UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 20, 2013
G.D. LEWIS, WARDEN,
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 J. Spencer Letts, 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 July 19, 2012. Respondent filed an Answer on November 13, 2012. Petitioner filed a Traverse on December 20, 2012.
A jury found Petitioner guilty of the first degree murders of Raul Cruz and Jessica Cipriano, the attempted wilful, deliberate and premeditated murder of Michaela Estrada, three counts of residential robbery of Cruz, Cipriano and Estrada, and one count of residential burglary of Cruz (Reporter's Transcript ["R.T."] 2001-05; Clerk's Transcript ["C.T."] 446-62, 522, 524). The jury found true the allegations that, with respect to the murders, attempted murder and robberies, Petitioner personally used a handgun, personally and intentionally discharged a handgun, and personally and intentionally discharged a handgun causing great bodily injury and death to Cruz and Cipriano and great bodily injury to Estrada, within the meaning of California Penal Code sections 12022.53(b), (c) and (d) (R.T. 2001-05; C.T. 446-47, 450-51, 454-55). The jury found true the allegation Petitioner personally used a firearm in the commission of the burglary, within the meaning of California Penal Code section 12022.5(a) (R.T. 2008; C.T. 462). The jury further found true the allegations that a principal was armed with a handgun, within the meaning of California Penal Code section 12022(a)(1) (R.T. 2002-08; C.T. 447, 451, 455). The jury found true the special circumstance allegations that Petitioner committed multiple murders and committed murders during a burglary (R.T. 2002; C.T. 448-49, 452-53). Petitioner received two consecutive terms of life without the possibility of parole plus 75 years and a term of life with the possibility of parole after seven years (R.T. 3040-47, 3056-67; C.T. 525-39, 544-47).
The Court of Appeal affirmed the judgment (Respondent's Lodgment D; see People v. Blackwell, 2012 WL 75743 (Cal. App. Jan. 11, 2012)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment F).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Blackwell, 2012 WL 75743 (Cal. App. Jan. 11, 2012). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), pet. for cert. filed (Nov. 15, 2012) (No. 12-894, 12A336) (presuming correct a statement of facts drawn from the state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
The prosecution's evidence
On December 30, 2006, near midnight, Kevin Schantz (Schantz) was at his apartment on South Gramercy Place. He was getting high when Koontz, a neighbor in the building with whom Schantz regularly "hung out" and did drugs, and Blackwell came by. They were wearing black.
Schantz and Koontz had been buying cocaine from Raul Cruz (Cruz). Koontz complained that the drugs he bought from Cruz had made him sick. Appellants said they were going to "jack [Cruz]," meaning get drugs from Cruz without paying for them, and asked if Schantz wanted to join them.
Schantz declined because he was friends with Cruz. Schantz noted that neither appellant had weapons or mentioned violence, guns or breaking into Cruz's home.
Near 2:00 a.m., on December 31, 2006, a surveillance video from a 7--Eleven store on Wilshire Boulevard showed appellants wearing beanies in the store, one of them appearing to make a purchase.
At approximately 3:30 a.m., appellants arrived at Cruz's one-bedroom apartment, where he resided with his wife, Micaela Estrada (Estrada), his 17--year--old step-daughter J.C. and his nine year old son, H.C. J.C. [Jessica Cipriano] ran into her parents' bedroom screaming for Cruz to wake up because "Mouse [was] trying to break in the window." J.C. knew Koontz as "Mouse," as he had been at their house many times.
Cruz and J.C. went into the living room. When Estrada joined them, she saw Cruz struggling with Koontz, who had a metal bar in his hand. Cruz was kicking and scratching Koontz, who had a crazy look on his face. Estrada saw a Black male standing at the apartment entrance, pointing a gun. He was dressed in black, wearing a black beanie and at least one glove. Estrada asked Koontz, "Are you crazy? Don't do this. What's wrong? What is your problem?"
Estrada said she was going to call the police, grabbed the phone in the dining room and dropped it. H.C. heard Koontz asking, "Where's the money?" Koontz told the gunman to "Shoot these Motherfuckers." Estrada ran into the kitchen, broke a window and screamed for help. She saw the gunman begin shooting and was the first person hit by a bullet. H.C. got scared and ran back to his bed and hid underneath his blanket. Peeking out, he saw Koontz enter the bedroom, take a wallet and walk away. J.C. ran to the kitchen and fell on Estrada. Cruz ran from the apartment. He and J.C. were shot and killed, and Estrada was wounded.
