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Rezaei v. Sisto

March 4, 2010

NIMA REZAEI, PETITIONER,
v.
D.K. SISTO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John L. Weinberg United States Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Petitioner is a California prisoner who is currently incarcerated at the California State Prison - Solano, in Vacaville, California. (See Docket 1 at 1.) He was convicted by a jury of attempted second degree murder and personal use of a firearm causing great bodily injury in the Sacramento County Superior Court. (See Dkt. 11 at 3; Dkt. 16, 2 Clerk's Transcript 342-43.) Petitioner was sentenced to prison for nine years for the attempted murder conviction, and twenty-five-years-to-life for the firearm enhancement. (See Dkt. 16, 2 CT 418.) He has filed a petition under 28 U.S.C. § 2254 seeking relief from his current confinement. (See Dkt. 1.) Respondent has filed an answer to the petition, together with relevant portions of the state court record, and petitioner has filed a traverse in response to the answer. (See Dkts. 11, 16, and 22.) The briefing is now complete and this matter is ripe for review. The Court, having thoroughly reviewed the record and briefing of the parties, recommends that petitioner's federal habeas petition be denied and this action dismissed with prejudice.

II. FACTUAL AND PROCEDURAL HISTORY

Petitioner was charged with the June 19, 2000, attempted murder of the victim, Delontae Martin, as described below. His initial trial resulted in a deadlocked jury, and the court declared a mistrial. (See Dkt. 16, Lodged Document 1 at 2.) Petitioner's second jury trial began in February 2003.

On direct review, the California Court of Appeal summarized the relevant facts adduced during petitioner's retrial as follows:

The victim and defendant (who were 18 or 19 years old at the time of the shooting) knew each other socially. . . . On the night of the shooting, the victim was sitting outside his apartment near American River College, around 11:20 p.m. Defendant walked up and asked if the victim wanted to go with him to try to pick up girls. The victim declined. Defendant turned to leave, but the victim asked for a ride to his brother's house. Defendant said yes. Defendant said his car was parked at another apartment complex, which did not strike the victim as unusual because defendant had friends there. The victim testified that, as they walked to the car, "We got deep into the driveway, and -- hmm, I took -- we was [sic] walking side by side, and I noticed that I was taking a step forward, and he took a step back. So I went to look to see, and what was the hold-up, and I got shot in the head." The victim [later testified that he] felt the gun tap him on the back of the head. When asked if he could tell how far away the shot was fired, the victim said, "It was right there, right behind. It was on me. As loud as it was, you could feel the impact. That's what drove me forward." The victim fell to the ground and saw an Adidas shoe -- which was what defendant was wearing (along with black jeans and a white sweater). The foot took a step, and the victim heard three more shots.

The victim was hit by three bullets -- one in the head and one in each arm. The bullet to the head apparently ricocheted off a rounded area of the skull and ended up in the victim's neck. . . . At trial, a criminalist testified the proximity of the ejected bullet cartridge casings . . . was consistent with the shooter being in close proximity to the victim, within about a five-foot radius. He concluded the shots were fired from a distance greater than two feet from the victim.

A forensic pathologist testified . . . the gunshot to the head was not fired from a range between an inch and two feet . . . [and] he opined the gun was not closer than about 14 inches when the gunshots to the arms were fired.

A tenant of an apartment adjoining the crime scene testified he heard gunshots, looked outside his window, and saw a person running who appeared to have dark clothes. The witness said the clothes could have been "lighter than dark," but he did not notice a white sweater.

A sheriff's detective testified the victim said it was defendant who shot him. The detective looked for but was unable to locate defendant or his mother, who had moved. In December 2001, the sheriff's department learned defendant was in San Diego. The tip came from Lauren Woods, who had become friendly with defendant in San Diego and was seeking a restraining order against him for harassment.

