the jury convicted petitioner of murder and second degree robbery (Counts 1 and 2). The special circumstance was found true and petitioner was found to have been armed with a firearm in the commission of the crime. The jury acquitted petitioner of being a felon in possession of a firearm (Count 3). The trial court found that petitioner had two prior serious felony convictions. On March 14, 2002, petitioner was sentenced to life without the possibility of parole plus a determinate term of 11 years.
The California Court of Appeal summarized the facts of the case as follows: Testimony Of Israel Sept Sept, also known as Easy, met the victim, Anthony Galati, at an Easy Stop store on March 13, 1998. Galati was with Larry Middlebrooks, also known as Richard Pryor, whom Sept knew previously. Sept went with Galati and Middlebrooks to an apartment Middlebrooks shared with William Van Hill. Later, Angela Dvorsky and a man named Jaymo came to the apartment, but Jaymo soon left. Still later, defendant arrived. Sept wanted to sell Middlebrooks and Galati drugs but could not because Galati only had a $100 bill and Sept had no change. Middlebrooks and Galati left the apartment and returned twice looking for change, after which Sept sold Middlebrooks some drugs. Middlebrooks and Patty Bostic went into the bathroom. Van Hill was in his bedroom.
Sept went to the bathroom to talk to Middlebrooks and sell him additional drugs. At the time, Dvorsky was sitting on Galati's lap in the dining room. When Sept returned from the bathroom, Galati was lying prone on the living room floor. Defendant was standing over Galati with a gun in his hand, demanding money from Galati. Defendant threatened to shoot everyone in the apartment. Sept told him he could not do that and get away with it, then Sept went back to the bathroom to warn its occupants to stay there. As Sept was leaving the bathroom, Van Hill came out of his bedroom. He returned to his bedroom at the urging of Sept and Middlebrooks.
When Sept returned to the living room, Dvorsky was on Galati's back, tying his hands up with two electrical cords, one black and one white. When Dvorsky finished, defendant told Sept, "Come on. Let's go." Sept and defendant lifted Galati to his feet and they left the apartment, with Dvorsky following. They entered the car, putting Galati in the backseat, lying down. Dvorsky laid down on top of him.
Defendant drove the car away from the apartments and eventually to a rural area. Defendant stopped the car and, with Dvorsky's help, took Galati out of the car. Dvorsky got back into the car, and Petitioner took Galati behind the car. Sept heard two gunshots, after which defendant entered the car and drove to an industrial area where they left the car. They walked to a motel, where Sept checked them in. Sept left the room and went home, leaving defendant and Dvorsky there.
Other Evidence Larry Middlebrooks met Tony Galati at the Easy Market on March 13, 1998. Later that evening, Galati approached Middlebrooks and asked where he could purchase drugs. They went to the apartment shared by Middlebrooks and Van Hill, trying to purchase rock cocaine but [sic] unsuccessful because Galati only had a $100 bill and no change. They finally purchased rock cocaine elsewhere and both later returned to the apartment.
William Van Hill, Larry Middlebrooks's roommate, had met defendant before March 13, 1998.
Sometime after 10:00 p.m. on March 13, 1998, Van Hill went to bed. Defendant, Sept, Dvorsky, Galati, and others were in the apartment at the time. After hearing the noise of someone whimpering, Van Hill came out of the bedroom and told Sept they would have to leave. After Van Hill had gone back to bed, he heard Sept and Petitioner talking. Again coming out of the bedroom, Van Hill saw Galati and Dvorsky sitting on the floor. Defendant and Sept were aggressively demanding Galati's money and keys. They grabbed Galati by the arms and took him out the front door.
Patty Bostic was at the apartment shared by Middlebrooks and Van Hill on the evening of March 13, 1998, where she saw defendant and others. She went into the bathroom to smoke rock cocaine with Middlebrooks. Twice, Sept came to the door of the bathroom to ask Middlebrooks if Galati had money. She heard scuffling and a man asking someone to stop hitting him. Sept came to the bathroom door and told Bostic and Middlebrooks to stay in there because "defendant wants to kill everybody in the house." Bostic heard the front door open. When she later came out of the bathroom, everyone was gone.
