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Alfred Lee Grayson v. Tom L. Carey

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 16, 2011

ALFRED LEE GRAYSON, PETITIONER,
v.
TOM L. CAREY, RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, Alfred Lee Grayson, is a state prisoner proceeding with a counseled*fn1 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of 26-years-to-life in prison after a jury convicted him of one count of murder in the first degree and one count of assault with a deadly weapon, with a sentence enhancement for use of a weapon. On remand from the Ninth Circuit, Petitioner raises one claim for relief: The introduction into evidence of hearsay statements made by the victim before she was killed violated Petitioner's Confrontation Clause rights under the Sixth Amendment. Specifically, Petitioner asserts that the victim's statement to police three days prior to her death that Petitioner had said to her that he "had to kill her because if he didn't he'd go back to jail for three years," admitted pursuant to a recently added statutory exception to the general bar on hearsay testimony, did not bear the required indicia of reliability to meet the requirements of Ohio v. Roberts, 448 U.S. 56 (1980). For the reasons stated herein, the federal habeas petition should be denied.

I. FACTUAL BACKGROUND*fn2

Defendant and the victim had a volatile marriage. Over the 20 plus years of their relationship, arguments and physical altercations were common. The police had been called to their residence on many occasions and, at the time of this incident, defendant was on probation for threatening the victim with a knife.

June 1996 was marked by many arguments between defendant and the victim. On June 16, 1996, Father's Day, the couple quarreled because the victim wanted defendant to mow the lawn. When defendant received a telephone call from another woman, things came to a head, and an argument ensued. The victim grabbed a knife and, when defendant stood up, the victim ran out of the house. Defendant followed.

Defendant stabbed the victim several times. When the victim's son tried to intervene, defendant stabbed him as well. The victim ran away, but fell down. Defendant leaned over her and stabbed her repeatedly, killing her. The victim suffered 32 stab wounds to her body, including at least 14 wounds to major organs and defensive wounds on her legs and hands. There were several eyewitnesses to this savage attack, some of whom described seeing defendant go back into the house to get another knife after the victim grabbed the first knife away from defendant. Three knives were found at the scene.

At trial, defendant admitted killing his wife but asserted he acted without premeditation or malice, and instead had simply "lost it" as a result of the day's events. The prosecution introduced evidence that defendant had previously threatened to kill the victim, and emphasized inconsistencies between defendant's trial testimony and statements he had made to investigators.

II. PROCEDURAL HISTORY

Judgment was entered against Petitioner in the Superior Court of Sacramento County, Case No. 96F04725, On September 3, 1999. The California Court of Appeal, Third Appellate District, affirmed Petitioner's conviction and sentence on September 27, 2002. The California Supreme Court denied review on December 11, 2002.

Thereafter, Petitioner, proceeding pro se, filed this federal petition for habeas corpus on August 12, 2003, in which he raised six claims for relief. Respondent answered the petition on January 21, 2004, and Petitioner filed a Traverse on April 26, 2004. The matter was referred to a United States Magistrate Judge, who recommended the petition be denied on all grounds. Docket No. 20, filed August 10, 2006. In ruling on Petitioner's Confrontation Clause claim, which Respondent had argued in his memorandum of points and authorities was procedurally barred, the court found as follows:

Without argument, in conclusory fashion, respondent claims this "issue is not properly before this Court" because petitioner's objection to the evidence covered only its use in support of the false imprisonment charge and did not specifically rely on the Confrontation Clause. As noted above, however, the state bears the burden of raising procedural default as a defense or it loses the right to assert the defense thereafter. Bennett [v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003)]. The state's burden includes demonstrating that the procedural rule has been regularly and consistently applied. Id. at 586. In this case, respondent has made no effort to satisfy his burden on this issue. Answer at 14-21. There is no bar to this court's consideration of petitioner's Confrontation Clause claim.

Id. at 13-14. Finding the claim was not procedurally barred, the court reached the merits. Pursuant to Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005) overruled by Whorton v. Bockting, 549 U.S. 406, 421 (2007), the court retroactively applied the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), and concluded that Petitioner's confrontation rights had not been violated. Id. at 14-19.

After reviewing objections by both Respondent and Petitioner to the Magistrate Judge's Findings and Recommendations, the district court adopted the Findings and Recommendations in full. Docket No. 22, filed September 11, 2006. The district court issued a Certificate of Appealability with regard to the Confrontation Clause claim, and Petitioner appealed the district court's decision to the Ninth Circuit Court of Appeal.

