The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction for two counts of premeditated attempted murder (Cal. Penal Code §§ 664, 187(a)), two counts of arson of a structure (Cal. Penal Code § 451(b)), and two counts of exploding a device with the intent to commit murder (Cal. Penal Code § 12308). Petitioner is serving a sentence of two consecutive life terms.
This action is proceeding on the original petition filed December 5, 2005. Petitioner raises the following claims: 1) the jury saw a photograph of petitioner wearing jail clothes; 2) denial of the right to be present during trial and the reading of the verdict; 3) petitioner was forced to represent himself at sentencing due to ineffective assistance of counsel; 4) trial court improperly denied petitioner's request to call witnesses to testify regarding the 1998 firebombing incident; 5) ineffective assistance of counsel (7 claims); 6) trial court erred in admitting evidence of uncharged conduct; 7) denial of right to represent himself; 8) the trial judge was biased; 9) the trial judge improperly denied his motion for substitute counsel.
After carefully considering the record, the undersigned recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")
In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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. at 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
The California Court of Appeal was the last state court to issue a reasoned decision addressing petitioner's claims that the trial court denied his request to call witnesses regarding the 1998 firebombing incident and erred in admitting evidence of uncharged conduct. (Respondent's Lodged Documents 4, 6.) Accordingly, the undersigned considers whether the denial of these claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.
Petitioner's remaining claims were denied by the California Supreme Court by summary orders. (Respondent's Lodged Documents 8, 10.) Accordingly, the undersigned independently reviews the record to determine whether the denial of these claims by the California Supreme Court was an unreasonable application of clearly established Supreme Court authority.
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
I. The September 2, 1996 Uncharged Act
Defendant met the victim, Kathleen Krouskop, in 1995. They began living together in an apartment on El Camino Avenue in February 1996. The couple continued to live together intermittently until shortly before defendant's arrest.
On September 2, 1996, Krouskop intended to move from the apartment and leave defendant, making him angry. While preparing to move her belongings, she left the apartment complex to telephone a friend. When she returned, she discovered that one of her cars was on fire in her parking space. Defendant, along with several neighbors, was watching the car burn.
After hearing noise, apartment resident Tim Ciraolo ran to his balcony, saw Krouskop's car burning, ran to the manager's apartment, and saw defendant walking toward defendant's apartment.
After the fire, Krouskop went to stay with her friend Spurgeon Holloway for a few weeks. She and defendant then reconciled, and she moved back into the apartment. But the car was a total loss.
Four years later, an arson investigator found a disposable butane lighter and a sock in the car's trunk. Krouskop could not think of any reason why she would have left a lighter in the trunk, but did note that defendant had access to the car keys. The fire had apparently originated in the driver's seat.
II. The November 4, 1998 Firebombing - Counts 4, 5, and 6
At the end of October 1998, Krouskop again left defendant. This time, she moved into Spurgeon Holloway's house. Holloway lived in a four-bedroom house on Willowbrook with his son, his daughter-in-law Renee Holloway Martin,FN3 and their two children.
FN3. As of October 1998, Renee Martin's last name was Holloway, but by the time of trial, she had changed it to Martin. Thus, we shall refer to her as Martin.
On November 3, 1998, defendant called Krouskop at Holloway's house and asked her to come back to him. Krouskop refused.
At 2:00 a.m. the next morning, Krouskop was coming out of a bathroom when there was a crash, followed by glass breaking and a big boom sound. A fire began in a child's bedroom located in the front of the house. The remains of an explosive device - commonly referred to as a "Molotov cocktail"- consisting of a glass bottle with gasoline in it and a wick, were found in the child's bedroom.
Several weeks later, Krouskop reconciled with defendant and returned to his El Camino Avenue apartment. In his apartment, she discovered notes on defendant's calendar containing Holloway's address and a real estate printout of Holloway's home and address. She also discovered that the clothing that she had left in defendant's closet had been cut up. Defendant admitted that he had cut up her clothing and had left them there "because he wanted [her] to see them."
III. The July 17, 2000 Firebombing - Counts 1, 2, and 3
At the beginning of March 2000, Krouskop left defendant once again and moved into an apartment with her mother about a block away.
In or around early June 2000, she invited defendant to her apartment for dinner so that they could talk about some things.
On July 16, 2000, Krouskop went to see defendant at their former apartment in order to sign papers concerning their car. Defendant asked Krouskop to come back home, but Krouskop refused. Krouskop asked defendant if they could be friends, but defendant said, "[I]f we're not together, we'll never be friends."
Later that evening, Krouskop received a series of "hang-up" telephone calls and one call from defendant, suggesting that she return to their apartment for her microwave.
