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Moore v. Horel

June 23, 2010

THOMAS EUGENE MOORE, PETITIONER,
v.
ROBERT HOREL, ET AL., RESPONDENTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition before the court challenges petitioner's conviction in the Sacramento County Superior Court on one count of robbery in violation of California Penal Code § 211. Petitioner seeks federal habeas relief on numerous grounds, including that: (1) he is actually innocent; (2) the trial court committed error during his trial; (3) his trial counsel rendered ineffective assistance; (4) his appellate counsel rendered ineffective assistance; (5) the trial court erred in imposing sentence; (6) his conviction was the result of juror misconduct; (7) his conviction was the result of prosecutorial misconduct; and (8) the jury's verdict was contrary to the evidence presented at trial.*fn1

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL BACKGROUND

On February 1, 2000, a jury found petitioner guilty of one count of robbery. (Notice of Lodging Documents on January 14, 2010 (Doc. No. 139), Clerk's Transcript on Appeal (CT) at 217.) After this verdict was returned, petitioner requested a jury trial on the sentencing enhancement allegations that had been brought against him. (CT at 231.) A short time thereafter the jury also found allegations that petitioner had suffered three prior felony convictions to be true. (Id. at 227-29.) Following his conviction, petitioner was sentenced on January 22, 2001, to an indeterminate state prison term of twenty-five-years to life, plus a determinate term of fifteen years, for an aggregate term of forty-years to life in prison. (Id. at 610; Reporter's Transcript on Appeal (RT) at 635.)

Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On December 27, 2002, the judgment of conviction was affirmed in a reasoned opinion. (Resp't's Lod. Doc. 1.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 2.) On March 3, 2003, the California Supreme Court summarily denied that petition. (Resp't's Lod. Doc. 3.)

Even before completion of proceedings on his direct appeal, petitioner began his pursuit of collateral relief by filing a steady stream of state habeas petitions, totaling seventeen, all of which were denied. The first eight of those habeas petitions were denied prior to the California Supreme Court's denial of review on petitioner's direct appeal. On March 27, 2003, petitioner signed his ninth state habeas petition for filing with the California Supreme Court. That petition was filed on April 2, 2003 and denied on July 16, 2003.

As was the case with his pursuit of state habeas relief, petitioner began filing habeas petitions in this court even before his direct appeal in state court was completed. (See Doc. Nos. 1, 3, 10 and 17.) All of those petitions were ultimately dismissed after this court struggled to determine both the nature of the conviction petitioner was attempting to collaterally attack as well as the status of state court proceedings with respect to that conviction. Finally, on November 20, 2003, petitioner filed his fourth amended petition with this court which was the first federal petition filed after the completion of his direct appeal in the state courts. Petitioner also sought a stay so that he could exhaust additional claims in state court that were not alleged in the fourth amended petition. On February 12, 2004, the undersigned recommended that a stay and abeyance be granted (Doc. No. 30) and on March 30, 2004, this action was stayed and the case was administratively closed while petitioner exhausted his state court remedies. (Doc. No. 31.) While the stay was in place, petitioner filed numerous state habeas petitions (see Resp't's Mot. to Dismiss at 3-4) but made little progress with respect to exhausting any additional claims in state court, apparently due in large part to his own piecemeal method of proceeding. (See Doc. Nos. 48, 57 and 61.) Accordingly, on March 12, 2007, the undersigned recommended that the stay in this action be lifted and the case re-opened. (Doc. No. 61.) However, the then-assigned district judge did not adopt that recommendation until over a year later, on March 17, 2008. (Doc. No. 76.) On December 6, 2007, between the time the undersigned recommended the lifting of the stay and the order re-opening the case was filed, petitioner filed his fifth amended federal petition with this court. (Doc. No. 70.) Accordingly, on May 9, 2008, the court issued an order deeming petitioner's fifth amended petition to be the operative pleading in this action and directing respondent to respond thereto. (Doc. No. 80.)

On May 19, 2008, petitioner filed yet another amended petition in this case, which he referred to as his post-exhaustion amended petition, and on May 22, 2008, requested that the court deem that petition the operative petition. (See Doc. Nos. 83 and 89.) On July 3, 2008, the undersigned granted that request, deemed petitioner's sixth amended petition filed May 19, 2008, to be the operative pleading in this action and directed respondent to file a response thereto. (Doc. No. 96.) On October 30, 2008, respondent moved to dismiss all or part of thirty-four of the eighty-seven claims set forth in petitioner's sixth amended petition on the grounds that they were time-barred, having not been submitted to this court within the applicable one-year statute of limitations and not relating back to any claims timely presented to this court. In opposing the motion to dismiss (Doc. No. 113) petitioner also proposed further amendments to his habeas petition, seeking leave to add still more claims. (See Doc. Nos. 116-17 and 122.)

