FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on October 30, 2000 in the Sacramento County Superior Court on charges of kidnapping and assault. He seeks relief on the grounds that: (1) his right to due process was violated by the introduction of perjured testimony at his trial; (2) his Sixth and Fourteenth Amendment rights were violated by the trial court's denial of his motion for new trial; (3) he received ineffective assistance of trial and appellate counsel; (4) the prosecutor committed misconduct by allowing one of the prosecution witnesses to give perjured testimony; (5) the prosecutor failed to disclose exculpatory evidence to the defense; and (6) the trial court violated his right to due process when it responded improperly to a question from the jury. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND*fn1
N.C. started dating defendant in the summer of 1997. She was 17 years old, five feet tall, and weighed 115 pounds. Defendant was 19 years old, six feet tall, and weighed between 170 and 175 pounds. After a couple of months, the relationship turned violent. N.C. put up with the treatment because she "knew no better...." The events that gave rise to the specific charges of kidnapping and assault occurred on November 19, 1999, and April 29, 2000. At trial, the prosecution introduced evidence about other encounters between defendant and N.C., and between defendant and C.S., a former girlfriend. In addition, N.C. explained why she recanted her allegations against defendant when she testified at the preliminary hearing.
November 19, 1999-Counts One and Two: N.C. was working for AT & T on Tribute Road in Sacramento County. Defendant telephoned his cousin Toby, who also worked at AT & T, and asked to speak with N.C. Defendant wanted to pick up her car. N .C. told him not to come because she was not going to give him the keys.
Defendant appeared at AT & T a short time later, and N.C. went outside to talk with him. N.C. saw Calvin and Lamar, two of defendant's friends, sitting in an older model Camaro. Defendant again demanded the keys to N.C.'s car. When she refused to hand them over, defendant said, "[Y]ou're not going back to work," grabbed N.C. by the hair, and pushed her into the Camaro.
N.C. tried to get out of the car, but defendant pushed her back by her neck. His fingernails were half an inch long, and left scratches on N.C.'s neck. In response to N.C.'s next attempt to leave the car, defendant hit her on the head and slapped her. He told one of his friends to move to the front seat so he could put N.C. in the back seat. When defendant got N.C. into the back seat, he punched her in the head with closed fists.
The driver headed into downtown Sacramento. N.C. asked defendant to let her out of the car, but he refused. The Camaro returned to the AT & T office about 20 minutes later.
Defendant phoned Toby from the car, and asked him to bring out N.C.'s purse, which contained her car keys. He then told N.C., "Get out. We're getting in your car. We're leaving." N.C. took the driver's seat, and defendant directed her to follow the Camaro to Calvin's house. Once there, defendant, Calvin, and Lamar went inside. Although N.C. was alone in the car, she could not drive away because defendant had removed an alarm device that prevented her from starting the engine. She did not flee another way because she was unfamiliar with the area.
When defendant returned, he forced N.C. to drive him to another house and a couple of liquor stores. N.C. later testified, "We basically were just driving around all night, because he didn't want me to go home." At one point, defendant attempted to apologize, saying he was sorry and only did what he did because he loved her. He later asked if she wanted to go to his place. She replied, "No, but I'll drop you off at your house." Defendant got out of the car at his own house, and N.C. drove home.
After reaching home, N.C. called the police. They interviewed her, and took pictures of her injuries. The police also gave N.C. information on how to obtain a restraining order.
April 29, 2000-Counts Three and Four: On April 29, 2000, N.C. attended a dance at Sacramento State University. Defendant appeared and pulled her by the arm to a corner of the gym. When N.C. asked him to let her go, he grabbed her around the neck and asked, "Bitch, why are you here?" He continued, "You want to be at this dance, acting like a Ho? Well, I'm going to show you how Hos get treated." Defendant scratched and slapped N.C., threw her over his shoulder, and walked out of the gym.
Defendant carried N.C. around the parking lot until he found her car. He told N.C. to drive to Calvin's place. They slept on the floor next to each other, but there was no intimate contact. At one point during the night, N.C. told defendant she did not want to be in a relationship with him anymore. Although N.C. had her car keys, and acknowledged she could have walked out during the night or the following morning, she believed defendant would have forced her to stay.
