FINDINGS AND RECOMMENDATIONS
Petitioner Herman Johnson is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. The pending petition challenges the constitutionality of petitioner's conviction entered in Sacramento County, case 04F05543, for robbery with use of a firearm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of petitioner's offense were set forth in the unpublished opinion of the California Court of Appeal, Third District, case C050093:
On June 21, 2004, at the Madison Inn, a "party" motel, several Russian immigrants were drinking. When they went outside three Black men approached; when one man nodded, another pulled a gun and robbed the immigrants; the third Black man did nothing. David Johnson and Mitchell Green were arrested within the hour; David Johnson was wearing one victim's watch and another victim's wallet was in the vehicle. Herman Johnson was found hiding days later.
Mitchell Green was discharged at the preliminary hearing, due to insufficient evidence that he aided the other defendants in the robbery, although he was present.
At trial David Johnson argued that the victims were so intoxicated that they lacked the ability to perceive and recollect what actually happened that night; he also argued no gun was involved. Herman Johnson argued that the witnesses misidentified him in one of two ways: Either the partiers saw him at the hotel and mistook him for a robbery participant, or they mistook him for the robber who signaled the gunman, but instead he was the passive bystander with the robbers, not one of the two robbers- in other words, the victims confused him for Mitchell Green. (C050093 opinion at 1-2.)
A jury found petitioner guilty of two counts of second degree robbery while a principal was armed. It was also found that petitioner had incurred a prior robbery conviction. He was sentenced to a determinate term of fourteen years and four months in state prison. The California Court of Appeal, Third Appellate District, affirmed the convictions on direct appeal and the California Supreme Court denied review. A petition for review to the California Supreme Court was likewise denied.
Petitioner and David Johnson's state appeals were heard at the same time and under the same case numbers. David Johnson is not a party to this proceeding.
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 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). A reviewing court such as this one looks to the last reasoned state court decision in order to make this determination. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).
Under the "contrary to" clause of §2254(d)(1), a federal habeas court may grant the writ only 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 the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. The state court is not required to cite the specific controlling test or Supreme Court authority, so long as neither the reasoning nor the result of the state court decision contradict same. Early v. Packer, 537 U.S. 3, 8-9 (2002).
The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. Williams, 529 U.S. at 410. The focus of this inquiry is whether the state court's application of clearly established federal law is objectively unreasonable. Id. "[A] federal habeas court may not issue the writ simply because that 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." Id.
Petitioner claims that his constitutional rights were violated when (A) the trial court improperly denied his request for a continuance; (B) his challenge to the prosecutor's use of peremptory challenges was overruled; and (C) the prosecutor committed misconduct during presentation of evidence and closing argument.
A. Denial of Request for Continuance
First, petitioner claims that the trial court deprived him of his due process right to a fair trial and his right to present a defense when it denied his attorney's motion for a continuance.
Jury selection for petitioner's trial commenced on April 21, 2004, and petitioner's attorney moved for a continuance two days prior, on April 19, 2004. (Reporter's Transcript ("RT") at 55-56.) The prosecutor objected to the requested continuance.
Petitioner's attorney sought the continuance because he had just learned that the identification expert he had planned to call was not available until after May 4, 2004. Counsel explained that he did not have the witness under subpoena because the witness was available and had agreed to appear in mid March when it was originally anticipated that trial would commence, however, the trial had been continued. Counsel went on vacation, first sending a letter to the witness asking if he was available by April 14, 2004. When counsel returned from vacation on April 14, 2004, he learned that the expert would not be available to testify until after May 4, 2004.
Counsel argued that the expert was essential to petitioner's case because there were discrepancies in the identification of the active members of the robbery, and he anticipated the expert would testify "that Caucasions do have trouble identifying people of other races." (RT at 56-57.) He also informed the court that he had met with his client on April 17, 2004 to explain that a continuance would be needed so the expert could testify; petitioner had indicated that he was not willing to "waive time" and wished to proceed without the expert's testimony. Although it appears that the issue of petitioner's competency was not previously raised, counsel indicated to the court his doubts about whether petitioner fully understood the need for the expert. (RT at 58-59.)
The trial court indicated that it did not agree with the notion that an eyewitness expert was essential to petitioner's case, observing:
THE COURT: I think we would all agree that there are-- every case is different. And there are all different kinds of experts. And depending on the facts of the case, some experts are absolutely essential. It's the whole case. It might be a DNA issue. ID experts, although they can in some circumstances be important, this case does not strike me that he's basically essential to your case. I disagree with you on that.
