The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
AMENDED FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction for petty theft with a prior (Cal. Penal Code §§ 666, 484) and possession of ephedrine and/or pseudoephedrine with the intent to manufacture methamphetamine (Cal. Health & Saf. Code § 11383 (c)(1)). Petitioner was sentenced to twelve years in state prison.
When petitioner filed this action, he was incarcerated in state prison. Since that time, petitioner has been released from prison and is no longer on parole. To the extent petitioner's claims challenge the validity of his conviction, his claims are not moot.
This action is proceeding on the third amended petition filed March 22, 2006, raising twenty claims (Dkt. No. 39). On May 22, 2006, respondent filed an answer (Dkt. No. 40). On July 21, 2006, petitioner filed a traverse (Dkt. No. 44). On July 23, 2010, the undersigned filed Findings and Recommendations (Dkt. No. 49). After granting petitioner an extension of time, on September 3, 2010, he filed objections to those Findings and Recommendations (Dkt No. 53) and on September 17, 2010, respondent filed a response to the objections (Dkt. No. 54).
After carefully considering the record, the undersigned issues these amended findings and recommendations and 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 17-19 herein. No state court issued a reasoned decision addressing the remaining claims. Accordingly, the undersigned independently reviews the record in order to determine whether the summary denial of these claims by the California Supreme Court in the order denying petitioner's state habeas petition was an unreasonable application of clearly established Supreme Court authority. The claims are addressed in numeric order below.
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:
Facts and Procedural History
A security guard monitored defendant and a companion, Andrea Sutch, on video surveillance cameras as they walked through store aisles. The guard saw Sutch take three handfuls of Sudafed packages and place them in the shopping cart. The pair then walked to another aisle, where defendant took a pail of margarita mix, slowly popped open the top, removed the pail's contents, and placed the Sudafed inside the empty pail. He then placed bags of lentils on top of the pills, and closed the pail.
At the checkout counter, defendant and Sutch paid for the margarita mix but not the contents that had been placed inside the pail. As Sutch pushed the cart out of the store, the security guard stopped them.
The guard opened the pail of margarita mix, and discovered 12 boxes of Sudafed, valued at $5.62 apiece, and two bags of lentils, priced at $1.59 each. Defendant had $10 in his possession, and Sutch had $300.
Defendant was charged with petty theft with a prior conviction, and possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. Sutch was charged with the same offenses, but her case was severed from that of defendant.
The prosecution sought to introduce evidence of defendant's prior conviction for manufacturing methamphetamine, arguing this evidence was relevant to establish defendant's intent on this occasion. The court ruled this evidence admissible under Evidence Code sections 1101 and 352. (Further undesignated statutory references are to the Evidence Code.) The prosecution stated it would present this evidence through a certified copy of the conviction, rather than through live testimony.
At trial, the security guard described defendant's actions in the store. A police officer testified that individuals often use Sudafed to manufacture methamphetamine. He estimated that the quantity of Sudafed in this case would have yielded more than 12 grams of methamphetamine, with a street value of $500-$600. The prosecution also introduced into evidence a multipage packet containing the certified copy of defendant's prior conviction for manufacturing methamphetamine.
Defendant introduced evidence from a police officer who spoke to Sutch at the jail. Sutch told him that she had concealed the Sudafed, and added that the officer "could let [defendant] go and she would take the rap ...." In cross-examination, the same officer said Sutch had told him previously "that she didn't know anything about how the Sudafed got in the bucket and that she didn't do it."
In closing arguments, defense counsel argued that it was Sutch, not defendant, who was guilty of the charged offenses. He challenged the accuracy of the security guard's observations, and emphasized Sutch's statement to police officers that she, and not defendant, had concealed the Sudafed.
The jury convicted defendant of both charged offenses, and the trial court found the alleged prior convictions to be true. Sentenced to an aggregate sentence of 12 years, defendant appeals.
Dkt. No. 13, Exhibit A, pp. 2-4.
Claims 1-5 concern the alleged bias of juror No. 8025. The background to these claims is as follows:
During voir dire, the trial court asked the jury if any of them had a family member or a close friend who had been charged with petty theft or methamphetamine use or who had a problem with methamphetamine. (Reporter's Augmented Transcript ("RAT") at 42-43). In response, juror No. 8025 responded,
Juror No. 8025: About three years ago there was living quarters in the front of my shop area and my sister-in-law lived there with her boyfriend and NET-5 come in and broke in the front door and ran the drug dogs through there and I just happened to pull up and they started to knock down my door in but I had keys and they found drugs, stolen merchandise, stolen credit cards, loaded shotgun behind the door and he ended up going to jail.
Court: The items that you just indicated were found in the area that your brother-in-law was residing in?