On August 13, 2008, the Ninth Circuit reversed and remanded, concluding that the district court did not correctly apply circuit precedent with regard to procedural default:

The State maintains . . . that Grayson's claim is procedurally barred and that the district court erred in concluding otherwise. We agree with the State that the district court misapplied the burden shifting framework outlined in Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003). Bennett holds that after the state adequately pleads a procedural bar defense, the petitioner must assert that the procedural bar is inadequate. Id. at 586. The State then bears the ultimate burden of demonstrating that the state procedural rule is adequate. Id. Here, the district court erred in requiring the State to shoulder its ultimate burden before Grayson had "place[d] [the] defense in issue." King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006).

Although there is some question whether the State clearly raised a procedural bar defense, the district court treated the issue as having been raised in the State's responsive pleadings. Because the district court addressed the State's defense, we need not decide whether the State properly asserted a procedural bar defense when it raised the issue in its memorandum of points and authorities instead of its Answer. See Rules Governing Section 2254 Cases, Rule 5(b). However, because the district court misapplied Bennett, we vacate the judgment and remand to allow Grayson to meet his initial burden and the State to meet its ultimate burden.

Docket No. 39 [hereinafter Appellate Op.], at 3-4. The court also recognized that while the district court appropriately applied Crawford v. Washington retroactively to Petitioner's Confrontation Clause claim under then-existing circuit precedent, the Supreme Court had held in the interim that Crawford was not to be applied retroactively. Bockting, 549 U.S. at 421. As a result, the Ninth Circuit instructed that if this court reaches the merits of Petitioner's Confrontation Clause claim, it is to apply Ohio v. Roberts, 448 U.S. 56 (1980), the law at the time of the state court's decision.

After the case was remanded to the district court, the court appointed counsel to act on behalf of Petitioner. Docket No. 44 (Order Appointing Counsel). The parties have provided additional briefing on the issues remanded by the Ninth Circuit, and the case is ready for decision.

III. 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 only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

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 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)).

IV. ANALYSIS OF PETITIONER'S CLAIM

Petitioner contends that a statement made by the victim to a police officer three days before her death that Petitioner had said to her he "had to kill her because if he didn't he'd go back to jail for three years" was admitted in violation of his Sixth Amendment right to confront the witnesses against him. Respondent maintains that this claim is procedurally barred or, in the alternative, that it should be denied on the merits.

1. Factual and Procedural Background Regarding the Statement Petitioner and the victim, his wife,*fn3 had a contentious relationship that lasted over twenty years. Rep.'s Tr. at 198. During this time, they often fought and threatened each other. Id. Their daughter testified at trial that she "knew they fought . . . every single day." Id. at 196. They were also not entirely faithful in their marriage. The victim's youngest of four children, Ricky, was fathered by someone other than Petitioner. Petitioner often threatened to kill the victim, saying "he would kill her before he would let her be with another man." Id. at 197.

Three days prior to the victim's death, she called police. Officer Smith was dispatched to the call. According to Smith's trial testimony, the victim told Smith that Petitioner had "beat her up and he had threatened to kill her because he didn't want to go back to jail." Id. at 262. The victim told Smith that Petitioner "choked her [and] threw her to the ground." Id. at 263. When she escaped and ran outside, Petitioner chased her, brought her back inside, and threw her down on the floor again. Id. The victim escaped again, ran to a nearby school, and called the police. She told Smith that Petitioner said "he had to kill her because if he didn't he'd go back to jail for three years." Id. at 264. The victim and Petitioner were under the mistaken belief that because of Petitioner's probation status from a previous domestic abuse charge that if the victim reported him to the police he would be forced to spend three years in jail. See id. at 51.

At trial, Petitioner was charged with, inter alia, false imprisonment, Cal. Penal Code § 236, and murder in the first degree, Cal. Penal Code. § 187. The false imprisonment charge was based on the events three days prior to the victim's death. During argument of pretrial motions, Petitioner's counsel moved to exclude the victim's statement*fn4 that Petitioner had told her he had to kill her or he would go to jail for three years.

If it please the Court, I have an issue regarding the charge number three, that is violation of Penal Code section 236.

The prosecution is going to seek to introduce pursuant to 1370 of the Evidence Code a statement by the victim . . . through Detective Smith. While I don't particularly like the statements coming in -- they are hearsay. I don't have a chance to cross-examine it, I would object on that basis -- it's my thinking that perhaps 1370 would be controlling.

Id. at 39.

