Petitioner Shawn Rodriguez is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Both petitioner and respondent have consented to jurisdiction by United States Magistrate Judge for this habeas corpus action.
Petitioner seeks relief from convictions entered in the Placer County Superior Court on charges of kidnaping for extortion, conspiracy to commit murder, vehicle theft, and two counts of using another's name to obtain credit or property. Petitioner was sentenced to a prison term of 25 years to life plus various other shorter terms, all to be served concurrently. Petitioner presents the following five grounds for relief: (A) the trial court failed to sua sponte instruct on lesser included offenses; (B) the jury returned inconsistent verdicts; (C) the jury foreman lied during voir dire to conceal bias; (D) the sentence imposed constitutes cruel and unusual punishment; and (E) the cumulative effect of these and four additional alleged errors rendered the proceedings fundamentally unfair. As explained below, petitioner is not entitled to relief on any of the claims.
The following summary of evidence adduced at trial was set forth in the unpublished opinion of the California Court of Appeal, Third District, No. C045882.*fn1 Petitioner is the defendant referred to therein.
Nicholas Hamman met Anna Rugg at a bus station in Auburn in July 2002. Although he did not know her well, he thought of her as his girlfriend or was thinking about making her his girlfriend. Hamman met defendant once or twice through Rugg.
On March 14, 2003, Hamman helped Rugg, defendant, and defendant's girlfriend, Erin Hughes, move into the Elmwood Motel. Defendant spent a few hours with them at their request and then left.
The next morning, as defendant was driving his red Chevy Beretta past Randy Rowdy's gas station in Auburn, Rugg, Hughes, and defendant waved at him and asked for help moving out of the motel. Hamman agreed and helped load their belongings into his car. Rugg and Hughes rode in Hamman's car while defendant rode his bicycle. In the car, Rugg told Hamman to drive to the abandoned juvenile hall off Auburn Ravine Road. Rugg argued with Hamman about directions, wanting him to follow defendant. Rugg was mad and exited the car. Hughes told Hamman to wait at the Wells Fargo Bank parking lot until defendant arrived. Defendant spoke with Rugg, brought her back to the car, and they continued to the juvenile hall. When Hamman arrived, he assumed defendant was already there. As the three unloaded some bags, defendant exited the front door of the juvenile hall. After the bags were unloaded, Hamman asked Rugg if there was anything else. A hysterical Rugg said Hughes was hurt. Hamman followed Rugg inside to a cell-like room, where Rugg said Hughes was. He ran inside but saw nothing. He heard a door creak and spun around. He stuck out his leg to prevent the door from closing but defendant kicked him in the thigh. The pain caused him to retract his leg and Rugg shut the door. Hamman could not get out because the inside of the door had no handles. Rugg said she was still mad about the argument and would let him out after she calmed down. Defendant was stuffing toilet paper into the vent and said he was going to burn down the building. Defendant then left.
In hopes the fire department would respond to an alarm, Hamman used his cigarette lighter to set off the sprinkler system in the cell. For five hours, water covered the room and soaked Hamman. The fire department never responded.
Later that afternoon, defendant reappeared through a large Plexiglas window. Defendant asked for Hamman's money, ATM card, and personal identification number (PIN). When Hamman refused, defendant said he would drown. Scared, Hamman recited his PIN. Defendant and Rugg stuffed rags underneath the door and secured them with a crate. They ignored Hamman's pleas to be released. Defendant told Hamman he would drown unless he gave up his ATM card, cash, and keys. Defendant and Rugg left. As the water rose to Hamman's neck, he stepped onto a table in the cell to avoid drowning.
Defendant and Rugg reappeared one-half to two hours later. Defendant repeated his demand for Hamman's ATM card, keys, and cash. Hamman told defendant he would comply if they would let the water out of the cell. Rugg removed the rags that were blocking the cell door and the water level in the cell decreased to about four inches. Water was still coming out of the sprinkler. Defendant slid his ATM card, cash, and keys underneath the cell door. Defendant tried unsuccessfully to break the cell's Plexiglas window. Defendant and Rugg left.
