The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner Eugene Virgil Hall is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the habeas petition be denied.
On July 20, 2005, Petitioner was convicted of "assaulting Kimberly Smith with a deadly weapon causing great bodily injury, battering Smith causing serious bodily injury, battering Steven Britt, and attempting to dissuade Smith from coming to court," by a jury in Yuba County Superior Court. Lodged Doc. 7, at 1; see Lodged Doc. 1, Clerk's Tr. 260. "[T]he trial court found true allegations [that Petitioner] had five prior convictions within the meaning of the three strikes law and for purposes of the five-year enhancement statute." Lodged Doc. 7, at 1.
Petitioner was sentenced to seventy-eight years to life in prison. Id. at 2.
Petitioner directly appealed to the California Court of Appeal, Third Appellate District. See Lodged Doc. 4. On July 22, 2008, the California Court of Appeal issued a reasoned decision reversing and remanding for resentencing or retrial on one of the prior convictions, modifying custody credits, and otherwise affirming judgment. See Lodged Doc. 7, at 26-27.
Petitioner filed a petition for review in the California Supreme Court. See Lodged Doc. 8. On October 22, 2008, the California Supreme Court denied the petition without comment or citation. See Lodged Doc. 9.
On September 11, 2009, Petitioner filed the original federal habeas petition. See Pet'r's Pet., ECF No. 1. On November 25, 2009, Respondent filed a motion to dismiss, arguing Petitioner failed to exhaust sub-issues in grounds one and three, and grounds six and seven in their entirety. Resp't's Mot. To Dismiss 2-3, Nov. 25, 2009, ECF No. 11. In response, on December 10, 2009, Petitioner filed a motion to amend his petition to delete the unexhausted claims. Pet'r's Mot. To Amend 2, Dec. 10, 2009, ECF No. 14. On February 3, 2010, the Honorable Dale A. Drozd, the assigned United States Magistrate Judge at the time, ordered Respondent to either file an opposition or statement of non-opposition to Petitioner's motion to amend. See Order, Feb. 3, 2010, ECF No. 15. On February 4, 2010, Respondent filed a statement of non-opposition to Petitioner's motion to amend. See Resp't's Non Opp'n To Pet'r's Mot. To Amend, Feb. 4, 2010, ECF No. 16. On February 10, 2010, the assigned Magistrate Judge granted Petitioner's motion to amend, denied the motion to dismiss as moot, ordered Petitioner to file an amended petition, and ordered Respondent to file and serve an answer. See Order 2, Feb. 10, 2010, ECF No. 17.
On March 11, 2010, Petitioner filed an amended federal habeas petition. See Pet'r's Am.
Pet., ECF No. 18. On June 7, 2010, Respondent filed an answer. See Resp't's Answer, ECF No. 21. The record does not show that Petitioner filed a traverse.
III. FACTUAL BACKGROUND*fn1
On the evening of July 13, 2003, Smith, Britt, [Petitioner], and several others gathered on a driveway Smith shared with her neighbor on Almond Avenue in Yuba County. People were drinking, including Smith. At approximately 10:30 p.m., Smith was hit in the face with a baseball bat or stick and suffered a crushed eye socket, broken jaw, and cracked nose. She later identified [Petitioner] as her assailant.*fn2 Marcus Crans was among those who had gathered on the driveway that night and was "extremely intoxicated." He saw Smith get hit and identified [Petitioner] as her assailant.
Steven Britt also was present on the night in question and was hit in the face. Two days later, he identified [Petitioner] as his assailant. At trial, however, he testified he did not see who hit him. Laura Ann Murphy was with [Petitioner] on the night in question. She did not see Smith get hit, but she did see [Petitioner] strike Britt in the face. After Smith was hit, [Petitioner] asked Murphy to "agree with him" about "[w]hat had happened" and to say he had not been out of her sight all evening, even though that was not the case.
Elvin Favors, who lived near Smith, heard people partying on the night in question and went to take a look. Through his fence, he saw three or four men "going on and on about something." He then saw a woman approach the men and begin using foul language. An argument ensued, and two or three of the men removed "long stick kind of things" from the back of a pickup, and "and one guy just hit her and she fell." The men then got on top of her and began kicking and punching her.