On August 17, 2009, the undersigned recommended that respondent's motion to dismiss thirty-four specific claims set forth in the sixth amended petition be granted, that petitioner's proposed amendments be construed as a motion for leave to amend, and that the motion to amend be denied. (See Doc. No. 127 at 11, 13.) Those recommendations were adopted in full on October 16, 2009 by the assigned district judge. (Doc. No. 133.) On January 14, 2010, respondent filed an answer. (Doc. No. 138.) Petitioner filed his traverse on May 21, 2010. (Doc. No. 151.)

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary.

On January 25, 1999, Barry O'Sullivan was working as manager at the Rent-a-Center store on Florin Road. About 6:45 p.m., he was assisting a couple with a rental application when defendant entered and approached the counter. Defendant had a scraggly beard and was wearing a heavy long black coat with a hood.

Defendant pulled a dark stocking mask down over his face, brandished a length of pipe, pretending it was a gun, and demanded money. O'Sullivan initially refused. But after defendant repeated the demand, O'Sullivan put $870 in big bills into a brown paper bag held by defendant.

When defendant fled east on Florin Road, O'Sullivan called out that he had been robbed, and dialed 911. Assistant manager Rob Hensley and two customers ran after defendant.

As Rent-a-Center employees Rick Dobbs and Rahman Aliy were returning to the store, Hensley told them of the robbery.

Dobbs and Aliy drove down Florin Road looking for the robber and the pursuers. Dobbs stopped in front of a car dealership when he observed a group of people, including one of the customers. After Aliy saw someone on the roof of the Pacific Bell building next to the car dealership, Aliy, a customer, and another man climbed to the roof and detained defendant. One of the other men found most of the stolen money in defendant's sock. Aliy found a $20 bill in a brown paper bag a short distance away.FN[]

FN[] At trial, Hensley and Aliy were unable to identify defendant as the robber, although Hensley testified that the man detained on the roof was the robber. Other witnesses at trial identified defendant as the man who robbed the store and was later caught on the roof.

Deputy Sheriff Randall Winn received a radio broadcast that a black male with a handgun, wearing a black coat and black mask, about 30 to 40 years old, had robbed the Rent-a-Center store. Winn later was told that a suspect had been detained. Thereafter, he saw two men on the roof with defendant.

While interviewing O'Sullivan at the Rent-a-Center store, Deputy Sheriff Jason Manning received radio notification that a suspect had been detained. Another deputy drove O'Sullivan to the Pacific Bell building, where O'Sullivan identified defendant as the robber. After arresting defendant, Manning described him in the arrest report as wearing a dark gray double-breasted jacket or coat, a black knit beanie cap, a white button-up shirt and white tee shirt, and a green and maroon scarf. However, defendant's booking photograph taken after midnight at the jail showed him wearing an orange sweater, also described in his personal property record at the sheriff's department. (Resp't's Lod. Doc. 1 (hereinafter Opinion) at 2-3.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

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). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims*fn2

A. Actual Innocence

Petitioner asserts that he is actually innocent of the robbery for which he was convicted. (Sixth Am. Pet. at 56.) In support of this claim petitioner cites: (1) "newly discovered" photographs/clothing evidence; (2) identification evidence; (3) fingerprint evidence; (4) "newly discovered Brady evidence;" (5) "false" police reports; (6) "money evidence;" (7) witness perjury; (8) an "erroneous prosecution theory;" (9) "erroneous jury instructions;" and (10) a "newly discovered exculpatory witness." (Id. at 56-63.) After setting forth the applicable legal standards, the court will evaluate these claims in turn below.

1. Legal Standards

In Herrera v. Collins, 506 U.S. 390 (1993), a majority of the Supreme Court assumed, without deciding, that a freestanding claim of actual innocence is cognizable under federal law. In this regard, the court observed that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Id at 417. A different majority of the Supreme Court explicitly held that a freestanding claim of actual innocence is cognizable in a federal habeas proceeding. Compare 506 U.S. at 417 with 506 U.S. at 419 and 430-37. See also Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (noting that a majority of the Justices in Herrera would have found a free-standing claim of actual innocence). Although the Supreme Court did not specify the standard applicable to this type of "innocence" claim, it noted that the threshold would be "extraordinarily high" and that the showing would have to be "truly persuasive." Herrera, 506 U.S. at 417. More recently, the Supreme Court declined to resolve whether federal courts may entertain independent claims of actual innocence but concluded that the petitioner's showing of innocence in the case before it fell short of the threshold suggested in Herrera. House v. Bell, 547 U.S. 518, 554-551 (2006). Finally, the Supreme Court has recently once again assumed, without deciding, that a federal constitutional right to be released upon proof of "actual innocence" exists. District Attorney's Office for Third Judicial Dist. v. Osborne, ___U.S.___, 129 S.Ct. 2308 (2009). In doing so, the Supreme Court noted that it is an "open question" whether a freestanding claim of actual innocence exists and that the court has "struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet." Id. at 2321.

