FINDINGS AND RECOMMENDATIONS
Petitioner Kelsaw is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. Kelsaw stands convicted of kidnaping and first degree murder in the Sacramento County Superior Court. He is currently serving a sentence of life in prison without the possibility of parole. In the pending petition, Kelsaw challenges the constitutionality of these convictions through several different grounds for relief.
Kelsaw and his cousin by marriage, Terah Lawyer were charged by information with one count of kidnaping and one count of murder accompanied with the special circumstances of lying-in-wait and kidnaping. It was additionally charged that a principal was armed with a firearm.
Lawyer was tried separately before Kelsaw's trial. A jury found her guilty of one count of kidnaping and one count of first degree murder with a kidnaping special circumstance. Lawyer's jury found the lying-in-wait special circumstance not true. On the kidnaping count, it found that a principal had been armed with a firearm. In exchange for sentencing considerations, Lawyer entered into an agreement with the prosecutor to testify at Kelsaw's trial. After Lawyer testified at Kelsaw's trial, her conviction was reduced to second degree murder and she was sentenced to a term of 16 years to life. Subsequently, at Kelsaw's trial, Lawyer gave testimony establishing as follows:
In April 2002, [Kelsaw]'s cousin by marriage, Terah Lawyer, was 18 years old. [Kelsaw] sold CDs which he burned himself. At times, Lawyer accompanied [Kelsaw] as he sold CDs, mostly at shopping centers.
At about 6:00 p.m. on April 15, 2002, Lawyer called [Kelsaw] on his cell phone. They agreed to meet at a Wal-Mart parking lot where he was selling CDs. Lawyer left the parking lot with [Kelsaw], and [Kelsaw] asked her to do him a favor. [Kelsaw], referring to the victim, Mi'angelo Cordero, told Lawyer there was someone who wanted to take [Kelsaw]'s chain, a large platinum chain with diamonds and a medallion. [Kelsaw] wanted to "confront and check" (Lawyer's words) Cordero and needed to get Cordero away from his fellow gang members. [Kelsaw] said he wanted Lawyer to bring Cordero to a gas station. They drove together in [Kelsaw]'s car to Mack Road, and [Kelsaw] pointed out Cordero, who was sitting on some stairs talking to several other males. Just a few minutes later, Lawyer returned to Mack Road in her own car. She approached Cordero and feigned interest in renting an apartment. Eventually, she asked Cordero if he wanted to go to the movies with her that night. He said he did, and they exchanged telephone numbers.
Lawyer returned to the Wal-Mart parking lot where [Kelsaw] was waiting and reported her contact with Cordero. Within a short time, Cordero called Lawyer's cell phone, and Lawyer, not knowing what to say, asked Cordero to call her back in an hour. [Kelsaw] and Lawyer went to Lawyer's apartment, and [Kelsaw] told Lawyer there was a change in plans. [Kelsaw] wanted Lawyer to pick up Cordero and take him to a motel room. They drove to a Motel 6 near Mack Road, and [Kelsaw] gave Lawyer a card key for room 161. He told Lawyer that he and his friends would be inside the room, in the bathroom. He instructed Lawyer to have Cordero come in the room and lead him to believe they would have sex.
Once Cordero's shirt was off, [Kelsaw] would come out of the bathroom and confront Cordero.
Lawyer called Cordero and told him she was ready to come pick him up. Lawyer went to the parking lot of a liquor store across from the apartments where she had met Cordero. Cordero approached the car, and Lawyer told him they were going to a motel room to "have a good time." She asked Cordero to buy a box of condoms. He went into the liquor store and came out with a box of condoms. Lawyer told him not to bring a gun. With Cordero in the car, Lawyer drove back to the motel.