Lauren Woods (age 17 at the time in question) testified she met defendant at a health club in the summer of 2000 and became friends with him, but not boyfriend-girlfriend. He told her he moved to San Diego because "he and his boys rolled on these fools and he caught a case." She took that to mean he had participated in something bad. Lauren remained friends with defendant. Defendant expressed a romantic interest, but she was not interested. On Christmas Eve 2001, he showed up at her workplace and said he wanted to marry her. He alternated between crying and yelling. He grabbed her and pushed her. He said he was going to change his life and thought God was blessing him. She said if he was right with God, he should turn himself in. He looked at her as if she were crazy. She said she thought he killed someone. He said, "I didn't kill somebody. I shot somebody in the back of the head, but I didn't kill him."

At the time of trial, [defendant] was working at Action Wireless and attending Sacramento State University. [Defendant testified that] [h]e briefly stayed at the victim's apartment but moved out because the victim had visitors who smoked marijuana and played with guns. [He further testified that] [a]t [a] barbecue [in April 2000], defendant did not drink alcohol or smoke marijuana. He accidentally spilled the victim's beer while trying to persuade the victim to stop drinking. The victim wanted to fight, but defendant did not want to fight. [A week or so later, the victim and defendant apologized to each other. . . .] Regarding the shooting, defendant testified the victim chose the route to defendant's car. As they were walking side-by-side down the path, defendant heard a noise. As he started to look over his shoulder, he heard a loud pop. He thought it might be a gunshot, but he was unsure. He was afraid. He crouched and ran. Although there was a fire station right there, defendant did not seek help but instead got into his car and drove away, because his car was "right there," and he was scared and "didn't really know the circumstances of the fire department."*fn1 The next day, defendant tried to check on the victim but did not locate him. Defendant was afraid the victim was mad at being left behind by defendant. Defendant was afraid of the victim because on prior occasions the victim and his friends talked about being gang members (Crips) from South Central Los Angeles and if "one fight[s], we all fight."*fn2 When defendant learned the victim was looking for him, defendant moved to San Diego and stayed with his aunt. Defendant transferred colleges and jobs. He was not trying to conceal himself from the police. He did not shoot the victim.

When asked by the prosecutor in cross-examination, defendant denied shooting the victim. Defendant admitted he visited the apartment complex adjoining the crime scene during trial, on the day after the tenant testified. Defendant did not recall looking into the tenant's window. Defendant admitted he asked the apartment manager for a map, but defendant did not recall whether he told the manager he was looking for an apartment. Outside the presence of the jury, defense counsel objected [that] the questioning was an irrelevant attempt to suggest defendant was trying to harass or influence a witness who had already testified. The court said the question whether defendant lied to get the map went to his credibility.

On redirect examination, defendant testified he told the apartment manager not that he wanted to rent an apartment, but that he was "interested in looking" at the apartments. Defendant wanted the map in order to label the walkways and see if someone could have seen something.

In the prosecution's rebuttal case, the apartment manager who gave the map to defendant testified that defendant asked if there were any apartments for rent.

Prosecution rebuttal witnesses testified that on occasions other than the day of the shooting, they saw defendant smoke marijuana and talk about having a gun. (Dkt. 16, LD 1 at 2-7.) (footnotes in original)

During jury deliberations, the jury asked the court reporter to read back the transcript of petitioner's cross-examination several times. (See id., 2 CT at 327-29 and 331-34; id., 6 Reporter's Transcript at 1743.) When the reporter came out of the jury room after the jury's second request to hear the testimony, "she expressed surprise [to the trial court] . . . and indicated that a juror had continually asked her to keep reading because he knew somewhere [petitioner] had said he shot his friend, he had shot him in the head. And [the trial court] said [to the reporter], You are kidding." (Id., 7 RT at 1901.) After the jury announced it had reached an impasse in deliberations, the trial court held a meeting outside the presence of the jury in which defense counsel objected to the read back previously given to the jurors on the grounds that the transcript of petitioner's cross-examination was inaccurate. (See id., 2 CT at 332 and 335; 6 RT at 1752.) The trial court, however, denied defense counsel's request "to change the record and have anything read back to the jury." (Id., 6 RT at 1750-53.)

