FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the constitutionality of his 2000 conviction for second degree murder and two firearm charges. He contends that (1) his Sixth Amendment right to effective assistance to counsel was denied because his trial counsel failed to conduct adequate pre-trial investigation and failed to present material evidence at the hearing on petitioner's motion for a new trial; (2) his Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process were violated because a witness perjured himself on the witness stand during trial; (3) his Sixth Amendment rights to a fair trial and an impartial jury and his Fourteenth Amendment right to due process were violated because a juror lied during voir dire and introduced extra-judicial information into the deliberations; and (4) his Sixth Amendment right to a fair trial and his Fourteenth Amendment right to due process were violated because the district attorney failed to disclose favorable evidence during discovery and vouched for the credibility of the witness who perjured himself.*fn1 Upon careful consideration of the record and the applicable law, the undersigned finds that petitioner's application for habeas corpus relief must be denied.
In 2000, a jury found petitioner guilty in San Joaquin County Superior Court of second degree murder and two firearm charges. Pet. at 2; Answer at 1-2. As a result, petitioner was sentenced to a state prison term of forty years to life with the possibility of parole. Pet. at 2; Answer at 1.
Petitioner appealed his convictions and sentence to the California Court of Appeal for the Third Appellate District. Pet. at 3; Answer, Ex. A. However, on November 21, 2001, the appellate court denied petitioner relief and affirmed his conviction and sentence. Pet. at 3; Answer, Ex. B. Petitioner then filed a petition for review in the California Supreme Court, which was denied on January 29, 2002. Pet. at 3; Answer, Exs. C, D. On November 22, 2002, petitioner filed a petition for writ of habeas corpus before the California Supreme Court; the petition was denied on May 14, 2003. Answer, Exs. E, F. Petitioner's federal habeas petition was received for filing by this court on July 15, 2003.
Although the accounts of the eyewitnesses vary in some respects, it is undisputed [petitioner] shot the victim in the forehead at close range. He and his witnesses contended this was uncharacteristic behavior, and arose out of his perception of the need to defend himself or another.
According to [petitioner], he agreed to accompany Simon White on a ride to Modesto on the afternoon of December 24, 1998. Before departing Stockton, Mr. White stopped at the residence of Kuleza "Kool-Aid" Vega. As this was near his father's apartment, [petitioner] decided to visit his father. [Petitioner] went up to his father's residence, but no one was home. When [petitioner] got back to the front of the building, he did not see Mr. White. Uneasy about the neighborhood, he retrieved a communally available handgun of which he was aware from its covert niche behind the building. He then saw Mr. White standing by his car near the rear entrance to the apartment complex. [Petitioner] rejoined Mr. White. They drove a short distance to Mr. Vega's residence and parked. Mr. White got out of the car and began talking with two men a couple of feet from the open driver's door. [Petitioner] was not paying attention until he noticed one of the men pull a knife from his pocket. [Petitioner] got out of the car, drawing his weapon. He asked the man holding the knife to leave. The man started walking toward him. When the man was about four to five feet away, [petitioner] told him to stop. [Petitioner] fired his weapon without aiming or intending to kill the man. He asked Mr. White to drive away. They proceeded to Modesto.
Mr. White testified in exchange for prosecution on lesser charges. He and [petitioner] had shared some marijuana earlier in the morning. [Petitioner] called him later that day and asked for a ride to his father's apartment. Mr. White agreed, because he wanted to give a ride to Mr. Vega, who lived in that vicinity. When they arrived at the neighborhood, they parked. Two men approached them. Mr. White knew one of them (Pete Rangel); the victim was the other. The two men asked if Mr. White and [petitioner] knew where to obtain drugs. [Petitioner] said he could get some around the corner. The two men got in the car with them and the four of them drove to another location. As they were driving, Mr. White saw Mr. Rangel's hand reach into the front seat, but he did not see any cash. After they parked, Mr. White walked to Mr. Vega's apartment, but no one was home. When he returned, [petitioner] was arguing with the two men, Mr. Rangel urging [petitioner] to return something to the victim. Mr. White got into his car to depart, leaving [petitioner] to visit with his father. As he backed up, he saw Mr. Vega and his girlfriend in another car with an older man and another passenger. He then heard the sound of gunfire. He turned and saw a gun in [petitioner's] hand. Mr. White never heard the victim threaten them, and never saw a weapon in the victim's possession. The victim dropped to the ground. [Petitioner] walked quickly back to Mr. White's car and asked him to drive off. [Petitioner] got out of the car a short distance away. Mr. Rangel testified he and the victim decided to get some drugs as party favors. They walked across the street and saw Mr. White, whom he knew. Mr. White and [petitioner] said they could obtain the goods for them. They got in the car. The victim gave one of them $20; Mr. Rangel believed it was Mr. White. All the men got out of the car. When no drugs were forthcoming, the victim began demanding his money back. [Petitioner] said, "Do you want me to pop a cap on you?" He then pulled a gun from his pocket and shot the victim. The victim did not have any sort of weapon, and had not threatened [petitioner] or Mr. White.
