FINDINGS AND RECOMMENDATIONS
Petitioner, Anthony Fletcher, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate sentence of forty-five years to life following his convictions by jury trial in the Sacramento County Superior Court, Case No. 05F00982, for first degree murder with a penalty enhancement for personal use of a firearm. Petitioner presents various claims challenging the constitutionality of his conviction.
Petitioner sets forth four grounds for relief in this petition, as follow:
(1) The prosecutor engaged in misconduct by misstating facts during (a) direct examination of witness Henrietta Reno and
(b) during rebuttal closing argument when referencing the 1 trial testimony of witnesses Henrietta Reno and Beverly Tukes.
(2) Trial counsel rendered prejudicially ineffective assistance by
(a) failing to investigate and prepare for trial; (b) failing to investigate and call witnesses; (c) failing to object to acts of prosecutorial misconduct; and (d) failing to present favorable evidence.
(3) Appellate counsel rendered prejudicially ineffective assistance by failing to raise Petitioner's above ineffective assistance of trial counsel and prosecutorial misconduct claims on direct appeal.
(4) The trial court erred in admitting recordings of unduly prejudicial telephone calls made by Petitioner while in jail, in violation of his due process right to a fair trial.
Based on a thorough review of the record and applicable law, it is recommended that each of Petitioner's claims be denied.
The basic facts of Petitioner's crime were summarized in the partially published opinion of the California Court of Appeal, Third Appellate District, as follow:
Defendant was shot on September 2, 2004, at the corner of 36th Street and Second Avenue in Oak Park. Defendant initially did not want to help the police, but eventually identified the shooter as Dub. As a result, Dub, also known as Christopher Williams, was later convicted of violating Penal Code section 246.3 (grossly negligent discharge of firearm).
At 11:19 p.m. on September 14, 2004, Sacramento Police Detective
Michael Poroli took a shots fired call. John Huston*fn1
was killed by five gunshot wounds to the chest and one to the
back of his neck. Huston's body was discovered behind the auditorium
at American Legion High School in Oak Park. Huston, who moved from
Oakland approximately 15 years earlier and sold drugs in Oak Park, was
an acquaintance of Williams.
Defendant also sold drugs in Oak Park. His girlfriend was Henrietta Reno. The mother of his baby is Deana Randle. Latosha Brooks ("Tosha"), was a friend of defendant and lived with Belyn Johnson ("Billie") in a rental house across from American Legion High School. Beverly Tukes managed the rental house and lived next door to Billie and Tosha.
Billie testified that on September 14, 2004, defendant and Henrietta came to her house to deliver a pit bully puppy. The three smoked marijuana for a couple of hours before defendant and Henrietta left. She denied telling an investigator defendant was over at her place around 8:00 p.m. the night of the murder. Billie also denied telling anyone she saw defendant running from American Legion High School and get on a bicycle the night of the murder.
Carolyn Lark*fn2 gave defendant and Henrietta a ride home the night of the murder. The couple started fighting and defendant left the van, telling Lark to take Henrietta home.
Beverly Tukes heard multiple gunshots from the direction of American Legion High School on the night of the murder. She went to her front porch and saw two people running. One of the two, a Black male, ran towards her. The man told Tukes he was running because of the shooting. He ran to Tosha and Billie's residence and tried to enter their house. Failing at this, the man left through their backyard.
Tandra Davis, Huston's sister, went to American Legion High School with other members of her family the morning after her brother's murder. She met Billie there, who told Tandra defendant shot Huston and then rode away on a bicycle. Billie told her defendant shot Huston because he provided the gun which Christopher Williams used to shoot defendant.
Winston Richards married Billie between the murder and the trial. He testified Della Fort told him she saw defendant flee on a bicycle from the scene of the shooting. Fort, who lived across the street from American Legion High School, testified. She disputed Richards's testimony, denying seeing defendant flee the area on the night of the shooting.
On December 6, 2004, Henrietta Reno telephoned the homicide detective assigned to the case, Sacramento Police Detective Michael Poroli, and told him defendant killed Huston. As defendant left Lark's van, he said, in reference to the looming murder, that "he was going to do it." He said, "'I'm going to make everybody cry.'" Reno saw defendant and his brother with Huston after he got out of Lark's van. Defendant put a gun to Huston's side and said to Huston, "'How come all of a sudden I got shot and don't nobody know nothing.'" He then made Huston take off his shoes and sit against a wall.