The following day the jury found petitioner guilty of attempted murder, and also found true the allegations that petitioner "personally used a firearm," "intentionally and personally discharged a firearm . . . thereby proximately causing great bodily injury," and "personally inflicted great bodily injury" within the meaning of California Penal Code §§ 12022.5(a)(1), 12022.53(d), and 12022.7(a). (Id., 2 CT 343.) The jury, however, did not find beyond a reasonable doubt that petitioner committed the offense "willfully and deliberately with premeditation. . . ." (See id., 2 CT 342.)

The trial court sentenced petitioner to nine years for the attempted murder conviction and twenty-five-years-to-life for personally and intentionally discharging a firearm and causing great bodily injury within the meaning of Cal. Penal Code § 12022.53(d). (See id., 2 CT at 418; id., LD 7 at 2; id., 7 RT at 1927.) The trial court did not impose a sentence based upon the other two enhancements because §12022.53(f) prohibits the court from imposing those enhancements "on a person in addition to an enhancement imposed pursuant to subdivision (d)." Cal. Penal Code § 12022.53(f). At the post-trial hearing, the trial court denied defense counsel's motion to settle the record, as well as his related motion for a new trial, and motion for release of jury information so the defense could call jurors as witnesses to "perfect" the transcript of petitioner's cross-examination. (See Dkt. 16, 7 RT at 1820-21 and 1862.)

Petitioner, through counsel, appealed to the California Court of Appeal, which affirmed his conviction and sentence in a reasoned decision. (See id., LD 1 at 8, 37, 43, 47, and 50.) Petitioner then filed a petition for rehearing, which was summarily denied. (See id., LD 2 and 3.) Petitioner's petition for review in the California Supreme Court was also denied without comment. (See id., LD 4 and LD 5.)

Petitioner's first habeas corpus petition, filed in the California Court of Appeal, was denied because his direct appeal was still pending before that court. (See id., LD 7 at 2, Exhibit N.) After the California Court of Appeal denied petitioner's direct appeal, petitioner filed a habeas petition in the Sacramento County Superior Court. (See id., LD 6.) Although this petition was also initially "denied for failure to allege petitioner's custodial location and the warden's identity," the Sacramento County Superior Court granted petitioner's motion for reconsideration as soon as petitioner remedied these deficiencies. (Id. at 9.) The superior court ultimately denied each of petitioner's claims for habeas relief on the merits. (See id., LD 6 at 1-7.) Petitioner's subsequent habeas petitions filed in the California Court of Appeal and California Supreme Court were both denied without comment. (Id.,LD 9; see id., LD 8; see Dkt. 11 at 4.)

III. FEDERAL CLAIMS FOR RELIEF

Petitioner now seeks federal habeas review of his conviction and sentence. He asserts that the grounds for relief alleged in his federal habeas petition were previously presented to the California Supreme Court in either his direct appeal or state habeas petition. (See Dkt. 1 at 9.) Specifically, petitioner presents the following claims for relief:

(1) Petitioner was deprived of due process under the Fifth Amendment of the federal Constitution by the prosecution's failure to disclose Carl Holmes' assaultive efforts to find out who had shot his cousin Martin during the previous evening; and by the prosecutor's false and misleading argument to the jury that Carl Holmes was only looking for petitioner because "it was immediately known in the entire neighborhood [petitioner] did the shooting";

(2) Petitioner was deprived of his Sixth Amendment right to present evidence in his defense by the trial court's exclusion of a good character witness, and was deprived of the effective assistance of counsel by counsel's failure to investigate and proffer a far more extensive roster of good character witnesses as to petitioner's honesty and non-violence;

(3) Petitioner was deprived of the effective assistance of counsel by counsel's failure to investigate and obtain petitioner's employment records for the date of the shooting;

(4) Petitioner was deprived of the effective assistance of counsel by counsel's failure to call Carl Holmes to confirm that he and Martin were drug-dealing Crips from Southern California;

