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Joseph K. Gore v. E.K. Mcdanials

July 6, 2012

JOSEPH K. GORE, PETITIONER,
v.
E.K. MCDANIALS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Terry J. Hatter, Jr.Senior United States District Judge

Order

On November 24,2001, two masked, armed men entered a residence and terrorized the four occupants while they burglarized their home. They tied up the three males in the bedroom and took the female into the livingroom, where she was raped three times. The rape victim testified at trial that she was raped by both men, while the police officers, who were present on the scene, testified that the victim told them only the taller man raped her while the shorter man was walking in and out of the room. Subsequently, Petitioner and his nephew were charged with identical counts of burglary, robbery, rape in concert, penetration with a foreign object in concert, and vehicle theft.

In 2003, Petitioner was found guilty on all counts. The trial court sentenced defendant to a determinate term of forty years and an indeterminate term of 283 years to life. Petitioner filed a writ of habeas corpus in California state court. His petition was denied. He, then, filed a petition in this Court.

Petitioner seeks a writ of habeas corpus claiming: (1) The trial court violated the confrontation clause by not allowing cross-examination of a witness; (2) He was denied a fair trial because a witness revealed Petitioner's criminal history; (3) Jury instructions were improper; (4) He was denied effective assistance of counsel at trial; and (5) The prosecutor made improper remarks at trial and failed to correct perjured testimony.

The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), provides that a federal court may grant habeas relief if a state court adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

Petitioner contends that the court's sustaining of an objection during a witness's cross-examination was a violation of the confrontation clause. Petitioner's ex-girlfriend testified at the trial. Her testimony placed Petitioner and his nephew together on the night of the robbery. Petitioner claims that the trial court refused to allow him to cross-examine her regarding a deal she made in exchange for her testimony against him.

However, Petitioner misinterprets the record. The following is the objection that Petitioner challenges:

Defense Counsel: "So as a result of your cooperation with the police you got a six-month violation; is that correct?"

Witness: "No. Actually I was ... ."

Prosecutor: "Okay. Objection."

The Court: "Sustained."

Petitioner was not prohibited from cross-examining her. When asked if she was given a deal, she answered, "No". Prosecution did not object to the answer, but to the narrative that she began to give following the answer. The court gave no indication that Petitioner's counsel could not ask any further question. Additionally, Petitioner's counsel was able to explore this line of questioning when cross-examining a detective.

Petitioner contends he was denied a fair trial because the trial court denied a motion for mistrial after a witness revealed Petitioner's criminal history. Criminal defendants have a due process right to be tried by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1643, 6 L. Ed. 2d 751, 756 (1961). However, habeas relief may only be granted when a trial error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S. Ct. 1710, 1716, 123 L. Ed. 2d 353, 365-66 (1993).

Petitioner claims that his right to a fair trial was violated when his accomplice testified on cross-examination that he had run into Petitioner in prison in the past. Accomplice's remark was an error. It violated the court's order to preclude any testimony about Petitioner's prior felony convictions. However, the error was cured by admonition and jury instructions. The court immediately admonished the jury to disregard the remark. Additionally, a jury instruction told the jury to treat the remark as though it was never made. Under these circumstances, accomplice's remark ...


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