The next morning, N.C. told defendant she wanted to go home. Defendant took the car keys, and told N.C. that she would not be going home. When N.C. asked why he was keeping her there, defendant answered, "Because I know when you go home you and your mom are going to call the police and . . . I'll kill you before I go to prison." Defendant allowed N.C. to go home later that day.
N.C. contacted the Sacramento State University Police Department. They took pictures of her injuries. Later, N.C. learned that defendant had been arrested.
N.C.'s Preliminary Hearing Testimony: Defendant and his mother, Gwendolyn Simpson, contacted N.C. shortly after defendant's arrest, and pressured her to drop the charges. Mrs. Simpson helped N.C. write letters to defense counsel and the district attorney. With respect to the November 19 incident, she told N.C. to write that she got into the car willingly, that she hit defendant first, and that defendant was just defending himself. With respect to the April 29 incident, Mrs. Simpson told N.C. to write that she and defendant got into an argument, and that she left with him voluntarily.
N.C. testified as a defense witness at the preliminary hearing. Mrs. Simpson told N.C. to repeat what she had said in the letters. Thereafter, N.C. testified that on November 19, 1999, she started the fight with defendant. She also stated that defendant did not force her into the car, but she left with him voluntarily. N.C. explained she told the police that she feared for her life because she was still upset with defendant. Next, N.C. testified that she started hitting defendant during the argument on April 29, 2000, and defendant grabbed her to get her to stop hitting him. At trial, N.C. testified that her letters and preliminary hearing testimony did not accurately reflect what had occurred.
Other Violent Acts Against N.C.: N.C. described another encounter with defendant in December 1999. He called and came to see N.C. while she was getting her hair done at her cousin's salon. She had not talked to him for a week, and he wanted to know why. When N.C. refused to let defendant take her car, he grabbed her by the neck and began choking her. N.C.'s cousin came in, removed defendant's hands from N.C.'s neck, and ordered defendant to leave. He told N.C. he was not leaving without her. Defendant grabbed her by the arm and took her to her car. She complied with defendant's wishes because she "basically had no other choice."
Prior Violent Acts Against C.S.:
At trial, C.S. described similar acts of domestic violence involving defendant. C.S. began dating defendant approximately four years before defendant's jury trial, but the relationship lasted only six months. When C.S. moved home with her father and told defendant she wanted to end the relationship, defendant responded that they "were going to be together, regardless of what [she] wanted."
On May 22, 1997, defendant approached C.S. in the parking lot of her workplace. He asked C.S. why she had not contacted him and what was going on. Defendant grabbed her car keys and told her to get into her car. C.S. got into the driver's seat and drove where defendant directed her. Because she feared defendant, C.S. made up a story that she had to meet her aunt and could not go with him. Defendant told C.S. she would not be keeping the appointment. He eventually allowed C.S. to call her aunt. Defendant told C.S. that she should stop asking to go home, that she would not be going home, and that she would not be going to work the next day. When defendant and C.S. stopped at a park, he told her that her family needed to stay out of their business and blamed them for their breakup. He told C.S. that if she continued to listen to her family, they would get hurt. C.S. asked to go home, but defendant continued to make her drive around.
Eventually, defendant took C.S. to a Motel 6 where he got a room. The pair continued to argue about his refusing to allow her to go home. Defendant threatened to hurt C.S. if she did not go back to him. Four to five hours later, C.S. promised to call defendant the next day if he let her go. He returned the car keys, and she left.
On June 20, 1997, defendant contacted C.S. a second time in the parking lot at her work. C.S. tried to hurry to her car, but defendant grabbed her keys from her. He took C.S.'s house keys from the key ring. Defendant told her she would not get the keys back unless she met him later. He also told C.S. that if she did not reconcile with him, he would shoot her and her family.