236, of course, requires that a violation of a personal freedom or personal liberty -- I believe the expression the code uses that her personal liberty was willfully and unlawfully violated, being effected by violence, menace, fraud, or deceit.

I suggest to the Court that that does not cover those statements . . . allegedly made by my client to the deceased victim, that they are improper, they're irrelevant, they're subject to 352 [i.e. they are prejudicial]. . . . I'm asking the Court for an order that when Officer Smith testifies that he does not -- that he not be allowed to testify as to those statements. . . .

Id. at 41. Counsel continued to assert that the statement was both irrelevant and highly prejudicial. Counsel never directly mentioned the possibility that admitting the statement would violate the Confrontation Clause or any other constitutional provision. The statutory exception the prosecution used to admit the otherwise inadmissible hearsay statement, Evidence Code section 1370,*fn5 explicitly requires that the statement be trustworthy. Cal. Evid. Code § 1370(a)(4). Petitioner's counsel made no argument before the trial court that the statement was not trustworthy or reliable, but argued that it was irrelevant and highly prejudicial.

At the end of argument as to whether the statement was admissible with regard to the false imprisonment charge, the trial court asked the prosecutor whether "there's an independent basis to bring [the statement] in as it may relate to [Petitioner's] state of mind three days later

[i.e., the day of the homicide], or his purpose three days later?" Id. at 50. The prosecutor agreed that the statement was relevant to the murder charge, and Petitioner's counsel did not object to this contention or ask for a limiting instruction. Id. The court determined the statement was admissible, and Officer Smith testified to that effect on the stand in front of the jury. Id. at 264.

2. Procedural Default

a. The California Court of Appeal Clearly and Expressly Stated that its Judgment Rested on a State Procedural Bar

As an initial matter, Petitioner contends that the state appellate court did not make a clear and express statement that its decision was based on waiver and, therefore, the decision was not directly based on procedural default. In ruling on Petitioner's Confrontation Clause claim, the California Court of Appeal stated as follows:

On appeal, defendant contends the court should have excluded this threat. He asserts its admission violated the confrontation clause of the state and federal Constitutions. He also challenges the reliability of the victim's statements.

Defendant's claims have been waived. Initially, we note that defendant's objections arose in a limited context, namely, the relationship of the threats to the false imprisonment charge. However, defendant was in fact acquitted of that charge, and consequently any claim of error is moot. Defendant's failure to object specifically to the admissibility of the statement as it related to the murder charge waives the matter on appeal. (See People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8, 94 Cal.Rptr.2d 396, 996 P.2d 46.)

Moreover, although defendant asserted that Evidence Code section 1370 did not permit him to cross-examine the declarant, he did not object on the basis that this statute violated the confrontation clause. Under similar circumstances, the California Supreme Court found an objection based on an inability to cross-examine insufficiently specific to preserve appellate review of the constitutional claims. (People v. Waidla, supra, 22 Cal.4th at p. 726, fn. 8, 94 Cal.Rptr.2d 396, 996 P.2d 46.)

Even if we set aside the issue of waiver, defendant's assertion is unavailing. In People v. Hernandez (1999) 71 Cal.App.4th 417, 424, 83 Cal.Rptr.2d 747, the appellate court concluded that Evidence Code section 1370 "is similar to the hearsay exception for spontaneous statements, which is firmly rooted," and "contains particular guarantees of trustworthiness and adequate indicia of reliability...." Consequently, the court concluded, this statute does not violate the confrontation clause. (People v. Hernandez, supra, at p. 424, 83 Cal.Rptr.2d 747.) For the same reasons, we agree. Defendant asserts that indicia of reliability were absent here, because the victim had a motive to make misrepresentations to Officer Smith and was angry at the time she made her report. Again, however, defendant did not raise this claim in the trial court. He is therefore precluded from doing so here. (People v. Hernandez, supra, 71 Cal.App.4th at pp. 424-425, 83 Cal.Rptr.2d 747.)

Slip Op. at *3.

In Harris v. Reed, 489 U.S. 255, 265 (1989), the Supreme Court held that the "plain statement" rule of Michigan v. Long, 463 U.S. 1032 (1983), applies on collateral review. Thus, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263 (citations omitted). This, however, does not prevent a state court from considering the merits of the federal claim in the alternative: "a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Id. at 264 n. 10 (emphasis in original) (citations omitted); see also Coleman v. Thompson, 501 U.S. 722 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined where . . . the state court simultaneously rejects the merits of the claim." (citations omitted)).