At approximately 3:30 a.m., Candido Garcia (Garcia) was awakened by Estrada's screams for help. He left his apartment and went down the stairs, where he saw Cruz falling face first. Garcia returned to his apartment, dressed and ran downstairs again. Outside of Cruz's apartment, he came face-to-face with a White male, leaving Cruz's apartment, wearing a white shirt, dark pants, and a black beanie, holding a crowbar and with blood on his arm. The man walked past Garcia and out of the complex. Garcia was unable to identify the man from a photographic six-pack. Garcia then looked into Cruz's apartment and saw Estrada on the floor holding J.C.
At 5:00 a.m., Koontz arrived back at Schantz's apartment with blood on his bandaged hand. He told Schantz that Cruz was dead.
Los Angeles Police Officer Mauricio Salazar received a description of a White male suspect named "Mouse" from Estrada. He went to Koontz's apartment building and waited. When he saw Koontz, Koontz initially denied living in the building and gave a false name and birth date. After questioning, he admitted his identity and that he had given a false birth date. Koontz was arrested.
At the police station, Koontz was observed to have numerous abrasions and bruises. There was also a puncture wound to one of Koontz's hands, which appeared to be an entry and exit gunshot wound.
At the hospital, Estrada immediately identified Koontz from a photographic six-pack. In a second six-pack containing a photograph of Blackwell in position No. three, Estrada said she was not sure, and did not identify anyone. She pointed to photograph No. two and said his face looked like the gunman, but his skin was too light. When asked if anyone else in this six-pack looked like Blackwell, Estrada answered in the negative.
Two days later, Estrada was shown the same six-pack. This time she focused her attention on suspect No. four based on his thin face. Detective Theodore Urena asked Estrada if there was any other person. At first, she said no but then focused on suspect No. three (Blackwell), saying he looked more similar to the gunman and concluded, "Yeah, I think it's him." H.C. identified Koontz but could not identify the Black man because H.C. said that he did not see him.
A search of Koontz's apartment uncovered a pair of black jeans, a shirt, a belt, black boots and a wash cloth, all containing blood stains. The blood stain on the jeans matched Cruz's blood sample.
A large quantity of white powder was collected from Cruz's apartment, some of which tested positive for cocaine. A glove was also recovered from Cruz's apartment which contained Koontz's blood, as did a bloody sock. Blood on paper currency in the apartment could not exclude Cruz's and Koontz's DNA. Koontz's genetic material, was found on a variety of the evidence recovered.
Blackwell was arrested in Oklahoma in August 2007.
The defense's evidence
After Koontz was taken into custody, he was taken to the emergency room for treatment. He had a "dangerously high" blood sugar level of 460. Dr. Paul Bronston testified that high blood sugar can cause disorientation and other physical problems as well as affect a person's ability to make judgments. Methamphetamine use can cause anxiety and cause psychosis, making the user paranoid or violent.
(Respondent's Lodgment D, pp.3-5; see People v. Blackwell, 2012 WL 75743, at *1-3 (Cal. App. Jan. 11, 2012) (footnote omitted).
1. The trial court allegedly violated due process by instructing the jury that the extent to which an eyewitness is "certain" is a factor in assessing eyewitness identification evidence (Ground One); and
2. The trial court allegedly erred in allowing the prosecutor to argue flight despite the purported absence of evidence to support an inference of guilt from Petitioner's whereabouts after the crime (Ground Two).
STANDARD OF REVIEW
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, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