Around 7:00 or 8:00 p.m. on Saturday, defendant, Rugg, and Hughes drove to the house of defendant's foster brother, Richard Romines, and asked to stay the night. Hughes stayed while defendant and Rugg left. They returned around 3:30 or 4:30 a.m. Before going to bed, defendant told Romines he thought he killed a guy at the juvenile hall. Romines thought defendant was joking. On Sunday, defendant realized Hamman was not dead and asked Romines how many different ways there were to kill somebody. Romines, who had had a few beers and thought defendant was not serious, mentioned cement shoes and carbon monoxide. Romines explained that on television he had seen someone hook up a hose to the pipe of a car's muffler and then run the hose to a small, sealed room. Rugg was present for at least one of the discussions about carbon monoxide poisoning.
Defendant and Rugg drove to Auburn. They returned to Romines's house sometime after midnight on Monday to borrow a hacksaw to turn off the water main at the juvenile hall.
About 2:00 a.m. on Monday, defendant and Rugg drove to a Shell gasoline station in Placer County. As defendant filled gasoline in Hamman's car, Rugg asked the gas station attendant, Robert Hammer, to use the restroom. She seemed extremely nervous. While Rugg was in the restroom, defendant banged on the restroom door so Rugg would hurry. Before they left, Rugg told Hammer she accidentally had knocked over a laundry hamper in the restroom. Hammer discovered a note on top of the laundry hamper that read, "[C]all 911. We are driving his red Beretta. Nick Hamman is located in the cell at the old juvenile jail drowning. Anna Rugg. Shawn Rodriguez kidnapped me ." Hammer immediately called police.
Auburn Police Officer Gary Hopping went to the juvenile hall, where he met his shift partner, Stan Hamelin. They heard a loud banging coming from the direction of the holding cell. Water was cascading down Hamman's head and out from underneath the cell. The edges of the door were sealed with duct tape and the front of the door was barricaded with a bookcase-type object that contained paint cans. Officer Hopping helped Hamman exit the cell. Hamman, who was suffering from mild trench foot,*fn2 mild hypothermia, mild dehydration, and nausea, was taken to the hospital.
Officer Hopping and another deputy pulled over Hamman's Beretta that defendant was driving. Defendant had an Albertson's receipt for duct tape and an ATM balance inquiry sheet that ended with the same four digits as Hamman's ATM card. Rugg had bank withdrawal receipts for $40 each from Hamman's accounts. Auburn Police Detective Daniel Coe interviewed defendant. He said Rugg told him the night before that she wanted to rob Hamman and defendant told her he would tag along but would not beat him down. Rugg took Hamman's keys from him, lured him into a cell, and slammed the door shut.*fn3 Defendant admitted blocking the door with paint cans but had second thoughts from the very beginning. Despite Hamman's pleas, defendant did not open the cell door, but tried unsuccessfully to break the window. He admitted taking $13 from Hamman and $40 from the bank account, buying duct tape and hoses with Rugg, taping the cell door, putting the hoses together, and trying to fill the cell with carbon monoxide. After running the car for 15 minutes, defendant told Rugg that Hamman must be dead, although defendant realized it would take an hour and one-half to two hours for carbon monoxide to poison defendant. He did not want to kill Hamman.
Defendant was transient after he was released from jail in January 2003 for stealing a car. On [ ] March 15, 2003, Hamman drove defendant, Hughes, and Rugg to the Salvation Army to pick up a voucher for the Elmwood Motel. Hamman stayed with them for an hour to an hour and one-half and left when defendant announced they were going to bed. Later that night, Rugg told defendant she wanted to rob Hamman of his car and ATM card. She mentioned several plans, including the old juvenile hall. Defendant was noncommittal and did not take Rugg seriously.
The next morning defendant planned to call a friend or a relative to help move their belongings out of the motel. However, when they saw Hamman driving by that morning, they waved him down. Rugg spoke with Hamman and then told defendant to get packed. Defendant planned to store his belongings at the juvenile hall for the day. After they unloaded their belongings at the juvenile hall, Rugg told Hughes and defendant to take a walk and told Hamman she wanted to show him something. As defendant walked away, he had a feeling Rugg was going to lock Hamman in a cell. Defendant heard two "slam[s]" and Rugg yelled defendant's name. Rugg was holding up Hamman's keys. Hamman was locked in the cell. Rugg told Hamman she would let him out when she was not mad at him. Defendant, Rugg, and Hughes left in Hamman's car. After stopping by Romines's house, they returned to the juvenile hall for a few minutes but left again to take Hughes back to Romines's house. Defendant and Rugg came to an unspoken agreement to rob Hamman and went back to the juvenile hall. Rugg asked Hamman for his PIN and defendant made him repeat it 15 minutes later to verify the number's accuracy.
