The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on March 2, 2011, accompanied by a supporting memorandum ("Pet. Mem."). Respondent filed an Return on July 5, 2011. Petitioner filed a Reply on August 4, 2011. On January 2, 2013, the matter was transferred to the undersigned Magistrate Judge.
A jury found Petitioner guilty of the first degree murder of Rene Flores (Count 1), the second degree murder of Ricardo Garris (Count 2), and possession of an assault weapon (Count 3) (Reporter's Transcript ["R.T."] 2541-44; Clerk's Transcript ["C.T."] 49-97, 501-06). The jury found true the special circumstance allegations that:
(1) Petitioner murdered Flores while lying-in-wait within the meaning of California Penal Code section 190(a)(15); and (2) Petitioner was guilty of multiple murders within the meaning of California Penal Code section 190(a)(3) (R.T. 2542, 2544; C.T. 496-97, 499-501). The jury further found true the allegations that, with respect to the murders:
(1) Petitioner personally used a firearm within the meaning of California Penal Code section 12022.53(b); (2) Petitioner intentionally and personally discharged a firearm within the meaning of California Penal Code section 12022.53(c); and (3) Petitioner intentionally and personally discharged a firearm which caused death to another person within the meaning of California Penal Code section 12022.53(d) (R.T. 2542-43; C.T. 496-97, 499, 505-06). Petitioner received the following sentence: (1) on Count 1, a term of life without the possibility of parole plus a consecutive 25 years to life; (2) on Count 2, a term of 15 years to life plus a consecutive 25 years to life ; and (3) on Count 3, a consecutive term of three years (R.T. 2716-20; C.T. 512-22).
The Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Sampson, 2009 WL 1680349 (Cal. App. June 17, 2009)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 8).
Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a one-page order (Respondent's Lodgments 9, 10). Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied on the ground that "[e]ach claim raised by petitioner in his habeas petition was raised and rejected on appeal" (Respondent's Lodgments 11, 12). Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily (Respondent's Lodgments 11, 12, 13, 14).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Sampson, 2009 WL 1680349. See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (presuming correct the statement of facts drawn from state court decision), petition for cert. filed (Nov. 15, 2012); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
[O]n February 24, 2005, defendant was employed by the City of Los Angeles Department of Public Works as a maintenance and construction helper; he was on assignment as a plumber's helper trainee. Because he was late for work that day, defendant went directly to the job site without first checking in at the "yard." A few hours later, he received a telephone call from his supervisor, victim Rene Flores, informing defendant that he was going to be docked a day's pay because he arrived late to work and did not check in. The conversation "flipped a switch" inside defendant. Abandoning his truck at the job site, defendant tried to make an appointment with a psychologist at Kaiser. When that failed, he walked to the emergency room at a nearby Kaiser Hospital and asked to see a nurse. Defendant left the hospital after the nurse told him to wait. Defendant returned to the yard by bus and picked up his car, then drove home. There, he prepared a meal and changed into his favorite suit. On a paper plate, he wrote his bank information and a "power of attorney," and left it along with his wallet for his mother. He next retrieved an assault rifle he had owned for several years, loaded it and placed it, along with some extra magazines full of bullets, into a vacuum cleaner box which he placed in his car. Defendant then drove to the yard to talk to Flores.
Upon learning that Flores was not present, defendant returned to his car to wait. While waiting, defendant smoked a cigarette and took a nap.[*fn1 ] At about 4:00 p.m., another employee, Enrique Baca, approached defendant's car. So that Baca would not see the rifle, defendant got out of the car and told Baca he was waiting for Flores.
When Flores arrived at the yard, defendant went to the office that Flores shared with victim Ricardo Garris. After Flores commented on defendant's dress and asked what he was doing with a rifle, defendant fatally shot Flores and Garris.
Defendant left the office and drove away in his car. Obtaining the address of the Hollenbeck police station from information (411), defendant unloaded the rifle and drove there. At the station, he told officers that he had just killed two people. Defendant told the officers that he had a gun in his car and consented to a search of the car from which officers recovered the assault rifle. Defendant appeared calm, clear and polite as he described the shooting. Defendant gave several detailed accounts of the shooting to Detective Dennis Fanning.
Testifying at trial, defendant denied shooting Flores and Garris and maintained he did not know who did. He explained that after arriving home, he changed into a suit because he intended to go to San Diego and wanted to look nice. He left the note and financial information for his mother in case he did not get home in time to make the mortgage payment. He brought the rifle with him because he hoped to sell it or give it away. Defendant returned to work with the intention of finishing his shift so that he would be covered with the union. Defendant left the rifle in the car when he went into Flores's office to check in; the car was unlocked and all four windows were rolled down. As defendant stepped inside the office and said "[h]ey," he saw someone else in the office besides Flores and Garris, but could not describe that person. After hearing the first gunshot, defendant felt faint and dizzy. He leaned against the wall, but did not try to run away. After the unknown person shot Flores and Garris, the assailant noticed defendant. The person pointed the gun at defendant and started "yanking on it like a chainsaw" as he walked toward defendant. When the person was about two feet away, defendant grabbed the rifle, and the person ran away. Defendant went outside, but the person was nowhere in sight. Defendant went straight to his car and drove to the police station. At the police station, defendant did not tell the first two officers that he committed two murders; he tried to tell them what happened, but could not get the words out. Defendant explained that he later told Detective Fanning that he shot two people because he "didn't want to go home. I didn't want to go back outside. I just wanted to be somewhere quiet and secure."