Petitioner cites Thomas v. Hubbard, 273 F.3d 1164, 1176 (9th Cir. 2001),*fn6 and Panther v. Hames, 991 F.2d 576, 580 (9th Cir. 1993), for the proposition that the procedural bar was not clearly and expressly stated. Neither of those cases is applicable to the set of facts present in this case. In Thomas, the court did not apply a procedural bar because they found the state appellate court's opinion "left the resolution of the procedural default issue uncertain rather than making a clear and express statement that its decision was based on a procedural default." Thomas, 991 F.2d at 1176. In Panther, the court reached the merits of the petitioner's claims because it found that the state appellate court "overlook[ed] the procedural default and consider[ed] the objection on the merits." 991 F.2d at 580. Thus, in neither of those cases did the state appellate court make a clear ruling on procedural default. In the present case, the California Court of Appeal clearly and unambiguously determined that Petitioner's "claims had been waived." Slip Op. at *3.

The present case most closely resembles Thomas v. Lewis, 945 F.2d 1119 (9th Cir. 1991).

In its decision memorandum, the appeals court unequivocally held that [petitioner's] failure to raise his claims on direct appeal and in the first petition for post-conviction relief constituted waiver of those claims. After finding that petitioner had waived "all the issues" and discussing preclusion under Arizona law, the court discussed the merits of [petitioner's] claims. Significantly, the court prefaced its discussion of the merits by stating that "[e]ven if [petitioner's] claims were not waived, relief would be denied."

Id. at 1123. The court went on to conclude that the petitioner's claim was procedurally barred. As in Lewis, here the California Court of Appeal unambiguously determined that Petitioner's claim was procedurally barred. The court did, however, go on to reach the merits of Petitioner's claim after stating "[e]ven if we set aside the issue of waiver, defendant's assertion is unavailing." Slip Op. at *3. This indicates the Court of Appeal was not, in fact, setting aside the issue of waiver and that the determination regarding federal law was in the alternative to the finding of procedural bar. As such, the Court of Appeal did clearly and expressly state that its judgment rested on a state procedural bar. So long as that procedural bar is an "adequate and independent state law basis on which the state court can deny relief," Petitioner's claim is procedurally barred.

b. Burden of Proof

Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground. Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005); Bennett, 322 F.3d at 585-86. Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. Bennett, 322 F.3d at 585-86. "The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. at 585. If the petitioner meets his burden, the ultimate burden to prove adequacy goes back to the state. Id. Thus, "it is the law of this circuit that the ultimate burden is on the state, not the petitioner, to show that a procedural state bar was clear, consistently applied, and well-established at the time the party contesting its use failed to comply with the rule in question." Insyxiengmay, 403 F.3d at 666. Even if the state rule is independent and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

In the present case, Respondent adequately pled the existence of an independent and adequate procedural bar when he asserted, in his papers in support of his Answer, that the claim was procedurally barred. Thereafter, upon remand from the Ninth Circuit, Petitioner filed a "Notice of Placing Procedural Bar at Issue" in which he contends: that his objection was sufficient under existing California law to preserve the issue for appeal; that the contemporaneous objection rule is not clear, consistently applied, and well established where the defendant does make an objection, but the objection is not specific to the issue on appeal; and, that even if no objection was made, it was not required under California law because any objection would have been futile. Thus, the ultimate burden now rests on Respondent to show that the procedural state bar was clear, consistently applied, and well-established at the time of Petitioner's trial.

c. The Objection Was Not Specific Enough To Maintain the Confrontation Clause Issue for Appeal Under Then-existing California Law Which is Clear, Consistently Applied, and Well-established Assuming Petitioner's objection did relate to the murder charge,*fn7 it was insufficient to put the court or government on notice that it was based on the Confrontation Clause. Petitioner twice objected that he could not "cross-examine" the witness, though the thrust of his argument centered around the relevancy of the statement and the prejudicial nature of the statement (under Cal. Evid. Code § 352, similar to Fed. R. Evid. 403). At no time did he reference the Confrontation Clause. Indeed, Petitioner never mentioned any aspect of the federal charter when challenging the use of the statement.

