The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Anthony Leroy Wallace, a state prisoner incarcerated at Folsom State Prison, seeks a writ of habeas corpus pursuant to 28 USC section 2254. For the reasons set forth below, a writ is DENIED.
On October 15, 2002, after a jury trial in Fresno County superior court, petitioner was found guilty of felony vandalism (count 1), being under the influence of a controlled substance (count 2, a misdemeanor) and resisting arrest (count 3, a misdemeanor). The jury also found true the allegations that petitioner had suffered two previous "strikes" under California law and had served two prior prison terms. On April 3, 2003, the trial court sentenced petitioner to twenty-five years to life in state prison, plus two one-year enhancements and time served on the misdemeanor convictions.
On October 19, 2004, in a partially published opinion, the California Court of Appeal struck count 3 and modified petitioner's custody credit; in all other respects the judgment was affirmed. People v Wallace, 123 Cal App 4th 144 (2004).*fn1
Petitioner's petition for review with the California Supreme Court was denied on January 26, 2005. Petitioner's state habeas petitions were also denied.
The California Court of Appeal summarized the factual background of this case as follows:
One summer evening in Fresno, Anthony LeRoy Wallace's wife of two months, Arlissa Pointer Wallace, caught him smoking crack cocaine, called him a crack head, and told him to leave the house she had bought six or seven years before the marriage and had refinanced shortly after the marriage.*fn2 Although she had kept the house in her name, Wallace presumably had acquired a small community property interest through mortgage payments with community property funds.
Instead of leaving, however, Wallace began tearing up the house. Frightened, Pointer kept her distance from him as she opened the living room curtains in the hope a neighbor might see and call the police. He kept breaking things. Twice she dialed 911, but twice she hung up, fearing things would get much worse if he knew she had called. He left before the police arrived. She told a police officer that the only thing he had not broken in the house was his own stereo and that everything else in the house belonged to her. A couple of hours later, alerted by a neighbor to "incredible pounding, very, very loud noise" from the house, police officers found Wallace inside the house breaking things again. Only after he challenged three armed and uniformed officers to fight, did they subdue him with a taser and arrest him.
At trial, an expert witness testified to over $9,000 of damage to the house and to over $6,000 of damage to the furniture and furnishings. A jury found Wallace guilty of felony vandalism and of two misdemeanors-being under the influence and resisting, delaying, or obstructing an officer ("resisting")and found two assault with a deadly weapon priors true as both serious felony priors and prison term priors.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified under 28 USC section 2254, provides "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the
[p]petitioner is not challenging his underlying state court conviction." White v Lambert, 370 F3d 1002, 1009-1010 (9th Cir 2004). Under AEDPA, this court may entertain a petition for habeas relief on behalf of a California state inmate "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC § 2254(a).
The writ may not be granted unless the state court's adjudication of any claim on the merits: "(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 USC § 2254(d). Under this deferential standard, federal habeas relief will not be granted "simply because [this] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v Taylor, 529 US 362, 411 (2000).
While circuit law may provide persuasive authority in determining whether the state court made an unreasonable application of Supreme Court precedent, the only definitive source of clearly established federal law under 28 USC section 2254(d) rests in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412; Clark v Murphy, 331 F3d 1062, 1069 (9th Cir 2003).
When a federal court is presented with a state court decision that is unaccompanied by a rationale for its conclusions, the court has no basis other than the record "for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context." Delgado v Lewis, 223 F3d 976, 982 (9th Cir 2000). In such situations, federal courts must conduct an independent review of the record to determine whether the state court decision is objectively unreasonable. Id. While federal courts "'are not required to defer to a state court's decision when that court gives [them] nothing to defer to, [they] must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law.'" Greene v Lambert, 288 F3d 1081, 1089 (9th Cir 2002) (quoting Fisher v Roe, 263 F3d 906, 914 (9th Cir 2001)). Furthermore, independent review of the record is not de novo review of the constitutional issue, but rather the only way a federal court can determine whether a silent state court decision is objectively unreasonable. Himes v Thompson, 336 F3d 848, 853 (9th Cir 2003). However, if the state court did not reach the merits of a claim, federal review of the claim is de novo. Nulph v Cook, 333 F3d 1052, 1057 (9th Cir 2003).