The Ninth Circuit Court of Appeals has likewise assumed that freestanding innocence claims are cognizable in both capital and non-capital cases and has also articulated a minimum standard of proof in order for a habeas petitioner to prevail on such a claim. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc). Under that standard "[a] habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. at 476-77. Seealso Jackson, 211 F.3d at 1165. The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417).

Assuming arguendo that a freestanding claim of actual innocence may be maintained in this non-capital case, for the reasons addressed below, petitioner has failed to make the showing required to entitle him to federal habeas relief.

2. Newly Discovered Photographs/Clothing

Petitioner claims that "new evidence" consisting of three photographs showing him "wearing his orange red sweater" in October of 1998 "undisputedly proves that petitioner did not change clothes with another person while being booked into the jail after his arrest," thereby proving prove his innocence. (Sixth Am. Pet. at 57.)

The Sacramento County Superior Court rejected this aspect of petitioner's actual innocence claim in its August 22, 2006, order stating:

Petitioner claims that he is factually innocent and that newly discovered evidence of three photographs showing petitioner in an orange/red sweater point to his innocence. This issue was discovered around the time of the trial and was litigated in a motion for a new trial. Since it was not recently discovered, was raised in the trial court, should have been raised on appeal, and was previously raised on habeas corpus, it will not be considered again. (Resp't's Lod. Doc. No. 14 at 4.)

These photographs of petitioner wearing an orange/red sweater were indeed the subject of a post-conviction motion for a new trial and petitioner's trial counsel possessed them during petitioner's trial. (RT at 582-95.) Nevertheless, even if these photographs had only been recently discovered and conclusively proved that the sweater petitioner was wearing in the photographs was the same sweater he was wearing in his booking photo, petitioner still would not have made a persuasive showing with respect to his actual innocence claim.

Petitioner was detained soon after the robbery and only a short distance from the scene of the crime. The exact amount of money stolen from the store was recovered from petitioner's sock and in a small brown paper bag nearby. Petitioner's physical description and attire, when initially detained, matched that of the robbery suspect. Most importantly, victim O'Sullivan positively identified petitioner as the robber.

While the clothing petitioner was wearing during his booking photo apparently did not match the clothing worn by the robber or the clothing worn by petitioner upon his initial detention, there are plausible explanations for this discrepancy. First, the sweater shown in the pre-detention photograph now relied upon by petitioner may not have been the same sweater petitioner was wearing in his booking photograph. Moreover, petitioner may have simply changed clothes prior to his booking, as was argued by the prosecution. It is also plausible that petitioner may have been wearing different clothes beneath his visible attire and simply removed the outer wear he was detained in and surreptitiously disposed of those garments. Regardless of the explanation, the three photographs relied upon by petitioner obviously do not affirmatively prove that he is probably innocent of the robbery for which he was convicted.

3. Identification Evidence

Petitioner next asserts that when O'Sullivan identified him as the robber, he was "wearing his red sweater and brown pants and his head was bent down" out of O'Sullivan's view. (Sixth Am. Pet. at 59.) The record, however, belies petitioner's claim in this regard, as O'Sullivan testified at trial that he identified petitioner "by the face," was "100 percent positive" petitioner was the person who "had just robbed" the store, and that there were no inconsistencies between the clothing worn by the robber and those worn by petitioner, other than petitioner's pants "were a little bit low." (RT at 103.) With respect to this aspect of his claim, petitioner has not affirmatively proven that he is probably innocent of the robbery.

4. Finger Print Evidence

Petitioner claims that a latent fingerprint was found on the small brown paper bag and that a fingerprint expert compared the latent print to petitioner's fingerprints and determined that the "print on the bag was not that of the petitioner." (Sixth Am. Pet. at 60.) Again, the record does not support petitioner's argument in this regard.

