The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Frederick O. Clark, a state prisoner appearing pro se, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Clark is currently in the custody of the California Department of Corrections and Rehabilitation Services incarcerated in the California State Prison, Corcoran. Respondent has answered. Clark has not filed a traverse.
I. BACKGROUND/PRIOR PROCEEDINGS
In December 2002 Clark was convicted by a jury of first-degree murder (Cal. Pen. Code § 187(a), robbery (Cal. Pen. Code § 211) and residential burglary (Cal. Pen. Code § 459). The jury also found as true special circumstances, Clark had committed the murder during the commission of the robbery and burglary (Cal. Pen. Code § 190.2(a)) and that he had personally used a knife when committing the murder (Cal. Pen. Code § 12022(b)(1)). Clark was sentenced to life without possibility of parole for the murder and special circumstances. Sentences for the robbery and burglary convictions were imposed and stayed.
Clark timely appealed his conviction to the California Court of Appeal, Third Appellate District, which affirmed Clark's conviction in an unreported reasoned decision.*fn1 The California Supreme Court summarily denied review without opinion or citation to authority on January 14, 2005. Clark filed a timely petition for relief in this Court on May 4, 2006.
In his petition Clark raises four grounds: (1) the Sacramento County Sheriff's office intercepted and recorded telephone calls and read correspondence between Clark and his attorney in violation of his Sixth Amendment right to counsel and Fourteenth Amendment right to due process and a fair trial; (2) the conduct of the Sheriff's Department was so "outrageous" as to constitute a violation of his Fourteenth Amendment right to due process and a fair trial; (3) an overall pattern of oppression and harassment that deprived Clark of his due process rights under the Fourteenth Amendment; and (4) prosecutorial misconduct in closing summation.
Respondent asserts that Clark has procedurally defaulted on his second and third grounds. Respondent does not raise any other affirmative defenses.
Because Clark filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn3 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn4 When a claim falls under the "unreasonable application" prong, a state court's application of the Supreme Court precedent must be "objectively unreasonable," "not just incorrect or erroneous."*fn5 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn6 Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict.*fn7
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn8 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn9
Ground 1: Eavesdropping Violated Sixth Amendment Right to Counsel
In its extensive and thorough decision the California Court of Appeal addressed this claim on the merits.*fn10 Clark makes essentially the same factual and legal arguments before this Court as he did before the California Court of Appeal, i.e., that telephone conversations between Clark and his then counsel, Repkow, were recorded between November 1999 and the time counsel was relieved in January 2001. The Court of Appeal found that Clark's claim was unsupported by the record.*fn11 Most specifically, the Court of Appeal, as did the Sacramento County Superior Court, found that the interception and recording of communications between Clark and Repkow did not occur until after both Repkow and the Public Defender's Office were relieved as counsel.*fn12 As noted above, this Court must accept those findings of fact, as well as the other findings of fact, to be correct unless Clark controverts those findings by clear and convincing evidence. This burden Clark has manifestly failed to carry.
As the California Court of Appeal noted, although Clark alleges that even after she was removed from the case Repkow "remained an attorney he consulted about his case," Repkow had no authority to represent him, was not his attorney, and there was no attorney-client or work- product privilege.*fn13 The Court also notes that Clark does not allege that the eavesdropping resulted in any evidence that was used against him at trial or that the taped conversations could reasonably have led to any evidence that was used against him at trial.
The conclusions of the Sacramento Superior Court and California Court of Appeal that there was no violation of his right to the assistance of counsel are adequately supported by the factual findings of the Superior Court; factual findings that this Court must presume are correct. Consequently, this Court cannot say that its decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn14 Nor can this Court find that the state court unreasonably applied the correct legal principle within the scope of Andrade-Williams- Landrigan; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Clark is not entitled to relief under his first ground.
Ground 2: Outrageous Conduct Violating Fourteenth Amendment*fn15
In this ground Clark appears to argue the conduct complained of in support of his first ground was so shockingly outrageous that, standing alone, he was denied his Fourteenth Amendment right to due process and a fair trial. The California Court of Appeal found that no outrageous government conduct occurred.*fn16
In United States v. Russell, the United States Supreme Court has said that "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction . . . ."*fn17 That statement is, however, dicta.*fn18 In the case cited in Russell, Rochin v. California, the chief evidence against Rochin was two capsules of morphine. The Supreme Court held that the conduct of the police in that case, seizing the capsules by stomach pumping, was just as much a coerced confession as a verbal statement inadmissible under the Fourteenth Amendment.*fn19 Three years after Russell the Supreme Court, again speaking through then Justice Rehnquist, held that the limitations of due process only come into play when the government deprives the defendant of some right secured to him by the United States Constitution.*fn20 The Ninth Circuit recently observed in a case involving the analogous federal due process guarantee of the Fifth Amendment:*fn21
The defense of outrageous government conduct is limited to extreme cases in which the government's conduct violates fundamental fairness and is shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment. We have found outrageous government conduct in instances where the government has engineer[ed] and direct[ed] the criminal enterprise from start to finish, and in that slim category of cases in which the police have been brutal, employing physical or psychological coercion against the defendant.
