FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a Sacramento County Superior Court jury of first degree murder and two counts of robbery. The jury also found true the allegation that the murder was committed in the commission of a robbery, that the robberies were committed in concert in an inhabited dwelling and that a principal was armed with a firearm as to all counts. Petitioner received a sentence of thirty-three years to life imprisonment. Petitioner raises three claims in this federal habeas petition; specifically: (1) ineffective assistance of counsel ("Claim I"); (2) ineffective assistance of appellate counsel ("Claim II"); and (3) his constitutional right were violated because the "trial judge's actions and words inflamed the jury forming a preconceived prejudice" (Am. Pet. at p. 5) ("Claim III"). For the following reasons, petitioner's application for federal habeas relief should be denied.
Defendant and co-defendants formed and carried out a plan to rob defendant's marijuana dealer, Larry Elliott, on the night of December 9, 2004. Knowing that Elliott did business out of the attached garage of his house, they intended to perpetrate the crime there. Before they left Elliott's house that night, he had not only been robbed but fatally shot in the garage; his girlfriend, H.M. was robbed inside the house. The evidence tended to show that defendant did not personally perpetrate either the murder of Elliott or the robbery of H.M.
Defendant did not testify at trial. He gave his version of events in a taped interview with police, which was played for the jury. Defendant's Account Co-defendants Quintanilla and Scott, who knew defendant, saw him and his girlfriend getting a ride home from Elliott. Knowing that Elliott sold marijuana, they followed Elliott to defendant's house, then to Elliott's house, then they returned to defendant's house, where co-defendant Doughton was present. The four men discussed robbing Elliott. Defendant originally said he did not want to be a part of it, but the others told him that since he had heard the conversation, he had no choice. Defendant was to buy an ounce of marijuana from Elliott as a pretext to scout out how much he had at his house; as defendant understood it, that would end his involvement, and the other would do the robbery another night. Defendant called Elliott and set up the pretext buy. Quintanilla and Scott changed into black clothing.
Defendant and Doughton walked over to Elliott's house. [FN 5] Defendant and Doughton went into Elliott's garage, where Elliott offered defendant a sample of marijuana. Two guests of Elliott, James Willis (whom defendant knew) and George Porter, were also in the garage.
[FN 5] Quintanilla's girlfriend, K.T., testified that she drove Quintanilla to a park near Elliott's house; Scott, with defendant and Doughton, pulled up alongside. Defendant said he would call Elliott and then call the others if Elliott was home. Several minutes later, Quintanella [sic] got the call and he and Scott left. Fifteen or 20 minutes after that, they all ran back to the car.
Quintanilla and Scott, dressed in black clothes and ski masks, burst in. Quintanilla had a gun and gave defendant another. Quintanilla ordered Elliott and his guests onto the ground and told defendant to turn on the radio. Quintanilla then took his gun and hit Elliott in the forehead. Defendant directed Willis to turn on the radio. Elliott claimed he did not have money or additional marijuana, but the robbers found more marijuana in a bucket in the garage. After telling defendant to look for more "stuff," Quintanilla and Scott went into the house. Scott came back into the garage holding a shotgun and an assault rifle.
Defendant left the garage, holding the bucket, followed by Quintanilla. Then he heard a gunshot from the garage. The robbers drove to Quintanilla's house, where defendant took some marijuana; Quintanilla and Scott kept the money and guns. Willis's Testimony Willis testified that he was with Elliott, his dealer, from early in the evening; Porter showed up later. Willis and Elliott went into the house to watch videos with H.M. and her baby. After bagging some marijuana, Elliott, Willis, and Porter went into the garage, where they hung out, drank beer, and smoked marijuana. Defendant called, saying he wanted to "buy some weed"; Willis wanted to know if they could drop it off to defendant, but defendant insisted on coming to Elliott's house. Soon after, defendant and Doughton showed up and Elliott gave them a sample. Then men in black masks arrived and put guns to the heads of Elliott, Willis, and Porter. Defendant told Willis not to worry.