At petitioner's trial, a stipulation was read informing the jury that, if called to testify, a Sacramento Sheriff's Deputy Identification Technician would have testified that one fingerprint was found on the paper bag, but the "print was found to be of no comparison value" meaning "the identification of the person who left the print could not be identified." (RT at 356.) The jury was further advised that "a person could touch a bag and not leave fingerprints and that fingerprints could be smudged or obliterated by the touching of the bag by anyone." (Id.)

Petitioner has not affirmatively proven that he is probably innocent of the crime for which he was convicted based upon this fingerprint evidence.

5. Newly Discovered Brady*fn3 Evidence

Petitioner claims that after he was convicted he employed a paralegal who discovered that the true names of trial witnesses Rick Dobbs and Rahman Aliy were actually Ricky Leach and Dante Pigg, and that each had suffered prior felony convictions which were not disclosed to his trial counsel. (Sixth Am. Pet. at 60.) Petitioner also claims that prosecution witness Rob Hensley had an outstanding warrant for his arrest when he testified and that this fact was also not disclosed to the defense. (Id.) Petitioner argues that had such evidence been presented, no reasonable juror would have found him guilty. (Id.)

The Sacramento County Superior Court rejected this aspect of petitioner's actual innocence claim in its August 22, 2006, order stating:

Petitioner claims that he recently discovered exculpatory evidence, i.e., impeachment evidence relating to three prosecution witnesses. He claims that witness Rahman Aliy's alias was Dante Pigg and that Pigg had six felony convictions. Although the attached exhibits show at least one felony conviction for Pigg, there is no evidence that Pigg and Aliy were the same person. A declaration of Mary Victorian (Exhibit N) states that Victorian "obtain[ed] information that Mr. Dante M. Pigg is also known as Mr. Rahman Aliy and Aliy Rahman." There is no documentation to support this claim. Without that evidence, the conviction and arrest information for Dante Pigg is irrelevant. Similarly, petitioner's claim that witness Rick Dobbs has convictions under the alias of Ricky Leach is similarly unsupported. Finally, petitioner contends that witness Robert Hensley had an outstanding warrant at the time that he testified at petitioner's trial. The attached documents (Exhibits Q1-Q3) show that Hensley failed to appear on a citation for an infraction. However, this information could not have been used to impeach Hensley as a witness because trespassing is not a crime of moral turpitude. In addition, since all of this evidence could have been "discovered" before May 2003, the claims are untimely and are rejected in the absence of petitioner's failure to present them sooner.

(Resp't's Lod. Doc. No. 14 at 4-5.)

In moving for a continuance of a post-conviction bail hearing, petitioner also alleged that Rahman Aliy had suffered several prior felony convictions. (See Reporter's Augmented Transcript on Appeal, Vol. 2 at 7-10.) As conceded by petitioner's counsel at that hearing, the "name Aliy Rahman is a Muslim name and it's very common in that religious practice to change your name." (Id. at 10.) The trial judge agreed, and noted the speculative nature of the name search, stating "it's like somebody that has two first names, two last names, Dan Bob, and you transpose them and call him Bob Dan." (Id.) In this regard, there is reason to doubt petitioner's assertion that witness Rahman Aliy is actually, Aliy Rahman or Dante Pigg, or that the witness Rahman Aliy had suffered any prior convictions. This court concludes that petitioner has failed to prove this contention.*fn4 Petitioner makes a similar argument as to the identity of witness Rick Dobbs. Again, however, petitioner has failed to prove that witness Dobbs was in fact the Ricky Leach who had suffered a prior conviction.

While it does appear that Robert Hensley did have an outstanding warrant at the time he testified at petitioner's, the state court's ruling that, under California law, the witness could not have been impeached with that evidence appears to have been correct.

In any event, even assuming that petitioner's allegations with respect to Aliy and Dodds were true, and he should have been allowed to impeach Aliy, Dodds and Hensley with all the evidence he now claims he was denied access to, petitioner has failed to establish his actual innocence of the robbery. Indeed, the impeachment of these three witnesses would not have altered the primary evidence of petitioner's guilt, specifically O'Sullivan's positive identification of petitioner as the robber and petitioner's possession of the exact amount of stolen money at the time of his apprehension.

With respect to this aspect of his actual innocence claim petitioner has not affirmatively proven that he is probably innocent.

6. False Police Report

Petitioner next asserts that the various police reports were "false" because they state that he was "wearing a dark coat, black pants, white t-shirt, white underwear, white socks, and black tennis shoes... [b]ut the 3 photographs now prove that petitioner was in fact wearing a red sweater, brown pants, white t-shirt, white underwear, white socks, sweatpants, and sweatshirt when he was arrested." (Sixth Am. Pet. at 61.)