Lawyer and Cordero entered the motel room. Cordero sat down on the bed, and Lawyer told him to take his shirt off. [Kelsaw] and several others came out of the bathroom and confronted Cordero. [Kelsaw] hit Cordero in the face and then the others joined in, hitting and kicking Cordro. [Kelsaw] hit Cordero with the handle of a gun. Lawyer backed into a corner as she watched, and Cordero eventually fell to the floor unconscious. When he regained consciousness, the men sat Cordero up in a char and [Kelsaw] flaunted his chain. [Kelsaw] held a gun to Cordero's head and said he could kill Cordero. Cordero was bleeding from his nose and arm and his eye was swollen. The men threw Cordero, handcuffed, into the bathtub. [Kelsaw] told Lawyer they were going to drop Cordero off "in the boondocks." Lawyer and the men all left the motel room and got into two cars. Cordero, still handcuffed, was placed in a rental car with the other men. [Kelsaw] told Lawyer to follow in his Dodge Neon. On the freeway, [Kelsaw] called Lawyer and told her to go wait at his apartment, but Lawyer continued to follow. The group took the Cal Expo exit and went to the parking lot of a Costco.
All of the men, except for one who stayed behind in the car, took Cordero out of Lawyer's sight. Lawyer called a friend and, while on the phone, she heard two gunshots. [Kelsaw] came running back to the cars, along with two other men. They got into the cars and left, [Kelsaw] riding in the Dodge Neon, which Lawyer was driving. [Kelsaw] told Lawyer they shot Cordero in the head. Lawyer noticed blood on [Kelsaw's] shoes and "human matter" on his pants. [Kelsaw] told Lawyer to return to the motel room and clean it up. She and another woman went to the motel room and used bleach to clean blood off the walls.
(People v. Kelsaw, No. C047832, slip op. at 3-6 (Cal. App. 3 Dist. 2007)).
Other evidence was admitted at trial as follows:
Cordero's body was found in the Costco parking lot, in the mud, at about 7:00 a.m. on April 16, 2002. He had been shot twice in the head. The wounds were both contact wounds. He was shot at a 60 degree downward angle. Shoe prints were found in the mud. A condom box was nearby in a planter. It was empty and had no lid. Cordero's and Lawyer's fingerprints were on the box.
Four months after the murder, investigators examined the Motel 6 room. They collected blood from the wall that matched Cordero's blood. They also concluded that carpet fibers found in Cordero's socks matched the carpet in the room. Motel records showed that [Kelsaw] rented the room on April 15, 2002.
Kweanna Smith testified that [Kelsaw] told her he killed Cordero because Cordero wanted to take his chain. He had a girl lure Cordero to the motel room where [Kelsaw] and others beat him up and burned him with cigarettes. They then took Cordero to the Costco parking lot and, while Cordero was on his knees, [Kelsaw] shot him in the back of the head. Smith was [Kelsaw]'s former girlfriend, but Smith's boyfriend at the time of trial was Cordero's best friend. She wanted to help Cordero's family by testifying against [Kelsaw]. [Kelsaw] presented evidence that his girlfriend, Latoya Horne, dropped him off at the Jack in the Box on Mack Road at about 10:00 p .m. on the evening of April 15, 2002. The next morning, at about 10:00 a.m., [Kelsaw] called her from Oakland. She went to Oakland and picked him up at around 11:30 a.m. After his arrest, [Kelsaw] told Horne he had rented a room at the Motel 6 for Lawyer on the evening of April 15, 2002, but then he spent the night with another woman at a motel in Oakland. (People v. Kelsaw, No. C047832, slip op. at 6-7.)
Kelsaw was convicted by jury of first degree murder during which a principal was armed with a firearm. The jury found not true the allegations that he personally used a firearm or discharged a firearm. On the murder count, the jury found the kidnaping special circumstance true but found the lying-in-wait special circumstance not true. The jury also convicted Kelsaw of kidnaping, and with respect to this count, found true the allegation that a principal was armed with a firearm but found not true the allegations that he personally used a firearm or discharged a firearm.
At sentencing, the trial court imposed the upper term for the kidnaping count but stayed that term as well as the firearm enhancement associated with that count. Kelsaw was sentenced to life without the possibility of parole for the special circumstance murder, plus one year for the firearm enhancement on that count.
Kelsaw appealed his convictions on various grounds to the California Court of Appeal, Third District. Except for the striking of a parole revocation fine, the state appellate court affirmed the judgment against him. The California Supreme Court denied review.
Kelsaw presented several additional grounds for relief in a habeas corpus petition to the Sacramento County Superior Court; the petition was denied. The California Court of Appeal, Third District, and the California Supreme Court likewise denied Kelsaw's claims on state habeas corpus review.