The specificity requirement of California's contemporaneous objection rule has a long history, and has been applied regularly and consistently. See, e.g., Bundy v. Sierra Lumber Co., 149 Cal. 772, 87 P. 622 (1906); People v. Morris, 53 Cal. 3d 152, 195-96, 807 P.2d 949 (1991), overruled in part on other grounds by People v. Stansbury, 9 Cal. 4th 824, 830 n. 1, 889 P.2d 588 (1995) ("defendant failed to advance in the trial court the specific ground for exclusion henow urges"); People v. Coleman, 46 Cal. 3d 749, 776-77, 759 P.2d 1260 (1988). In California, it is "the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." People v. Rodgers, 21 Cal. 3d 541, 547-48, 579 P.2d 1048 (1978) (citing People v. Welch, 8 Cal. 3d 106, 114-15, 501 P.2d 225 (1972); People v. De Santiago, 71 Cal. 2d 18, 22, 453 P.2d 353 (1969)) (other citations omitted). "The rationale for this rule is clear; a contrary rule would deprive the party offering the evidence of any opportunity to cure the defect at trial and would permit the non-objecting party to gamble that the error will provide grounds for reversal of the matter." Coleman, 46 Cal. 3d at 777 (citing Rodgers, 21 Cal. 3d at 547-48 (which, in turn, quotes Coy v. Superior Court, 51 Cal. 2d 471, 473, 334 P.2d 569 (1959))); see Bundy, 149 Cal. at 776 ("Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application that under [a general] objection to a question they can apply with legal accuracy some particular principle of law which the objection does not specifically present."). The requirement that the objection must be specific has been consistently applied for decades in criminal trials. See, e.g., People v. Wignall, 125 Cal. App. 465, 474, 13 P.2d 995 (1932); People v. Modell, 143 Cal. App. 2d 724, 730, 300 P.2d 204 (1956); People v. Gamble, 8 Cal. App. 3d 142, 149, 87 Cal. Rptr. 333 (1970); People v. Stuller, 10 Cal. App. 3d 582, 599, 89 Cal. Rptr. 158 (1970); People v. Castaneda,52 Cal. App.3d 334, 339, 125 Cal. Rptr. 9 (1975).

In the present case, Petitioner urges that the specificity rule as it applied to the Confrontation Clause was not clear at the time of his trial and that the Court of Appeal's reliance on People v. Waidla, 22 Cal.4th 690, 996 P.2d 46 (2000), which was decided after his trial had occurred, was improper as it could not have informed his counsel of the need to be more specific regarding the Confrontation Clause issue. Respondent agrees that the Court of Appeal's reliance on Waidla was improper, but argues that under California law existing at the time of Petitioner's trial, Petitioner's objection was still insufficient.

Prior to Petitioner's trial in 1999, the California Supreme Court decided People v. Alvarez, 14 Cal. 4th 155, 926 P.2d 365 (1996), which confronted the issue of whether a hearsay related objection preserved a Confrontation Clause claim for appeal. Similar to the present case, Alvarez moved the Superior Court, in limine, to preclude the use of statements made by the victim before the victim died on the ground they were inadmissible hearsay. Id. at 185. In concluding Alvarez's Confrontation Clause claim was barred on appeal, the California Supreme Court stated:

Unlike below, here defendant does not argue that the evidence in question was inadmissible hearsay. Indeed, he all but concedes that it came within the exception for spontaneous declarations. Unsurprisingly so.

Instead, defendant argues that the evidence in question was barred by the confrontation clause of the Sixth Amendment to the United States Constitution.

Defendant has not preserved his claim for review. "It is, of course, 'the general rule'"--to which we find no exception here--"'that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.'" (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [276 Cal.Rptr. 827, 802 P.2d 330], quoting People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048].) There was neither a "specific" nor "timely" objection below predicated on the Sixth Amendment's confrontation clause. True, there was a bare reference to the "confrontation rule" (capitalization deleted) in moving papers submitted by defendant. But that was all. And that was not enough.

Id. at 186 (footnote omitted). Thus, Petitioner was on notice that to preserve a Confrontation Clause claim for appellate-and therefore collateral-review, he must clearly predicate his objection in the trial court on Confrontation Clause grounds. Mere reference to hearsay or cross-examination would not be sufficient to maintain the claim for appeal. Respondent has met his burden of showing that the specificity requirement of the contemporaneous objection rule is clear, consistently applied, and well-established in California. Here, it is clear that Petitioner's objection did not serve the purposes of the specific contemporaneous objection rule-to allow the trial court to make an initial ruling on the claim and the opposing party to cure any defect. Neither the trial court nor the government considered Petitioner's objection to be based on the federal Constitution, and the court's analysis of Petitioner's motion rested squarely on the application of state evidentiary law. See Rep.'s Tr. at 62. As such, Petitioner failed to satisfy California's procedural rules and his claim is barred from consideration in this court, unless an exception to the contemporaneous objection rule exists.