T. A., a 12-year-old boy who also lived nearby, "heard all the commotion outside" and went to investigate. He heard someone say, "Sean, you tell that mother fucking nigger come down here and fight us. This is bullshit. They keep messing with us." T. A. was interviewed later that night and identified [Petitioner] from a photographic lineup as the person who made the statement. At trial, however, T. A. repeatedly testified he did not see [Petitioner] make the statement and did not know who made it. Rather, he had seen [Petitioner] "partying around there" that evening.
On July 3, 2004, Deputy Christopher Heath was monitoring inmates at the Yuba County Jail when he saw an inmate in the B pod pick up a note next to the door between the A and B pods; he did not see anyone pass the note. Heath ordered the inmate to bring him the note. The name "Chuck Allison" appeared on the outside of the note, and the note read: "Daryn, my respects to you over there. Listen bro, I know your cousin or nephew Sean Couch is over there and is getting out real soon. He knows my alleged victim Kim lives on Almond. Tell him to handle that shit and tell . . . her not to come to court anymore. Shit bro, she's the only one coming. And if she don't come, I walk. See what I'm talking about? I send mine to you, Chuckie, and anyone else who has it coming. Lightning bolts. St[o]mp of the boot and right arm salute. Lightning bolts. Get back at me on paper and let me know." The note was signed "Genester," and there was a swastika under the signature. On the day the note was recovered, [Petitioner] was housed in the A pod, and Charles Allison, Sean Couch, and Daryn Carter were housed in the B pod. "Genester" is [Petitioner's] nickname. He has the word "Genester" tattooed on his back, and the word "Yuba" with a picture of two lightning bolts tattooed on his stomach. [Petitioner] testified in his own defense. He admitted having six "felony strikes," including convictions for assault. He denied assaulting Smith or Britt. He said Marcus Crans, Anthony Edwards, and Kenny Micardo assaulted Smith, and Anthony Edwards and Steven Shoemaker assaulted Britt. He acknowledged that on the night of the incident, he said "Kenny and Anthony" assaulted Smith and that he did not mention Crans until trial. [Petitioner] admitted writing the note intercepted by Deputy Heath at the jail. He claimed he wrote it because he wanted his friends to persuade Smith to tell the truth. He explained that the phrase "St[o]mp of the boot and right arm salute" is a "[w]hite saying when you sign of [sic] our letters to another white man" and agreed "lightning bolts" is "part of that phraseology" and the swastika commonly means "World War II Nazi Germany."
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, 362 (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).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
"When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
The petition for writ of habeas corpus sets forth five grounds for relief:
1. The trial court violated Petitioner's right to due process and to present a defense in failing to instruct the jury pursuant to CALJIC No. 2.21.2, "which instructs [the] jury they can dismiss whole testimonies due to inconsistancy [sic];" and defense counsel failed to cross examine witnesses on their inconsistent statements and on willfully false testimony. Pet'r's Am. Pet. 4.
2. The State's improper remarks during closing arguments constituted prosecutorial misconduct and denied Petitioner a fair trial. Id.
3. Petitioner was denied effective assistance of counsel because defense counsel "failed to move for acquittal on count 4" (attempt to dissuade a witness). Id. at 5.
4. "The impermissibly suggestive pre-trial identification procedures and tainted in court identification of [Petitioner] violated" his Fifth and Fourteenth Amendment rights to due process. Id.
5. The trial court "abused its discretion in admitting irrelavant [sic] and und[uly] prejudicial evidence." Id. at 6.
Some of Petitioner's five grounds for relief overlap. Since part of ground one, and ground three, are resolved by binding authority, they are grouped together. Ground one is referenced more than once as it refers to separate issues. The remaining grounds are reviewed in seriatim. Petitioner's grounds are addressed as follows:
1. Ground One: Failure to Give CALJIC No. 2.21.2
2. Grounds One and Three: Ineffective Assistance of Counsel
3. Ground Two: Prosecutorial Misconduct 6
4. Ground Four: Unduly Suggestive Lineup
5. Ground Five: Admission of Racial Remark Into Evidence For the following reasons, Petitioner's grounds do not entitle him to habeas relief.
A. Ground One: Failure to Give CALJIC No. 2.21.2 In ground one, Petitioner contends that the trial court erred in failing to instruct the jury sua sponte pursuant to CALJIC No. 2.21.2, regarding the believability of a witness who lies in part of his or her testimony. Respondent disputes this contention.