The pending petition consists of more than 150 typed pages, exclusive of its many exhibits. Kelsaw sets forth 19 distinct grounds for relief in two separate groups; the first group is numbered 1-10; the second group is numbered 1-9. For purposes of this opinion, Kelsaw's grounds designated 1-9 in the petition will be renumbered and referred to herein as grounds 10-18. Many of Kelsaw's grounds for relief are related or based on common sets of facts, while others appear to either present more than one constitutional issue or overlap with other grounds with respect to the constitutional issue presented. For purposes of this opinion, Kelsaw's claims will be analyzed as follows.
Subsection (A) will examine Kelsaw's claims relating to Lawyer's sentencing agreement. Kelsaw contends in three separate but related grounds (petition grounds 1, 2, and 12) that his conviction must be reversed because his trial counsel rendered ineffective assistance in failing to object to or move to exclude Lawyer's testimony at trial. Kelsaw further claims that appellate counsel rendered ineffective assistance in failing to claim on appeal that Lawyer's sentence was improperly reduced to second degree murder (petition ground 10). Subsection (B) will review Kelsaw's contentions that a mis-statement of the law by the prosecutor during closing argument constituted prejudicial misconduct (petition ground 3), and, alternatively, that trial counsel provided ineffective assistance of counsel for failing to object to the prosecutor's comment (also petition ground 3). Subsection (C) will examine Kelsaw's various grounds for relief which are based on allegations of possible jury misconduct. These grounds include alleged trial court error (petition ground 7) and ineffective assistance of appellate counsel (petition grounds 16 and 19). Subsection (D) will review Kelsaw's additional allegations of trial court error: specifically that the trial court erred in admitting prejudicial rap lyrics into evidence (petition ground 6), his alternate claim that trial counsel rendered ineffective assistance to the extent he failed to make the "proper objections" (also petition ground 6), and finally, his contention that the trial court erred in excluding gang evidence relevant to motive (petition ground 5). In subsection (E), Kelsaw's remaining allegations of ineffective assistance of trial and appellate counsel will be set forth and discussed (petition grounds 4, 11-13, 17-18). Finally, in subsection (F), Kelsaw's claims of instructional error by the trial court (petition grounds 8 and 9) will be reviewed.
IV. 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 also 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. Lawyer's Sentencing Agreement and Testimony
1. Ineffective Assistance by Trial Counsel in relation to the Sentencing Agreement
In three separate but related grounds, Kelsaw claims that his trial attorney, Jon P. Lippsmeyer, rendered ineffective assistance in failing to object to or move to exclude Lawyer's testimony on the basis of prosecutorial misconduct (petition ground 1), judicial misconduct (petition ground 15), and because her testimony was "coerced" by the terms of the sentencing agreement she entered into with the prosecutor in her separate criminal case (petition ground 2). Kelsaw additionally claims that appellate counsel rendered ineffective assistance in failing to raise on appeal, except by reply brief which forfeited the claim, the contention that Lawyer's conviction was unlawfully reduced from first degree murder to second degree murder in her separate criminal case (petition ground 10).
As recounted earlier, Lawyer was found guilty of kidnaping and first degree murder in a separate trial which concluded, except for sentencing, before Kelsaw's trial began. As to the murder count, Lawyer's jury found true the special circumstance of kidnaping. Lawyer then entered into a sentencing agreement with the prosecutor. Additional background facts relative to these grounds were set forth on direct appeal by the California Court of Appeal as follows:
Before Lawyer's sentencing, the prosecutor filed a document in the trial court stating that Lawyer had agreed to talk to the prosecutor about possible cooperation against others involved in the crimes and that the prosecutor would not use any information obtained from Lawyer during this interview in any criminal case against her. Lawyer spoke with the prosecutor, and they signed an agreement on January 14, 2004, that, in exchange for her testimony against [Kelsaw], Lawyer would "be sentenced ... to a stipulated term of 15 years to life for violation of [Penal Code section 187, subdivision (a) (murder) ] and 1 year consecutive for violation of [Penal Code section 12022, subdivision (a)(1) (firearm enhancement) ]." The agreement also provided that Lawyer would plead guilty to an unrelated embezzlement charge and receive a concurrent sentence. Concerning her testimony against [Kelsaw], the agreement required Lawyer to "testify truthfully and completely" and "any deviation from the truth" would render the agreement "null and void."