Rugg and defendant agreed to release Hamman after he gave them his PIN. Defendant unsuccessfully tried to break the Plexiglas window. He did not open the cell door because Hamman was going crazy.
Defendant tried to persuade Hamman to give them his ATM card. When Hamman refused, defendant and Rugg blocked the door with towels and bookcases, realizing there was a possibility Hamman might drown. When defendant returned 20 minutes later, the water had reached three feet. Defendant pulled the towels from beneath the door and Hamman slid his ATM and cash under the door. Defendant drove Rugg to an ATM machine in Rocklin to use defendant's ATM card. They drove back to Romines's house at 2:00 or 3:00 a.m. and spent the night.
On Sunday morning, defendant's first thought was to turn off the water in the cell and release Hamman. Later that day, defendant and Rugg unsuccessfully tried to turn off the water at the juvenile hall. Rugg proposed ways to kill Hamman and dispose of his body. Defendant was noncommittal and had no intent to injure or kill Hamman.
When they returned to Romines's house, defendant told Romines he might have killed Hamman, although he knew that Hamman was alive. He and Romines discussed methods of killing a person because Rugg was intent on killing Hamman. Romines settled on the carbon monoxide idea because it left a large margin of error and would "shut [Rugg] up."
That day, Rugg purchased some hoses and defendant purchased duct tape. At the juvenile hall, defendant put one end of the hose in the vent outside Hamman's cell and Rugg put the other end on the tail pipe of the Beretta. After the car had been running for 15 minutes, defendant told Rugg that Hamman was dead. Defendant knew this could not be true but lied so they could leave.
On the way back to Romines's house to get a hacksaw to turn off the water, they stopped at the gasoline station, where Rugg left the note to the station attendant. They retrieved the hacksaw and drove down Highway 49 when they encountered the police. (C045882 opinion at 1-4.)
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. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
IV. ANALYSIS OF PETITIONER'S CLAIMS
Petitioner was charged with kidnaping for extortion and, in the alternative, felony false imprisonment. The jury was not instructed on simple kidnaping as a lesser included offense to kidnaping for extortion, nor on misdemeanor false imprisonment as a lesser included offense to felony false imprisonment. (C045882 opinion at 4-5.) Petitioner claims this was error. Federal habeas corpus relief is not available, however, for several reasons.
First, there is no clearly established Supreme Court authority requiring lesser included offense instructions in non-capital cases. In 1980, the Supreme Court held that a defendant in a capital murder case has a constitutional right to have the jury instructed on a lesser included offense in certain circumstances. Beck v. Alabama, 447 U.S. 625, 638 (1980). The Court expressly reserved judgment on "whether the Due Process Clause would require the giving of such instructions in a non-capital case." Id. at 638 n.14; see also Gilmore v. Taylor, 508 U.S. 333, 342 (1993). In the years following Beck, the circuits split on the question of whether due process requires lesser included offense instructions in certain instances for non-capital defendants as well. See Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000) (citing collected cases). This disagreement evinces the absence of clearly established Supreme Court Authority, which precludes relief under §2254(d)(1).
Second, respondent persuasively asserts that the claim is barred by the rule announced in Teague v. Lane, 489 U.S. 288, 307 (1989). "With few exceptions, the Teague non-retroactivity doctrine prohibits courts from announcing new rules of law in federal habeas proceedings." Hoffman v. Arave, 236 F.3d 523, 537 (9th Cir. 2001), cert. denied, 534 U.S. 944 (2001). Where the issue has been properly raised, a federal court considering a petition for habeas corpus must conduct a threshold Teague analysis before considering the merits of a claim. Horn v. Banks, 536 U.S. 266, 272 (2002).
Petitioner's conviction became final for Teague purposes on June 28, 2005, ninety days after the time limit for filing a petition for writ of certiorari elapsed. 28 U.S.C. §2102(c); see also Caspari v. Bohlen, 510 U.S. 383 (1994). Prior to that time, the Ninth Circuit had declined the opportunity to extend the Beck holdingto non-capital cases. See Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984). Instead, without reference to Beck, the Ninth Circuit held that "the failure of a state court to instruct on a lesser included offense [in a non-capital case] fails to present a constitutional question and will not be considered in a federal habeas corpus proceeding." Id. at 1240 (internal quotation omitted); see also Windham v. Markle, 163 F.3d 1092, 1106 (9th Cir. 1998). At the time petitioner's conviction became final, and still today, neither the Ninth Circuit nor the Supreme Court has held that state courts must sua sponte instruct on lesser included offenses in non-capital cases. Such a claim impermissibly depends on the recognition of a new criminal rule and is thus foreclosed by the Teague doctrine. Turner v. Marshall, 63 F.3d 807, 819 (1995) (claim based on trial court's failure to sua sponte instruct on a lesser included offensewas Teague barred because any finding of constitutional error would create a new rule) (overruled on other grounds by Tolbert v. Page, 182 F.3d 677).