Again, petitioner has not established that the three pre-detention photographs prove that those were the clothes he was wearing at the time of his initial detention or that the police reports were in fact false. Petitioner merely asserts that the reports were false without presenting any evidence supporting his conclusory argument. Accordingly, with respect to this aspect of his actual innocence claim petitioner has not affirmatively proven that he is probably innocent.

7. Money Evidence

Petitioner claims that the "money that was allegedly stolen was fabricated by the officials and there was never any money, and the victim later fabricated the money by photocopying some money on the store's photocopier machine to be used as evidence of some money that was stolen in an alleged robbery." (Id.) Petitioner argues that the "absence and nonexistence of any allegedly stolen money is proof that there was no money actually found or even stolen, and proves that the petitioner is innocent." (Id.)

Petitioner has provided this court with no evidence to support this claim. Petitioner's argument, on its face, is implausible. He is essentially accusing the witnesses and the police officers of lying about the robbery and framing petitioner of the crime without any conceivable explanation as to why they would do so. Regardless, with respect to this aspect of his actual innocence claim petitioner has not affirmatively proven that he is probably innocent.

8. Perjury

Petitioner next asserts that the three pre-detention photographs prove that numerous witnesses "perjured themselves before the jury," presumably because they testified that petitioner was not wearing the orange-red sweater when he was initially detained, thereby "proving the petitioner's innocence at trial." (Id. at 62.)

Again, petitioner has provided this court with no evidence supporting a conclusion that any witness at his trial committed perjury. For the reasons explained above, the three photographs relied upon by petitioner do not prove that the witnesses' descriptions of petitioner's attire were false. With respect to this aspect of his actual innocence claim petitioner has not affirmatively proven that he is probably innocent.

9. Erroneous Prosecution Theory

In a similar vein, petitioner asserts that the three photographs of him in an orange-red sweater prove that he did not switch clothes, as was argued by the prosecutor, thereby establishing that he "is actually innocent and not the actual suspect." (Id.) Petitioner argues that his conviction was based "on this erroneous false prosecution theory." (Id.)

As repeated above, however, the existence of the three photographs of petitioner do not foreclose petitioner's guilt. Petitioner has made no showing that the prosecutor knew of the photographs upon which he now relies or that the prosecutor was prohibited from arguing to the jury his theory that petitioner may have changed his clothes after his detention and prior to the booking photo being taken.

With respect to this aspect of his actual innocence claim petitioner has once again not affirmatively proven that he is probably innocent of the robbery for which he was convicted.

10. Erroneous Jury Instruction

Again, petitioner argues that the three photographs prove that he is innocent and therefore the use of CALJIC No. 2.06*fn5 at his trial, relating to a defendant's attempt to suppress evidence was "erroneous." (Id.) The existence of these photographs, however, did not foreclose the possibility that petitioner altered his attire after his detention in an attempt to conceal evidence of his guilt. Nor has petitioner shown that he presented these photographs to the trial court prior to the instruction of the jury so that the court could evaluate the instruction in light of the photographs. Moreover, the giving of a jury instruction does not directly relate to petitioner's actual innocence.

With respect to this aspect of his actual innocence claim petitioner has not presented any evidence affirmatively proving that he is probably innocent.

11. Newly Discovered Exculpatory Witness

Finally, petitioner claims that after he was convicted he located an additional witness to the robbery, a Ms. Barksdale, who described the robbery suspect as "a tall person 5'10" or taller like her boyfriend." (Id. at 63.) Petitioner apparently was closer in height to 5'7". (Reporter's Augmented Transcript on Appeal, Vol. 2 at 11.)

The Sacramento County Superior Court rejected this claim on August 22, 2006, finding that the evidence offered by petitioner was not "newly discovered" because the written report of the interview of Barksdale was dated April 2001. (Resp't's Lod. Doc. No. 14 at 4-5.)

The question of petitioner's height versus that of the robbery suspect's was raised at petitioner's trial. O'Sullivan testified that he described the robbery suspect's height to the 911 operator as "five-ten or five-eleven," the same height as O'Sullivan. (RT at 177.) The prosecutor then had petitioner stand up in front of the counsel table so that O'Sullivan could evaluate petitioner's height as part of O'Sullivan's identification. (Id. at 154.) O'Sullivan admitted that petitioner appeared to be a little shorter than O'Sullivan but he was "definitely the gentleman who robbed me that night." (Id. at 155.)