d. Futility of Objection

Petitioner argues that such an exception exists in that any objection to the admissibility of the victim's statements on Confrontation Clause grounds would have been futile. "An objection in the trial court is not required if it would have been futile." People v. Sandoval, 41 Cal. 4th 825, 837 n. 4, 161 P.3d 1146 (2007) (citing People v. Welch, 5 Cal. 4th 228, 237-38, 851 P.2d 802 (1993)). Petitioner argues that an objection on Confrontation Clause grounds would have been futile because either the trial judge had already overruled a similar objection or because any objection would have necessarily been overruled because the trial court was bound by the California Court of Appeal's decision in People v. Hernandez, 71 Cal.App.4th 417');">71 Cal. App. 4th 417, 83 Cal.Rptr.2d 747');">83 Cal. Rptr. 2d 747 (1999), which concluded the hearsay exception used in this case, California Evidence Code section 1370, did not violate the Confrontation Clause.*fn8

Petitioner's first contention is without merit. As has previously been concluded, Petitioner's trial objection was insufficient to raise a Confrontation Clause claim so the trial court had not previously considered Petitioner's objection and already overruled it. Furthermore, while Petitioner objected to the admission of the statement under section 1370 because it was irrelevant, prejudicial, and the declarant was not subject to cross-examination, he never objected on the ground that the statement did not bear the indicia of reliability required by both section1370 and the Confrontation Clause. If he had challenged the admission of the statement under 1370 because it was unreliable, and was overruled, this would likely make a later Confrontation Clause claim futile as the same analysis regarding reliability would be made again by the court, reaching the same outcome. Petitioner's specific objections to the admissibility of the statement as being irrelevant and prejudicial, which were overruled by the trial court, did not mean that any Confrontation Clause claim objection on reliability grounds would have been futile.

Petitioner's second contention requires a close reading of People v. Hernandez, supra. Respondent maintains that Hernandez was a fact-based inquiry and did not hold that Evidence Code section 1370 did not violate the Confrontation Clause under all circumstances, thus requiring Petitioner to object at trial. Petitioner, on the other hand, argues that the Hernandez decision concluded that admission of evidence under section 1370 would not violate the Confrontation Clause under any circumstances, making any objection futile. In Hernandez, the California Court of Appeal stated, in part, as follows:

Next, Hernandez reiterates the argument he made below, that Evidence Code section 1370 violates the confrontation clause because the statements are admitted without the opportunity for cross-examination of the declarant. However, he admits that with a particularized guaranty of trustworthiness or adequate indicia of reliability, such statements may be admitted without violating the confrontation clause. (Ohio v. Roberts (1980) 448 U.S. 56, 66 [100 S.Ct. 2531, 2539, 65 L.Ed.2d 597].) Alternatively, statements admitted under a firmly rooted exception to the hearsay rule do not violate the confrontation clause. (Idaho v. Wright (1990) 497 U.S. 805, 816, 818 [110 S.Ct. 3139, 3147, 3148, 111 L.Ed.2d 638].) The People correctly assert that Evidence Code section 1370 is similar to the hearsay exception for spontaneous statements, FN4 which is firmly rooted. (See, e.g., People v. Sully (1991) 53 Cal.3d 1195 [283 Cal.Rptr. 144, 812 P.2d 163]; People v. Gallego (1990) 52 Cal.3d 115 [276 Cal.Rptr. 679, 802 P.2d 169]; People v. Farmer (1989) 47 Cal.3d 888 [254 Cal.Rptr. 508, 765 P.2d 940].)

FN4 That exception is governed by Evidence Code section 1240, which provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Additionally, Evidence Code section 1370 contains particularized guarantees of trustworthiness and adequate indicia of reliability by requiring the statement to be made (1) at or near the time of the incident (similar to a spontaneous declaration) by a person who experienced the incident, firsthand, (2) under circumstances indicating its trustworthiness, including FN5 whether it had been made in contemplation of litigation, whether the declarant had a bias or motive to fabricate and whether it is corroborated by other evidence not admissible under Evidence Code section 1370 and (3) to have been recorded in writing or electronically, or to have been made to a police officer (who normally makes a written report of such statements). FN6 (See People v. Gallego, supra, 52 Cal.3d at pp. 176-177.) While we agree with Hernandez that, under Idaho v. Wright, supra, 497 U.S. 805, corroboration by other evidence is not a legitimate component of trustworthiness, its presence in Evidence Code section 1370 does not render the statute unconstitutional because the section still requires the essential indicia of trustworthiness and it suggests other legitimate factors which may establish that. Absent a case where the trial court relied heavily upon the presence of corroborating evidence in making its determination that the statement bears indicia of reliability, the confrontation clause would not be violated. Therefore, we cannot agree with Hernandez that Evidence Code section 1370 violates the confrontation clause.