This court may not apply a new criminal rule and must adhere to the law as it existed on June 28, 2005. See Solis, 219 F.3d at 929. In general, instructional error only raises a cognizable federal claim if the error "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 71-72, (1991); see also Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cupp v. Nauhten, 414 U.S. 141, 146-47 (1973). The Ninth Circuit has indicated that when a lesser included offense instruction was consistent with the defendant's theory of the case and was requested but denied, there could potentially be a cognizable habeas corpus claim. Bashor, 730 F.2d at 1240. In this case, however, the instructions were not requested (RT at 646-47, 783), nor were they consistent with the defendant's theory of the case. As the California Court of Appeal concluded, there was insufficient evidence to warrant giving either lesser included offense instruction at issue:
False imprisonment is the unlawful violation of the personal liberty of another. False imprisonment becomes felonious when it is effected by violence, menace, fraud, or deceit. "Violence" means the use of force beyond that required for simple restraint. "Menace" means the threat of harm express or implied by word or act.
Under any version of events, defendant used violence or menace to prevent Hamman from leaving the cell. Defendant blocked the cell door with paint cans, bookcases, and towels, refused to open the cell door, and later tried to pump carbon monoxide into the cell. This record would not have supported a jury finding that defendant unlawfully restrained Hamman without violence or menace, to constitute misdemeanor false imprisonment... ...There was no evidence that the offense was less than aggravated kidnaping. Defendant knew of Rugg's plan to rob Hamman. Defendant demanded Hamman's ATM card and money and blocked the cell door when Hamman initially did not acquiesce in the demand for his property. Further, defendant and Rugg took defendant's cash, drove Hamman's car without his permission, and used his ATM card to withdraw money from Hamman's account. In the absence of any evidence that the offense was less than aggravated kidnaping, the trial court did not err in not instructing the jury on the lesser offense of simple kidnaping. (C045882 opinion at 5 (internal citations omitted).)
As the state appellate court set forth, the evidence was clear that petitioner used violence or menace to imprison the victim and that the kidnaping involved extortion. The omission of lesser included offense instructions on misdemeanor false imprisonment and simple kidnaping did not violate his due process rights or otherwise deprive him of a fair trial. For this reason and the others set forth above, petitioner is not entitled to relief on his claim of instructional error.
The jury found petitioner guilty of conspiracy to commit murder but was unable to reach a unanimous verdict on the charge of attempted murder. (CT at 316, 340.) Petitioner alleges that his conviction for conspiracy to commit murder must be reversed as inconsistent with the jury's inability to reach a verdict on the charge of attempted murder.
Petitioner's claim fails because the United States Supreme Court has held that inconsistent verdicts are constitutionally tolerable. Dowling v. Unites States, 493 U.S. 342, 353-54 (1990) (citing Standefer v. United States, 447 U.S. 10, 25 (1980). The Court has made clear that inconsistent verdicts may stand even when one of the verdicts is a conviction and the other is an acquittal. Ferrizz v. Giurbino, 432 F.3d 990, 992 (9th Cir. 2005) (citing Unites States v. Powell, 469 U.S. 57, 65 (1984); Dunn v. United States, 284 U.S. 390, 393 (1932). The rationale for the rule is that the acquittal may be an exercise of leniency by the jury not necessarily grounded in its view of the evidence. Ferrizz, 432 F.3d at 993. Thus, even assuming that the jury's finding that petitioner was guilty of conspiracy to commit murder was inconsistent with the finding that he was innocent of attempted murder, there was no violation of his constitutional rights. As stated in Standefer, "while symmetry of the results may be intellectually satisfying, it is not required." Standefer, 447 U.S. at 25.
Moreover, the verdicts were not inconsistent. As the California Court of Appeal determined:
Conspiracy is an inchoate crime. It does not require the commission of the substantive offense that is the object of the conspiracy. As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime, and ...