Barksdale's statement that the robbery suspect was "as tall or taller" than her boyfriend does not prove petitioner's innocence. Any minor discrepancy between Barksdale's estimation of the suspect's height, based on her brief viewing, and that of O'Sullivan, as part of his positive identification of petitioner as the robber, certainly does not support petitioner's claim of actual innocence.

Thus, with respect to this aspect of his actual innocence claim petitioner has not affirmatively proven that he is probably innocent.

B. False Reports

Petitioner again asserts, in a claim separate from his actual innocence claim, that the police reports produced as part of the investigation in this case were falsified because the officers "falsely listed and reported" that petitioner was wearing a dark coat and not the orange- red sweater he claims he was wearing prior to the robbery. (Sixth Am. Pet. at 81-84.) Petitioner also claims that the officers interviewed a white male customer who informed them that petitioner was the "wrong person" but that the officers "purposely did not" record the name or contact information for that witnesses. (Id. at 175.)

For the same reasons discussed above, petitioner has failed to offer any evidence establishing that the reports by the police officers were false. While petitioner contends that he was wearing an orange-red sweater at the time he was detained, he has presented no evidence to support that assertion nor any evidence discrediting the police reports or witness statements to the contrary. Similarly there is no evidence before the court to support petitioner's assertion that a white male customer of the Rent-a-Center store indicated that petitioner was not the robber or that the police purposefully suppressed or lost that person's identity and contact information.

Accordingly, petitioner is not entitled to federal habeas relief with respect to his claim that his conviction was unconstitutionally obtained due to the falsity of police reports prepared as part of the investigation.

C. Trial Court Error

Petitioner raises fourteen different challenges to actions taken by the trial court.*fn6

Specifically he claims that the trial judge erred: (1) by improperly instructing the jury; (2) by denying his Marsden motion; (3) by allowing reference at trial to petitioner's prior booking; (4) in announcing closing arguments; (5) by effectively improperly testifying; (6) by allowing the filing of the first amended information; (7) in denying petitioner's motion for a new trial; (8) by allowing petitioner to go unrepresented at sentencing; (9) by violating petitioner's right to advisory counsel; (10) by allowing an untimely prior conviction allegation to be brought against petitioner; (11) by improperly admitting evidence at trial; (12) by denying petitioner's motion to dismiss; (13) by substituting judges; and (14) by failing to vacate petitioner's judgment and sentence. The court will evaluate each of these claims in turn below.

1. Improperly Instructing The Jury

Petitioner claims that the trial court improperly instructed the jury with CALJIC No. 2.06. In this regard, petitioner again argues that the prosecutor "falsified facts" by using the "inapplicable theory" that petitioner changed his clothes after his detention and prior to his booking photo being taken. (Sixth Am. Pet. at 91.) Petitioner argues that the trial court's use of the challenged instruction was "not supported by the evidence." (Id. at 92.) Petitioner also claims the trial court erred by issuing jury instructions consistent with CALJIC No. 17.41.1, 2.90, and 1.00. (Id. at 220-27.)

The California Court of Appeal specifically rejected petitioner's challenges to the jury instructions given at his trial. The court reasoned as follows:

Over defendant's objection, the trial court instructed the jurors with CALJIC No. 2.06 as follows: "If you find that the defendant attempted to suppress evidence against himself in any manner such as by concealing evidence by changing clothes, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."

Defendant contends this instruction should not have been given because it was "based upon a non-existent fact." According to defendant, he was handcuffed and detained from the moment of his arrest and there was no evidence presented that he "had some Houdini-like ability to change clothes while shackled." We are not persuaded.

The trial court has a duty to instruct on principles of law closely and openly connected with the facts of the case. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) CALJIC 2.06 informs jurors of two principles of law, one beneficial to the prosecution, the other beneficial to the defense: (1) consciousness of guilt may be inferred from a defendant's attempt to suppress evidence in any manner, such as concealing it; but (2) such suspicious conduct is not sufficient by itself to prove guilt. However, "before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference." (People v. Hannon (1977) 19 Cal.3d 588, 597.)

As the trial court noted, the jury was presented with evidence that defendant was wearing an orange sweater when he was booked into the county jail, but that he was wearing a long heavy dark double-breasted coat, a white shirt, and white tee shirt when he was arrested. This evidence supported two different inferences: (1) defendant was not the robber, and the police lied about the clothing defendant was wearing at the time of his arrest; or (2) the arresting officer overlooked or forgot to document the sweater that defendant was wearing under his overcoat, and defendant discarded the incriminating outer clothing between the time of his arrest and the time he was booked. This latter inference supported the giving of the modified version of CALJIC No. 2.06.