Even if a petitioner meets the requirements of § 2254(d), habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v Abrahamson, 507 US 619, 638 (1993). Under this standard, petitioners "may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" Brecht, 507 US at 637, citing United States v Lane, 474 US 438, 439 (1986).
Petitioner seeks federal habeas relief based on 21 claims.*fn3 Grounds 1, 4-7, 12, 13, 19, 20 and 21 all allege ineffective assistance of counsel and will be considered after the remaining claims. Petitioner's claim for relief based on cumulative error (Ground 3) will be considered last.
In Ground 2, petitioner maintains that his constitutional rights were violated due to prosecutorial misconduct. He maintains that: 1) he was tried and convicted on evidence known to be false; 2) the prosecutor improperly utilized petitioner's assault with a deadly weapon conviction and; 3) the prosecutor improperly introduced photos of the damage. The state court denied this claim in a summary opinion.
"The appropriate standard of review for [a prosecutorial misconduct claim] on writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power." Darden v Wainwright, 477 US 168, 181 (1986) (citations omitted). Thus, the court must determine whether the prosecutor's conduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id (citing Donnelly v DeChristoforo, 416 US 637 (1974). A defendant's due process rights are violated if a prosecutor knowingly relies on perjured testimony and fails to correct it. Napue v Illinois, 360 US 264, 269 (1959); Morales v Woodford, 388 F3d 1159, 1179 (9th Cir 2004). Prosecutors are not, however, held accountable for discrepancies in testimony where there is no evidence from which to infer prosecutorial misconduct. United States v Zuno-Arce, 44 F3d 142, 1423 (9th Cir 1995).
First, petitioner alleges that the prosecutor committed misconduct by relying on Pointer's testimony. Petitioner alleges that he was earlier accused by Pointer of rape and spousal abuse; these charges were dismissed and petitioner maintains that the dismissal confirms that Pointer was an unreliable witness. Petitioner also points to the fact that Pointer's testimony at trial contradicted her original statements to police about the vandalism. After conducting an independent review of the record, the court finds that the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982.
Pointer did state at trial that she was responsible for some of the damage in the home. Reporter's Transcript at 315-317 (hereinafter "RT", submitted by respondent as Lodged Document 2). In so doing, however, she contradicted her original statements to Officer Payn and to her neighbor that petitioner was responsible. RT at 315-40. The record also indicates that, after responding to a call, testifying Officer Scott Payn observed petitioner throw something against the wall and tip something over inside the house. RT at 444. Officer Payn also observed that the damage to the house and furniture was far greater than it had been on his visit to the house two hours earlier. RT at 447. Pointer was not there at the time of the second visit, supporting an inference that petitioner and not Pointer was largely responsible for the property damage.
In light of the physical evidence and Officer Payn's testimony, it was reasonable for the prosecutor to believe that Pointer's original account to police was accurate and that her recantation at trial was not. In addition, despite the fact that earlier charges of rape against petitioner had been dismissed, the corroborating evidence of vandalism made it reasonable for the prosecutor to believe in this particular case that Pointer had originally provided an accurate account of the vandalism to law enforcement. Based on all of the evidence in the record, petitioner cannot show either that Pointer's testimony was actually false or that the prosecution knew or should have known that it was false. Zuno-Arce, 339 F3d 886 at 889 (citing Napue, 360 US at 269-271). Accordingly, petitioner cannot establish that the prosecutor committed misconduct by relying on Pointer's original statements.
Second, petitioner argues that the prosecutor committed misconduct when she introduced petitioner's prior conviction for assault with a deadly weapon. Specifically, petitioner claims that the conviction was admitted "without proving the burden of proof to the jury." Amended Petition at 24.
