The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of robbery, simple assault, false imprisonment and making criminal threats. The charges and convictions arose out of two different incidents. The jury also found a prior conviction for robbery to be true. Petitioner received an aggregate sentence of thirteen years, eight months imprisonment. Petitioner raises several claims in his federal habeas petition; specifically: (1) his Constitutional rights were violated when a deputy sheriff was permitted to be seated directly behind Petitioner at trial ("Claim I"); (2) trial court error in consolidating two cases and later refusing to sever them ("Claim II"); (3) he was denied a right to a speedy trial ("Claim III"); (4) "Petitioner's double prison terms and five-year prison term enhancement under the under the three strikes law must be reversed because the record fails to show under the totality of the circumstances that his plea to the prerequisite serious felony was knowingly, intelligently and voluntarily entered" (Pet'r's Pet. at p. 52.) ("Claim IV"); (5) trial court error in improperly precluding exculpatory evidence ("Claim V"); (6) trial court error in failing to sua sponte instruct the jury on the defense of claim of right with respect to a count of robbery ("Claim VI"); (7) trial court error in failing to instruct the jury on the lesser included offense of attempted robbery ("Claim VII"). For the following reasons, the habeas petition should be denied.
II. FACTUAL BACKGROUND*fn1
A. Charges Involving Alisha and Sarah
Alisha and Sarah are cousins. The day before Easter 2005, Alisha bought wristwatches for herself and Sarah.
The following morning, Alisha and Sarah were at Alisha's apartment with defendant, who was their friend. Sarah let defendant wear her new watch for a while, but defendant refused to return it to her when she asked for it back. Alisha heard them arguing and told defendant to give the watch back to Sarah. Defendant said Sarah had let him wear it, but Alisha responded, "Well, she doesn't want you to wear it now, so give it back." He complied.
Alisha returned to her bedroom, but minutes later heard Sarah and defendant arguing again. The two were struggling as they stood next to the futon in the living room. Defendant was trying to remove the watch from Sarah's wrist and Sarah was telling him to stop. Defendant broke the watch's clasp and it came off Sarah's wrist. Alisha started to walk between them and defendant took a step back. Alisha began to walk to the door, telling defendant that he had to leave.
Defendant grabbed Alisha's arm, pushed her against the door and pinned her. At some point during their struggle, Alisha's watch also came off. Defendant said he was not leaving and he pushed against Alisha, ignoring Alisha cries for him to move. Defendant said, "Do me a favor and suck my dick, and you can have your watches back." When Alisha pushed defendant back, defendant grabbed her by the hair and shoved her to the floor and onto her stomach. Defendant straddled her back and, holding her hair, banged her head on the floor. He punched her shoulders and back, saying, "fuck with a real pimp." Alisha, who was crying and telling defendant to leave her alone, screamed at Sarah to get help, and Sarah left the apartment.
Defendant let go of Alisha and started to run after Sarah. When Alisha got up and ran toward her bedroom, defendant changed course and followed her, preventing Alisha from closing the bedroom door. Defendant grabbed Alisha and pushed her against a wall and into the bedroom closet. As the two struggled, defendant pinned Alisha and tried to unbutton her jeans, again saying, "fuck with a real pimp." Defendant pushed his hips against her and put his hand inside her jeans.
Alisha shoved defendant, who fell back against a coffee table. She ran out of the apartment and screamed for a neighbor. Defendant walked away from the apartment complex.
Alisha and Sarah called 911. Alisha was very upset and had difficulty speaking to the operator. When officers contacted her, Alisha was shaking. Her face was swollen, she had scratches and bruises on her neck and face, and parts of her hair weave had been ripped from her head.
A few days after the incident, defendant called Sarah and apologized to her. He said that he "would have given the watch back if [Alisha] didn't act like that."
Alisha had been in the process of moving out of her apartment when this incident occurred. About six weeks later, she found Sarah's watch in the laundry basket that she had kept in her bedroom closet.
Defendant was charged with two counts of robbery (taking the watch from Sarah and taking the watch from Alisha), one count of assault with intent to commit rape against Alisha, one count of false imprisonment of Alisha, and one count of making criminal threats to Alisha.
As trial approached, defendant telephoned Sarah several times, asking if she and Alisha would be appearing in court and again apologizing.
At trial, defendant impeached Sarah and Alisha with their criminal histories, drug use, and inconsistencies between their testimony and statements to others. He also emphasized discrepancies among various witnesses.
The jury acquitted defendant of robbing Alisha but convicted him of robbing Sarah. It also convicted defendant of false imprisonment and making criminal threats. It acquitted defendant on the charge of assault with intent to commit rape, but convicted him of the lesser included offense of simple assault.