Defendant's brother*fn3 was supposed to shoot Huston but could not. Instead, defendant took the gun from his brother and shot Huston. Reno then went to the police station and told Detective Poroli that Huston had provided the gun Christopher Williams used to shoot defendant. She also said she did not actually see defendant shoot Huston. Defendant had threatened to do something to her if she told anyone about the murder.
Reno went to the police station on December 16, 2004 and told another detective that she lied about defendant's culpability. Reno told the second detective that the word on the street was that she was a snitch, which made her afraid.
Reno married defendant on February 14, 2005, while he was in custody awaiting trial. While visiting defendant before the trial, she was caught handing him a note stating: "Just read my statement. Tell me what you think, and then write what I should say." At trial, Reno claimed her prior statements incriminating defendant were all lies motivated by jealousy over defendant's relationship with Randle. Deana Randle was afraid to testify due to threats on her life, but decided to testify after the district attorney's office agreed to talk with Fresno County about her probation violation. She said defendant thought he had been shot over a turf dispute. She said defendant admitted shooting and killing someone at American Legion High School. When Randle referred to a news story about Huston's death, defendant told her he killed the person in the news. Defendant also told her he needed a place to stay because he had killed someone and Reno talked too much. He was only marrying Reno "so she would shut up."
Over his objection,FN1 the trial court admitted recordings of phone calls made by defendant while in custody awaiting trial.FN2 Defendant is heard on the tapes admitting he wanted to marry Reno to keep her from talking even though he could not stand her. He told his friend Antoine they had to get in Reno's face, he told his brother that someone would have to "snatch her up." Defendant told Antoine that Reno, who was the key, "must stay within the regime and stay out of" the way. Defendant said he had to let Reno know that no one was "badder than [him]" and he had to "pump the fear of God" or "the fear of Anthony" into her. The recorded statements contained numerous swear words, racial epithets referencing Black people, and derogatory references to women.FN3
FN1. Defendant argued the tapes should be suppressed pursuant to Evidence Code section 352, but he never requested the redaction of prejudicial materials from the tapes.
FN2. The record contains no transcript of the recordings, but has a CD of the recordings. Defendant's citation to the recordings note the day and time the conversation containing the particular reference took place. What defendant does not do is tell this court at what point in the recorded conversation was the cited statement made. This is analogous to quoting from a case without providing a point page citation.
We refer counsel for defendant to California Rules of Court, rule 8.204(a)(1)(C), which provides that briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears."
Defendant's brief repeatedly violates this rule, requiring this court waste scarce judicial resources looking for specific statements in over four hours of recordings.
FN3 This opinion does not make any specific references to the actual terms used by defendant in the recordings. We choose to avoid incorporating vulgar or otherwise improper terms in our opinion unless the use of such words "is in our judgment essential to place the remarks in perspective." (United States v. Cintolo, (1st Cir. 1987) 818 F.2d 980, 984, fn. 3.) Having examined the record and the parties' arguments carefully, we have determined that it is not essential to state the specific offensive terms employed by defendant in the tapes in order to place them in their proper perspective. (Lodged Doc. 1 at 1-6).
B. TRIAL AND DIRECT APPEAL
Following a jury trial, Petitioner was convicted of first degree murder with a penalty enhancement for personal use of a firearm. He was sentenced to twenty-five years to life imprisonment on the murder charge and a consecutive term of twenty years for the firearm enhancement. Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District on grounds that the trial court should not have admitted the tape recordings of his jail telephone calls. The appellate court affirmed Petitioner's conviction with a reasoned opinion on May 2, 2007. He then petitioned for review of his conviction in the California Supreme Court. The court denied that petition without comment on June 20, 2007.