At about 2:00 a.m., Krouskop was awakened by the sound of her bedroom window breaking, glass flying, and an explosion and fire in her bedroom.
Krouskop managed to put out the fire with two rugs.
Arson investigators determined that the fire was started by a "Molotov cocktail" that had been thrown through the bedroom window. The investigator found the neck of a glass bottle with a checkered piece of cloth stuck in it, which was identified by Krouskop as similar to dish towels that she had bought with defendant. Two plastic bags smelling of gasoline, one bearing the name of Ralph's and one with the name of Springfield, were found outside Krouskop's window. Investigators found the remains of the dish towels in the defendant's apartment, as well as plastic bags from Springfield and other stores (but not Ralph's). A maintenance man discovered that three light bulbs in the carport, near Krouskop's apartment, were unscrewed, thereby preventing them from affording any illumination. Defendant's fingerprint was found on one of the bulbs.
(Respondent's Lodged Document 4, pp. 2-6.)
A. Denial of Right to Be Present During Trial and Verdict; Denial of Right to Self-Representation; Denial of Motion for Substitute Counsel
Petitioner alleges that he was denied his right to be present during the trial and reading of the verdict. Petitioner also alleges that the trial court improperly denied his motions for self-representation and for substitute counsel. While these claims will be separately addressed, the following (necessarily) lengthy background section puts them in context.
On March 12, 2001, during pretrial proceedings, petitioner made a Marsden*fn1 motion. Petitioner argued that trial counsel's investigator, Mr. Pogue, and trial counsel told him (petitioner) that the charges regarding the 1998 firebombing incident should be dismissed for lack of evidence. (Reporter's Transcript ("RT") at 56.) Because the charges were not dropped, petitioner argued that trial counsel had lied to him. (RT at 57.) Petitioner also argued that trial counsel should have subpoenaed Nora Savage to testify on his behalf but failed to do so. (Id.) Petitioner claimed that Nora Savage was no longer cooperating with the defense because Mr. Pogue had done something to offend her. (RT at 58.) Petitioner also complained that counsel had not adequately investigated Renee Martin. Petitioner claimed that Tracy Wallace, the girlfriend of Martin's employer (Clement Williams) committed the 1998 firebombing after learning that Martin had an affair with Williams. (Id. at 60.)
In response, trial counsel told the court that Nora Savage was subpoenaed.*fn2 (Id. at 62.) Trial counsel stated that he never told petitioner that the charges regarding the 1998 incident would be dismissed. (Id.) Trial counsel also stated that while petitioner had a problem with him failing to call victim Krouskop at the preliminary hearing, he did not do so because she could not provide any testimony relevant to the defense. (RT at 63.) Trial counsel also stated that at the pretrial hearing being conducted that morning, Ms. Martin was prepared to testify regarding her affair with her employer. (RT at 64.) Trial counsel stated that he had been unable to locate Williams or his girlfriend Tracy, the woman who petitioner claimed committed the firebombing. (Id.)
Petitioner also complained that trial counsel did not adequately communicate with him. Trial counsel went on to list eleven times he had discussed the case with petitioner. (RT at 67.)
The trial court denied the Marsden motion, finding that trial counsel had adequately addressed petitioner's complaints during the hearing and that there was no adequate basis for granting the motion. (RT at 69.) When asked whether he could continue representing petitioner, trial counsel stated,
I know he's horribly angry at me and it's certainly cut into this relationship, this professional relationship I have with him, but I think that I can probably still proceed in terms of calling witnesses, in terms of making arguments, making objections, et cetera.
Later that day, just prior to the beginning of jury selection, petitioner made a Faretta motion. (RT at 118.) Petitioner asked for a continuance of two weeks so that he could study his case. (Id.) The trial court denied the request for continuance, then asked petitioner if he still wished to represent himself. (Id.) Petitioner responded that he still wanted to represent himself, but he was not ready for trial. (Id. at 118-19.) The trial court told petitioner again that his motion for continuance was denied and asked if petitioner still wanted to represent himself. (RT at 120.) Petitioner responded, "Your Honor, I'm not receiving fair representation at this time." (Id.) The court again explained to petitioner that his motion for continuance was denied. (Id.) The following exchange occurred:
Court: I'm not saying I'm going to grant you your Faretta rights at this point, but understanding that you -- your request for a continuance is denied, do you want Mr. Foster to continue to represent you?
Petitioner: Your Honor, at this time I'm not ready to go to trial yet.
Court: All right. He's refusing to answer my question. I'll deem that as a continuation of the present legal situation till he responds to the Court's question.