B. Charges Involving Melissa
Approximately one week after the incident with Alisha and Sarah, defendant and a friend boarded a light rail train headed toward downtown Sacramento, Melissa was a passenger on the train. When defendant tried to talk to her, Melissa told him not to. Defendant and his friend stood very close to Melissa and continued to make comments to her. One of them said, "When a pimp walks up to you -- you pay attention." Defendant said he could "make [her] fuck him and no one was gonna do anything about it." He said he could make her "his prostitute" and threatened to rape and beat her.
Melissa was able to reach the intercom button and reported the threats and defendant's conduct to the conductor. As the train continued to move, defendant continued his threatening conduct. When the train came to a stop at a downtown station, defendant was thrown off balance and Melissa ran off the train and to a friend's nearby business. She was crying and very upset.
The police talked to her and soon found defendant at a downtown mall. Melissa identified him in a field line-up.
Defendant told officers that he had planned to ask Melissa for her phone number on the train but she was rude to him and the two of them exchanged comments. He said he became "upset" and "agitated," but denied standing close to Melissa, saying anything sexual to her, or threatening her.
Defendant was charged with one count of false imprisonment and one count of making criminal threats.
Before trial began, Melissa received multiple threatening phone calls from an unidentified called who knew numerous details about her life. The caller threatened to kill her if she appeared at trial. Melissa was put into a witness relocation program and moved out of her apartment.
The jury convicted defendant of making criminal threats but was unable to reach a verdict on the false imprisonment charge.
After Petitioner was convicted and sentenced he filed an appeal to the California Court of Appeal which raised the issues included in his federal habeas petition amongst others. The California Court of Appeal affirmed the judgment. Petitioner then filed a petition for review to the California Supreme Court which raised the issues asserted in this federal habeas petition amongst others. The California Court of Appeal summarily denied the petition for review on November 18, 2008.
Petitioner then filed a state habeas petition in the California Superior Court, Sacramento County in September 2009. The Superior Court denied the state habeas petition in a written decision on November 9, 2009. Petitioner's state habeas petitions to the California Court of Appeal and the California Supreme Court were each summarily denied on January 7, 2010 and September 29, 2010 respectively.
Petitioner filed his federal habeas petition in February 2011. Respondent answered the petition in August 2011. Petitioner received three extensions of time to file a traverse until March 31, 2012. No traverse was ever filed.
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 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. 1994); 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).
As a threshold matter, a court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. (citations omitted). Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. 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.").
V. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner asserts that his Constitutional rights to due process and a fair trial were violated when a deputy sheriff was permitted to sit directly behind Petitioner during trial. The last reasoned decision on this Claim was from the California Court of Appeal on direct appeal which stated the following:
Defendant challenged the seating arrangement in the courtroom, asserting that the positioning of a sheriff's officer directly behind him, without any manifest need, conveyed an impression of dangerousness to the jury and violated his constitutional right to due process and fair trial. The trial court noted that there had been evidence of threats made to a witness, and declined to order the sheriff to sit farther away from defendant, leaving the positioning of security personnel up to the sheriff's department. The court did, however, order all parties to remain seated when the jury entered or left the courtroom in order to eliminate any possibility that the jury might draw the wrong impression if defendant stood and the sheriff's officer moved in response.
On appeal, defendant compared his situation to that of a shackled defendant, and asserts that the court erred in permitting the sheriff's officer to sit close by without any manifest need for such proximity. Defendant's claim is unpersuasive.
Initially, we note that the record does not definitively indicate where the sheriff was seated in relationship to defendant and his attorney. Defense counsel stated that the escort officer sat "directly behind" defendant and "preclude[d] folks, even me, . . . from walking between the defendant and the deputy." It is unclear exactly how close to defendant the officer sat, or whether people were precluded from walking between defendant and the officer by virtue of the physical arrangement or because the officer ordered people not to pass between them.
In any event, defendant's claim is predicated on a faulty analogy: the positioning of courtroom security does not implicate the same concerns as the physical restraint of a prisoner. "[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291.) "Manifest need" is demonstrated by a showing of unruliness, an announced intention to escape, or '[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .'" (People v. Cox (1991) 53 Cal.3d 618, 651.)