In defendant's view, the latter inference cannot be drawn from the evidence because he necessarily was handcuffed from the time of his arrest until he was booked into jail and, thus, without the powers of Houdini, he could not have discarded the outer clothing he purportedly was wearing. However, other than the booking photograph, neither the prosecution nor the defense introduced evidence regarding defendant's transportation to, and booking into, the jail. We cannot conclude, as a matter of law, that defendant necessarily was handcuffed the entire time after he arrived for booking and there was no opportunity for him to discard the outer clothing.

III.

Defendant's asserts that his trial attorney's failure to introduce the photographs of defendant wearing an orange sweater and the giving of CALJIC No. 2.06 resulted in cumulative error that deprived him of a fair trial. Because there was no error (see parts I and II of this opinion, ante), there was no cumulative error.

IV.

The trial court instructed with CALJIC No. 1.00. Defendant challenges that portion of the instruction that told the jurors: "You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because he has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty." (Italics added.)

According to defendant, this language impermissibly lessened the People's burden to prove defendant guilty beyond a reasonable doubt. The contention fails for the reasons stated in People v. Wade (1995) 39 Cal.App.4th 1487, 1494-1496 (hereafter Wade). Defendant provides no convincing reason for us to reconsider or distinguish the decision in Wade. He suggests that a change in the reasonable doubt instruction, CALJIC No. 2.90, makes this case different. But the revised language of CALJIC No. 2.90 is not connected in any way to the purported effect of the challenged language in CALJIC No. 1.00.FN[]

FN[]. At the time of trial in Wade, CALJIC No. 2.90 included the following language regarding reasonable doubt: "It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." (Italics added.) Here, the trial court gave the current version of CALJIC No. 2.90, which eliminates the words italicized above.

V.

Defendant also attacks the revised CALJIC No. 2.90. Arguing that the "notion of 'abiding conviction' is too easily confused with the 'clear and convincing' evidentiary standard," defendant claims the instruction "fails to convey to the jury the degree of certainty necessary to establish proof beyond a reasonable doubt." He ignores case law that has rejected this contention as frivolous. (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287, and cases cited therein; see Victor v. Nebraska (1994) 511 U.S. 1, 11; People v. Freeman (1994) 8 Cal.4th 450, 504-505.)

VI.

In supplemental briefing, defendant contends the giving of CALJIC 17.41.1 violated his federal right to due process of law. The contention fails for the reasons stated by the California Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, 439-440, 442-445.)

(Opinion at 7-11.)

A challenge to jury instructions does not generally state a federal constitutional claim. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). However, a "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980)). See also Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (To prevail on such a claim petitioner must demonstrate that an erroneous instruction "so infected the entire trial that the resulting conviction violates due process."). The analysis for determining whether a trial is "so infected with unfairness" as to rise to the level of a due process violation is similar to the analysis used in determining, under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), whether an error had "a substantial and injurious effect" on the outcome. See McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993).

Here, petitioner's claim with respect to CALJIC No. 2.06, is meritless. His central defense at trial was based on the disparity between the clothes the robbery suspect was described as wearing and those petitioner was wearing in his booking photo. The prosecution countered that defense by providing testimony from various witnesses that petitioner's clothing at the time of his initial detention immediately after the robbery was similar to that of the robbery suspect's and dissimilar to those seen in his booking photo. The state appellate court found that, in light of this evidence introduced at trial, it was proper under state law for the trial court to instruct the jury with CALJIC No. 2.06 and that petitioner had not established that doing so infected the entire trial with unfairness.

With respect to CALJIC No. 17.41.1 and No. 1.00, petitioner's challenge to these instructions is foreclosed by the decision of the Ninth Circuit Court of Appeals in Brewer v. Hall, 378 F.3d 952, 955-57 (9th Cir. 2004). In Brewer, the court held that, regardless of the "constitutional merits" of CALJIC No. 17.41.1, federal habeas corpus relief was unavailable with respect to a challenge to that jury instruction because there is "no Supreme Court precedent clearly establishing" that its use violates a defendant's constitutional rights. 378 F.3d at 955-56. Here, as in Brewer, petitioner "has pointed to no Supreme Court precedent clearly establishing that CALJIC 17.41.1- either on its face or as applied to the facts of his case -violated his constitutional rights." Id. at 957. Nor has petitioner pointed to any precedent clearly establishing that CALJIC 1.00 - either on its face or as applied to the facts of his case-violated his constitutional rights. Thus, the state appellate court's rejection of this aspect of petitioner's jury instruction challenge was not contrary to or an unreasonable application of clearly established federal law. Moreover, even if the state trial court erred in providing the jury at petitioner's trial with these two instructions, the error was harmless under the circumstances of this case. See Brecht, 507 U.S. at 623 (holding that a federal court may not grant habeas relief for trial errors without a showing of actual prejudice, defined as a "substantial and injurious effect or influence in determining the jury's verdict"). There is no evidence before this court suggesting that the giving of these instructions chilled the jurors' exercise of free speech, prevented free and full deliberations, or allowed for petitioner's conviction on proof less than beyond a reasonable doubt.