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 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). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that 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. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner's first claim is that his right to due process was violated by the admission of N.C.'s perjured testimony at his trial. Petitioner notes that N.C. wrote three letters recanting her allegations against him and testified at the preliminary hearing that he did not kidnap and assault her. He argues that N.C.'s trial testimony was false. Petitioner complains that perjury charges were not filed against N.C. even though she admitted lying under oath at his preliminary hearing and also in an application for a restraining order she obtained against petitioner. (Pet., Appendix B at 1- 24, 26-39.) Petitioner has filed a declaration signed under penalty of perjury by his mother, Mrs. Gwen Simpson, wherein she denies that she dictated letters of recantation to N.C. or offered her money to testify falsely that petitioner did not commit the alleged acts. (Pet., Exs. entitled "Two Sworn declarations by Gwen Simpson.")
Petitioner raised this due process claim in his habeas petition filed with the Sacramento County Superior Court. (Answer, Ex. D.) The Superior Court rejected the claim, reasoning as follows:
Petitioner first claims that he was unlawfully found guilty of the crimes because the victim had recanted in three letters written before the preliminary hearing, one to the prosecutor and two to the defense team; the victim again recanted at the preliminary hearing; and the prosecutor knowingly had her testify falsely at the trial. Petitioner, however, fails to prove that the victim's testimony at trial was false. The victim had originally made a statement that petitioner committed the crimes against her, then recanted it in letters and preliminary hearing testimony, then testified at trial that petitioner had committed the crimes and that she had lied at the preliminary hearing because petitioner's mother had offered her money to lie and pressured her to lie. It was for the jury, as finder of fact, to determine which version of the events was the true one -- indeed, that is the primary function of a jury at a criminal trial, to sort out and determine the truth. Nor was it unreasonable for the jury to conclude, as it impliedly did, that the victim testified truthfully at the trial itself. Nor does petitioner attach any reasonably available documentary evidence to his petition of evidence to show that the victim's testimony at trial had been untruthful, other than an affidavit from his mother, recently signed under penalty of perjury. In that affidavit, petitioner's mother has now stated under oath that she did not pressure or offer the victim money to testify as the victim did at the preliminary hearing. Defense counsel, however, could have called petitioner's mother as a witness at that point in the trial, as the identity of her was known, to refute the victim's trial testimony, but did not. Nor would it have made any difference in the outcome of the case, as the mother's testimony would have been suspect as both self-serving and an attempt to assist petitioner for obvious reasons, being that she is his mother; further, the evidence of guilt was more than substantial, including that just after both incidents on which the crimes were based occurred, the victim contacted police, who took the victim's statements, and observed and photographed her physical injuries from the crimes. As for other evidence that was presented at the new trial motion hearing to show that the victim was lying, the court has already rejected it as having any potential to have made any difference in the outcome of the case, in denying the new trial motion, and petitioner presents no reason to rule otherwise at this time. As such, petitioner has failed to state a prima facie case for relief, requiring denial of this claim (In re Bower (1985) 38 Cal.3d 865). (Id. at 1-2.)
The United States Supreme Court "has long held that a conviction obtained using knowingly perjured testimony violates due process." Jackson v. Brown, 513 F.3d 1057, 1071-1072 (9th Cir. 2008) (citing Mooney v. Holohan, 294 U.S. 103, 112 (1935)). See also Napue v. Illinois, 360 U.S. 264 (1959); Morales v. Woodford, 388 F.3d 1159, 1179 (9th Cir. 2004) ("The government's knowing use of perjured testimony to obtain a conviction violates a defendant's right to due process of law.") A claim for habeas relief based upon the alleged use of perjured testimony to obtain a conviction will only succeed when "(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material." Jackson, 513 F.3d at 1071-72 (quoting Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)). "The essence of the due process violation is misconduct by the government, not merely perjury by a witness." Morales, 388 F.3d at 1179.
A violation of these due process principles requires that the conviction be set aside whenever there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury." Hayes, 399 F.3d at 978. Applying this standard, the Ninth Circuit has observed that "if it is established that the government knowingly permitted the introduction of false testimony reversal is virtually automatic." Id. The basic question is "whether . . . [the defendant] received a fair trial, understood ...