This is a situation where, as I understand it from our conversations, and some of the remarks that you've made here today, your argument's going to be, yes my client's there, but he's the guy that's standing around doing nothing.
So these people that identify him as being there, the argument is not that they have misidentified him as being there, but they are getting people mixed up as to who's doing what.
[PETITIONER'S COUNSEL]: Which is crucial, Judge.
THE COURT: I know, but that happens to everybody. But that's a matter for cross-examination. You don't need cross-racial or anything else. People are running around. You have four victims and three defendants, and there's a lot of people to keep track of. So I just don't think it's a question of ID. I mean, they show him a photo ID, do they not? And they are able to pick him out. As I understand it, also he gives a statement to the police admitting he was there ... [¶] The idea is not that, you know, "I'm not even there, I've got an alibi, I'm somewhere else."
[PETITIONER'S COUNSEL]: Judge, he admitted being at the hotel, not necessarily at the scene of the robbery.
THE COURT: All right. But nonetheless, just based on our discussion, I did not get the impression that the ID is that crucial in this case.
The other thing is that -- well, it seems to me that there are various ID experts around besides the one that you've got. Have you tried other people?
[PETITIONER'S COUNSEL]: No, Judge, because I had already --the panel had approved this individual, and we had an understanding with him.
THE COURT: I know. But you learned on the 14th. Couldn't you find out what other experts are available?
[PETITIONER'S COUNSEL]: The 14th was Thursday.
THE COURT: I don't want to denigrate them or anything, but they are not allowed to come in and testify as to their opinion about what happened in this case. They basically have this same thing to say, which was okay'd by the Supreme Court in McDonald as to the problems with eyewitness identification. You don't need any certain expert for that. You don't need the doctor who examined your client. Anybody could come in. Any expert could come in. Doesn't have to be that person.
(RT at 60-61.) After further discussion, the court issued its ruling:
I am trying to weigh the prejudice that's involved here. If you conclude that you can't get another eyewitness expert, I just don't feel that, based on what I know about this case, that it's all that crucial.
Having said that, I would hope that you'd continue your efforts. I mean, the ICDP has already approved the money, so the money has been allocated. Doesn't seem to me that they would care whether you want to say, "Instead of Mr. Smith, I want to use Jones." I'd contact them and get your investigator on it, find out who else --who the other eyewitness experts are. Get a copy of the reports, if you can get them back -- what's the doctor's name?
[PETITIONER'S COUNSEL]: Blender.
THE COURT: If you can get the reports back from his office, get them for the new guy. You've got to try.
You're shaking your head. You don't think it can be done?
[PETITIONER'S COUNSEL]: I think it can be done. But again, it's based on the relationship, as I indicated, that I had already established, and it is based on the fact that it was a surprise to me when I got back, you know, from my vacation.
THE COURT: Right. And I'm not saying that every case is just --you don't even need to talk to your expert, because one case is like every other case. No. I think you need to sit down with this expert and talk to him and say, "Here's what the issues are, here's why I'm calling you," just as you would any witness.
[PETITIONER'S COUNSEL]: I just want the record to be clear that I think that this part of the matter is crucial, and that based on that, I'm making that request.
[PETITIONER'S COUNSEL]: I don't want the record to indicate in the future that I have not tried, and that as a consequence I'm --you know, ineffective assistance of counsel has been rendered in this case.
THE COURT: All right. I have heard and considered the arguments by [petitioner's counsel] with respect to the motion to continue on behalf of his client, Herman Johnson, and that motion is denied. (RT at 65-67.)
On direct appeal, the California Court of Appeal, Third District, held that the trial court had not abused its discretion in denying the motion for a continuance or the subsequent new trial motion as to this issue. The state appellate court reasoned:
Before jury selection, Herman Johnson moved for a continuance to obtain an expert on cross-racial identification. The motion was denied. He renewed the matter in a motion for a new trial, which was also denied.
Whether to grant a continuance rests within the broad discretion of the trial judge and defendants, as the appellants, bear the burden to demonstrate the trial court abused his discretion. (See People v. Panah (2005) 35 Cal.4th 395, 423.) "When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.] The court considers ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (People v. Jensen (2000) 22 Cal.4th 900, 1037.)