Galati's body was found on March 14, 1998, along White Rock Road in Sacramento County. He had died from two gunshots to the back of his head. His hands were tied behind his back with white and black electrical cords, and his wallet and other valuables were gone. His car was found two days later at a nearby apartment complex, fully engulfed in flames.
People v. Puckett, 2003 WL 22506535 at *1-2 (Cal.App. 3 Dist.) (Dkt. 23, Lodged Document 4, at 2-4).
Petitioner filed a direct appeal with the California Court of Appeal, Third Appellate District, which affirmed his conviction on November 5, 2003. Dkt. 23, Lodged Document 4. Petitioner's petition for review was denied by the California Supreme Court on February 4, 2004.
On January 7, 2005, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. The petition was denied on February 9, 2005. Petitioner filed a traverse to the petition for writ of habeas corpus; the Sacramento County Superior Court construed the traverse as a motion for reconsideration and denied the motion on May 11, 2005.
On April 8, 2005, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District; the petition was denied on April 21, 2006. Petitioner then filed petitions for writ of habeas corpus in the California Supreme Court on June 10, 2005, and November 16, 2005; the petitions were denied on May 10, 2006.
On June 2, 2006, petitioner filed this petition for writ of habeas corpus. Dkt. 1. The court has carefully reviewed the entire record in this case.
Petitioner raises six claims in his petition, which are paraphrased as follows:
1. The prosecutor poisoned the jury with her prejudicial inferences that petitioner murdered Ms. Angela Dvorsky.
2. Denial of cross-examination: the court erred in denying petitioner inquiry into Sept's "other" motive for framing petitioner.
3. The court erred in excluding evidence that Angela Dvorsky admitted to setting up victims to rob.
4. The evidence was insufficient to support these convictions.
5. Ineffective assistance of trial counsel for failure to investigate or call witnesses at trial.
6. Improper use of petitioner's prior felony conviction.
In his traverse, petitioner discussed two additional bases for relief. Petitioner contends that the prosecutor committed prosecutorial misconduct by stating in her opening statement "how Sept came forward to testify to only protect his family from petitioner" (Dkt. 36, at 7); and that there was insufficient evidence to convict him because Sept's testimony was not adequately corroborated (Dkt. 36, at 21-23).
Before claims may be raised in a federal habeas corpus petition, state remedies must be exhausted; or an applicant must show there is either an absence of available state corrective process or that circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1); see also, Rose v. Lundy, 455 U.S. 509 (1982). A claim has been exhausted once it has been fairly presented to the state's highest court and the court has had the opportunity to rule on the merits of the claim. See O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733-34 (1999); Picard v. Connor, 404 U.S. 270, 275-276 (1971); Batchelor v. Cupp, 693 F.2d 859, 862(9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983).
A petitioner must present the claims to the state's highest court based upon the same federal legal theory and factual basis as the claims are subsequently asserted in the habeas petition. Hudson v. Rushen, 686 F.2d 826, 829-830 (9th Cir. 1982), cert denied 461 U.S. 916 (1983); Schiers v. California, 333 F.2d 173, 176 (9th Cir. 1964). Specifically, a petitioner must apprise the state courts that an alleged error is not only a violation of state law, but a violation of the Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Vague references to broad constitutional principles such as due process, equal protection, or a fair trail do not satisfy the exhaustion requirement. Gray v. Netherland, 518 U.S. 152, 162 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 120 S.Ct. 815 (2000). A petitioner must include reference to a specific federal constitutional guarantee as well as a statement of the facts that entitle the petitioner to relief. Gray v. Netherland, 518 U.S., at 162-163.
A petitioner who has not exhausted state court remedies may be excluded from presenting the issues to the state's highest court when the petitioner has not complied with a state procedural rule. Harris v. Reed, 489 U.S. 255, 260 (1989).
When a state prisoner defaults on federal habeas claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or show that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750-751 (1991).
Cause and Prejudice: To satisfy the "cause" prong of the cause and prejudice standard, petitioner must show that some objective factor external to the defense prevented him from complying with the state's procedural rule. Coleman, 501 U.S. at 752-753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Prejudice exists if the alleged errors were of constitutional dimensions and worked to the defendant's actual and substantial disadvantage. United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner has not shown any facts to establish that an objective factor external to the defense prevented him from complying with the state requirements for appeal or other post-conviction relief. Because petitioner has not established cause for the default, it is unnecessary to consider whether he was actually prejudiced.