(5) Petitioner was deprived of due process, effective assistance of counsel, and his right to confrontation by the trial court's erroneous refusal to correct an apparently incriminating court reporter error during jury deliberations, by the prosecutor's bad faith abandonment of his initial acknowledgment that petitioner had not made an admission during cross-examination, and by the ineffective assistance of defense counsel in failing to adequately defend against the court reporter error;

(6) Petitioner was deprived of due process by the failure of the prosecution to disclose the prior criminal prosecution of prosecution witness Shawntae Smith;

(7) [Petitioner] was deprived of due process, a fair trial, and his right to compulsory process by the trial court's exclusion of defense rebuttal witnesses, coupled with the admission of marginal impeachment evidence against [petitioner; and]

(8) [Petitioner] was deprived of due process and his right to testify by the trial court's unreasonable restrictions on his testimony. (Id. at i-iii.)

Respondent argues that petitioner is not entitled to relief because the state courts' rejection of petitioner's claims was not contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court. (See Dkt. 11 at 1-58.) Alternatively, respondent contends that petitioner's claims are without merit. (See id. at 2.)

IV. STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this petition because it was filed after the enactment of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Because petitioner is in custody of the California Department of Corrections pursuant to a state court judgment, 28 U.S.C. § 2254 provides the exclusive vehicle for his habeas petition. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) (providing that § 2254 is "the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment.."). Under AEDPA, a habeas petition may not be granted with respect to any claim adjudicated on the merits in state court unless petitioner demonstrates that the highest state court decision rejecting his petition was either "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." 28 U.S.C. § 2254(d)(1) and (2).

As a threshold matter, this Court must ascertain whether relevant federal law was "clearly established" at the time of the state court's decision. To make this determination, the Court may only consider the holdings, as opposed to dicta, of the U.S. Supreme Court. See Williams v. Taylor, 529 U.S. 362, 412 (2000). It is also appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999). In this context, Ninth Circuit precedent remains persuasive but not binding authority. See Williams, 529 U.S.at 412-13; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

The Court must then determine whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. At all times, a federal habeas court must keep in mind that it "may not issue the writ simply because [it] 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 [objectively] unreasonable." Id. at 411.

In each case, the petitioner has the burden of establishing that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). To determine whether the petitioner has met this burden, a federal habeas court looks to the last reasoned state court decision because subsequent unexplained orders upholding that judgment are presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007).

When a state court reaches a decision on the merits but provides no reasoning to support its conclusion, we must independently review the record to determine whether the state court erred in its application of Supreme Court law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). See also Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002) (holding that when there is an adjudication on the merits but no reason for the decision, the court must review the complete record to determine whether resolution of the case constitutes an unreasonable application of clearly established federal law). Thus, while our review of the record will be conducted independently in this case with regard to several of petitioner's claims, we continue to show deference to the state courts' ultimate decision. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Finally, AEDPA requires federal courts to give considerable deference to state court decisions, and state courts' factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Federal courts are also bound by a state's interpretation of its own laws. See Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).

V. EXHAUSTION

Respondent concedes in his answer to the petition that, with the exception of petitioner's claim that the prosecutor knowingly relied upon false evidence to obtain a conviction when he "reversed his position" that the reporter's transcript was wrong, petitioner has properly exhausted his grounds for federal habeas relief. (See Dkt. 11 at 1-2.) Specifically, respondent argues that petitioner first presented his false evidence claim in his original petition for writ of habeas corpus filed in the California Supreme Court, which was denied without comment. (See Dkt. 1 at 46-50; Dkt. 11 at 4;Dkt. 16, LD 4.) Respondent asserts that petitioner's presentation of this claim "for the first and only time in a procedural context in which its merits will not be considered unless there are special and important reasons" did not constitute "fair presentation." (Dkt. 11 at 47.) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989) and Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994)). As a result, respondent contends that the California Supreme Court's "silent denial of the state habeas petition did not suffice to exhaust Petitioner's -- strictly appellate-record-based -- claim that the prosecutor committed misconduct and offered false evidence." (Id.)