I. Petitioner's Claim of Instructional Error Does Not Merit Habeas Relief.
The trial court instructed the jury concerning eyewitness identification testimony using CALJIC 2.92, telling the jury that it could consider, among other things, the "extent to which the witness [was] either certain or uncertain of the identification. . . ." (R.T. 1792; C.T. 335-36). Petitioner argues that authorizing jurors to consider the witness' level of certainty violated due process (Pet., p. 5). Petitioner argues that there was only a single percipient witness who identified Petitioner as the gunman, and that another witness assertedly stated a white male was the gunman (Petitioner is African-American) (Pet., p. 5).*fn2
The Court of Appeal rejected this claim, ruling that:
(1) Petitioner had forfeited the claim by failing to request a modification of CALJIC 2.92 in the trial court; and (2) in any event, the court was bound to follow People v. Johnson, 3 Cal. 4th 1183, 1231-32, 14 Cal. Rptr. 2d 702, 842 P.2d 1 (1992), cert. denied, 510 U.S. 1013 (1994). (In People v. Johnson, the California Supreme Court rejected a challenge to the "certainty" language of CALJIC 2.92 (see Respondent's Lodgment D, at pp. 15-16; see People v. Blackwell, 2012 WL 75743, at *9)). The Court of Appeal also held that any instructional error was harmless (Respondent's Lodgment D, pp. 16-17; see People v. Blackwell, 2012 WL 75743, at *10).
"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is 'whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
In Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the United States
Supreme Court recognized that a jury could consider "the level of
certainty demonstrated by the witness at the confrontation" as an
appropriate factor in evaluating the reliability of an identification.
Neil v. Biggers, 409 U.S. at 199-200; see also Manson v. Brathwaite,
432 U.S. 98, 114 (1977) (the "factors to be considered" in evaluating
the reliability of identification testimony include "the level of
certainty demonstrated at the confrontation") (citing Neil
Biggers). "Neil [v. Biggers] is clearly established Supreme Court law
that governs on the certainty factor regarding eyewitness testimony."
Santoyo v. Hedpath, 2009 WL 3226516, at *7 (C.D. Cal. Oct. 5, 2009).
Some courts have held that the level of certainty is not an
appropriate factor for a jury to consider, in light of studies
purportedly questioning the correlation between a witness' level of
certainty and the reliability of the identification.*fn3
However, the AEDPA standard of review confines this Court to
a determination whether the Court of Appeal's decision upholding the
challenged instruction was contrary to, or an objectively unreasonable
application of, clearly established law as determined by the United
States Supreme Court. See 28 U.S.C. § 2254(d). In light of Neil v.
Biggers and Manson v. Brathwaite, Petitioner's claim must fail under
this standard of review. See Arroyo v. Biter, 2012 WL 6645203, at *5
(C.D. Cal. June 22, 2012), adopted, 2012 WL 6643129 (C.D.
Dec. 19, 2012) ("Petitioner has pointed to no United States Supreme
Court case holding that due process is violated when, in assessing the
reliability of a witness's identification of a defendant, the jury
considers the witness's level of certainty in making the
identification. On the contrary, the existing Supreme Court precedent
appears to approve of such considerations.") (citing Neil v. Biggers
and Manson v. Brathwaite); Jordan v. Hedgpeth, 2011 WL 2160357, at *9
(C.D. Cal. May 27, 2011), adopted, 2011 WL 2149930 (C.D. Cal. May 31,
2011) ("Thus, as the certainty factor listed in CALJIC No.
2.92 appears compatible with the factors sanctioned by the Supreme Court in
Neil [v. Biggers], the Court cannot find that the use of the
challenged instruction in petitioner's trial amounted to a due process
violation."); Nelson v. Yates, 2010 WL 3952866, at *4 (C.D.
Aug. 17, 2010), adopted, 2010 WL 3952863 (C.D. Cal. Oct. 7, 2010)
("Although Petitioner takes issue with the factors listed in [CALCRIM
315, the successor to CALJIC 2.92], they are compatible with those
sanctioned by the Supreme Court [in Neil v. Biggers]. . . . Therefore,
it was a reasonable application of Supreme Court authority to find no
error in instructing the jury with Calcrim 315.") (citations
For the foregoing reasons, Petitioner is not entitled to habeas relief on Ground One of the Petition. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87.
II. Petitioner's Claim of Prosecutorial Misconduct Does Not Merit Habeas Relief.
Under California law, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." People v. Ray, 13 Cal. 4th 313, 345, 52 Cal. Rptr. 2d 296, 914 P.2d 846 (1996), cert. denied, 519 U.S. 967 (1996); Cal. Penal Code § 1127c. The prosecution sought a flight instruction in Petitioner's case based on evidence that Schantz assertedly did not see Petitioner after December 30, 2006, and that authorities eventually located Petitioner in Oklahoma (R.T. 1728-30).*fn4 Petitioner's counsel objected, arguing that evidence Petitioner had been arrested in Oklahoma seven or eight months after the crime did not show flight (R.T. 1728-29). The court declined to give the instruction, saying "[i]t could be just as arguable that flight was not an issue," and observing that, although Schantz allegedly may not have seen Petitioner after the crime, Schantz did not know the time or circumstances of Petitioner's departure (R.T. 1729-31).
