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 2004 conviction for second degree murder. Petitioner is serving a sentence of 40 years to life.
This action is proceeding on the amended petition filed September 16, 2008. (Dkt. No. 13.) Petitioner raises the following claims: 1) speedy trial violation; 2) improper admission of evidence regarding prior conviction; 3) jury instruction error; 4) violation of Confrontation Clause; and 5) prosecutorial misconduct.
After carefully reviewing 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).
In this case, the California Court of Appeal was the last state court to issue a reasoned decision addressing petitioner's claims. (Respondent's Lodged Documents 7, 9.) Accordingly, the undersigned considers whether the denial of those claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision).
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:
The primary prosecution witness was the victim's most recent roommate, with whom she had come to live a couple of weeks before the murder. On the day of the shooting, the victim had returned home in the late afternoon with a car that the roommate's father had rented. She asked the roommate to come along with her while she drove the defendant home (who was outside in the car). This was the first time that the roommate had met the defendant.
The victim drove to an apartment complex. She explained to the defendant that they had to return the car to the roommate's father. The defendant refused to get out of the car. The victim went into the apartment complex and returned with the defendant's cousin, who joined the roommate in the back seat. The victim drove around, seemingly aimlessly. Eventually, they returned to the apartment complex. The defendant still would not leave the car; he told the victim that the roommate and cousin could follow her in the defendant's car.
The victim continued to drive with no apparent destination. It appeared to the roommate that the victim and the defendant were having an argument. Eventually, the cars stopped at a gas station, at which point the victim told her roommate that she wanted to go to the cemetery to see the grave of her mother, after which they would go to a restaurant to eat.
When they got to the cemetery, they followed a road to the rear. The victim got out of the car, carrying only a purse, and walked quickly toward the fence. The defendant got out of the car holding a small black gun. He started walking toward the victim. The roommate could see his hands make the motion of cocking the gun.
The defendant tried to grab the victim's neck. She shrugged him off but he took hold of her. The two of them struggled. The roommate did not see the victim's hand on the gun at any point. The music was on in the car and the windows up, so the roommate could not hear anything. As the victim broke away from the defendant, the roommate heard the sound of a shot. The victim staggered away. The defendant walked back to the car with the purse and gun in hand, and told his cousin and the roommate that someone needed to get the victim to a hospital. The roommate ran to the victim and dragged her (without assistance from the men) to the rental car, but could not get her inside. She demanded the keys and the victim's purse from the men. Unable to summon assistance on a cell phone, she decided to drive to the nearby home of her grandmother to make the call.
The bullet entered the victim's neck and exited the right side of her back in essentially a straight line. The angle of the wound indicated it had been fired from someone standing over the victim, or shooting at a bent-over victim. The bullet perforated a major vein to her heart and two of the three lobes of her right lung.
Her chest cavity was filled with a quart of blood. Her blood-alcohol level was .05, and a significant amount of methamphetamine was in her system. There was also a pipe in her pocket.
A resident of an apartment complex bordering the cemetery was in the process of taking laundry in two or three trips to his car. He heard what sounded like a young woman nearby who was crying, gasping, and gurgling. It sounded as if she was saying, "[W]hy is this happening? Why are you doing this to me? Why? Don't leave me here. I don't want to die." At first he had not paid much notice because he had heard mourners keening on other occasions, but there was something that caught his attention. He could see two cars in the cemetery, but no people were visible outside of them. When he returned from the laundromat shortly afterward and learned police were going through the complex, he sought them out to tell them what he had heard.
According to a detective who acted as an investigator of the crime scene, the evidence closely corroborated the roommate's account (which he had not heard before writing his report). An ejected unfired casing was near where the roommate said she saw the defendant cock the gun, a pool of blood was near where she said the victim fell, and there were blood drops along where she said she had dragged the victim. He also found an expended bullet; the angle at which it had hit the ground was consistent with it passing through the torso of someone bent over somewhere between fully horizontal and fully upright.
The defense strategy paralleled that of defense attorney Billy Flynn in Chicago. (Kander & Ebb (1975) "We Both Reached For The Gun.") (FN1) Defendant's cousin testified that after the victim had been driving around making stops (which he assumed were related to selling drugs), he followed her in the other car to the cemetery. As he pulled up behind the rental car, he could see the victim and the defendant already struggling over a gun. The victim was holding the handle and the defendant had hold of the barrel. The gun went off in a matter of seconds after he arrived. A witness (FN2) picnicking near his aunt's grave some 450 feet away stated that the defendant was not holding anything when he got out of the car to follow the victim. There was something in the victim's right hand that he assumed was a gun because the defendant backed off when she raised it. They began to struggle over whatever was in her left hand, and the witness claimed he heard the defendant ask if the victim was going to shoot him. Then there was a shot. The defendant and a woman from the other car appeared to be helping the victim toward the cars. He could not see the body on the ground from his location; assuming all was well, he went to get food at a nearby store. On his return, he saw the police. He had gotten a ride to court from the defendant's girlfriend.