Before agreeing with the prosecutor, Lawyer moved to strike the special circumstance. The court, Judge Patrick Marlette presiding, denied the motion. Lawyer agreed with the prosecutor to testify and testified for the prosecution at [Kelsaw]'s trial, with Judge Michael Garcia presiding. After [Kelsaw]'s trial, Judge Marlette struck the special circumstance and modified Lawyer's conviction from first degree murder to second degree murder. He then imposed the stipulated term of 16 years to life.
(People v. Kelsaw, No. C047832, slip op. at 7-8.)
Kelsaw contends, first, that trial counsel should have moved to exclude Lawyer's testimony on the ground it was procured by prosecutorial misconduct, in that the prosecutor promised Lawyer a sentence reduction that violated California law and resulted in imposition of an unlawful sentence by the court. To the extent Kelsaw bases his claim that trial counsel failed to object to Lawyer's testimony on such alleged "prosecutorial misconduct," the California Court of Appeal, Third District, held as follows on direct appeal:
[T]rial counsel's performance was not deficient. (People v. Lewis (2006) 39 Cal.4th 970, 988-989 [claim of ineffective assistance of counsel requires deficient performance].) [Kelsaw] asserts the prosecutor unlawfully induced the trial court in Lawyer's case to strike the special circumstance. Penal Code section 1385.1 states: "Notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive." While the minutes of Lawyer's sentencing reflect that the trial court struck the special circumstance finding, it was immaterial whether the finding was stricken because the trial court also reduced the crime to second degree murder. Because a special circumstance finding has no sentencing effect on a second degree murder conviction, it was unnecessary and ineffectual to strike the special circumstance finding. The sentence was a lawful second degree murder term.
In his reply brief on appeal, [Kelsaw] contends it was also improper for the court in Lawyer's case to reduce the crime to second degree murder. We need not consider assertions made for the first time in the reply brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 [points raised for first time in reply brief not considered unless good reason shown for failure to present them earlier].)
We also note that the prosecutor did not agree with Lawyer that the special circumstance finding would be stricken. Instead, the prosecutor agreed to a stipulated term. It was the trial court that struck the special circumstance finding, an action unnecessary to the sentencing agreement. [Kelsaw] asserts the prosecutor's agreement with Lawyer "orchestrated a violation of the law" which "infected [Kelsaw]'s trial with such unfairness as to make his conviction a denial of Due Process...." As noted, [Kelsaw] has shown no violation of law. Therefore, even if we assume for the purpose of argument that a sentencing agreement between a witness and the prosecution could violate [Kelsaw]'s due process rights, [Kelsaw] has failed to show prosecutorial misconduct. And [Kelsaw]'s trial counsel was not deficient for failing to object to Lawyer's testimony based on prosecutorial misconduct.
(People v. Kelsaw, No. C047832, slip op. at 8-10.)
Kelsaw further alleges that counsel should have objected to Lawyer's testimony on the basis of "judicial misconduct" or trial court error. Kelsaw presented this aspect of his ineffective assistance of counsel claim to the Sacramento County Superior Court on state habeas corpus review, where it was likewise rejected:
Petitioner claims that trial counsel should have objected to the sentencing agreement for witness Terah Lawyer, who was also Petitioner's co-defendant, as trial court error... Petitioner argues that his trial counsel failed to object because it was a losing argument. Petitioner has not shown that the sentencing agreement was improper. The Court of Appeal's opinion noted that agreements to grant immunity or sentencing consideration in exchange for testimony do not violate a defendant's right to a fair trial. In addition, Petitioner has not shown that the trial court erred when it found that life imprisonment without the possibility of parole [ ] was cruel and unusual punishment, given her background and her cooperation in testifying at Petitioner's trial. Moreover, at the time of Lawyer's sentencing, on September 24, 2004, Petitioner had already been convicted and sentenced. There was no reason why counsel could have objected to the sentencing of a co-defendant. (In re Kelsaw, No. 07F08740, slip op. at 3 (Sup. Ct. Sacramento County, CA October 11, 2007).