Fundamental Miscarriage of Justice: The court may grant the writ to correct a fundamental miscarriage of justice if petitioner can show that his conviction is the result of a constitutional violation and that he is actually innocent. Murray, 477 U.S. at 495-96.
In this case, petitioner did not specifically reference any constitutional provisions in his petition for writ of habeas corpus, although he did do so in his traverse. The court has broadly construed petitioner's claims as they relate to constitutional provisions.
It appears that petitioner exhausted all of his claims before the California Supreme Court, with the exception of the claim that the evidence was insufficient to convict him because the verdicts were inconsistent. See Dkt. 23, Lodged Document 5: Appellant's Petition for Review, at 1-2; and Lodged Document 7, Petition for Writ of Habeas Corpus. The acquittal on the gun charge was mentioned in petitioner's direct appeal as part of his claim that the evidence was insufficient because there was inadequate corroborating evidence to support the accomplice's testimony, not because the verdicts were inconsistent. Although it is questionable that petitioner properly exhausted his insufficient evidence/inconsistent verdict claim, the court has reviewed the claim on the merits. See 28 U.S.C. § 2254(b)(2)(an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in state courts).
A habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in the state courts unless the adjudication either (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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id.
A determination of a factual issue by a state court shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
1. Prosecutorial Misconduct
Petitioner contends that the prosecutor made an inflammatory reference in opening statement to Angela Dvorsky's murder, that this reference made it look like petitioner murdered Ms. Dvorsky, and that this reference poisoned the jury. In his traverse, petitioner also claimed that the prosecutor told the jury that Israel Sept said that he would give information about the murder in exchange for immunity and protection for his family; petitioner claims that this statement implied that Sept wanted to protect his family from petitioner.
In reviewing this claim, the California Court of Appeal concluded as follows: The trial court denied a defense motion for mistrial after the prosecutor presented her opening statement. On appeal, however, defendant couches the issue in terms of prosecutorial misconduct. Instead of asserting the trial court erred by denying the motion for mistrial, he asserts we must reverse based on prejudicial prosecutorial misconduct. We disagree.
In her opening statement, the prosecutor discussed the statement of one of the witnesses:
"[The detectives] go in to speak to Israel Sept. The conversation is taped. In fact, there will be-you will hear about three separate conversations, and they are all taped. "And during the course of that first initially [sic ] conversation the first time they meet him in prison, it is absolutely clear, absolutely clear that there are no promises made, no concessions made of any kind to induce Israel Sept to give his statement. There is [sic ] no deals. There is no nothing. "There is a conversation where Israel Sept says there is [sic ] two things I want, I want to see out of this. One is I want immunity, and the other is I want my family protected. I would like to move them to Nevada, but I want my family protected, and I want immunity. "The detectives say we can't give you immunity. The only person that can give immunity is the District Attorney, that's it. We can't do it. "They read him his Miranda rights. You have all heard them on t .v. You will hear them here. You have a right to remain silent. Anything you say can and will be used against you in a court of law, et cetera. At the end of that they say do you still want to talk to us? There is [sic ] no promises. He says yes. "And he essentially lays it out for them, what happened with Anthony Galati."
Later, the prosecutor told the jury about a witness, Angela Dvorsky, who was unavailable because she had been murdered.
"The detectives went out, and they interviewed all of these people or a great number of people including William Van Hill who will be here to testify. Larry Middlebrooks will be here to testify. Middlebrooks is serving time for a drug conviction. He is in custody. You will figure that out as soon as he comes in. Patty Scott-Bostic, they talk to all of the people in the apartment, corroborate what Israel Sept says except Angela Dvorsky, Angela Dvorsky six weeks after Anthony Galati's murder on May the 1st, 1998, was pulled out of the river. She had been stabbed and left in the river. So there is no statement from Angela Dvorsky."
Defendant made no immediate objection to these statements about Sept's request for protection and the dead witness. Instead, defendant waited until after the prosecutor had finished her opening statement. Defense counsel, moving for a mistrial, then complained to the court that the prosecutor should not have told the jury about Dvorsky's death or that Sept had requested protection for his family. Counsel asserted the jury would conclude defendant killed Dvorsky and threatened Sept's family. The trial court indicated it ...