FN1. "Oh yes, oh yes, oh yes, we both-/Oh yes, we both-oh yes, we both reached for/The gun, the gun, the gun, the gun. Oh yes, we/both reached for the gun, for the gun."
FN2. This witness, described as homeless, was unavailable for the retrial. The parties read the transcript of his testimony from the first trial into the record.
The defendant testified. He had known the victim since childhood. Although they had been in a sexual relationship that produced a child, he did not consider her a girlfriend. She had been a drug abuser since age 13, and he acted as the wholesaler for her drug enterprise. He was unhappy that her use of drugs during her pregnancy with what he assumed was his child resulted in dependency proceedings. They had spent the day calling on the victim's customers, adding the roommate and the cousin (and the defendant's car) to their party as the day progressed. The victim had been irritable with the defendant as they drove, believing him to have sequestered their child. She announced that she wanted to return to the cemetery (having already visited it earlier in the day with the defendant). At the cemetery, she walked toward her mother's grave. The defendant got out of the car to follow her. He did not have a gun, and denied making any motion resembling the cocking of a gun. When he tried to guide her back to the car, she pulled out a gun. They struggled over it for about a minute before it discharged accidentally. He did not intend at any time to shoot her. She did not say anything akin to what the witness heard in the neighboring apartment complex.
(Respondent's Lodged Document 7, pp. 2-5.)
Petitioner contends that his right to a speedy trial was violated. Petitioner's first trial ended in a mistrial on May 19, 2003, after the jury could not reach a verdict. (CT at 175.) Petitioner's retrial began on June 7, 2004. (CT at 190.) Petitioner contends that this almost one year delay in his retrial violated his right to a speedy trial.
"The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy trial." Doggett v. United States, 505 U.S. 647, 651 (1992). The Supreme Court has articulated a four-part test to determine when the delay has violated a defendant's right to a speedy trial. The court must balance: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right; and (4) whether the defendant suffered prejudice as a result of the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003). However, the Constitution requires only that the state make a good-faith, diligent effort to bring a defendant to trial in a timely manner. McNeely, 336 F.3d at 826.
"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530; McNeely, 336 F.3d at 826 (noting that a substantial delay "triggers a Barker inquiry"). However, a "delay attributable to the defendant's own acts or to tactical decisions by defense counsel will not bolster defendant's speedy trial argument." McNeely, 336 F.3d at 827.
As discussed above, petitioner's retrial commenced approximately one year after the conclusion of his first trial. See Blackburn v. United States, 564 F.2d 332, 334 (9th Cir. 1977) (when a case is set for retrial following a mistrial, the defendant's speedy trial right begins to run again from the date of the mistrial). This delay was presumptively prejudicial. See Doggett, 505 U.S. at 652 n. 1 (noting that lower courts have generally found delays to be "presumptively prejudicial" when they approach a year). Accordingly, the other Barker factors must be considered.
Out of the eight requested continuances between the original trial and the retrial, seven were attributable to defense counsel. The first continuance was sought on July 14, 2003, by both defense counsel and the prosecutor on grounds that they needed the transcript from the first trial to prepare for the retrial. (Augmented Reporter's Transcript ("ART") at 582.) At this time, petitioner stated that he did not waive time and made a Marsden motion. (Id.) This motion was denied.*fn1 (Clerk's Transcript ("CT") at 11.)
On August 27, 2003, petitioner's counsel sought the second continuance on grounds that he was in trial on another case and still had not received the trial transcript. (ART at 608.) At that time, petitioner's counsel told the court that he had discussed the matter with the Defense Panel and had been advised that they would not be able to provide another attorney to try the case in sixty days. (ART at 609.) At that hearing, petitioner stated that he would not waive time. (ART at 610.)
On October 22, 2003, defense counsel sought a continuance because he was in trial on another case. (ART at 612.) Defense counsel requested a continuance until January 6, 2004. (ART at 613.) He told the court that the director of the Defense Panel had told him that the panel was extremely short staffed and was unable to get any other lawyer ready to try the case in the time that he expected to be ready. (Id.) Defense counsel acknowledged that he had received the transcript from petitioner's first trial during the previous week. (ART at 614.) On the record, the court stated that the Defense Panel was unable to ...