Petitioner's trial counsel then asked for a continuance so that he could attempt to locate Mr. Williams and his girlfriend, Tracy Wallace, in an attempt to investigate the claim that Wallace committed the 1998 firebombing. (RT at 121-23.) The trial court denied this request. (RT at 123-24.) The trial court then again asked petitioner if he wanted to represent himself:
Court: Mr. Spencer, you requested to represent yourself. I need to get some clarity from you as to whether you wish to represent yourself and proceed to trial right now.
Petitioner: Your Honor, I'm not receiving a fair representation. I'm not ready to go to trial right now.
Court: I understand that, sir. The question--and you keep asking for a continuance, sir. I'll ask one more time and if you refuse to answer, I'm going to leave it as--I'll deem that a request to remain in the status go--quo with Mr. Foster representing you. Do you wish to represent yourself in the jury selection and the jury trial at this point?
Petitioner: At this time, Your Honor, I'm not receiving a--receiving fair representation. I'm not ready to go to trial.
Court: All right. After repeated questions by the Court, the defendant has refused to respond.... (RT at 125.)
The trial court then called the jury panel in for jury selection and asked petitioner's counsel to introduce himself. (RT at 126.) Petitioner proceeded to interrupt his counsel:
Trial Counsel: Good afternoon, Ladies and Gentlemen, my name is Greg Foster. This is my client, Mr. Thurman Spencer.
Petitioner: My name is Thurman Spencer, and today is not the--
Petitioner: --day for me to be having a trial--
Court: Mr. Spencer, have a seat, sir.
Petitioner: --because I'm not being represented--
Court: I'm ordering you to have a seat.
The trial court then advised petitioner that he was not to speak to the jury unless he was called as a witness. (Id.) The trial court further advised the jury to disregard petitioner's comments and to not hold them against him. (Id.) The trial court then proceeded to read the charges against petitioner to the jury. (RT at 128-29.) During the reading of the charges, petitioner interrupted:
Petitioner: I object, Your Honor. I have not even set fire to anyone's house.
Court: Mr. Thurman, you are instructed--Mr.--Ladies and Gentlemen of the Jury, if I could have you step outside please.
Petitioner: I'm being railroaded here.
Court: We'll take a brief recess. (RT at 129.)
The trial court told petitioner that he could not speak out as he had been doing. (Id.) The trial court warned petitioner that he could be removed from the courtroom for continued disruptive behavior. (RT at 130-31.) The court asked petitioner if he understood what had just been read to him regarding his rights to remain in the court:
Court: And, Mr. Spencer, I'm going to tell you again, we're not continuing the trial. Did you understand what I just read to you, sir?
Court: Mr. Spencer, I want you to--
Petitioner: I'm not ready for trial.
Court: All right. He's refusing and the Court would deem his answer a positive response as I've read it to him in my presence. In addition, Mr. Spencer, I want you to understand that if we have continued outbursts and you speak to the jury and talk about matters before you are called to the witness stand, that that will be a violation of my order. You are not to speak out at all in open court. You can certainly whisper to your attorney and communicate with your attorney, but speaking out as you have in front of the jury is a violation of the Court's orders. If you continue to do this, you will be removed from the courtroom and Mr. Foster will continue to try the case in your absence. Do you understand the negative impact?
Petitioner: Your Honor, I'm not--
Court: Sir, if you'll step out. Is that Harry?
Court: All right, fine. It's another attorney that walked in. Mr. Spencer, do you understand that you can be removed for your conduct and the case will continue in your absence?
Petitioner: Your Honor, I'm not being fairly represented. I need time to go ahead to--to receive new counsel to represent me on my behalf.
Court: The Court will deem that as a--a yes. Mr. Spencer, the other matter I want you to understand is that when you do decide to conform your conduct to the requirements of the Court, that is not to speak out in open court and try to prejudice the jury against the People or garner sympathy for yourself, you can be returned to the courtroom. Do you understand that, sir?
Petitioner: Your Honor, I'm not fairly being represented. I need time to receive new counsel to represent myself.
Court: All right. And let me just indicate to you again, sir, if you continue, the Court will have no choice but to take other actions. *** Do you recognize that you run the risk of injuring your case by doing what you're doing in front of the jury?
Petitioner: Your Honor, my Constitutional rights are being violated. I'm not receiving fair representation. I need time to receive new counsel in order to represent me in regards to this trial. (RT at 132-34.)
After a brief recess, the trial court called the jury back in to resume the voir dire. (RT at 135.) The court continued the reading of the charges against petitioner. (RT at 136.) Petitioner again interrupted:
Petitioner: Your Honor, I did not set--
Court: --35 El Camino Avenue, Section Number 27.
Petitioner: I have not burned anything, ...