Finally, in one additional related ground that was presented to the state courts on direct appeal, Kelsaw contends that trial counsel should have objected to Lawyer's testimony on the basis that it was "inherently coerced" by the terms of her sentencing agreement. With respect to this contention, the California Court of Appeal held as follows:
[C]counsel was not deficient because the trial court would have properly denied any such objection.
The Supreme Court recently reviewed the law, starting with People v. Medina (1974) 41 Cal.App.3d 438, concerning the claim that a witness's testimony was coerced: "In Medina, the Court of Appeal held that 'a defendant is denied a fair trial if the prosecution's case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion.' ([ Id.] at p. 455.) We have since observed that when an 'accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendant's conviction [citation], the accomplice's testimony is "tainted beyond redemption" [citation] and its admission denies the defendant a fair trial.' (People v. Allen (1986) 42 Cal.3d 1222, 1251-1252.) But 'an agreement requiring only that the witness testify fully and truthfully is valid.' (Id. at p. 1252.)" (People v. Avila (2006) 38 Cal.4th 491, 594.)
The sentencing agreement between the prosecutor and Lawyer included the following paragraph: "It is understood by all parties to this Agreement that Terah Lawyer met with detectives of the Sacramento Police Department in a recorded interview on August 7, 2002, and with representatives of the Sacramento District Attorney's Office in a recorded interview on November 7, 2003, which pertain to her knowledge of the events surrounding the murder of Mi'angelo Cordero occurring between April 15th and 16th, 2002. It is understood by all parties to this Agreement that except where clarified in these recorded interviews, Terah Lawyer's representations during those interviews are true and this Agreement is conditioned upon the truth of those representations[.]" During her testimony in [Kelsaw]'s trial, Lawyer recounted her statements made on August 7, 2002, to a detective investigating Cordero's murder-the first interview to which the sentencing agreement referred. Lawyer was arrested on that day. While in custody, she claimed she did not know Cordero and was not familiar with the area where they met. At trial, she testified that those were lies she told because she "didn't want anything to do with it." Eventually, she told the detective she knew Cordero and that she dropped him off at the Motel 6. Lawyer told the detective no one else was involved, but later she said a person named Trent had asked her to bring Cordero to the Motel 6. In her trial testimony, Lawyer stated that Trent was "a concocted person [she] made up" because she did not want to reveal [Kelsaw]'s identity. Finally, still in the same August 7 interview, Lawyer, because of "the pressure ... of [her] conscience," told the detective it was [Kelsaw] who asked her to bring Cordero to the Motel 6. She claimed she did not know that [Kelsaw] had a problem with Cordero but later stated she knew [Kelsaw] was angry with Cordero. She also told the detective she neither went to the Costco parking lot nor cleaned up the Motel 6 room, even though she later testified that she did both.
Lawyer testified concerning her understanding of the deal she made with the prosecutor. She was scheduled to be sentenced to life without the possibility of parole. The prosecutor met with her and offered her a sentence of 15 years to life and immunity in exchange for her testimony in [Kelsaw]'s trial. Lawyer understood that a condition of the agreement was that she tell the truth and that the judge would ultimately determine whether she told the truth. If she did not testify truthfully, she would be sentenced to life without the possibility of parole.
On cross-examination, Lawyer said it was her understanding that the judge would determine the truth of her trial testimony by comparing it to the statement she gave to the district attorney on November 7, 2003, after her conviction. If her trial testimony against [Kelsaw] varied from the statement made to the district attorney, she would not get the reduced sentence. She also stated she had an obligation, in general, to tell the truth. Defense counsel questioned Lawyer about the possibility that she had made a mistake or lied during the interview with the district attorney and asked how she would testify if that were the case. She replied: "Well, the truth isn't hard to forget as far as, I mean my lies are something that I forgot. I couldn't even recall my lies, but the truth I'm quite certain about."