Petitioner's claim is without merit. This court's independent review of the record confirms that the trial jury received extensive evidence of petitioner's prior convictions before finding them to be true. RT at 538-67. The evidence presented included pictures of the defendant, fingerprints of the defendant, the judgments in questions, paperwork from the counties and courts where petitioner was convicted of the prior charges, and a chronological record of petitioner's movement through the Department of Corrections, including any paroles and subsequent violations. RT at 541-51. Petitioner's attorney conducted cross-examination. RT at 547. The trial court instructed the jury as to the applicable burden of proof, and specifically stated that the jury was required to "consider each of the alleged prior convictions separately" and that the state had the burden of proving the truth of the convictions beyond a reasonable doubt. RT at 562-63. Accordingly, the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law and petitioner's claim must be denied. See Delgado, 233 F3d at 982.
Finally, petitioner claims that the prosecutor committed misconduct by presenting photos of the damage. This claim is also without merit. The photos showed damage to the home, which was clearly relevant considering the charge against petitioner was felony vandalism. As discussed in greater detail infra, in the court's consideration of petitioner's related claim alleging that introduction of the photographs deprived him of his right to a fair trial, admission of the photographs was not unduly prejudicial. Accordingly, petitioner cannot show that the prosecutor's conduct in presenting the photos "so infected the trial process with unfairness as to make the resulting conviction a denial of due process." Darden, 477 US at 181. Because the state court's dismissal of this claim was not objectively unreasonable under clearly established federal law, petitioner's claim must be denied.
In Ground 8, petitioner alleges that his due process rights were violated when the trial court instructed the jury that the fact that petitioner might have vandalized community property in which he had an ownership interest was no defense to the charge of vandalism. In so doing, petitioner also maintains that the state court's application of the vandalism statute to his actions was incorrect. The California Court of Appeal addressed these issues in a reasoned opinion on direct appeal.
To begin with, in a lengthy and detailed discussion, the state court addressed the scope of the vandalism statute, including the main question of "whether a spouse can be guilty of vandalizing community property and the other spouse's separate property inside the marital home." Opinion at 9. The court recognized that "[i]n People v Kahanic (1987) 196 Cal App 3d 461 * * *, we held that the vandalism statute applies to community property on the rationale that the "essence of the crime is in the physical acts against the ownership interest of another, even though that ownership is less than exclusive."*fn4 Opinion at 4. After further analysis of the existing statutory and caselaw, the court held that:
[W]e broaden our holding in Kahanic to embrace the emerging rule imposing criminal liability on a spouse for intentionally causing harm to property in which the other spouse has an interest, whether the property is individual or marital, whether the harm occurs outside or inside the marital home. (Kahanic, supra, 196 Cal. App. 3d at p 466; see e g, Jackson v United States (DC 2003) 819 A2d 963, 964-967 ("Jackson") [spouse criminally liable for harm to marital property at marital home under statute prohibiting harm to property "not his or her own"]; State v Superior Court (Ariz Cr App 1997) 188 Ariz 372 [936 P2d 558-559] [spouse criminally liable for harm to joint tenancy property of both spouses under statute prohibiting damage to "property of another person"]; State v Coria (2002) 146 Wash 2d 631 [48 P3d 980, 981-985] ("Coria") [spouse criminally liable for harm to community property to marital property at marital home under statute prohibiting damage to "property of another"]; Hughes v State (Alaska Ct App 2002) 56 P3d 1088, 1094-1095 [spouse criminally liable for harm to marital property at marital home under statute prohibiting damage to "property of another']; Ginn v State (2001) 251 Ga App 159 [553 SE 2d 839, 840, 842] [spouse criminally liable for harm to marital property at marital home under statute prohibiting damage to "any property of another"] * * * .*fn5 Accordingly, we answer in the affirmative the question before us and hold that a spouse can be guilty of vandalizing community property and the other spouse's separate property inside the marital home.
Opinion at 6-8. The Court of Appeal also considered and dismissed as without merit petitioner's arguments that: 1) he could not be guilty of vandalism unless he and his wife were engaging in family law litigation; and 2) the law was unconstitutionally vague. Opinion at 8-9.