Gerald Spinks was familiar with [petitioner] from watching him play basketball. Shortly before the shooting, he had met Mr. Vega while evangelizing at the welfare office. Mr. Vega noted that he and his pregnant girlfriend were facing eviction. Mr. Spinks offered his help, and the next day Mr. Vega asked for a ride to look at another residence. When they returned and pulled into the parking lot, Mr. Spinks noticed what appeared to be a drug transaction by a car. Mr. White was standing between his door and the car. Two men were standing in front of him. [Petitioner] was sitting in the passenger seat. The victim had his hand behind his back holding what looked like some kind of nutcracker, and was demanding something from Mr. White. Then [petitioner] got out of the car and shot the victim. [Petitioner] got back into the car and told Mr. White to drive off. The car pulled out of the parking lot.
Mrs. Spinks did not pay attention to the crowd around the car, beyond noticing that the victim was holding his hand behind his back. After he was shot, she saw something silvery in that hand as he fell to the ground.
Mr. Vega's girlfriend was familiar with the people in the group by the car except for [petitioner]. She noticed the victim arguing with [petitioner] (while Mr. White was talking on his cellphone) and shaking his head while holding his hand behind his back. She could see something silver in his hand.
When paramedics and police arrived at the scene, they found a multi-purpose tool beneath the victim. A two and a half-inch knife blade was extending from the tool when an officer picked it up.
I. Standards of Review Applicable to Habeas Corpus Claims
Pursuant to 28 U.S.C. § 2254, a person in custody under a state court judgment may apply for a writ of habeas corpus "on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because petitioner filed his application for a writ after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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.
Id. § 2254(d) (referenced herein as § 2254(d) or AEDPA); 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).
Under the "contrary to" clause of § 2254(d)(1), a writ may be granted if the state court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases, 'or if it confronts a set of facts that are materially indistinguishable from a decision' of the Supreme Court and nevertheless arrives at a different result." Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). Under the "unreasonable application" clause, a writ may be granted if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413.
In determining whether the state court's decision is contrary to, or an unreasonable application of, clearly established federal law, a federal court looks to the last reasoned state court decision addressing the merits of the petitioner's claim. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If, however, there is no reasoned state court decision, the district court must independently review the record to determine whether the state court's ruling was contrary to or an unreasonable application of clearly established federal law. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000).
A. Ineffective Assistance of Counsel Petitioner contends that his Sixth Amendment right to effective assistance of counsel was denied because his trial counsel failed to conduct adequate pre-trial investigation into the background of prosecution witness Gerald Spinks. Pet. at 5. Petitioner contends that had his trial counsel properly investigated Mr. Spinks, he would have discovered that although Mr. Spinks testified at trial that he was a minister at West Coast World Outreach Church, he was not actually a minister. Id. at 5A. Petitioner argues that because the jurors believed Mr. Spinks was a minister, they gave his testimony more weight than they otherwise would have. Traverse at 6. In this regard, petitioner submits declarations from jurors Jones and Gant, averring that they would have viewed the case differently if they had known that Mr. Spinks was not employed as a minister. Pet., Exs. A, B. Juror Gant also avers that she "voted for conviction based upon the testimony of Gerald Spinks." Id., Ex. B. Petitioner further contends that he was denied effective assistance of counsel because his trial counsel failed to submit those declarations in support of his motion for a new trial. Id. at 5A.
Respondent counters that the state Supreme Court's rejection of petitioner's ineffective assistance of counsel claim was not contrary to or an unreasonable application of clearly established United States Supreme Court precedent and that the claim therefore does not warrant federal habeas relief. Answer at 15-19. Respondent argues that it was reasonable for petitioner's trial counsel not to expend additional resources and time investigating the details of Mr. Spinks's background because he had no reason to question whether Mr. Spinks was a minister. Id. at 16. Respondent further argues that counsel's failure to investigate was not prejudicial to petitioner. Id. at 16-17. Respondent contends that the declarations of jurors Jones and Gant are inadmissible under Federal Rule of Evidence 606(b), but that even if they are admissible, they do not establish a reasonable likelihood that but for counsel's failure to investigate Mr. Spinks's background and failure to impeach Mr. Spinks's testimony at trial, petitioner's trial would have had a different result. Id. at 17. As respondent notes, the declarations only state that the two jurors would have viewed the evidence "differently" if they had known Mr. Spinks was not a minister -- they do not state that such information would have changed their ultimate decision regarding petitioner's guilt. Id. Moreover, respondent argues, the two jurors did not hear any of the evidence that was presented at petitioner's new trial hearing, including evidence regarding Mr. Spinks's role as a community "minister." Id. Respondent contends that even assuming that the jury would have accorded Mr. Spinks less credibility had they known he was not an ordained minister, there is no likelihood of a different result because the only real issue at trial was whether petitioner acted in self-defense after the victim came at him with a knife (as petitioner contended), and Mr. Spinks's testimony that he did not see the victim come at petitioner with a knife was corroborated by the testimony of Simon White, Pete Rangel, Antoinette Buckley, and Robin Spinks. Id. at 18.
