FINDINGS AND RECOMMENDATIONS
Chandler, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue are his 2007 convictions in the Sacramento County Superior Court, case number 06F05421, for which he is serving an aggregate prison sentence of 50 years to life.
Chandler began dating M.S. in February 2005 and later moved into her home. While he lived there M.S. worked as a prostitute, paid the bills, and gave Chandler money. He refused to allow her to quit prostituting, complaining there would be no money for them to live.
She was listed on the Internet as an escort and testified she had never had a pimp before Chandler.
In October 2005, Chandler met D.H. The next month, in November 2005, Chandler moved out of M.S.'s house and into D.H.'s house. In June 2006, Chandler left numerous messages on D.H.'s phone in which he threatened to assault and kill her. D.H. believed his threats and feared he would do so. The messages were played for the jury at his trial.
A jury convicted Chandler of making criminal threats to D.H. and pimping involving M.S. The jury acquitted him of numerous other counts involving both victims which were based on facts not recounted here, including a charge of making criminal threats to M.S. In a bifurcated proceeding, the court found true that Chandler had incurred three prior strikes within the meaning of California's habitual criminals or "three strikes" law and sentenced him to state prison for an aggregate term of 50 years to life.
Chandler appealed his convictions to the California Court of Appeal, Third District, where judgment was affirmed in an unpublished opinion. Petition for review to the California Supreme Court was denied.
The petition sets forth six alleged constitutional violations. Chandler claims: Ground One: He was denied his right to trial by a fair and impartial jury;
Ground Two: He was denied his right to appeal;
Ground Three: He was denied his right to the ineffective assistance of counsel on appeal; Ground Four: He was denied his right to confront and cross-examine witnesses against him;
Ground Five: Police committed misconduct by coercing witnesses to file charges; and Ground Six: The trial court's denial of the defense motion to reduce the criminal threats conviction to a misdemeanor violated due process and constituted cruel and unusual punishment.
For the reasons that follow, the claims are without merit and relief should be denied.
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 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded 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.
This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A. Ground One: Fair and Impartial Jury
1. Additional Background*fn2
On the first day of trial, defense counsel filed a motion in limine seeking to exclude evidence that Chandler was allegedly affiliated with a prison gang. Although Chandler had gang tattoos suggesting he might have been affiliated with a prison gang, defense counsel argued that neither victim had seen Chandler with a member of the gang. Defense counsel further noted that Chandler was 39 years of age and had not been convicted of a crime for 10 years, while gang members "tend to be youthful" and there was no recent evidence of affiliation with the gang. Conceding that the evidence might be relevant, defense counsel argued the prejudicial affect outweighed any probative value.
The prosecutor explained he did not intend to introduce evidence that Chandler was a "validated" gang member but argued Chandler's statements to both victims about his membership in a prison gang were relevant to prove the victims' state of mind for purposes of the charges of making criminal threats. The prosecutor asserted that both victims claimed that Chandler told them of his membership in the prison gang to show them how dangerous he could be and to control them.
Defense counsel disputed that Chandler was currently or recently affiliated with a prison gang, claiming the records of the Department of Corrections referred to information in 1996. Defense counsel indicated that she doubted the prosecutor could present evidence from the victims that Chandler had told them anything about the gang.
Although noting that reference to prison gangs would be prejudicial, the trial court tentatively ruled the evidence of the effect of Chandler's membership in a prison gang on the victims would be admitted for a limited purpose and the jury would be instructed that it was not offered to show defendant was a person of bad character. Because defense counsel asserted it was not Chandler who informed the victims about the prison gang, the court scheduled an evidentiary hearing for the next morning for the victims to testify. The court then finished ruling on the in limine motions and proceeded with jury selection.
After defense counsel introduced herself and Chandler, the trial court informed a panel of prospective jurors during voir dire about possible evidence of Chandler's affiliation with a prison gang. Specifically, the trial court stated:
[THE COURT:] I want to bring this to your attention because it's kind of important. It may or may not come into evidence but there has- there may be representations that Mr. Chandler may well have some affiliation with a prison gang called the Black Gorilla Family. If that does come into issue then, of course, I would give you a special instruction that that information can only be used in a limited way. [¶] That is to say, it cannot be used to show that he is a person of bad character or that it would make him show that he has a tendency to commit criminal behavior or that he is a bad person simply because he's a member of, if he is, a member of that organization. [¶] But, rather, it would come in to show the effect on one of the elements of the charges and I would show you that, in terms of the effect it may have on a person [who] is aware of that type of information. And it's not coming in for the truth of the matter. [¶] Now, I know that sounds like a lot of legal maybe mumbo jumbo and I may well have hurt you more than I helped you, but the bottom idea is that you can't consider it, if it comes in, to show he has a propensity to commit crimes or he's a bad character. [¶] It cannot come in for the truth that he is in fact a member, but it will come [in] to show some effect if a listener believes that the effect in terms of a certain mental state it would have on the listener. [¶] Did I do any better? [¶] Does everyone kind of understand and get the drift? [¶] Now after saying all that, is there some prospective jurors [who] feel it's just too overpowering and they can't follow basically what I just told you? Anyone feel that?
(Augmented Reporter's Transcript ("ART") at 22-23.) Later that day, the trial court informed a second venire pool about the same potential evidence:
[THE COURT:] There is some indication and I don't know how it may play out, that Mr. Chandler may have some affiliation with a black prison gang known as the Black Gorilla Family. And if in fact that comes out you will be instructed you may only consider that for a limited purpose. You may not consider that in terms of that he's a bad person or that he has a propensity to commit criminal offenses. [¶] It would come in to show the effect that it would have on maybe one of the people who- alleged victims in terms of their state of mind. And that's the only way it may be used. [¶] Now, despite me telling you that, [are] there some of you who feel you cannot follow my instruction and would be automatically prejudiced against Mr. Chandler? Any of you? Okay. (ART at 41-42.)
The following morning, D.H. and M.S. testified at an evidentiary hearing outside the presence of the jurors. The state appellate court ...