In fact, a review of the record before this Court reveals that several of the claims set forth in petitioner's federal petition were presented for the first and only time in petitioner's habeas petition filed in the California Supreme Court. As discussed below, however, respondent's argument that such claims have not been properly exhausted is unavailing.

It is undisputed that "on petition for review the [California] Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal." Cal. Rules of Court Rule 8.500(b) and (c). See also Hill v. California Board of Prison Hearings, 2007 WL 2318976 (N.D. Cal. 2007) (holding that a petitioner's federal claim, raised only in a petition for review to the California Supreme Court and denied without comment, was not "fairly presented" to the state courts and was therefore unexhausted). Because all California courts, including the California Supreme Court, have original habeas jurisdiction, however, a petitioner may properly exhaust a claim by raising it for the first time in an original petition for writ of habeas filed with the California Supreme Court, even if the habeas petition is denied without comment. See Cal. Const. Art. 6, § 10. See also Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (holding that "[t]here is now no reason to suppose that a postcard denial without opinion is indicative of anything but a decision on the merits of the petition, except where a citation in the order tells us so.").

Thus, contrary to respondent's argument that petitioner did not "fairly present" his false evidence claim to the state courts, petitioner properly exhausted this claim by presenting it in his original petition for writ of habeas corpus filed with the California Supreme Court. Accordingly, petitioner has properly exhausted all of the claims set forth in his federal habeas petition, and this Court will consider the merits.

VI. DISCUSSION

A. Claims Regarding Holmes' Efforts to Discover Who Shot the Victim

Petitioner argues that he was denied due process under the Fifth Amendment to the U.S. Constitution when the prosecution failed to disclose before trial the fact that the victim's cousin, Carl Holmes, initiated a violent encounter with three individuals eighteen hours after the victim was shot in an attempt to discover the identity of the shooter, and later pled guilty to charges of assault with a deadly weapon and robbery as a result. (See Dkt. 1 at 10-13.)

Petitioner asserts that this information was "highly material" because it "would have conclusively rebutted Martin's statement to the police and his trial testimony that petitioner was the perpetrator." (Id.) He explains, "Obviously, if Martin had identified petitioner as the perpetrator to his cousin Holmes, Holmes would have been demanding to know . . . where he could find petitioner, not who the perpetrator was . . . [The victim] had ample opportunity to speak to Holmes during [the] 18-hour period [when the victim was hospitalized following the shooting] given that all hospital rooms have bedside phones available to the patients." (Id. at 11.) Finally, petitioner asserts that the prosecutor's argument that Holmes went looking for petitioner because "it was immediately known in the entire neighborhood [petitioner] did the shooting" was clearly false and misleading. (Id. at 13.)

In Brady v. Maryland, the U.S. Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). This duty to disclose evidence favorable to an accused applies even when the accused has not requested such evidence, and encompasses exculpatory evidence as well as evidence that could be used to impeach the government's witnesses. See United States v. Agurs, 427 U.S. 97, 107 (1976); United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Brady, 373 U.S. at 682. See also Harris v. Vasquez, 949 F.2d 1497, 1528 (9th Cir. 1990). Thus, "[t]here are three components of a true Brady violation: [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

The Sacramento County Superior Court, California Court of Appeal, and the California Supreme Court all rejected petitioner's Brady claim on habeas review. (See Dkt. 16, LD 6, 7, 8, and 9.) In the last reasoned state court decision to address this claim, the Sacramento County Superior Court addressed petitioner's claim in detail:

[Petitioner] first claims that the prosecution violated Brady v. Maryland . . . in failing to disclose to the defense at trial that 18 hours after the shooting, the victim's cousin Carl Holmes had initiated a violent encounter with Grady Jackson, Christopher Wilson, and Kyle H., during which Holmes demanded to know who had shot the victim. Petitioner claims that this showed that although the victim had already told police that petitioner was the shooter, that the victim was lying and that Holmes was trying to find out who the shooter was. Petitioner claims that Holmes was charged with offenses stemming from the incident, in Sacramento County Superior Court Case No. 00F05148, and that at the preliminary hearing Christopher Wilson testified that Holmes asked twice who had shot the victim, then pistol-whipped Jackson. Petitioner claims that Holmes pleaded guilty to the charges in May 2001, well before petitioner's trial. . . . Petitioner claims that the record in the Holmes case establishes that the victim did not tell Holmes that petitioner was his shooter but instead sent out Holmes to find out who the shooter was. Petitioner claims that had he known this information at the time of trial, he would have introduced it to "dramatically" impeach the testimony of the victim about the identity of petitioner as the shooter. In support, petitioner attaches a copy of the preliminary hearing transcript [in the Holmes case] in which Wilson testified that on June 19, 2000, at 6:00 p.m., Holmes asked Wilson twice who had shot Holmes's cousin or brother, then did not give Jackson a chance to respond and instead pulled out his gun and pistol-whipped Jackson . . . and in which an officer testified that Jackson had said that Holmes was trying to find out who had shot his brother Demonte or Delonta and that they got into an argument over that, that Holmes became really agitated because Holmes thought that Jackson knew something about who the suspect was who had shot his brother, then struck Jackson with a gun. . . .

The problem with petitioner's theory, however, is that he presents no reasonably available documentary evidence to show that Holmes had ever met up with the victim in this case, after the victim was shot but before Holmes committed his offenses against Jackson, Wilson, and Kyle H., or that the victim had ever spoken to Holmes at any time during this period. Nor does petitioner present the content of any such conversation. Thus, petitioner does not establish that the victim had sent out Holmes to find out who had shot the victim. Nor does petitioner establish that Holmes had ever heard that the victim had identified petitioner as the victim's shooter; if Holmes had no knowledge of whom had shot the victim, it would make sense that Holmes sought out Jackson, Wilson, and Kyle H., to try to find out who the shooter had been. Indeed, petitioner admits that his theory is only speculation, that the victim "must have" communicated with Holmes to direct Holmes to find out who the shooter was. Petitioner's allegation that the victim's "communication and conspiracy with Holmes to wreak private revenge upon the perpetrators . . . require[d] disclosure" is only speculation, and is not supported by any reasonably available documentary evidence.

Further, petitioner himself testified at trial that he had learned that the victim was looking for him, which prompted him to move to San Diego. This also belies petitioner's theory regarding Holmes.

Petitioner claims that the prosecutor added to the Brady error, by arguing to the jury that Holmes went out looking for petitioner the day after the shooting, once Holmes knew that petitioner was the shooter. Petitioner claims that was false. However, petitioner's evidence establishes only that Holmes went looking for the identity of the shooter on the day of the shooting. By the next day, it could well be that Holmes had heard that petitioner was the shooter, and petitioner does not show otherwise.

Petitioner fails to show that the evidence of [the Holmes case] was material to petitioner's [case]. No materiality being shown, Brady was not violated and the claim is denied (In re Bower (1985) 38 Cal.3d 865).

(Id., LD 6 at 1-3.)

The record before this Court confirms that the Sacramento County Superior Court's conclusion that petitioner failed to demonstrate a right to relief under Brady was consistent with federal law. As the superior court correctly observed, petitioner's claim is wholly based upon his unsupported assumption that the victim spoke with Holmes at the hospital or by telephone and asked Holmes to find out who shot him, a request which petitioner alleges resulted in Holmes' offenses. Petitioner has therefore failed to demonstrate that the prosecution violated petitioner's due process rights by failing to disclose evidence of Holmes' offenses and subsequent convictions, because this evidence was not "material" to his case. See Bagley, 473 U.S. at 676. Moreover, the superior court reasonably concluded that, even if defense counsel had attempted to impeach the victim at trial with evidence of the circumstances surrounding Holmes' offenses, there was no "reasonable probability" it would have changed the jury's verdict. See Brady, 373 U.S. at 682.