Petitioner cannot demonstrate that the California Court of Appeal's reasoned decision was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court law. Nor can he demonstrate that the state court's factual findings were unreasonable. Petitioner can cite to no clearly established law indicating that the state court decision was in error.
In this case, the California Court of Appeal was engaged in an analysis and interpretation of California state law. A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw v Richey, 546 US 74, 76 (2005); Hicks v Feiock, 485 US 624, 629 (1988).
The state's highest court is the final authority on the law of that state. Sandstrom v Montana, 442 US 510, 516-17 (1979). Even a determination of state law made by an intermediate appellate court must be followed and may not be "'disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.'" Hicks, 485 US at 630 n 3 (quoting West v American Telephone & Telegraph Co, 311 US 223, 237-38 (1940)). A federal court may, however, re-examine a state court's interpretation of its law if that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue. Mullaney v Wilbur, 421 US 684, 691 n 11 (1975).
Petitioner does not and cannot cite to any evidence either that the California Supreme Court would decide this matter differently or that the California Court of Appeal's decision was a subterfuge to evade consideration of a federal issue. The California Supreme Court denied petitioner's petition for review from the decision on direct appeal and later denied petitioner's habeas petition. Had the California Supreme Court wanted to overturn the California Court of Appeal's analysis of the state law at issue, presumably it could have done so, either on direct or collateral review of petitioner's case. There is also no evidence (nor does petitioner even assert) that the state court was engaged in an obvious subterfuge to avoid consideration of a federal issue. Mullaney, 421 US at 691. Accordingly, petitioner's claim that the state court interpretation of the vandalism was in error must be denied.*fn6
The California Court of Appeal also specifically addressed petitioner's claim of instructional error.
Wallace argues the special instruction on vandalism prejudiced him. The Attorney General argues the instruction correctly states the law. The instruction informed the jury:
"No act of vandalism of community property committed by one who has a property interest in the property is rendered less criminal by reason of that ownership interest. [¶] In the crime charged in Court One, Vandalism, the fact the defendant had or may have had an ownership interest in the real or personal property that was destroyed, damaged or defaced is not a defense and does not relieve him of responsibility for the crime."
First, on the premise only "a civil remedy in equity" for "breach of fiduciary duty" lies to redress harm by a spouse to community personal property because the law grants each spouse a "like absolute power of disposition" of community personal property "as the spouse has of the separate estate of the spouse" * * *, Wallace argues the special instruction improperly informed the jury his ownership interest was "no defense." Implicit in his premise is the shocking notion that each spouse has carte blanche to deface, damage, and destroy the community personal property estate, as he or she wishes, and that the criminal law offers no remedy to society or the other spouse. Our holding that a spouse can be guilty of vandalizing community property and the other spouse's separate property inside the marital home vitiates his premise. For want of a valid premise, his argument fails.
Second, on the premise the loss to each spouse from vandalism to community property is only half the total loss, Wallace argues that informing the jury vandalism by a spouse to community property is no "less criminal by reason of that ownership interest" could have induced a felony verdict for misdemeanor conduct if the total loss were less twice the felony threshold of $400. * * * An expert witness testified to over $9,000 of damage to the house and over $6,000 of damage to the furniture and furnishings. Whether by evidence of reasonable cost of repair or by inference of diminution in market value, the total loss was easily twice the felony threshold of $400. (See People v Yanez (1995) 38 Cal App 4th 1622, 1626-1627; § 594, subd (B)(1).) On that record, error, if any, was harmless. (People v Watson (1956) 46 Cal. 2d 818, 836.) The record refutes his argument, so his premise is moot.
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle, 502 US at 71-72. To obtain federal collateral relief for errors in a jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id at 72; Cupp v Naughten, 414 US 141, 147 (1973). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Donnelly v DeChristoforo, 416 US 637, 643 (1974) (quoting Cupp, 414 US at 146). The instruction "may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 US at 72 (quoting Cupp, 414 US at 147). In other words, the district court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire process. See United States v Frady, 456 US 152, 169 (1982) (citing Henderson v Kibbe, 431 US 145, 154 (1977)).