Someone kept asking Elliott where the money was and pistol-whipped him when he said he did not have any. Others kept running in and out of the garage. Fifteen minutes later, Doughton shot Elliott in the back of the head and the robbers left.
H.M.'s Testimony H.M. testified that early in the evening everyone was watching a movie in the house. After the men went to the garage, she fell asleep, woke up and resumed watching the movie, then fell asleep again on the living room couch.
Hearing the door open, H.M. awoke to find someone pointing a gun at her head and ordering her to the ground. The person went back and forth from the garage to the living room, covering his face with the hood of his sweatshirt as he asked H.M. where the money was; another man went into the bedroom. H.M. gave the first man $140 out of her purse. Later, she heard someone in the garage say: "If somebody doesn't tell me where it is, somebody's going to get popped." Elliott answered that he didn't have anything.
Closing arguments The prosecutor argued that defendant was liable for the murder and robbery of Elliott as an aider and abettor, and for the robbery of H.M. as the natural and probable consequence of the plan to do a home invasion robbery; the defendants intended from the start to "make a clean sweep" by going inside the house, and anyone there would inevitably be robbed. Defendant was also guilty of robbery in concert because the defendants together committed or aided and abetted robberies in an inhabited dwelling house; merely entering the attached garage was enough for in-concert liability as to both robberies.
Defense counsel argued that defendant "a 20-year-old kid," got trapped by the older and more hardened co-defendants into going along as they committed their planned crime. He never intended to aid and abet robbery. He did not take any active part in the robbery of Elliott. He did not go into the house to rob H.M., and it was not a natural and probable consequence of anything he did, intended, or agreed to do: he did not know and could not have foreseen that H.M. would be there, let alone that she would be robbed. He was guilty only as an accessory for having taken already stolen marijuana.
The prosecutor retorted that, if under all the circumstances, a reasonable person in defendant's position would have known that the robbery of H.M. was a natural and probable consequence of the original robbery, then defendant was liable for robbing H.M. regardless of what he actually knew.
People v. Hampton, No. C056867, 2009 WL 5136012, at *1-3 (Cal. Ct. App. 3d Dist. Dec. 29, 2009) (Resp't's Lod. Doc. 1).
After sentencing, petitioner appealed from his judgment of conviction to the California Court of Appeal for the Third Appellate District raising issues not raised in his pending amended federal habeas petition. The California Court of Appeal affirmed the judgment of conviction with the exception of remanding the case on sentencing issues with respect to the amount of the crime prevention fee imposed and clerical errors in the abstract of judgment which are irrelevant to these federal habeas proceedings. Petitioner then filed a petition for review which was summarily denied by the California Supreme Court on March 10, 2010.
Next, petitioner filed a habeas petition in the Sacramento County Superior Court on September 22, 2010. Therein, petitioner raised the three issues he raises in his amended federal habeas. The Sacramento County Superior Court denied habeas relief in a written decision on November 4, 2010. Petitioner's habeas petitions to the California Court of Appeal and the California Supreme Court raising these same claims were each summarily denied on March 3, 2011 and August 31, 2011, respectively.
In February 2011, petitioner filed a federal habeas petition in this court. Petitioner asserted in that original petition the following: (1) his judgment of conviction should be vacated due to Batson/Wheeler error at trial; (2) there was insufficient evidence introduced at trial to support his conviction; (3) his judgment of conviction should be vacated due to instructional error (CALCRIM No. 1601); and (4) he received ineffective assistance of counsel. Respondent moved to dismiss the federal petition in June of 2011 arguing that the petition contained two still unexhausted claims. Because petitioner's exhaustion petition was still pending before the California Supreme Court at the time his original federal petition was filed, on November 8, 2011 respondent's motion to dismiss was denied without prejudice and petitioner was directed to file an amended petition containing all claims he wished to proceed upon in this action. (Doc. No. 21.)
In January of 2012 petitioner filed his amended habeas petition which is now before the court in which he presents only the three claims he raised in his state habeas petitions. (Doc. No. 24.) Respondent filed an answer on May 4, 2012 and petitioner filed his traverse in June 2012.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). See also 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.")