Petitioner first raised the issue of Mr. Spinks's allegedly false testimony in his state court motion for a new trial. Petitioner argued that he should be granted a new trial based on newly discovered evidence that a key prosecution witness (Mr. Spinks) enhanced his credibility in the eyes of the jury by falsely claiming to be the minister of an organized church. Clerk's Tr. on App. ("CT") at 405-409; Reporters' Tr. on App. ("RT") at 1012-1018. At the hearing on the motion, petitioner called to the stand Kenneth Purkiss, an administrator and associate pastor for the West Coast World Outreach Church (the church at which Mr. Spinks stated at trial he was a minister). RT at 960. Mr. Purkiss testified that Mr. Spinks attended the church off and on for four or five years but was never a minister and never had a paid position with the church. Id. at 961-62. Mr. Purkiss also testified that although the church has no formal position of "minister," the church does encourage its members to minister to others. Id. at 965-67. According to Mr. Purkiss, Mr. Spinks had told him on two occasions that he was doing "street ministry." Id. at 969.
Petitioner also called to the stand private investigator Dan Randolph, who interviewed Mr. Spinks in preparation for petitioner's trial. Id. at 970. According to Mr. Randolph, Mr. Spinks told him that the West Coast World Outreach Church was his church; when Mr. Randolph asked Mr. Spinks if he preferred to be addressed as reverend or minister, Mr. Spinks said that he preferred the term minister. Id. at 971. Mr. Randolph therefore surmised that Mr. Spinks was a paid church staff member and made no further effort to investigate his background prior to petitioner's trial. Id. at 970-75.
The trial court denied petitioner's motion for a new trial on the grounds that (1) "Mr. Spinks was never anything other than accurate with the Court in terms of his testimony about what he was doing and what church he was associated with"; (2) petitioner could have discovered the evidence regarding Mr. Spinks before trial if he had exercised reasonable diligence; and (3) there was no reasonable probability of a different result had the information been discovered earlier. Id. at 1012-18.
On appeal, petitioner again did not directly argue ineffective assistance of counsel but instead argued that the trial court improperly denied his motion for a new trial on the newly discovered evidence claim. Answer, Ex. A at 53-72. The California Court of Appeal issued a reasoned decision rejecting the claim as follows:
At trial, the prosecution had asked Gerald Spinks whether he had any involvement in the Stockton community "in any aspects." The witness responded that he was a "minister at West Coast World Outreach Church."
In his motion for new trial, [petitioner] claimed he had newly discovered evidence that Mr. Spinks was not in fact a minister of the church. A defense investigator had spoken with Mr. Spinks at his home before trial (in June 1999); when asked, Mr. Spinks stated he preferred to be addressed as "minister." From this, along with Mr. Spinks' comment that the West Coast World Outreach Church was "his church," the investigator assumed Mr. Spinks was the pastor. The investigator did not make any further inquiry at the church or otherwise about Mr. Spinks. However, after the verdict, the investigator spoke with an administrator (and associate pastor) at the church, who told him Mr. Spinks was not in any position of authority (whether paid or voluntary) at the church. The assistant pastor explained there was no position in the church labeled "minister" as such, although the church encouraged all members to evangelize and Mr. Spinks told him on a couple of occasions that he was engaged in "street ministry." After a newspaper identified him as a pastor, Mr. Spinks told the associate pastor this was a misunderstanding.
The trial court denied the motion on three bases. First, it did not believe Mr. Spinks misidentified himself, because the question posed to him at trial asked about his activities in the Stockton community and he was indeed acting as a street minister for the church. Next, it found a lack of diligence on [petitioner]'s part in investigating the background of what it termed a "key witness." Finally, it did not believe it was reasonably probable that presenting this new "impeachment" evidence would lead to a different result. We agree with all three grounds.
In a church with no formal title of "minister," we do not find it inaccurate for a parishioner that evangelizes at a welfare office to describe himself as a minister of his church. This is among the colloquial usages of the term to describe one as acting as an agent of a religious movement. [Petitioner] does not offer any justification for failing to investigate the readily available background of Mr. Spinks before trial, thus we do not find an abuse of discretion in this part of the ruling. Although he notes the church first became aware during the trial of the sobriquet by which Mr. Spinks chose to be known, the church did not alert the defense about this. Rather, the investigator simply had finally taken the step omitted before trial of speaking with church representatives.
Finally,... there is nothing in the testimony of Mr. Spinks harmful to [petitioner] even as magnified with the presumably enhanced credibility adhering to one perceived as an ordained minister. From the outset, Mr. Spinks indicated a positive opinion of [petitioner], describing the "pleasure" of speaking with him in the past and watching him play basketball. He in fact corroborated [petitioner]'s theory of self-defense, describing an agitated victim holding a possible weapon behind his back. Mr. Spinks otherwise concurred with the other witnesses in failing to notice that the victim ever advanced on [petitioner] despite warnings.
In short, even if we were to accept the proposition that a self-designated "minister" who evangelizes has less credibility than that of ordained clergy, it is [petitioner]'s own fault he failed to discover and thereby clarify Spinks' status with his church before trial and it is ...