Petitioner has also failed to show that the prosecutor's statement during closing argument that Holmes went looking for petitioner as soon as he learned petitioner was the shooter because "it was immediately known in the entire neighborhood [petitioner] did the shooting," even if incorrect, would have resulted in the degree of prejudice which would entitle him to federal habeas relief in light of the substantial evidence of guilt adduced at petitioner's trial. (See Dkt. 16, 1 RT at 92-95, 118, 171-72, 203-04, 253-56; id., 2 RT at 555- 56; id., 5 RT at 1482-83.) See also Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (providing that habeas petitioners are "entitled to relief for trial error only if they can establish that 'actual prejudice' resulted.").

Based upon this record, the superior court reasonably concluded that petitioner has not demonstrated a right to relief. As a result, the state courts' denial of petitioner's claims was not contrary to clearly established federal law or basedupon an unreasonable determination of the facts.

B. Character Evidence Claims

1. Sixth Amendment Claim Regarding Character Evidence

Petitioner contends that his Sixth Amendment right to present evidence in his defense was violated by the trial court's exclusion of proffered testimony by petitioner's employer, Matthew Phillips, regarding petitioner's "good character on the job." (Dkt. 1 at 14.) Specifically, petitioner asserts that he has a federal constitutional right under Crane v. Kentucky to present "favorable, exculpatory evidence," which the trial court denied by "excluding the proffered evidence of good character for truthfulness and veracity." (Id. at 16.) See Crane v. Kentucky, 476 U.S. 683, 690 (1986). He further argues that the California Court of Appeal's denial of his claim on the basis of "an insufficient showing of prejudice" was "an unreasonable application of clearly established federal law." (Dkt. 1 at 14 and 16.)

Specifically, when the California Court of Appeal denied petitioner's claim on direct appeal, the court stated:

Defendant argues he had a right to present his character evidence under Evidence Code section 1102 and the federal Constitution, not only in response to the apartment manager's testimony about the map, but also to support defendant's credibility generally. Defendant cites People v. Harris (1989) 47 Cal.3d 1047 at page 1081, for its statement that the "truth in evidence" provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) effected a pro tanto repeal of Evidence Code section 790, footnote 9, ante. . . .

Assuming for the sake of argument that defendant has not forfeited the matter [by failing to raise his contentions regarding Evidence Code section 1102 and the federal Constitution in the trial court], and further assuming for the sake of argument that the trial court abused its discretion in excluding the testimony of defendant's employer, defendant fails to show prejudice warranting reversal of the judgment. (Cal. Const., art. VI, § 13;*fn3 Evid. Code, § 354.*fn4

Defendant argues he suffered "considerable prejudice," because he had a federal constitutional right to present exculpatory evidence, including evidence impeaching the prosecution's witnesses and supporting defense witnesses, including defendant himself. Defendant fails to identify the appropriate standard of prejudice but argues the exclusion of all of defendant's good character evidence must be deemed prejudicial under both Chapman v. California (1967) 386 U.S. 18, and People v. Watson (1956) 46 Cal.2d 818 at page 836. The appropriate standard is the Watson standard, i.e., that error is harmless if, after a full review of the record, we cannot conclude that it is reasonably probable that a verdict more favorable to defendant would have been reached in the absence of the error. (People v. McAlpin (1991) 53 Cal.3d 1289, 1311-1313.)

Defendant argues this case is different from People v. McAlpin, supra, 53 Cal.3d 1289, which held harmless a trial court's error in excluding character evidence, because there some character evidence was admitted, and the probative value of the excluded evidence was comparatively small.