In addressing Petitioner's contention, the California Court of Appeal held as follows:
[Petitioner] next argues "[t]he trial court violated [his] federal rights to due process and to present a defense in failing to instruct" the jury sua sponte in accordance with CALJIC No. 2.21.2 that it "may reject the whole testimony of a witness who willfully has testified falsely as to a material point."*fn3 He is mistaken.
The absence of an instruction regarding a particular factor in the evaluation of a witness's testimony does not establish that the jury was inadequately instructed, where other, albeit more general, instructions for evaluating testimony are given to the jury. (People v. Wader (1993) 5 Cal.4th 610, 644-645.) Such is the case here. While the jury was not specifically instructed that it could reject the entire testimony of a witness it found gave willfully false testimony, it was instructed that it could consider "anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witnesses." (CALJIC No. 2.20.) It was also instructed that it could consider a witness's prior inconsistent statements "not only for the purpose of testing the credibility of the witness but also as evidence of the truth of the facts as stated by the witness on that former occasion." (CALJIC No. 2.13.) The jury was further instructed that: "[d]iscrepancies in a witness' testimony or between a witness' testimony and that of other witnesses, if there were any, do not necessarily mean that any witness should be discredited" (CALJIC No. 2.21.1); the "final test" in evaluating testimony is "the convincing force of the evidence" (CALJIC No. 2.22); and it "should give the testimony of a single witness whatever weight you think it deserves" (CALJIC No. 2.27). Viewing the instructions as a whole, we conclude the trial court did not err in failing to instruct the jury sua sponte that it could disregard a witness's entire testimony if it found that the witness was willfully false in one part of his or her testimony. As this court observed nearly a century ago, "It should certainly not be deemed of vital importance to tell the ordinary man of the world that he should distrust the statements of a witness whom he believes to be a liar." (Reynolds v. E. Clemens Horst Co. (1917) 35 Cal.App. 711, 719.) We reiterated this point two decades later in the criminal context: "[A]ny person of common judgment would know without judicial instruction, that it is the part of wisdom and a duty on the part of jurors to carefully scrutinize with distrust or suspicion the entire testimony of a witness who has willfully perjured himself regarding a material fact in the case." (People v. Kennedy (1937) 21 Cal.App.2d 185, 201.) These observations are equally true today. Lodged Doc. 7, at 8-10.
2. Legal Standard of Failure to Give CALJIC No. 2.21.2 Claim A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id. at 72. The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. The court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
Even if it is determined that the instruction violated the petitioner's right to due process, a petitioner can only obtain relief if the unconstitutional instruction had a substantial influence on the conviction and thereby resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) ("The test . . . is whether the error had substantial and injurious effect or influence in determining the jury's verdict." (citation and internal quotation marks omitted)).
See Hanna v. Riveland, 87 F.3d 1034, 1039 (9th Cir. 1996). The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Id. Where "no erroneous instruction was given[,]" a petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
3. Analysis of Failure to Give CALJIC No. 2.21.2 Claim Here, the California Court of Appeal reasonably rejected Petitioner's claim, even under California law. First, the trial court did not have an obligation to give the instruction sua sponte. People v. Wader (1993) 5 Cal. 4th 610, 644-45, 20 Cal. Rptr. 2d 788, 854 P.2d 80. As explained in Wader, the trial court has a sua sponte obligation to give instructions necessary to the jury's understanding of the case. Id. at 645, 20 Cal. Rptr. 2d 788, 854 P.2d 80. As in Wader, here, the jury was instructed with CALJIC No. 2.20, which explained the jury was the sole judge of the truthfulness of a witness, and it could consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony. See Lodged Doc. 3, Rep.'s Tr. vol. 2, 331-32. The instruction listed several examples of facts the jury could consider, including prior inconsistent statements and an admission of untruthfulness by the witness. Id. The trial court also instructed the jury with CALJIC No. 2.13 (prior consistent or inconsistent statements), see Lodged Doc. 3, Rep.'s Tr. vol. 2, 332-33; CALJIC No. 2.21.1 (discrepancies in testimony), see Lodged Doc. 3, Rep.'s Tr. vol. 2, 332; CALJIC No. 2.22 (weighing conflicting testimony), see Lodged Doc. 3, Rep.'s Tr. vol. 2, 333; and CALJIC No. 2.27 (sufficiency of testimony of one witness), see Lodged Doc. 3, Rep.'s Tr. vol. 2, 333. When combined, these instructions made it possible for the jury to understand the case. There was no duty to give CALJIC No. 2.21.2 sua sponte.