Although there is some language in the sentencing agreement labeling as "the truth" the statements Lawyer made to officers and the prosecutor, and Lawyer's understanding was that the judge would compare her testimony to her statements in determining whether she had told the truth, the agreement did not violate [Kelsaw]'s due process right to a fair trial. In People v. Boyer (2006) 38 Cal .4th 412, the witness was granted immunity in exchange for her truthful testimony. The immunity agreement stated that "'the witness represented that the testimony of the witness will be truthful and in substance as follows....'" (Id. at p. 457.) The court concluded this was not impermissibly coercive because it "simply reflected the parties' mutual understanding that the information the witness had previously supplied to the police was truthful, not that the witness had to iterate her prior statements, regardless of their truth." (Ibid.)
Here, as in People v. Boyer, Lawyer believed she was obligated to testify in conformity with her statements to officers and the prosecutor because those statements were the truth. She understood that she was "supposed to tell the truth." While she recognized her truthfulness would be measured by whether her testimony was consistent with her statement to the prosecutor, she was adamant that she told the truth in that interview: "I told the truth about the embezzlement, and I basically told the truth, and [the prosecutor] then, I guess, considered an agreement where as I would come and testify in this trial and receive a reduced sentence."
The sentencing agreement states that Lawyer gave two statements and the agreement is based on the truth of those statements. That did not necessarily mean, however, that Lawyer's testimony could only include what was in her prior statements. Indeed, as noted above, Lawyer's statement to officers on August 7, 2002, contained several different versions of what happened, and they were inconsistent. It is more likely the language conditioning the agreement on the truth of her prior statements was included because that is what induced the prosecutor to enter into the agreement. The later language in the sentencing agreement, in which Lawyer agreed "to testify truthfully and completely as a witness," made it clear that both parties contemplated that Lawyer would tell only the truth at trial. The bargain was not expressly contingent on Lawyer sticking with a particular version. (People v. Boyer, supra, 38 Cal.4th at p. 456.)
We also conclude that it makes no difference in this analysis that Lawyer had been convicted and would have been sentenced to life without possibility of parole if she had not made the agreement with the prosecutor to testify. As noted by the courts that have considered various agreements to grant immunity or sentencing considerations in exchange for testimony, these agreements, while exercising some compulsion, do not rise to the level of coercion that violates a defendant's fair trial rights. (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 361.) Accordingly, Lawyer's testimony was not coerced and [Kelsaw]'s due process right to a fair trial was not violated. (People v. Kelsaw, No. C047832, slip op. at 10-15.)
Thus, each of Kelsaw's three ineffective assistance of counsel claims premised on trial counsel's failure to object to Lawyer's testimony in light of her sentencing agreement was rejected on its merits by a state court in a reasoned decision. Because each last reasoned state court opinion is not an unreasonable application of clearly established Supreme Court precedent nor an unreasonable determination of the facts, Kelsaw is not entitled to relief.
The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. A showing of ineffective assistance of counsel has two components. First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance,'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689), and that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).
The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).
Here, Kelsaw fails to demonstrate that trial counsel's performance was deficient. In other words, it does not appear that an objection to Lawyer's testimony based on any of the three grounds advanced here would have been successful.
As an initial matter, it should be noted that the trial court properly instructed the jury that Lawyer was an accomplice as a matter of law, that an accomplice's testimony must be independently corroborated by some other evidence, and that an accomplice's testimony must be viewed with caution and "in light of all the evidence in the case." (RT at 2842; (see also subsection (B), infra.)
Kelsaw's claims that trial counsel should have objected on the basis of prosecutorial misconduct and/or trial court error are premised on his assertion that California law prohibited the trial court from striking the kidnaping special circumstance to Lawyer's murder conviction. On direct appeal, however, the California court of appeal expressly concluded that Lawyer's sentence was "a lawful second degree murder term." In particular, the state appellate court held that once the trial court reduced her murder conviction to second degree murder, the special circumstance was immaterial because a special circumstance finding has no sentencing effect on a second degree murder conviction under California law. The state court's conclusion in this regard is binding here. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus").
Kelsaw additionally contends that it was unlawful for the trial court to reduce Lawyer's conviction to second degree murder. The state court declined to review this particular allegation, finding it had been improperly raised for the first time in a reply brief. Due to the timing of the events, however, the trial court's actions at Lawyer's sentencing could not have provided a valid basis for Kelsaw's trial counsel to object to Lawyer's testimony at Kelsaw's trial in any event.