However, the Duran court also noted, "We are not here concerned with the use of armed guards in the courtroom. Unless they are present in unreasonable numbers, such presence need not be justified by the court or the prosecutor." (People v. Duran, supra, 16 Cal.3d at p. 291, fn. 8.) In People v. Marks (2003) 31 Cal.4th 197, the California Supreme Court emphasized this long-standing distinction between shackling and the positioning security personnel, even when officers are stationed in an unusual manner in the courtroom. (Id. at pp. 223-224.) "[C]courtroom monitoring by security personnel does not necessarily create the prejudice created by shackling." (Ibid.) The court declined to impose the manifest need standard for the positioning of security inside the courtroom. (Id. at p. 269.)
The United States Supreme Court reached the same conclusion in Holbrook v. Flynn (1986) 475 U.S. 560 [89 L.Ed.2d 525], and refused to find the deployment of security personnel in the courtroom "the sort of inherently prejudicial practice, that, like shackling, should be permitted only where justified by an essential state interest." (Id. at pp. 568-569 [89 L.Ed.2d at p. 534].) The court noted that the presence of guards in a courtroom gives rise to a wider range of inferences than inherently prejudicial practices. "While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that the jury will not infer anything at all from the presence of the guards. . . . Our society has become inured to the presence of armed guards in the most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm." (Id. at p. 569 [89 L.Ed.2d at pp. 534-535].)
The Court also noted that security officers "placed at some distance from the accused . . . may well be perceived more as elements of an impressive drama than as reminders of the defendant's special status." (Holbrook v. Flynn, supra, 475 U.S. at p. 569 [89 L.Ed.2d at p. 535].) Defendant seizes this language to suggest that distance from the defendant is a necessary requirement. The Court did not establish such a hard-and-fast rule. Rather than presuming prejudice from the presence of security personnel in the courtroom, the Holbrook court concluded that a case-by-case approach was appropriate. (Ibid.) Just as Holbrook refused to find the presence of four uniformed state troopers inherently prejudicial (id. at p. 570 [89 L.Ed.2d at pp. 535-536], we will not presume prejudice from the proximity of one security officer to defendant.
Here, the trial court noted that threats had been made against one of the trial witnesses, and it declined to order the sheriff to sit farther away from defendant. Defendant has not demonstrated any abuse of discretion, much less any prejudice, and we perceive none. There was no error. (Slip Op. at p. 7-9.)
At the outset, Respondent argues that the portion of Claim I that relies on the Sixth Amendment is unexhausted. More specifically, Respondent argues that Claim I relies on the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, but that Petitioner only based Claim I in his petition for review to the California Supreme Court on the Fifth and Fourteenth Amendments.
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations.
See Coleman v. Thompson, 501 U.S. 722, 731 (1991). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 276 (1971). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. See Duncan, 513 U.S. at 365. The Petitioner must specifically tell the state court that he was raising a federal constitutional claim. See id. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended by, 247 F.3d 904 (9th Cir. 2001).
In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 . . . (1971), we said that exhaustion of state remedies that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary hearing at a state court trial denied him due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan, 513 U.S. at 365-66. The Ninth Circuit examined the rule further in Lyons, 232 F.3d at 668-69 by stating:
Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999) . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is.
In this case, Respondent does not argue that all of Claim I is unexhausted, only the portion of Claim I that relies on the Sixth Amendment. The petition for review specifically mentions the Fifth and Fourteenth Amendments. The petition for review to the California Supreme Court also cited to Holbrook v. Flynn, 475 U.S. 560 (1986). In Holbrook, the Supreme Court "held that some courtroom security did not violate defendant's Sixth Amendment right to receive a fair trial." Woods v. Dugger, 923 F.2d 1454, 1456 (11th Cir. 1991). Accordingly, the California Supreme Court was on sufficient notice that Claim I also encompassed the Sixth Amendment in addition to the Fifth and Fourteenth Amendments. Thus, Claim I is deemed fully exhausted.
"Central to a defendant's Fourteenth Amendment right to a fair trial is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." Holbrook, 475 U.S. at 567. Some practices, like forcing a defendant to wear prison clothing or shackles are at odds with this principle. See Estelle v. Willaims, 425 U.S. 501, 503-04 (1976). Nevertheless, this right is not absolute and sometimes restrictive measures or noticeable security is needed. See Holbrook, 475 U.S. at 567-68.
In Holbrook, the Supreme Court addressed the question of "whether a criminal defendant was denied his constitutional right to a fair trial when, at his trial with five co-defendants, the customary courtroom security force was supplemented by four uniformed troopers sitting in the first row of the spectator's section." 475 U.S. at 562. The Court held that it could not find an unacceptable risk of prejudice in that case. See id. at 571. It continued by explaining that, "[u]nlike a policy requiring detained defendants to wear prison garb, the ...