A determination that there is a reasonable likelihood the jury has applied the challenged instructions in a way that violates the Constitution establishes only that a constitutional error has occurred. Calderon v Coleman, 525 US 141, 146 (1998). If constitutional error is found, the court also must determine the error had a substantial and injurious effect or influence in determining the jury's verdict before granting habeas relief. Id (citing Brecht, 507 US at 637).
Here, petitioner does not demonstrate that the state court's decision was an unreasonable application of United States Supreme Court precedent, or an unreasonable determination of the facts. 28 USC § 2254(d). As the court has already discussed supra, a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. Bradshaw, 546 US at 76 (2005). Given that the state court's interpretation of the state law at issue regarding ownership interest as a potential defense did not run afoul of any clearly established United States Supreme Court law, petitioner cannot show that the jury instruction stating that law "so infected the entire trial that the resulting conviction violated due process." Cupp, 414 US 141. Accordingly, his claim must be denied.
In Ground 9, petitioner also challenges the California Court of Appeal's interpretation of the vandalism statute. Here, he maintains that the state court unreasonably expanded the statute at issue, in violation of the Ex Post Facto Clause, the Supremacy Clause and due process. The California Supreme Court denied this claim, which petitioner raised in his state habeas petition, on the merits in a summary opinion.
The United States Constitution prohibits the federal government and the states from passing any "ex post facto Law." US Const, Art I, § 9, cl 3 (federal government); Art I, § 10, cl 1 (states). These clauses prohibit the government from enacting laws with certain retroactive effects: any law that (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime or makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than the punishment authorized by law when the crime was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed. Stogner v California, 539 US 607, 611-612 (2003); Carmell v Texas, 529 US 513, 519-538 (2000). The Ex Post Facto Clauses are designed to prevent manifestly unjust and oppressive retroactive effects.
In applying the ex post facto prohibition of the Federal Constitution to state laws, a federal court accepts the meaning ascribed to them by the highest court of the state. Murtishaw v Woodford, 255 F3d 926, 964-665 (9th Cir 2001). But when their meaning is thus established, the issue of whether there has been an ex post facto violation is a constitutional question to be determined by the federal court. Id at 965.
Even though the Ex Post Facto Clause applies only to the legislative branch of government, there is a due process counterpart which prevents retroactive enlargement of the reach of criminal statutes by judicial interpretation. Rogers v Tennessee, 532 US 451, 455-456 (2001); Poland v Stewart, 117 F3d 1094, 1099 (9th Cir 1997). Retroactivity will not be at issue, however, where a state supreme court's interpretation of a statute after the defendant's conviction "merely clarified" the statute as properly interpreted at the time of the conviction. See Fiore v White, 531 US 225, 226 (2001).
Due process protects against judicial infringement of the right to fair warning that certain conduct will give rise to criminal penalties. Webster v Woodford, 369 F3d 1062, 1069 (9th Cir 2004) (discussing Bouie v City of Columbia, 378 US 347 (1964)). A judicial construction will run afoul of Bouie only if it "indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers v Tennessee, 532 US 451, 457 (2001) (internal quotations omitted). Bouie is not violated unless judicial construction of a criminal statute represents a "radical and unforeseen" departure from former law. Webster, 369 F3d at 1069.
The court has conducted an independent review of the record and finds that the state court's summary dismissal of this claim was not objectively unreasonable under clearly established federal law. See Delgado, 233 F3d at 982. Prior to petitioner's trial, the California Court of Appeal had already held that the vandalism statute applied to community property "on the rationale that the 'essence of the crime is in the physical acts against the ownership interest of another, even though that ownership is less than exclusive.'" Opinion at 4 (citing Kahanic, 196 Cal App 3d at 466). And as discussed in detail supra, the California Court of Appeal conducted an extensive analysis of the existing law in California and laws from other jurisdictions before deciding to "broaden our holding in Kahanic to embrace the emerging rule imposing criminal liability on ...