Here, the only specific constitutional right alluded to by Clark was his Sixth Amendment right to counsel, which, as noted in the preceding discussion, was not violated. The concept of outrageous prosecution constituting an absolute bar to prosecution is based solely upon the dicta, not the holdings, of the United States Supreme Court.*fn22 Consequently, this Court cannot say that the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn23 Nor can this Court find that the state court unreasonably applied the correct legal principle within the scope of Andrade--Williams- Landrigan; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Clark is not entitled to relief under his second ground.
Ground 3: Pattern of Oppression and Harassment Constituting Denial of Due Process
Clark alleges that "an overall pattern of oppression and harassment" engaged in by the Sheriff before and during his trial also constitutes outrageous governmental conduct, which deprived him of his due process rights and independently requires reversal. Specifically, Clark asserts that before trial, jail deputies repeatedly gave him disciplinary "write-ups" because they disliked him; forcibly sodomized him with a foreign object; and while a motion concerning this incident was pending, handcuffed him and assaulted him again. Later, according to Clark, the deputies deliberately endangered his life by placing him in direct contact with Sureno gang members, knowing he had once testified against a leader of the Aryan Brotherhood, which assigns "contracts" for assassinations to Surenos; they maliciously placed him in a tiny holding cell without a toilet, forcing him to urinate on the floor; they sought to use dual escorts when moving him to and from the courtroom; they strapped him into a security chair in the courtroom; on one occasion, before bringing him from the holding cell into court, they searched him and the cell; and on another occasion during trial the escort officer "insisted on standing directly behind [Clark], between [Clark] and the jury panel, while assuming a very rigid military bearing, causing the defense to worry that jurors would interpret this as a signal that [Clark] was being dangerous."
The California Court of Appeal held that Clark forfeited this issue on appeal for failing to bring the matter before the Superior Court by the appropriate means.*fn24 Respondent contends that Clark is now procedurally barred from bringing the issue before this Court. The Court agrees.
Federal courts "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."*fn25 This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims . . . ."*fn26 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn27
"Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner."*fn28 Clark, by failing to file a traverse, has not carried the burden of placing the procedural default defense in issue. The Court agrees with Respondent that, because Clark's claim was defaulted in state court on an adequate and independent state ground, it will not be considered in federal habeas proceedings unless Clark can demonstrate cause for the default and actual prejudice.*fn29 This, Clark has demonstrably failed to do.
Even if the Court were to reach the merits of Clark's claim, he would not prevail. As noted, the sole constitutional right Clark claims was violated was his Sixth Amendment right to counsel. Except for an unsupported conclusory allegation that the acts of the Sheriff's Department took time away from defense attorneys that they would have spent in trial preparation, Clark does not show that the actions of the Sheriff's Department deprived him of his right to counsel.*fn30 As the California Court of Appeal noted, "[a]lthough defendant and his counsel complained orally to the trial court about the other alleged misconduct he describes, defendant never filed any further motion on this subject."*fn31 Consequently, the record is devoid of any factual determination at the state court level as to his claims. Clark is not entitled to relief under his third ground.*fn32
Ground 4: Prosecutorial Misconduct
Clark contends that the prosecutor committed prejudicial misconduct in three respects:
(1) incorrectly claimed that no evidence existed other than Clark's testimony concerning his traumatic experience in prison that caused him to come to hate Whites;
(2) misstated the facts and the law, and attempted to shift the burden of proof to Clark; and
(3) attacked the integrity of defense counsel.*fn33
"To warrant habeas relief, prosecutorial misconduct must 'so infect  the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn34 "Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is 'the narrow one of due process, and not the broad exercise of supervisory power.'"*fn35
The California Court of Appeal addressed in depth the factual background of the prosecutorial misconduct claim,*fn36 and found that both the first and third points raised by Clark constituted prosecutorial misconduct, but that the sequence that followed the misconduct cured it.*fn37 The California Court of Appeal also found that Clark was not prejudiced, under either the California or constitutional standard, stating:*fn38
Although defendant asserts that the misconduct rose to the level of federal constitutional error, he does not even try to show the "pattern of conduct" required under the federal standard. (See People v. Hill, supra, 17 Cal.4th 800, 819.) In any event, defendant did not suffer prejudice under any standard. The prosecutor's isolated remark, amended soon after by his follow-up comments, did not infect the trial with fundamental unfairness. And since any harm done by the misconduct was cured, there is no reasonable probability that defendant would have obtained a more favorable outcome absent the misconduct.