Juror No. 8025: Yes. And when they first come he threw some drugs--there was like a space in between the trusses between his shop area and my shop area and he threw some drugs over in my shop area trying to get rid of them.
Later, the prosecutor asked Juror No. 8025 further questions about the NET-5 bust of his shop:
Prosecutor: Mr. XXXXX (8025), you told us how NET-5 broke down your door. Was there anything about what they did and how they handled searching your shop that--
Juror No. 8025: Well, I had to pay for the doors that broke up, microwave and when I was there at the shop he got released right away and then when I was at the shop working I kept a loaded 12-gauge because of the riffraff coming in and out and 2 and 2 go together. Drugs and stealing.
Prosecutor: So NET-5 didn't pay for your door?
Juror No. 8025: No. Or the microwave.
Prosecutor: What happened to the microwave?
Juror No. 8025: The battering ram, when they used the battering ram I had the microwave behind the door because I didn't come and go through that area so the battering ram went through the door and toasted the microwave.
Prosecutor: Could you sit and hear this case on the facts that we present and the evidence that we present and not think about your microwave and your door?
Juror No. 8025: No. Because it's like once you get to a certain point I hate to say it, he's kind of made it here. To me if he's made it here, he's either running with the wrong group that are doing that or he's guilty.
Prosecutor: Would you be able to sit here and hear the evidence and if I do not prove the case, return a not guilty verdict?
Juror No. 8025: No. Because he's got strikes against him already just because he's here.
Prosecutor: Just because he got arrested?
Prosecutor: Would you agree that everybody in this country has the right to have a case proven against them beyond a reasonable doubt?
Juror No. 8025: Not in all cases.
Prosecutor: Thank you. I have no further questions, Your Honor.
The trial judge then called the prosecutor and defense counsel into chambers and asked if they wanted to strike any of the prospective jurors based on the information they had elicited. (RAT at 55.) The prosecutor asked that jurors Valdez and Alvarez-Bonilla be struck for cause. (RAT at 56.)
Starting with Evelyn Valdez she has sons who died of car crash due to methamphetamine. She admitted she couldn't be fair. Ms. Alvarez-Bonilla similarly. If family members were not fairly treated by law enforcement, she stated she could not be fair. She doesn't think that people should be punished for having drug problems. She doesn't think people should go to jail. I think she's biased...
The prosecutor also stated that juror No. 8025 should be struck for cause because "[h]e said he couldn't be fair." (RAT at 57.) Defense counsel also moved to strike juror No. 8025 for cause: "As to Mr. XXXXX (8025) different reasons, same result. I think the totality of the circumstances he's presented us with today not just the single incident point towards cause." (RAT at 57.) Regarding the other jurors, defense counsel stated, "On Valdez the same. On Alvarez-Bonilla I would simply make the same observations in fairness that I've already made about Mr. Dombo. This feels more like an effort to get out of here than it does--." (RAT at 57.)
The trial judge denied the joined motion to strike juror No. 8025 for cause: Just my observations on these individuals, these four individuals that you have discussed. Mr. XXXXX (8025) and Ms. Alvarez-Bonilla appear to me at this juncture to be trying to state a reason to get off the jury. This follows the dismissal of Dombo, Gebert and Smith. The questions that we were asking on drug usage do not go directly to what is charged in this case. Their opinions on drug usage are areas that either of you may wish to make additional follow-up questions. I'll allow you to give that a go in chambers if you wish. However, my conclusion is at this point is that each of these individuals the way they answered the question they're looking around, if you will, they were aware of their audience, if you will, they were picking up ... thread of ways in my opinion to get out of their service here today. They did not state a reason concerning the merits of this case as to why they should be excused for cause... (RAT at 57-58.)
The trial judge then denied the motion to excuse juror No. 8025 for cause and asked trial counsel and the prosecutor if they wished to call this juror in for further questioning. (RAT at 58.) Both trial counsel and the prosecutor declined to ask juror No. 8025 further questions. (Id.)
Neither party exercised a peremptory strike to have juror No. 8025 removed from the jury.
Petitioner argues that he was denied his right to an impartial jury when the trial judge refused to dismiss juror No. 8025 for cause.
The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961). "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg, 895 F.2d 520, 523-24 (9th Cir. 1990) (internal quotations omitted). The Constitution, however, "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). Rather, the safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Smith, 455 U.S. at 217.
The Ninth Circuit has recognized that to disqualify a juror for cause requires a showing of actual bias or implied bias; that is, "bias in fact, or bias conclusively presumed as a matter of law." United States v. Gonzalez, 214 F.3d 1109, 1111-12 (9th Cir. 2000). There are three theories of juror bias based on a misstatement by a juror during voir dire:
(1) McDonough-style bias (i.e., the juror fails to answer honestly and, had he answered correctly, the information would have provided a basis for a challenge for cause, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)), (2) "actual bias, which stems from a pre-set disposition not to decide an issue impartially," and (3) "implied (or presumptive) bias, which may exist in exceptional circumstances where, for example a prospective juror has a relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a material fact to get on the jury." Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007) (en banc).