FN5 The statute provides: "For purposes of [the requirement that the statement was made under circumstances that would indicate its trustworthiness] ... circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶]

(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section." (Evid. Code, § 1370, subd. (b).)

FN6 It cannot be ignored that a police officer is generally a neutral and detached party and that making a false report to an officer is a violation of the law.

Finally, Hernandez contends that even if Evidence Code section 1370 is constitutional, the trial court here abused its discretion in admitting the statements because they did not bear sufficient indicia of reliability. . . .

Id. at 423-25 (emphasis added).

Thereafter, the court went on to address a separate claim by the appellant that the evidence should not have been admitted under section 1370 because it did not bear sufficient indicia of reliability. The appellant asserted that even if evidence admitted under 1370 does not violate the Confrontation Clause, in his case the statement was particularly unreliable. The Court of Appeal concluded that the appellant's claim was procedurally barred because he did not object to the statements in the trial court on the ground that they were unreliable. Id. at 424-25.

California courts have applied the futility exception where a single Court of Appeal opinion shows that any objection would lack merit and there are no conflicting appellate court decisions. See, e.g., People v. Severance, 138 Cal. App. 4th 305, 314, 41 Cal. Rptr. 3d 397 (2006) (finding an objection futile where only one California District Court of Appeal had addressed the issue and concluded the objection lacked merit). In Hernandez, 71 Cal. App. 4th at 424, the California Court of Appeal concluded that "[a]bsent a case where the trial court relied heavily upon the presence of corroborating evidence in making its determination that the statement bears indicia of reliability, the confrontation clause would not be violated." In the present case, the trial court did not heavily rely on corroborating evidence in making its determination that the victim's statements were admissible under Evidence Code section 1370. Indeed, Petitioner did not challenge the reliability of the statement in any way. As such, any objection on Confrontation Clause grounds would have been futile under California law to the extent that it argued a statement which was found to be reliable under section 1370 violated the Confrontation Clause. Petitioner's Confrontation Clause claim is not procedurally barred, so much as Petitioner makes a facial challenge to the admissibility of statements admitted under section 1370.

However, to the extent that Petitioner now seeks to challenge the reliability of the victim's statement, an as applied challenge, he is procedurally barred. While Hernandez held that evidence properly admitted under section 1370 would not violate the Confrontation Clause, it held so only so long as the statement beared the indicia of reliability required by section 1370. Because section 1370 and the Confrontation Clause, at least at the time, were substantially similar in requiring the statements to bear indicia of reliability, the failure of Petitioner to object to the admissibility of the statement on the ground that the statement was unreliable at trial precludes him from now arguing that the statement was unreliable in seeking collateral relief from this court. Any objection on this ground would not have been futile as the decision in Hernandez presupposes that the statement is found to be reliable under section 1370.

3. The Merits of Petitioner's Confrontation Clause Claim Under Ohio v. Roberts Upon remand from the Ninth Circuit, this court was instructed that if it reached the merits of Petitioner's claim it is to apply the then-existing Supreme Court precedent, Ohio v. Roberts, 448 U.S. 56 (1980). Roberts and its progeny, Idaho v. Wright, 497 U.S. 805 (1990), governed the admissibility of hearsay evidence in a criminal case under the Confrontation Clause at the time of Petitioner's trial. Roberts held that a hearsay statement is presumptively inadmissible against a criminal defendant unless the declarant is unavailable and the statement bears "adequate indicia of reliability"-that is, the statement falls within a "firmly rooted hearsay exception" or contains "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66 (internal quotation marks omitted); see Wright, 497 U.S. at 815-16. Particularized guarantees of trustworthiness may be present if the totality of circumstances surrounding the statement itself-without regard to corroborating evidence separate from the statement-indicate that the statement is "so trustworthy that adversarial testing would add little to its reliability." Wright, 497 U.S. at 821.