On Tuesday, April 19, 2005, Herman Johnson's counsel moved for a continuance, stating as follows: He had an understanding with Dr. Blender, an identification expert, that he would be available for the trial, which had been scheduled to begin in mid-March, 2005. Counsel had not subpoenaed Dr. Blender, but had written him a letter asking if he would be available by mid-April; counsel then went on vacation. When counsel returned from vacation on Thursday, April 14, 2005, he found a message from Dr. Blender, stating he would not be available until after May 4, 2005. Counsel asserted that issues about cross-racial identification were significant in this case because the victims were Russian Caucasians and the defendants were Black: In particular, one defense would be that the victims mistook Herman Johnson for Mitchell Green, who had been identified as an active participant in the robbery before trial but exonerated when a victim identified Herman Johnson at the preliminary hearing instead of Green as a participant.
However, Herman Johnson refused to waive time to accommodate counsel's motion.
The court clarified that the defense would be that Herman Johnson was present but the victims were confused about who did what. The court found the defense could find a new expert on the subject and-based on an offer of proof-found the identification was corroborated. The court encouraged counsel to try to find another expert and denied the motion.
When the trial court suggested counsel try to find another expert counsel conceded, "I think it can be done," but explained that he already had a relationship with Dr. Blender. The court stated that an expert would not be allowed to testify as to identifications in this case but only about cross-racial identifications in general (see People v. McDonald (1984) 37 Cal.3d 351, 366-369, overruled on other grounds by People v. Mendoza (2000) 23 Cal.4th 896, 914), therefore there was no reason why another expert would not do. On appeal counsel states, "It was not for appellant (who has, in any event, a history of mental illness) ... to make the tactical decision about whether to call an expert and the importance of having an expert testify." The passing claim of mental illness is unsupported and although the decision to call an expert may have been counsel's, the decision to waive time is not ordinarily counsel's. (See 5 Witkin & Epstein, Cal.Crim. Law (3d ed. 2000) Crim. Trial, §§ 317-323 [counsel cannot waive constitutional speedy trial rights, only statutory speedy trial rights, and even that ability is limited].)
The record indicates trial counsel conceded he could have obtained another expert, although that was not his preference, and it might involve some administrative difficulty. At no time later in the trial did counsel report back on his efforts to obtain another expert, therefore it appears he made none. Instead, counsel emphasized the problems with the identifications through cross-examination and argument. (See People v. Sanders (1995) 11 Cal.4th 475, 510 [no prejudice in excluding expert testimony on identifications where "counsel extensively cross-examined eyewitnesses concerning the accuracy and reliability of their testimony," instructions pointed out factors to consider in evaluating eyewitness testimony, and counsel argued the matter to the jury].)
Thus, counsel did not establish that the continuance was necessary, his client refused to waive time for trial, and counsel had not subpoenaed Dr. Blender or otherwise ensured his availability for trial. In these circumstances we cannot say the trial court abused its discretion in denying the motion for a continuance or the subsequent new trial motion on this point. (C050093 opinion at 3-6.)
The matter of whether to grant a trial continuance is traditionally within the discretion of the trial judge. Avery v. Alabama, 308 U.S. 444, 446 (1940). There are no specific tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). "The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar, 376 U.S. at 589. Depending on the circumstances, a denial of a request for more time may not violate due process "even if the party fails to offer evidence or is compelled to defend without counsel." Id.
On direct appeal from a federal criminal conviction, the Ninth Circuit Court of Appeals balances four factors in determining whether a trial court unreasonably denied a criminal defendant's motion to continue: (1) the appellant's diligence in preparing his case; (2) the likelihood that the continuance would serve a useful purpose; (3) whether the continuance would inconvenience the parties, the court, or other witnesses; and (4) whether the appellant was prejudiced by the district court's refusal to grant the request for a continuance. United States v. Rivera-Guerrero, 426 F.3d 1130, 1138-39 (9th Cir. 2005); see also United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). In the context of a collateral challenge to a state court conviction, this court is not required to apply the same test; nonetheless, the criteria applied by the Ninth Circuit in reviewing federal convictions on appeal is useful in analyzing the constitutional claim posed here.
It does not appear that the trial court unreasonably denied petitioner's counsel's request for a continuance. First, diligence in securing the witness' testimony was not shown. The witness was not under subpoena, and at the time the continuance was requested, petitioner refused to waive time and wished to proceed without the expert testimony. The record is unclear whether the defense attempted to contact another expert.
