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Richard Allen Arnold v. Director of Correctionsrehabilitation


January 18, 2011


The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge


Richard Arnold, a prisoner in state custody, filed a petition for writ of habeas corpus in this Court challenging an October 2002 conviction for murder, attempted murder, and related charges. Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) and (d), the petition was referred to Magistrate Judge Louisa Porter for a report and recommendation. Judge Porter issued her R&R on March 24, 2010, and for the reasons given below, the Court ADOPTS it in its entirety.

I. Legal Standard

In reviewing an R&R, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Because Arnold is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

II. Discussion

Arnold's habeas petition (or what remains of it) consists of three claims: (1) ineffective assistance of counsel and the denial of an evidentiary hearing; (2) denial of the right to confront adverse witnesses; and (3) denial of the right to present a complete defense. The R&R reviews the legal standards for federal habeas relief, and there is no need to cover them here. (See R&R at 3.)

A. Request for Counsel

At the outset, the Court DENIES Arnold's request for counsel to assist him with his habeas petition. The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); see also Coleman v. Thompson, 501 U.S. 722, 756--57 (1991). It is true that financially eligible habeas petitioners may obtain representation whenever the Court "determines that the interests of justice so require," 18 U.S.C. § 3006A(a)(2)(B), but the hurdle is a high one: the facts of the particular case must indicate that "appointed counsel is necessary to prevent due process violations." Chaney, 801 F.2d at 1196. Additionally, the appointment of counsel may be necessary if the petitioner has such limited education that he or she is incapable of presenting his or her claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). The Court finds that Arnold's due process rights are not in jeopardy, and that he has proven himself to be sufficiently capable of pursuing habeas relief on his own. His previous requests for the appointment of counsel have been denied, and his present request is DENIED as well.

B. Request for an Evidentiary Hearing

Arnold's entitlement to an evidentiary hearing arises in two respects. First, he argues that he is entitled to an evidentiary hearing now, so that his habeas petition itself may be adjudicated fairly. The R&R reasons that a hearing isn't precluded by 28 U.S.C. § 2254(e)(2), but that there is no basis for one under Townsend v. Sain, 372 U.S. 293 (1963). The Court agrees. An evidentiary hearing isn't required "on issues that can be resolved by reference to the state court record," Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998), and, as the R&R concludes after a thorough review of the record in this case, "Arnold does not explain how an evidentiary hearing would produce material facts not already presented to the state courts." (R&R at 6.) Arnold's request for an evidentiary hearing is therefore DENIED.

Second, Arnold argues that his post-trial denial of an evidentiary hearing was a violation of his due process rights. The Court is again satisfied with the R&R's treatment of this argument. While predicated on Arnold's due process rights, it appears to actually implicate the trial court's application of state law, and state law claims can't be the basis of federal habeas relief. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Morever, even if Arnold's claim here does implicate his due process rights, there is no indication in the record that the trial court's denial of an evidentiary hearing rose to the level of the deprivation identified in United States v. Cronic, 466 U.S. 648, 653 (1984), on which Arnold relies. The Court therefore DENIES Arnold's claim that his due process rights were violated by the trial court's denial of an evidentiary hearing.

C. Ground Two - Ineffective Assistance of Counsel

While Arnold indicates in his objection to the R&R that he objects to its findings and conclusions with respect to his ineffective assistance of counsel claim, he does not specify what those objections are. In any event, the Court is satisfied with the R&R's analysis of this claim. Under Strickland v. Washington, 466 U.S. 668 (1984), counsel is legally ineffective only if his performance was unreasonable under prevailing professional standards and was plausibly the but-for cause of a prejudicial result at trial. The Court finds that Arnold, for the reasons thoroughly given in the R&R, has failed to make this showing.

D. Ground Three - Violation of the Confrontation Clause

Arnold's confrontation clause claim goes to the attempt of a victim-witness (his former wife, Heather Olafson) to offer previously excluded hearsay testimony at trial. Arnold's counsel objected to the testimony, and the objections were quickly sustained, but only after the jury heard the testimony. The Confrontation Clause of the Sixth Amendment provides that the accused in criminal trials "shall enjoy the right . . . to be confronted with the witnesses against [them]," U.S. CONST. amend. VI, and the Supreme Court held in Crawford v. Washington that hearsay testimony can violate this right. 541 U.S. 36 (2004).

There is no doubt that the testimony at issue here violated Arnold's rights under the Confrontation Clause. But that's not the end of the analysis. In order for the violation to warrant habeas relief, the petitioner must suffer prejudice. Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005). Specifically, the impermissible testimony must have had a "substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The state court found that the effect of the testimony was "harmless under any standard," and the Court agrees with the R&R that this finding of the state court was not "contrary to . . . Supreme Court harmless error precedent" such that habeas relief is warranted. Id. The evidence of a premeditated attack by Arnold was overwhelming, and the hearsay testimony could not have had a prejudicial effect on the jury's verdict. Brecht, 507 U.S. at 637. The Court therefore DENIES Arnold's claim that he is entitled to habeas relief because his rights under the Confrontation Clause were violated.

Arnold also argues that his Confrontation Clause rights were violated because he was forbidden from presenting evidence of Heather's "inappropriate sexual contact with both Petitioner's Son and Nephew." (Obj. at 5.) This isn't a Confrontation Clause issue as much as one of Arnold's ability to put on a complete defense, and is therefore implicated by his final habeas claim, addressed below.

E. Ground Four - Obstruction of Complete Defense

Arnold's final claim is that the trial court's exclusion of evidence that Olafson molested his son and bore a child by his nephew prevented him from mounting a successful defense. Arnold argues that these facts would have impeached Olafson's credibility as a witness against him and bolstered Arnold's heat of passion defense. The trial court, as the R&R observes, questioned the relevance of the molestation evidence to a heat of passion defense because "this was not a situation where he was suddenly confronted with the provocation and then initiated the attack." (R&R at 16.)

The trial court excluded the molestation evidence under section 352 of the California Evidence Code, which is analogous to Rule 403 of the Federal Rules of Civil Procedure. It did so on the ground that "the relevance is outweighed by time consumption and prejudice against the victim." (R&R at 17.) Arnold doesn't argue, under United States v. Scheffer, 523 U.S. 303, 308 (1998), that section 352 is arbitrary or disproportionate to its intended purpose, which means he must argue that the trial court lacked "any rational justification" for the exclusion of the evidence. Crane v. Kentucky, 476 U.S. 683, 691 (1986). The trial court found that the alleged molestations were too far removed in time from Arnold's crime to plausibly support a heat of passion defense, and that any relevance of the charges would have been outweighed by prejudice against Heather Olafson. The Court, following the R&R, finds that these justifications are rational and persuasive, not arbitrary. There was no constitutional error in the trial court's exclusion of the evidence, and Arnold's claim that he was prevented from mounting a full defense is DENIED.

F. Certificate of Appealability

Arnold's argument that denying him a certificate of appealability violates his First Amendment right to petition the government is meritless. Under the Federal Rules of Appellate Procedure, a habeas petitioner "cannot take an appeal unless a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). The district court may issue a certificate of appealability only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 § 2253(c)(2). To make a "substantial showing," the petitioner must "demonstrat[e] that 'reasonable jurists would find the district court's assessment of the constitutional claims debatable[.]'" Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Judge Porter's recommendation that a certificate of appealability should not issue is reasonable, and the Court ADOPTS it.

III. Conclusion

Arnold's request for an evidentiary hearing is DENIED. His request for counsel is also DENIED. His habeas petition is DENIED in its entirety. A certificate of appealability is DENIED. The Court therefore ADOPTS the R&R in its entirety.



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