Defense investigator Timothy Williams, a retired detective from the Los Angeles Police Department, testified that he was a court-qualified expert on police procedures. In a case dealing with a confession, Williams explained, it is proper police procedure to confirm the truth of the statements made by the suspect. This corroboration is necessary because people give false confessions. Williams had never experienced a person coming to the police station and falsely confessing to a crime the police did not yet know had happened. Williams had, however, heard of people falsely confessing to murder.
Reviewing the discovery in this case, Williams noted, among other things, that the autopsy report, blood spatter analysis, and bullet trajectory analysis were all inconsistent with defendant's description of the shooting. He also noted that no gunshot residue test was performed on defendant to confirm defendant's statement that he shot two people. A gunshot residue test should have been performed to corroborate defendant's confession and "individuals have in the past, as studies support that, that people have confessed to crimes they haven't committed." Williams agreed that in all three police interviews, defendant gave a consistent description of what had occurred. Williams read the transcripts of those interviews, but he never listened to the tapes so he did not know the tone of defendant's voice or level of calmness during those interviews. Those tapes were the best source of information regarding defendant's demeanor during the interviews. Williams conceded that the police corroborated several aspects of defendant's confession, but maintained that they failed to corroborate others.
(Respondent's Lodgment 6, at pp. 2-5; see People v. Sampson, 2009 WL 1680349, at *1-2) (footnote added).
1. The trial court's exclusion of particular expert witness testimony concerning false confessions allegedly violated due process and Petitioner's right to a fair trial and right to present a defense (Petition, Ground One; Pet. Mem., pp. 22, 24-25);*fn2
2. The prosecutor allegedly violated the Constitution and Rule 404 of the Federal Rules of Evidence, by assertedly mischaracterizing material facts in closing argument (Petition, Ground Two; Pet. Mem., pp. 22, 26-29);
3. The trial court allegedly committed instructional error, by assertedly: (1) failing to instruct the jury on voluntary manslaughter/heat of passion; and (2) failing to instruct the jury that provocation could negate premeditation, thus allegedly lowering the prosecution's burden of proof (Petition, Ground Three; Pet. Mem., pp. 22, 29-31);
4. The evidence allegedly was insufficient to support the jury's special circumstance finding of lying-in-wait (Ground Four; Pet. Mem., pp. 22, 31-32);
5. Petitioner's sentence on Count 3 allegedly violated California Penal Code section 654, the Double Jeopardy Clause, and the principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000) (Ground Five; Pet. Mem., pp. 32-33);
6. Petitioner's trial counsel allegedly rendered ineffective assistance, by assertedly:
a. Failing to object to the prosecutor's alleged factual misstatements in closing argument;
b. Failing to secure instructions on voluntary manslaughter and provocation; and
c. Failing to object to an allegedly improper sentence on the gun possession charge (Count 3).
(Ground Six; Pet. Mem., pp. 22, 34-38).
A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As 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.").
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
I. Petitioner's Challenge to the Exclusion of Particular Expert Testimony Does Not Merit Habeas Relief.
During a "mini opening statement" at the commencement of jury selection, Petitioner's counsel stated that the evidence would show that Petitioner gave a false confession to two murders Petitioner purportedly did not commit (R.T. 21). Counsel stated that a police procedures expert would testify that false confessions assertedly are the second leading cause of wrongful convictions, and that the police in Petitioner's case allegedly did not follow normal procedures to corroborate Petitioner's confession (id.). Thereafter, the court stated that it had been "caught . . . off guard" by counsel's statement, and that the court would not permit the expert to testify that false confessions assertedly were the second leading cause of false confessions (R.T. 305). When Petitioner's counsel explained that the expert allegedly had obtained this information from a "big finding and study," the court said the testimony was "simply impermissible," and that the proposed testimony raised "all sorts of Evidence Code section 352 issues" (id.).*fn4 The court said the testimony involved hearsay and improper opinion evidence (id.). Following additional argument, the court deemed the proposed testimony inadmissible, stating "it is a 352 issue" (R.T. 309). The court said that if the expert "start[ed] offering opinions as to the second largest cause of wrongful convictions, then the People [would be] entitled to bring in every alleged confession in history which has been found to be credible," which the court said would distract the jury (id.). However, the court did permit defense counsel to ask the expert about police procedures concerning corroboration of confessions and about whether the police followed those procedures in Petitioner's case (R.T. 310).
Petitioner contends the trial court violated the Constitution by excluding the proposed testimony of the defense expert that false confessions reportedly were the second leading cause of false convictions (Pet. Mem., pp. 24-25). The Court of Appeal rejected this contention, ruling that, although Crane v. Kentucky, 476 U.S. 683 (1986) ("Crane"), forbade the "blanket exclusions" of all evidence related to the circumstances of a confession, Crane did "not compel admission of all expert testimony relating to a false confession"
(Respondent's Lodgment 6, at pp. 5-6; see People v. Sampson, 2009 WL 1680349, at *3). The Court of Appeal observed that the trial court did not preclude the expert from opining concerning the procedures police should follow to ensure that a confession is not false, or from testifying that police assertedly did not follow those procedures in Petitioner's case (Respondent's Lodgment 6, at p. 8; see People v. Sampson, 2009 WL 1680349, at *5). The Court of Appeal also ruled that statistical evidence concerning the number of wrongful convictions allegedly based on false confessions was not relevant, and that, even assuming some relevance, the court properly excluded the testimony under California Evidence Code section 352 (Respondent's Lodgment 6, at p. 8; see People v. Sampson, 2009 WL 1680349, at *5).
In limited circumstances, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 319 (2006); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Chambers"). "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane, 476 U.S. at 690; Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004), cert. denied, 544 U.S. 919 (2005) ("The Supreme Court has made it clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.") (citations and internal quotations omitted). ...