In order for habeas relief to be warranted a petitioner must show actual prejudice to his defense resulting from the trial court's improper refusal to grant a continuance. Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997), cert. denied, 118 S.Ct. 2299 (1998). Here, the trial court observed that the desired witness would not have been permitted to offer an opinion as to what happened in this particular case. The trial court also indicated it's belief that such expert testimony was not essential to petitioner's defense, and that the issue of witness identification was, rather, a matter for cross-examination. Petitioner makes no argument to the contrary here. Other than the simple fact that witnesses often have trouble identifying people of other races, it is not apparent what beneficial testimony, if any, this or another eyewitness identification expert would have offered had the continuance been granted.
Petitioner has not shown actual prejudice to his defense resulting from the lack of expert testimony at trial. Although there was no expert testimony about cross-racial witness identification, petitioner's counsel effectively attacked the witnesses' version of events on cross-examination. (RT 362-99, 419-22, 521-46, 582-86.) The jury was instructed that the "cross-racial or ethnic nature of [an] identification" is one factor to be considered in determining the weight to be given to eyewitness identification testimony. (RT at 1018.) Counsel also highlighted in closing argument the fact that the eyewitness identification in this case was cross-racial in nature. (RT at 978-79).
Here, the trial court's ruling did not preclude petitioner's attorney from preparing or presenting an adequate defense. Under these circumstances, the California Court of Appeal's decision that the trial court properly denied the motion for continuance is not contrary to, or an unreasonable application of clearly established federal law. See Gallego, 124 F.3d at 1072-73. Petitioner's claim regarding the trial court's denial of a continuance before trial should be denied.
B. Prosecutors' Use of Peremptory Challenges
For his next claim, petitioner contends that the trial court improperly denied his motion for a mistrial based on the prosecutor's misuse of peremptory challenges to excuse a prospective African-American juror in violation of his rights under the Sixth and Fourteenth Amendments of the United States Constitution.
During voir dire, the prosecutor asked prospective Juror J. about his educational background. (Augmented RT at 230.) Mr. J indicated that he had attended some college and that his particular field of study was psychology. Mr. J indicated that he was still interested in psychology. When asked whether he did anything to pursue the area of psychology in his own time or in the community, he responded:
[MR. J]: What I more or less do, after going through the school and the college, is really helping people, and more or less like the homeless and young kids in my area and on my block.
[PROSECUTOR]: Okay. [MR. J.]: The kids.
[PROSECUTOR]: So are you trying to learn more about human psychology to assist --
[MR. J.]: Not trying to learn, more just trying to help more.
[MR. J.]: Because I know the situations that they're in and stuff like that. And yeah, just to help.
(Augmented RT at 230-31.) Mr. J. clarified that he was referring to homeless people both in Sacramento and in Indiana, where he is apparently from, and stated that he also takes care of his family. Mr. J. affirmed that pursuing or studying the field of psychology helps him in these endeavors. When asked if he volunteered in any programs to help homeless people, Mr. J. responded:
[MR. J.]: No. What I do is not volunteer - yes, I more or less volunteer to help. It's a few companies that I help out.
[PROSECUTOR]: That you help out?
[PROSECUTOR]: That in turn help out the homeless?
[MR. J.]: Uh-huh. Young kids and families and stuff like that.
[PROSECUTOR]: And how do you assist them?
[MR. J.]: Like over the weekends, when I'm off of work, or when I take my vacation, just go to those situations.
[PROSECUTOR]: And you're helping people in the community that are homeless?
(Augmented RT at 231-32.) Mr. J. agreed that some of the homeless people he helped suffered from mental illness or had contact with the criminal justice system. Mr. J. said that he did not obtain a degree in psychology; he was drafted into the military. (Augmented RT at 233-34.) While in the military Mr. J. participated in two court-martial proceedings. Mr. J was questioned and responded as follows regarding his experiences:
[PROSECUTOR]: ...And you indicated that you did serve on at least two court-martials while in the Air Force.
[PROSECUTOR]: And that, from my limited understanding of it, it is a lot smaller of jurisdictional venue or jury than in this case?
[PROSECUTOR]: Than in our country or even in state law?
[PROSCUTOR]: Sometimes you people who are under a court-martial can be judged by a group of people in the military as small as four?
[PROSECUTOR]: Like four or six people are judging the facts. Right?
[PROSECUTOR]: Nothing like the twelve that we talk about here?
[MR. J.]: Uh-huh. That's right. Really don't have no one. More or less told to -- just standing there, working there. And the whole situation came ...