Second, the lack of obligation to instruct the jury sua sponte with CALJIC No. 2.21.2 means Petitioner was required to request the instruction if he felt it was necessary. He did not do so. No error occurs when the trial court does not give an instruction that never was requested. People v. Simon, 25 Cal. 4th 1082, 1109-10, 108 Cal. Rptr .2d 385, 25 P.3d 598 (2001).
Third, Petitioner did not suffer any prejudice resulting from the omission of CALJIC No. 2.21.2. Petitioner argues the trial court was required to give CALJIC No. 2.21.2 sua sponte because of the alleged inconsistencies in Smith's testimony. Pet'r's Am. Pet. 4; see also Lodged Doc. 4A, at 16. However, there is no dispute Smith was attacked. The only issue was who attacked Smith. Smith identified Petitioner as her attacker. Lodged Doc. 3, Rep.'s Tr. vol. 1, 66. Crans also testified that Petitioner struck Smith. Id. at 116-17. Murphy testified that Petitioner asked her to lie for him, i.e., to say "[h]e had been with me the whole night," when it was not true. Id. at 185-86. Murphy also recalled telling a prosecution investigator that Petitioner had said, "I took care of her," referencing Smith. Id. at 186-87. Further, Petitioner's note written in jail shows he wanted to convince Smith not to testify against him. Id. at 178-79. The evidence of Petitioner's guilt was overwhelming, and this contention provides no basis for habeas corpus relief.
B. Grounds One and Three: Ineffective Assistance of Counsel In grounds one and three, Petitioner asserts his trial attorney rendered ineffective assistance for: (1) failing to cross examine certain witnesses on their inconsistent statements; and (2) failing to move for an acquittal on count four (attempt to dissuade a witness). Pet'r's Am. Pet. 4-5. After exhaustion is addressed and the legal standard is set forth, the alleged prejudicial errors are addressed.
Respondent contends that Petitioner failed to exhaust part of Petitioner's ineffective assistance of counsel claims, where Petitioner alleges defense counsel failed to cross examine witnesses on their inconsistent statements. Respondent believes "Petitioner's inclusion of this sub-claim in his amended petition is inadvertent," because Petitioner had "filed a motion to amend which sought to delete this sub-claim." Resp't's Answer 15. Because exhaustion is a procedural defect that could prevent consideration of any of the claims in the current petition, Rose v. Lundy, 455 U.S. 509, 522 (1982) ("[W]e hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims."), the exhaustion issue is addressed prior to addressing the claim's merits.
a. Legal Standard for Exhaustion "Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the 'opportunity to pass upon and correct' alleged violations of prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). "The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue's factual and legal basis." Weaver, 197 F.3d at 364 (citing Duncan, 513 U.S. at 365 (legal basis); Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1998) (factual basis)). "A petitioner has satisfied the exhaustion requirement if: (1) he has 'fairly presented' his federal claim to the highest state court with jurisdiction to consider it[;] . . . or (2) he demonstrates that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To have exhausted via the first avenue, a petitioner must have presented each federal claim as a federal claim to the California Supreme Court on (1) direct review (e.g., in a petition for review); or (2) collateral review (e.g., in a petition for a writ of habeas corpus). See Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1990); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("To 'fairly present' [a] federal claim to the state courts, [a petitioner] had to alert the state courts to the fact that he was asserting a claim under the United States Constitution." (citing Duncan, 513 U.S. at 365-66)). A "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Duncan, 513 U.S. at 366.
A claim is considered exhausted via the second avenue "'if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law.'" Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); see also Valerio v. Dir. of the Dep't of Prisons, 306 F.3d 742, 770 (9th Cir. 2002) ("[T]he claim is exhausted because it is procedurally barred."). A claim is also "exhausted because a return to state court for exhaustion would be futile." Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (citation and internal quotation marks omitted).
b. Analysis of Exhaustion
In the instant case, Petitioner failed to allege that defense counsel was deficient for failing to cross examine certain witnesses on direct appeal or in any habeas petition. This claim is either: (1) unexhausted because no state court reviewed it, Johnson, 88 F.3d at 829; or (2) exhausted because it is procedurally barred. Phillips, 267 F.3d at 974 ("The district court correctly concluded that [the] claims were ...