Applying these precedents, the Ninth Circuit, in Parle v. Runnels, 387 F.3d 1030, 1039-41 (9th Cir. 2004), found it reasonable for a California appellate court to conclude that admitting a hearsay statement under California Evidence Code section 1370 did not violate the Confrontation Clause on a facial challenge, so long as the court did not rely on other evidence to corroborate the truth of the statement. See id. at 1040 ("What the Supreme Court has 'clearly established' is that the relevant circumstances in the Confrontation Clause analysis are limited to 'those that surround the making of the statement and that render the declarant particularly worthy of belief.' The analysis excludes 'other evidence at trial that corroborates the truth of the statement.' Wright, 497 U.S. at 819."). While circuit authority does not determine the clearly established federal law for purposes of federal habeas relief under AEDPA, the Ninth Circuit's conclusion in Parle on habeas review is persuasive. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents."). That the Ninth Circuit found it reasonable to conclude statements admitted under section 1370 did not violate the Confrontation Clause makes it difficult for Petitioner to show Supreme Court precedent was unreasonably applied in his case.

The Supreme Court has "decline[d] to endorse a mechanical test for determining 'particularized guarantees of trustworthiness.'" Wright, 497 U.S. at 822 (citation omitted); Whelchel v. Washington, 232 F.3d 1197, 1204 (9th Cir.2000) ("There is no mechanical test for determining reliability nor a prescribed list of reliability elements" in the Confrontation Clause analysis). Section 1370 requires that the statement be "made under circumstances that would indicate its trustworthiness." Cal. Evid. Code § 1370(a)(4).*fn9 The statute indicates three factors which a court may assess in determining the trustworthiness of the statement, including: (1) "Whether the statement was made in contemplation of pending or anticipated litigation in whichthe declarant was interested"; (2) "[w]hether the declarant has a bias or motive for fabricating the statement, and the extend of any bias or motive; and, (3) "[w]hether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section." Id. § 1370(b)(1)-(3). Also, the statement must be made "at or near the time of the infliction or threat of physical injury" and must be either in writing, electronically recorded, or made to a physician, nurse, paramedic, or law enforcement official. Id. § 1370(a)(3). Furthermore, the statute makes clear that these are not the only relevant inquiries and that the court is free to use other factors it finds relevant to determine the trustworthiness of the statement. Id. § 1370(b). While the third factor is impermissible to rely on under Wright, 497 U.S. at 819, this does not render the statute facially unconstitutional and only unconstitutional as applied if the state court relies on this factor in reaching its determination that the statement is trustworthy. See Parle, 387 F.3d at 1038 n. 4. As the Ninth Circuit found in Parle, "[e]ven if the state court had, in fact, limited its analysis to the statutory factors, it would not have unreasonably misapplied clearly established federal law," 387 F.3d at 1040, because "courts have considerable leeway in their consideration of appropriate factors." Wright, 497 U.S. at 820. As such, it was reasonable for the California Court of Appeal to determine that evidence admitted pursuant to section 1370 did not, per se, violate the Confrontation Clause.*fn10

Petitioner argues at length that the victim's statement in this case did not bear the indicia of reliability required to make the statement admissible under the Confrontation Clause. However, as previously determined, Petitioner waived such argument when he failed to call into question the reliability of the statement at trial under either the Confrontation Clause or section 1370. Indeed, his trial counsel admitted the statement was admissible under section 1370, thus admitting that it was trustworthy, but argued that the statement was irrelevant and prejudicial.*fn11

As such, this court will not address the merits of Petitioner's Confrontation Clause claim on this ground.

Lastly, and in the alternative, while the argument in this case centers around the reliability of the statement as required by Roberts, another avenue exists by which the state could have admitted the victim's statement regardless of whether it bears the indicia of reliability required by Roberts. In Reynolds v. United States, 98 U.S. 145,158 (1879), the Supreme Court determined that introduction of an out of court statement by a declarant that was made unavailable by the defendant's acts did not violate the Confrontation Clause. "The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege." Id. While the reasoning of Reynolds laid dormant for over a century until it was resurrected in Crawford v. Washington, 541 U.S. at 62, it was never explicitly overruled and a state evidentiary rule would not have been unreasonable if itadmitted statements of an unavailable declarant where the declarant's unavailability was caused by the defendant. In the present case, Petitioner did not dispute that he killed the victim but argued that he did so under a heat of passion. As such, there was no question that he was the cause of the declarant's unavailability.

For the foregoing reasons, Petitioner's petition for habeas corpus should be denied. V. CONCLUSION

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DENIED.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of appealability should issue in the event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).


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