Lawyer's testimony at Kelsaw's trial commenced on March 15, 2004 and concluded on March 17, 2004. This was prior to her own sentencing on September 24, 2004, the date on which the trial court reduced her murder conviction to murder in the second degree, struck the kidnaping special circumstance to the murder, and imposed the stipulated sentence of 16 years to life. Thus, trial counsel had no occasion to object to Lawyer's testimony based on the reduction of her conviction and the striking of the special circumstance in her criminal case. At the time of Lawyer's testimony, those events had not yet occurred.
Of course, Lawyer's sentencing agreement was in place at the time of her testimony at Kelsaw's trial. But it does not appear that the terms of the sentencing agreement provided a valid basis for trial counsel to object. As the state superior court noted, the terms of Lawyer's sentencing agreement did not provide for the striking of the special circumstance or the reduction of her conviction to second degree murder. Rather, the agreement provided that Lawyer would "be sentenced ... to a stipulated term of 15 years to life for violation of [Penal Code section 187, subdivision (a) (murder)] and 1 year consecutive for violation of [Penal Code section 12022, subdivision (a)(1) (firearm enhancement)]."
Moreover, contrary to Kelsaw's assertion, the terms of the sentencing agreement did not coerce Lawyer's testimony. The agreement was valid under California law because it required Lawyer to testify "fully and truthfully." See People v. Avila, 38 Cal.4th 491, 594 (2006). It was permissible that the agreement reflected the parties' mutual understanding that Lawyer had already been truthful in her account to the prosecutor. People v. Boyer, 38 Cal .4th 412, 456 (2006). There was no indication in the agreement or in Lawyer's testimony that she thought she had to conform her testify to a particular version of facts, only that she had to tell the truth as she had done before. Therefore, the sentencing agreement did not violate the rule of People v. Medina, 41 Cal.App.3d at 455, that an accomplice cannot be placed under a strong compulsion to testify in a particular fashion. As the state superior court found, an objection by counsel that Lawyer's sentencing agreement violated the rule of Medina would have been without merit and, as such, properly denied by the trial court. Trial counsel's failure to make a futile motion does not constitute ineffective assistance of counsel. See James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).
For this same reason, Kelsaw has also failed to demonstrate that he suffered actual prejudice from trial counsel's omission. Because no basis appears on which the trial court could have granted an objection to or a motion to exclude Lawyer's testimony, Kelsaw cannot show that, but for counsel's alleged omission, the outcome at trial would have been different. Kelsaw is not entitled to relief for his claims that trial counsel rendered ineffective assistance of counsel in relation to Lawyer's sentencing agreement or the reduction of her conviction and striking of the special circumstance finding at sentencing in her own separate criminal case.
2. Ineffective Assistance by Appellate Counsel in relation to the Sentencing Agreement
The Strickland standards apply to appellate counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). Nevertheless, an indigent defendant "does not have a constitutional right to compel appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). Appellate counsel "must be allowed to decide what issues are to be pressed." Id. There is no obligation to raise meritless or weak arguments on a client's behalf. Miller, 882 F.2d at 1434; see also Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice).
Here, Kelsaw claims that appellate counsel rendered ineffective assistance in failing to raise on appeal, except by reply brief which forfeited the claim, the contention that the trial court in Lawyer's criminal case unlawfully reduced her conviction from first degree murder to second degree murder. On state habeas corpus review, the Sacramento County Superior Court disagreed:
Appellate counsel performs "properly and competently when he or she exercises discretion and presents only the strongest claims instead of every conceivable claim." (In re Robbins (1998) 18 Cal.4th 770, 810.)
Petitioner argues that appellate counsel waived the issue of the trial court's error in reducing Lawyer's conviction to second degree murder by raising it only in his reply brief. As discussed above, the petition does not show that raising the issue could have affected the outcome of Petitioner's trial. Therefore, he has not shown prejudice.
(In re Kelsaw, No. 07F08740, slip op. at 3 (emphasis added)).