The test for harmless error is whether improper conduct of the prosecutor, considered in the context of the entire trial, including the conduct of the defense, affected the jury's ability to judge the evidence fairly.*fn39 In this case, the trial court admonished the prosecutor, the improper statement was corrected by the prosecutor, and the correction reinforced by the statements of defense counsel, which mitigated the misconduct. Thus, this Court cannot say that the improper prosecutorial comment in this case affected the jury's ability to judge the evidence fairly.
Consequently, this Court cannot say that the decision of the California Court of Appeal was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn40 Nor can this Court find that the state court unreasonably applied the correct legal principle within the scope of Andrade--Williams-Landrigan; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable.
Clark is not entitled to relief under his fourth ground.
Clark is not entitled to relief under the ground raised in the petition. Accordingly,
IT IS ORDERED THAT the Petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn41 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
The Clerk of the Court to enter final judgment accordingly.
While in Sacramento County Jail awaiting trial, defendant engaged in a romantic relationship with his then attorney, Assistant Public Defender Karol Martin Repkow. The Sacramento County Sheriff's Department, which runs the jail, became suspicious of Repkow for various reasons and so informed the public defender's office. The Public Defender removed Repkow as counsel; however, she continued to contact defendant on her own initiative and against the Public Defender's orders. A couple of months later, the public defender's office withdrew from the case. The Sheriff's Department began surveillance of Repkow and defendant and made its findings known to the Public Defender, who terminated Repkow several months after his office had withdrawn from the case.
Much later, defendant's new attorney moved to dismiss the case, alleging that the actions of the Sheriff and the Public Defender had created irreparable prejudice. After holding numerous in camera hearings, the trial court found defendant had not suffered prejudice because (1) Repkow and the public defender's office no longer represented him by the time the Sheriff's Department began its surveillance, and (2) defendant had not shown any surveillance of his present defense team.
Defendant contends the trial court should have granted his motion to dismiss because the Sheriff's surveillance (1) deprived him of his rights to counsel, due process, and a fair trial (U.S. Const., 6th & 14th Amends.), and (2) constituted "outrageous governmental conduct" violating those rights under both the state and federal Constitutions. We disagree.
The trial court appointed the public defender's office to represent defendant on November 16, 1999. The office assigned Repkow to the case. She was defendant's sole counsel until June 23, 2000, when Assistant Public Defender John Perkins was associated in as lead attorney. Repkow remained in the case as second counsel until on or around November 16, 2000, when the Public Defender instructed her to cease contact with defendant.
On January 9, 2001, the public defender's office asked to withdraw because of an unspecified conflict. The trial court reassigned the case to the indigent defense panel. As of January 31, 2001, Mark Millard was defendant's lead attorney.
On April 29, 2002, Millard filed a motion to dismiss (or to strike the special circumstances). The grounds included "[t]he denial of, failure to provide and interference with the [d]efendant's right to, and representation by, counsel under the Constitution of the United States, Amendment VI and the Constitution of California, Article I, § 15" and "[o]utrageous, illegal and unethical conduct by the government in violation of . . . Due Process and other constitutional, statutory and common law rights of the [d]efendant."FN5
FN5. Defendant also claimed a violation of his constitutional right to a speedy trial. He does not renew this contention on appeal.
In support of the motion, Millard declared as follows:
When defendant was confined in Sacramento County Jail in November 1999, the jail staff already disliked him due to his conduct during a prior confinement there and his reported subsequent conduct in prison. Defendant soon started to receive "major" disciplinary writeups. The defense "kn[e]w" deputies had committed misconduct in at least some of the incidents at issue. Sometime before November 2000, jail staff became suspicious about the relationship between defendant and his attorney. The Sheriff's Department contacted the public defender's office about the matter. The two offices then jointly investigated defendant and the attorney. This included monitoring and taping telephone conversations between defendant and one or more of his attorneys and other defense team members. It was not clear when this began and when (or whether) it ended, but defendant was aware of it by the late fall of 2000. Neither agency had disclosed the records of the investigation to defendant's present defense team.
After receiving the case, the public defender's office had thoroughly investigated it, among other things conducting several interviews with defendant's wife. However, in late October or early November 2000, the Public Defender ordered all work on defendant's case suspended. From then until sometime in January 2001, defendant "was essentially unrepresented."
Defendant's lack of representation prejudiced him in various ways both during and after this period. First, defendant remained in custody for months while the date of trial remained unset.
Second, further events occurred that could be used against defendant in the penalty phase. For example, in early March 2001 deputies beat defendant and forcibly sodomized him with a "baton," then claimed they had found the "baton" in his cell.
Third, the defense had lost contact with witnesses, including some who could give evidence as to the victim's character and conduct which would corroborate ...