C. STATE COURT COLLATERAL ATTACKS
After exhausting his direct appellate remedies, Petitioner sought habeas corpus relief on his prosecutorial misconduct claims in the Sacramento County Superior Court. On May 19, 2008, the court denied the petition with a reasoned opinion. Petitioner next sought habeas corpus relief on his prosecutorial misconduct claims in the California Court of Appeal, Third Appellate District. The petition was denied without comment on June 12, 2008. Petitioner then sought habeas corpus relief on his prosecutorial misconduct and ineffective assistance of trial counsel claims in the California Supreme Court. That petition was denied without comment on January 21, 2009.
Petitioner filed a second habeas corpus petition claiming ineffective assistance of appellate counsel in the Sacramento County Superior Court. On August 5, 2008, the court denied the petition with a reasoned opinion. Petitioner filed a second habeas corpus petition in the California Court of Appeal, Third Appellate District. On August 21, 2008, the court denied that petition without comment. Petitioner once again sought habeas corpus relief in the California Supreme Court. The court denied relief without comment on January 21, 2009.
Petitioner filed a third habeas corpus petition claiming ineffective assistance of trial counsel in the Sacramento County Superior Court. On July 6, 2009, issued a reasoned opinion denying the petition. Petitioner filed a third habeas corpus petition in the California Court of Appeal, Third Appellate District, and that court denied his petition without comment on August 20, 2009. Petitioner's third petition for writ of habeas corpus was denied without comment by the California Supreme Court on March 10, 2010.
Petitioner filed this federal petition for writ of habeas corpus on April 21, 2009, and he amended the petition on June 24, 2009. Respondent filed an answer on June 26, 2009. On October 14, 2009, the petition was stayed to allow Petitioner to exhaust one of his claims in state court. The stay was lifted on April 6, 2010, and Respondent amended its answer on May 27, 2010. Petitioner filed his traverse on September 13, 2010.
IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief 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). Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S. 63, 71 (2003), there are certain principles which guide its application.
First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, 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, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.
Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).
Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
A. PROSECUTORIAL MISCONDUCT
Petitioner alleges that the prosecutor engaged in several acts of misconduct during his trial, in violation of his federal right to due process of law. Specifically, Petitioner claims that the prosecutor misstated facts during the examination of Henrietta Reno and during rebuttal closing argument regarding the trial testimony of Henrietta Reno and Beverly Tukes. The Sacramento County Superior Court rejected Petitioner's claims as procedurally barred, explaining its reasoning as follows:
Claims that could have been raised on appeal are not cognizable on habeas corpus unless the petitioner can show that (1) clear and fundamental constitutional error strikes at the heart of the trial process; (2) the court lacked fundamental jurisdiction; (3) the court acted in excess of jurisdiction not requiring a redetermination of facts; or (4) a change in law after the appeal affected the petitioner. (In re Dixon (1953) 41 Cal.2d 756, 759; In re Harris (1993) 5 Cal.4th 813, 828.)
The substantive claims of prosecutorial misconduct normally could have been raised on appeal as evidence in support of those claims would have been in the record. Since those issues were not raised, they are barred on habeas corpus. (Lodged Doc. 4 at 1).
Accordingly, Respondent asserts that the claim is procedurally barred in this court. As a general rule, a federal 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 a federal question and adequate to support the judgment.'" Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). An exception to the general rule exists if the prisoner can demonstrate either cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Respondent bears the ultimate burden of proving a state procedural bar. See Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003). In order to bar federal habeas corpus review, the state procedural rule must have been actually relied upon, clearly and expressly, in the state court order in question. Coleman, 501 U.S. at 735. Here, it is apparent that the procedural bar at issue, applied for failure to raise a claim on direct appeal, is independent of federal law.
Even if the claims of prosecutorial misconduct were not procedurally barred, their merits would not warrant relief. The law applicable to each of Petitioner's claims of prosecutorial misconduct is the same. On habeas corpus review, the narrow standard of due process applies. Darden v. Wainwright, 477 U.S. 168, 181 (1986). A prosecutor's error or misconduct does not, per se, violate a criminal defendant's constitutional rights. See Jeffries v. Blodgett, 5 F.3d 1180, 1191 (citing Darden, 477 U.S. at 181; Cambell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987)). A defendant's due process rights are violated only if the error or misconduct renders the trial fundamentally unfair. Darden, 477 U.S. at 181.