Kelsaw was not a party to Lawyer's criminal case. As the state court observed, he had no third party right to object to the reduction of her conviction at her sentencing. On direct appeal of his own conviction, Kelsaw was limited to demonstrating that the trial court's actions in Lawyer's criminal case conviction somehow affected the fairness of his trial. As previously set forth, however, Kelsaw's trial counsel had no basis to object at his trial, thus, it was not deficient performance for his appellate counsel to omit the issue on appeal. Kelsaw has also failed to demonstrate that he suffered actual prejudice, since there is no reasonable likelihood that such a claim would have been successful on appeal. Kelsaw is not entitled to relief for his contention that his appellate attorney provided ineffective assistance of counsel in failing to raise on appeal a claim that Lawyer's conviction was unlawfully reduced to second degree murder in her own separate criminal case.
B. Prosecutor's Mis-Statement of the Law during Closing Argument
Kelsaw claims that the prosecutor committed prejudicial misconduct during closing argument when she incorrectly stated to the jury that an accomplice's testimony, referring to Lawyer's, was by itself sufficient under California law to identify Kelsaw as Cordero's kidnapper and killer (petition ground 3). In the alternative, Kelsaw claims that trial counsel rendered ineffective assistance in failing to object to the prosecutor's error (also petition ground 3).
At trial, prior to the parties' closing arguments, the trial court properly instructed the jury with CALJIC No. 3.12 as follows:
To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. [¶] However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. [¶] In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. [¶] If there is no independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. [¶]
If there is independent evidence which you believe then the testimony of the accomplice is corroborated. (Reporter's Transcript ("RT") at 2841-42); see also Cal. Penal Code §1111. This instruction was additionally sent to the jury along with the others in written form.
In closing argument, defense counsel argued to the jury:
Number two. This is the pervading problem of the prosecution. How do we put [Kelsaw] there? DNA is not in the [motel] room... How'd they put him in there? Well, we got Terah Lawyer to do it. Oh, yeah, but there's a little rule that the Judge read you about an accomplice. See, I told you the law was conservative. You know, longtime ago found out the rule [sic]. People who are escaping the news have a tendency, or people who don't want to go along with their compatriots, said he didn't do it, guy folks did it, somebody did it, but I didn't do it. So, the law has always said an accomplice[:] You better examine that testimony real careful. And we even have a rule, you just take that testimony out of the trial, and you see what you got left. What you got left is then Kweanna Smith and Bruce Moran. That's all you got [sic all]. (RT at 2977-78.)
During the prosecutor's rebuttal, the following dialogue occurred: [Prosecutor:] The other thing that the defense counsel told you is that... you must accept an accomplice testimony, and that if you [ ] have an accomplice testimony you better have other evidence that supports an accomplice because you have to remove [the] accomplice[']s testimony and see if the facts have been proved. To a certain extent he's correct, but you can use an accomplice testimony to prove identity. You don't have to have anything corroborate that. You cannot find defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the crime. I have to prove the elements of the crime.
I have to prove that a murder occurred. I have to prove that a kidnap occurred. And when you talk about murder, you talk about a person was killed unlawfully with malice [aforethought]. I don't have to use anyone else to prove that [defendant] is the person responsible for this. [Defense counsel:] Objection, that misstates the law.
THE COURT: Approach the side bar. (Off the record discussion at the side bar.)
THE COURT: Based upon the side bar, I'm going to ask counsel to be a little more clear in the statements just made. [Prosecutor:] Terah Lawyer can come in here and testify as to who did this without having to have any corroboration as to who did this. You don't have to have any other corroboration about [who's] the one that did this besides Terah Lawyer...." (RT at 3040-3041.) The prosecutor then moved on to other areas; defense counsel did not object a second time.
On direct appeal, the California Court of Appeal held that Kelsaw had forfeited his claim of prosecutorial misconduct when defense counsel failed to object a second time and obtain a ruling from the court. The state court went on to reject Kelsaw's alternative claim that trial counsel provided ineffective assistance in failing to preserve the issue for appeal. The state court reasoned:
The prosecutor was apparently confused about the law concerning corroboration of accomplice testimony. First, she said, "You cannot find defendant guilty based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the crime." But then she stated the opposite twice, that it was unnecessary to corroborate Lawyer's testimony concerning the identity of the perpetrator. The Attorney General suggests that she may have confused this area of law with the corpus delicti rule. (See People v. Kraft (2000) 2 ...