FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition before the court challenges petitioner's 2006 judgment of conviction entered in the Sacramento County Superior Court on one count of transporting cocaine base for sale between non-contiguous counties in violation of California Health and Safety Code § 11352(b), one count of possession of cocaine base for sale in violation of California Health and Safety Code § 11351.5, and one count of transporting cocaine base in violation of California Health and Safety Code § 11352(a).
Petitioner seeks federal habeas relief on the grounds that: 1) the trial court improperly admitted certain evidence at trial; 2) a juror committed misconduct; 3) there was insufficient evidence introduced at trial to support his conviction; 4) the trial court erred in imposing sentence; and 5) there was cumulative error.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On May 30, 2006, a Sacramento County Superior Court jury found petitioner and his co-defendant guilty of transporting cocaine base, transporting cocaine base for sale between non-contiguous counties, and possessing cocaine base for sale. (Notice of Lodging Documents on November 30, 2009 (Doc. No. 13), Clerk's Transcript on Appeal ("CT") at 385-86.) Following his conviction, petitioner was sentenced on July 21, 2006, to a state prison term of nineteen years. (Id. at 483.)
Petitioner appealed his judgment of conviction to the California Court of Appeal for the Third Appellate District. On April 15, 2008, the judgment of conviction was affirmed.*fn1
(Resp't's Lod. Doc. No. 3.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 5.) On July 23, 2008, the California Supreme Court denied that petition. (Resp't's Lod. Doc. 6.)
On July 13, 2009, petitioner filed the federal habeas petition now before this court. (Docket No. 1-"Pet.".) Respondent filed an answer on November 30, 2009. (Docket. No. 12-"Answer.") Petitioner has not filed a traverse.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction, the California Court of Appeal for the Third Appellate District provided the following factual summary:
On October 30, 2005, Sacramento City Police officers surrounded the Greyhound bus from Reno when it arrived that morning. After the passengers disembarked, the officers found a black Echo jacket with a fur collar on the overhead luggage rack near the rear of the bus. None of the passengers claimed the jacket. In the jacket, in plastic wrap, were lumps of rock cocaine, with a street value of approximately $40,000.
Defendant Thomas was among the first 10 passengers off the bus. He was wearing a sweat suit and had no jacket. He falsely identified himself as Trevoris White. He was detained. Defendant Alleyne did not get off the bus with the other passengers. After getting up from a seat near the rear of the bus and initially moving toward the front of the bus, he returned and went to the rear restroom. He came out only after officers threatened to set loose a police dog if he did not. He declined to give his name. He was wearing a dark blue ski coat with a fur collar. He had $1,858 in cash in his pants pocket. He had a cell phone charger cord in another pocket. During the booking process with defendant Alleyne, he asked officers how they had known "we" were on the bus.
When the other passengers claimed their checked luggage and left, six pieces remained. Three of the bags were checked to a passenger identified as Chris White. The other three were checked to a passenger identified as Kevin Thomas. Greyhound records showed no mention of either defendant as a passenger, however, a Chris White had purchased passage for himself and a Kevin Thomas from Minnesota to Sacramento. One of the bags contained two distinct sizes of shoes and clothing. The two sizes were consistent with the defendants insofar as one is larger than the other. Also found in the bags, inter alia, were pictures of defendant Alleyne, a credit card in his name, a digital scale for gram weighing, an empty box for a prepaid cell phone, and two boxes of plastic baggies, one of which bore defendant Alleyne's fingerprint. Rufus Cooks, the Greyhound bus driver, testified as follows. He noticed defendants in Reno when they came out together to the bus before it was cleared for boarding. They were supposed to remain in the terminal so he directed them to go back inside. They were wearing jackets with big furry collars. He had thought one of the jackets was white or light colored, but had principally focused on the fur collars, one dark, one light. None of the other passengers had fur collars as far as he could recall. However, he was not positive that no one else might have had a puffy jacket with a fur collar.
The lighter complexioned of the two men Cooks saw together in Reno wore the lighter colored coat and asked Cooks a question during a brief stop in Colfax (to fix an air pressure problem with the brakes). Defendant Thomas has a darker complexion than defendant Alleyne. At trial, Cooks could only say the defendants looked similar to the pair. However, he was "100 percent positive" that the two men who were detained on arrival in Sacramento were the pair he had first noticed in Reno. He could not be certain that the jackets at trial were those worn by the men, but the two collars were the same colors (one dark, one light) that he had seen in Reno.
Kevin Forson, a Greyhound terminal security guard, was looking into the bus on arrival when it was surrounded by the police. He saw defendant Thomas standing near the rear of the bus. Defendant Thomas took off his jacket and put it down on the seat or floor. When Forson next saw defendant Thomas, he was being handcuffed by police officers.
Both defendants were Chico residents. Each had "MOB" tattooed on his right upper arm.
Defendant Alleyne testified, in pertinent part, as follows. He denied involvement with the cocaine. The money had been earned through lawful employment. He admitted owning three of the bags. He said he had been traveling with another man from Minnesota to Sacramento, not defendant Thomas. The other man bought the tickets and the phone and checked the luggage. He knew nothing about the scale in the other man's luggage. The baggies were to store food purchased along the way for use on the bus. He had waited in the bus restroom on arrival because he was on parole and was aware he was unlawfully traveling outside the permitted distance from his home. (Resp't's Lod. Doc. 3 ("Opinion") at 2-5.)*fn2
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Improperly Admitted Evidence
Petitioner claims that the trial court's admission of testimony that he and his co- defendant both had the word "MOB" tattooed on their upper-right arm was improper and rendered his trial fundamentally unfair. (Pet. at 9-14.)*fn3 Petitioner argues that an "MOB" tattoo is a "cultural/generational" fad, found commonly on "persons depicted in various magazines . . . targeting a [primarily] black audience." (Id. at 11.) He asserts that the "similar tattoo evidence" was not relevant and that its admission was highly inflammatory and prejudicial because the word "mob" is associated with those who are "criminals, ruthless, violent, and gangster[s]." (Id. at 12-13.) Respondent argues that review of petitioner's claim is procedurally barred and that his claim in this regard is ultimately meritless.
A petitioner may not raise a federal constitutional claim in a federal habeas action that he could not raise in state court due to procedural default. Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean ), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). However, a reviewing court need not invariably resolve that question prior to ruling on the merits of a claim where the issue of procedural default turns on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997). Under the circumstances presented here, this court finds that petitioner's claim challenging the admission of testimony regarding the matching "mob" tattoos can be resolved more easily by addressing it on the merits. Accordingly, the court will assume that petitioner's claim is not procedurally defaulted.
The California Court of Appeal specifically rejected petitioner's argument that the trial court erred in admitting the evidence of the similar tattoos displayed by petitioner and his co-defendant. In doing so, that court reasoned as follows:
Defendants contend the trial court erred in ruling evidence that they both bore a similar tattoo on their right arms was admissible. They argue that the evidence was irrelevant and more prejudicial than probative. The arguments are unpersuasive and the contention of error has no merit.
The sole defense objection tendered in the trial court was that the tattoo evidence was irrelevant. However, that two people make the same unusual "fashion choice" is relevantFN to the issue of whether they are connected socially. As the saying goes, "Birds of a feather flock together." Each such cumulative point of similarity has a tendency in reason to prove such connection.
FN. "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to ...