Here, however, some character evidence was admitted (i.e., that defendant was gainfully employed and engaged in academic studies), there was a plenitude of evidence of guilt, and there would be very little probative value to testimony that defendant's employer trusted him with money. Moreover, although defendant asserts the employer's testimony would be brief, the prosecution would need to be allowed to cross-examine concerning, for example, the controls employers typically have in place to prevent employee theft, which could undermine the value of the testimony that the employer trusted defendant with money. That defendant's employer testified in the first trial, which resulted in a deadlocked jury, does not demonstrate prejudice in this trial. Each trial is different. Although the heading in defendant's brief says the court excluded evidence of defendant's non-violence and truthfulness, defendant fails to identify any proffered but excluded evidence that he was non-violent.

We conclude defendant has failed to show grounds for reversal based on exclusion of good character evidence. (Dkt. 16, LD 1 at 37-42.) (footnotes in original)

The U.S. Supreme Court has consistently held that criminal defendants have a fundamental due process right, implicit in the Sixth Amendment, to present a complete defense. See Crane, 476 U.S. at 690 (citing California v. Trombetta, 467 U.S. 479, 485 (1984)). This right, however, is not unlimited. Criminal defendants do not have "an absolute entitlement to introduce crucial, relevant evidence," and the introduction of relevant evidence can be limited by the state for a valid reason. Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (citing Crane, 476 U.S. at 690-91). See also Holmes v. South Carolina, 547 U.S. 319, 324 (2006). In deciding whether the exclusion of evidence violated a defendant's due process right to a fair trial or Sixth Amendment right to present a defense, a federal habeas court balances the following factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or is merely cumulative; and (5) whether it constitutes a major part of the defense. See Chia v. Cambra, 360 F.3d 997, 1004-05 (9th Cir. 2004).

Finally, even if the trial court's exclusion of evidence amounts to a violation, habeas relief may be granted only if the error had a substantial and injurious effect on the verdict. Brecht, 507 U.S. at 637. In other words, the error must have resulted in "actual prejudice." Id.

Here, the trial court's exclusion of the proffered testimony that petitioner's employer trusted him with money did not violate petitioner's constitutional rights. Specifically, the proffered testimony about petitioner's "good character on the job" had limited probative value on the central issue in the case, some positive character evidence (including evidence that petitioner was currently employed at Action Wireless) had already been admitted, and petitioner's "good character on the job" was not a major part of his defense. Thus, although petitioner correctly cited Crane as controlling case law, his reliance upon Crane to support his argument that he had a Sixth Amendment right to present the proffered character evidence is misplaced. (See Dkt. 1 at 16-17.)

Finally, the record before this Court confirms that the California Court of Appeal's finding that the trial court's exclusion of petitioner's proffered evidence did not prejudice the verdict was consistent with federal law, because it did not have "a substantial and injurious effect on the verdict." (Dkt. 16, LD 1 at 42.) See Brecht, 507 U.S. at 623. Accordingly, the Court recommends that petitioner's claim be denied.

2. Ineffective Assistance of Counsel Claim Regarding Character Evidence

Petitioner contends that his "[c]counsel's failure to adequately investigate and present readily available character evidence [constituted] ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. . . ." (Dkt. 1 at 23.) He claims his Sixth Amendment rights were violated because "there was a gold mine of good character witnesses ready and willing to testify to petitioner's good character for truthfulness and his good character for non-violence, but defense counsel failed to interview them on those issues or to proffer their testimony in an appropriate manner." (Id. at 21.) Specifically, petitioner identified six of his personal friends, family friends, or former teachers as "witnesses [who] were ready and willing to testify on petitioner's behalf, as set forth in their respective declarations." (Id. at 18-21.) He asserts that if his defense counsel had offered this testimony, "the trial court would have certainly permitted some or all of the proffered character witnesses to testify," and his counsel's deficiency resulted in substantial prejudice "because the prosecutor successfully introduced evidence that attacked petitioner's credibility and portrayed him as a gang wannabe." (Id. at 22.)

Petitioner first presented his ineffective assistance of counsel claim in his petition for writ of habeas corpus filed in the Sacramento County Superior Court. (See Dkt. 16, LD 7 at 10-16.) That court ...


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