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn1
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas 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. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn2
V. ANALYSIS OF PETITIONER'S CLAIMS
A. Claim I - Ineffective Assistance of Trial Counsel In his Claim I, petitioner asserts that his trial counsel was ineffective in handling a witness who was possibly texting while on the witness stand at trial. Specifically, petitioner claims that his "attorney of record failed petitioner in that he failed to pursue a line of questioning where he never asked one question relying entirely on witness's 'good faith.'" (Pet'r's Am. Pet. at p. 4.) The last reasoned state court decision addressing this claim was from the Sacramento County Superior Court in its decision denying petitioner habeas relief. That court addressed this claim, stating as follows:
A petitioner seeking relief by way of habeas corpus has the burden of stating a prima facie case. (In re Bower (1985) 38 Cal.3d 865, 872.) A petition for writ of habeas corpus should attach as exhibits all reasonably available documentary evidence or affidavits supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To show constitutionally inadequate assistance of counsel, a defendant must show that counsel's representation fell below an objective standard and that counsel's failure was prejudicial to the defendant. (In re Alvernaz (1992) 2 Cal.4th 924, 937.) It is not a court's duty to second-guess trial counsel and great deference is given to trial counsel's tactical decisions. (In re Avena (1996) 12 Cal.4th 694, 722.) Actual prejudice must be shown, meaning that there is a reasonable probability that, but for the attorney's error(s), the result would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 694.) If no prejudice is established, it is unnecessary to determine whether counsel's performance was deficient. (In re Fields (1990) 51 Cal.3d 1063, 1079.) A petition alleging ineffective assistance of counsel based on failure to obtain favorable evidence must show what evidence should or could have been obtained and what effect it would have had. (People v. Geddes (1991) 1 Cal. App.4th 448, 454.)
Petitioner claims that trial counsel failed to investigate whether a witness was sending or receiving text messages during her testimony and failed to ask the witness any questions in a hearing on the same matter. First, Petitioner does not attach any transcripts of the hearing in question; consequently, there is no evidence to support the claim. Second, although Petitioner claims that counsel should have requested that the witness's entire testimony be stricken, he does not provide any authority supporting such a request. Petitioner has failed to show that counsel's actions were unreasonable. Petitioner also claims that counsel should have requested that the court excuse the jurors who brought the matter to the court's attention. However, he has not shown how the jurors were biased or otherwise disqualified. Finally, Petitioner fails to explain how he was prejudiced by any alleged omission by trial counsel. He has not shown that trial counsel was ineffective. (Resp't's Lod. Doc. 8 at p. 2.)
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating ineffective assistance of counsel. First, the petitioner must show that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See 466 U.S. at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id.at 690. The federal habeas court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the range of professional competent assistance. Id.; Wiggins v. Smith, 539 U.S. 510, 521 (2003). "There is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). See also Harrington v. Richter, ___U.S. ___, ___, 131 S.Ct. 770, 787-88 (2011) ("When 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard").
Second, a petitioner must affirmatively prove prejudice. See id.at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.at 694. A reasonable probability is "a probability sufficient to undermine the confidence in the outcome." Id.SeealsoWilliams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000) "The likelihood of a different result must be substantial, not just conceivable." Harrington, 131 S.Ct. at 792. A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697).
Here, petitioner has failed to show that the Sacramento County Superior Court 's order rejecting his ineffective assistance of counsel claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or 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). The Superior Court cited the applicable Strickland standard in denying petitioner habeas relief with respect to this claim. The state court determined that petitioner failed to satisfy either prong of the Strickland test. For the reasons set forth below that determination was not unreasonable.
A review of the state court record reveals the bailiff informed the trial judge that a juror told him that he saw a witness texting on the witness stand while the judge and the attorneys were at sidebar. (See Reporter's Transcript (RT) at 308.) Thereafter, the witness in question was recalled to the stand outside the presence of the jury. The ...