Similarly, petitioner's challenge to CALJIC No. 2.90, is foreclosed. The Ninth Circuit Court of Appeals has specifically upheld the constitutionality of the version of CALJIC No. 2.90 with which petitioner's jury was instructed. See Lisenbee v. Henry, 166 F.3d 997, 999-1000 (9th Cir. 1999) (holding that the post-1994 version of CALJIC No. 2.90 adequately describes the reasonable doubt standard).

For the reasons stated above, petitioner is not entitled to federal habeas relief on this aspect of his claim of jury instruction error by the trial court.

2. Marsden Motion

Petitioner claims the trial court erred in denying his motion to relieve his trial counsel pursuant to the decision in People v. Marsden, 2 Cal.3d 118 (Cal. 1970). Specifically petitioner argues that he had a "built-in conflict of interest" with his trial counsel because she was employed by the Sacramento County Public Defender's Office and petitioner had previously worked for that office from April of 1979 until September of 1982 when he was fired. (Sixth Am. Pet. at 120, 135-42.) Additionally, petitioner claims that at the time of his trial the Sacramento County Public Defender's Office also represented witness Rahman Aliy. This latter allegation is based on petitioner's belief that Aliy was really Dante Pigg. Petitioner asserts that as a result of the trial court's error in denying his Marsden motion, he was "forced to represent himself in order to discontinue the conflict of interest." (Id. at 135, 143.)

A defendant has a Sixth Amendment right to conflict-free representation. United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998). Not every conflict between a defendant and counsel, however, implicates the Sixth Amendment. See Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000). As the Supreme Court has explained, the right to counsel does not guarantee "a right to counsel with whom the accused has a 'meaningful attorney-client relationship.' " Morris v. Slappy, 461 U.S. 1, 3-4 (1983). Nevertheless, where a court "compel[s] one charged with [a] grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in [an] irreconcilable conflict [it] deprive[s] him of the effective assistance of any counsel whatsoever." Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970). Thus, a reviewing court must assess the nature and extent of the conflict and whether that conflict deprived the defendant of representation guaranteed by the Sixth Amendment. Schell, 218 F.3d at 1027.

As noted above, petitioner has failed to present this court with any evidence demonstrating that Rahman Aliy was in fact Dante Pigg. Therefore, petitioner has failed to show any conflict of interest on the part of his trial counsel based on the Public Defender's representation of Pigg. Petitioner has also failed to demonstrate any actual conflict of interest based on his former employment by the Public Defender's Office. Petitioner's employment ended some seventeen years before his representation by a deputy public defender in this case began. Even if the office continued to employee individuals petitioner had previously worked with, petitioner has not pointed to any evidence of a conflict involving his appointed trial counsel. Furthermore, petitioner has failed to prove any deleterious effects stemming from the conflict he now alleges.

Accordingly, petitioner is not entitled to federal habeas relief with respect to this aspect of his claim of error by the trial court.

3. Prior Booking

Petitioner next claims that the trial court failed to admonish the jury at his trial to disregard testimony by Officer Manning that information about petitioner's weight may have been obtained from "prior booking information," thus indicating to the jury that petitioner had previously been arrested. (Sixth Am. Pet. at 145.) Petitioner argues that because the trial court failed to "admonish the jury to disregard" Officer Manning's statement, "the court should have declared a mistrial." (Id. at 146.)

After Officer Manning testified that he may have gotten petitioner's weight from "prior booking information" the prosecutor moved to strike the answer. (RT at 254.) The defense did not object and the court ordered the answer stricken. (Id. at 255.) The testimony in question was stricken from the record, meaning the jury could not consider it as evidence. The jury was so instructed (CT at 160) and is presumed to have obeyed the court's instructions. Zafiro v. United States, 506 U.S. 534, 540 (1993); Taylor v. Sisto, ___F.3d___, 2010 WL 2039172, at *4 (9th Cir. May 25, 2010). Moreover, this reference to petitioner's prior booking information was brief and, at worst, merely indicated that petitioner had a prior encounter with ...


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