The question to be resolved is "whether the prosecutor's remarks 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (quoting Donnelly v. DeChritoforo, 416 U.S. 637, 643 (1974)). In order to determine whether prosecutorial misconduct occurred, it is necessary to examine the entire proceedings and place the prosecutor's remarks in context. See Greer v. Miller, 483 U.S. 756, 765-66 (1987). Factors to be considered in determining whether habeas corpus relief is warranted include whether the prosecutor manipulated or misstated the evidence; whether his comments implicated other specific rights of the accused; whether the objectionable content was invited or provoked by defense counsel's argument; whether the trial court admonished the jurors; and the weight of the evidence against the defendant. Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Relief is limited to cases in which the petitioner can establish that the misconduct resulted in actual prejudice. Johnson v. Sublett, 63 F.3d 926, 930 (1995) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). In other words, prosecutorial misconduct violates due process when it has a substantial and injurious effect or influence in determining the jury's verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
a. DIRECT EXAMINATION OF HENRIETTA RENO
Petitioner claims that the prosecutor misstated facts during the direct examination of witness Henrietta Reno, who was Petitioner's girlfriend at the time of the murder. Specifically, Petitioner contends that Reno never stated in any of her pre-trial interviews with Detective Poroli that Petitioner had hit her over the head with a gun during an altercation taking place between the two at some point in their relationship prior to the murder of John Huston. Reno later recanted the statements she made to Detective Poroli alleging that Petitioner had behaved in an abusive manner toward her during their relationship and implicating Petitioner in the murder. Reno claimed that she was lying during the initial interviews because she was angry at Petitioner.Petitioner thus alleges that the prosecutor's examination questions regarding whether Petitioner had actually ever hit Reno over the head with a gun misstated the evidence. According to Petitioner, the prosecutor's questions were prejudicial, misleading and confusing to the jury because the prosecutor posed each question as if it was a proven fact that Petitioner had hit Reno over the head with a gun. Petitioner claims that the prosecutor's allegedly improper line of questioning placed before the jury unsubstantiated evidence about Petitioner's propensity for violence with a gun.
Petitioner's claim that Reno never said that he hit her over the head with a gun must be viewed in light of Reno's pre-trial statements, the transcripts of which were admitted as trial exhibits, and Reno's subsequent trial testimony regarding the incident. On December 6, 2004, Reno telephoned Detective Poroli and claimed that Petitioner was responsible for the murder of John Huston. During this conversation, Reno described a prior altercation that had taken place between herself and Petitioner in which she claimed that "[he] beat me up really bad. I mean, I got my sister as a witness and everything, what he did to me, you know. He dragged me down the street. I had my nephew in my hand, my sister's child. And he's dragging me, you know, down the street, punching me, kicking me and shit with the gun on me." (CT at 506).
On the same day that she spoke to Detective Poroli on the phone, Reno went to the police station where the detective conducted a more exhaustive face to face interview. During this interview, Reno again told the detective that "one day it just got really bad to where [Petitioner] punched me and dragged me down the street. In front of my sister's house while I was holding my sister's child in my hand. And he was six months at the time. And the neighbors come out, you know, are you - - asking me (unintelligible). I said leave him alone 'cause I know he has a gun." (CT at 516). Later on in the interview, Reno described the same incident to the detective as follows:
MS. RENO: And I was sitting over there and I was holding the baby and the next thing I know, I see [Petitioner] coming in the gate. And he grab [sic] me by my hair and I'm - - I - - I'm like, you know, what is it - - what are you doing? What's wrong with you? He was like I know [you] did something. And I was like, what you talking about? You know, I never did nothing. What are you talking about? Next I knew he shocked me. I dropped the baby, 'cause I, you know, I'm (unintelligible). I lost my balance. And he dragged [me] to where the baby's just sitting on the couch screaming. He dragged me all the way outside to the middle of the street and started kicking and punching. I'm running. Trying to run from him. I'm running up to people's door, nobody going to let me in. So - -'cause I got some scratches on my legs and stuff to show. But it was like - - probably about last month. But the scrapes are still there. You know?
MS. RENO: And then he dragged me and was punching [me] and the neighbor came out ...