The presence of a biased juror is a structural error entitling the defendant to a new trial. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008) (citing Dyer v. Calderon, 151 F.3d 970, 973 n. 2 (9th Cir. 1998)). Presence of a biased juror is a question of fact, and accorded deference under 28 U.S.C. § 2254. Id., 512 F.3d at 1235, 1240 (citing Dyer, 151 F.3d at 973 n. 2). Actual bias is present when a juror has "a state of mind that leads to an inference that the person will not act with entire impartiality." Id., 512 F.3d 1227, 1240 (9th Cir. 2008), quoting United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (internal quotation omitted).
In the instant case, petitioner argues that the trial court erred in failing to grant the joint motion to dismiss juror No. 8025 for cause. Petitioner contends that juror No. 8025 made clear statements that he could not be impartial. Petitioner further argues that the trial court's "hunch" that juror No. 8025 was lying was unsupported and even if it were true, this would render him unfit to serve.
The undersigned first considers petitioner's claim of "actual bias." The comments by juror No. 8025, on the surface, demonstrated an inability to be impartial. However, the trial judge found that these comments were insincere because they were made in an attempt to avoid jury duty. The trial judge noted that three other jurors (Dombo, Gebert and Smith) who had expressed bias had just been removed and he concluded that juror No. 8025 was trying to follow in their footsteps.
Juror Gebert had told the court that she had been previously married to a Yuba City police officer. (RAT at 20.) Because she knew most of the officers on the police force, she did not believe she could be impartial. (Id.) She could not be impartial because she knew all the hours that her husband would write reports and that "these guys would be on the streets before his report was done." (Id.) The trial judge then read the jury instruction regarding witness credibility and asked juror Gebert if she could apply the same standard when judging the credibility of a police officer versus a lay person. (RAT at 21.) Juror Gebert responded that she did not think she could. (Id.) After further questioning, juror Gebert stated that she would use the same factors in judging the credibility of each witness. (RAT at 22.)
Juror Smith told the court that she previously worked at the prison in Live Oak. (RAT at 24.) Based on that experience, she stated that she could not be an impartial juror because she saw "too many inmates come back. It was return to custody for parole violations and whatnot involving drugs." (RAT at 25.) This experience led her to have a "bad distaste in regards to drugs." (RAT at 25.)
The trial judge later asked the jury if anyone had convictions or personal feelings about any subject that were so strong that they did not feel they could follow the jury instructions. (RAT at 32.) In response juror Dombo stated,
Yes. Because I work for a junior high school. We preach about not doing drugs and not stealing and stuff like that and I feel I wouldn't be a good juror for this gentleman sitting down over here. I'd think he was guilty and send him to jail.
While the trial judge questioned jurors Smith, Gebert and Dombo more extensively in chambers, the comments quoted above were made in front of the rest of the jurors during voir dire. Following the further questioning in chambers, jurors Smith, Gebert and Dombo were dismissed. It was not unreasonable for the trial judge to suspect that juror No. 8025 fabricated his comments regarding an inability to be impartial after hearing the comments of these juror who were then dismissed. The fact that Juror No. 8025 made comments suggesting that he could not be impartial to both the prosecution and the defense supported the trial judge's conclusion that this juror was fabricating bias in order to avoid jury duty.*fn1
Moreover, while the undersigned believes that the better practice would have been for the trial judge to call juror No. 8025 into chambers for further questioning, the fact that neither defense counsel nor the prosecutor stated that they disagreed with the judge's conclusion, nor took the judge up on his offer to allow either of them to further question this juror, suggests that they agreed with the judge's conclusion that the juror's comments were motivated by an attempt to avoid jury duty. Additionally, the fact that neither defense counsel nor the prosecutor later used peremptory challenges to strike this juror, which they both had, also suggests that they did not find juror No. 8025's claims that he could not be impartial to be sincere.
Petitioner next argues that even if the trial judge's conclusion about the juror's motivation was correct, then juror No. 8025's willingness to lie rendered him unfit to serve. The undersigned is aware of no clearly established Supreme Court authority standing for this proposition.
Furthermore, the Ninth Circuit has held that the failure of the trial court to sua sponte hold an evidentiary hearing to investigate potential juror bias is not contrary to clearly established Supreme Court authority. Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005). Juror No. 8025's willingness to lie in order to avoid jury service demonstrated, at most, potential bias. Here, both defense counsel and the prosecutor declined the opportunity to call juror No. 8025 in for further questioning. ...