In closing argument, the prosecutor stated:
"After this incident, Blackwell is nowhere to be seen. He disappears. [¶] John Kim goes to Oklahoma and brings back Jonathan Blackwell." (R.T. 1859).
"We know that Koontz, Defendant Koontz, gives a fake name. What's the reason for that? Does he have some kind of consciousness of guilt by lying? . . . [¶] We know that Defendant Blackwell takes off, nowhere to be seen. According to Kevin Schantz, he was hanging out with them all the time, that group on the sixth floor. After this incident, nowhere to be seen. [¶] About 9 months, 10 months later he's sought in Oklahoma." (R.T. 1875).
Petitioner's counsel objected to the manner in which the prosecutor "characterized Mr. Blackwell's being in another state" (R.T. 1877). Petitioner's counsel said: "I know the court indicated that he could not argue consciousness of guilt in regards to a flight instruction, but the way he characterized it was pretty much saying so, especially since it was sort of tied into Mr. Koontz changing his name, and that's consciousness of guilt. [¶] Although he didn't say the exact words, he was definitely implying, through his argument, that he [Petitioner] had flown the coop, and that was a consciousness of guilt. So I object." (R.T. 1878).
The Court said: "I believe [the prosecutor] said it was 7 or 9 months later when he [Petitioner] was in Oklahoma. I think that kind of takes the sting off. Let's put it that way." (R.T. 1878). The prosecutor said: "What I said is, based on Kevin Schantz saying he did not see him [Petitioner] again, and I kept referring to that every time I said that" (R.T. 1878). The discussion moved to another issue, after which the court said: "So otherwise we are okay, then" (R.T. 1879). Petitioner's counsel responded: "Yes" (R.T. 1879).
In rebuttal, the prosecutor argued: "But after December 31, 2006, Jonathan Blackwell is not seen again. Where is he found?" (R.T. 1935). Later, responding to a defense argument that "actions speak louder than words," the prosecutor stated: "We know that they [Petitioner and Koontz] quickly leave the apartment. What do you think individuals who have the ability to shoot and kill people, once they actually do it, what do you think the first response is for them? Maybe escape. [¶] Eight shots are fired. That's what Jonathan Blackwell does. He takes off. . . . [¶] . . . According to Kevin Schantz, Blackwell disappears, never sees him again. [¶] What are additional actions? Eight, nine months alter, he [Petitioner] is found in Oklahoma, brought back to our jurisdiction, and booked for murder" (R.T. 1952).
Petitioner contends the prosecutor committed misconduct in arguing that Petitioner allegedly fled after the shooting, an argument Petitioner contends was unsupported by the evidence and forbidden by the trial judge (Pet., p. 5 and attached page). The Court of Appeal rejected this claim, ruling that: (1) Petitioner had forfeited the claim by failing to object when the prosecutor first referred to the alleged flight; (2) the prosecutor did not go beyond or mischaracterize the evidence, and did not ask the jury to infer consciousness of guilt; (3) the trial court did not forbid the prosecutor from arguing the facts concerning Petitioner's alleged disappearance and subsequent apprehension in Oklahoma; and (4) any error was harmless (Respondent's Lodgment D, pp. 19-21; see People v. Blackwell, 2012 WL 75743, at *12-13).
Prosecutorial misconduct merits habeas relief only where the misconduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). The Court must consider the entire proceeding to determine whether the alleged misconduct rendered the trial so unfair as to violate due process. See Sechrest v. Ignacio, 549 F.3d 789, 807-08 (9th Cir. 2008), cert. denied, 130 S. Ct. 243 (2009).
In fashioning closing arguments, prosecutors are allowed reasonably wide latitude. United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions. [citation]." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996).
Recently, the United States Supreme Court ruled that alleged prosecutorial misconduct in closing argument did not warrant habeas relief under the AEDPA standard of review. See Parker v. Matthews, 132 S. Ct. 2148 (2012) ("Parker"). In Parker, the Court of Appeals for the Sixth Circuit had granted habeas relief on a claim that the prosecutor had committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture an "extreme emotional disturbance" defense. Applying the AEDPA standard of review, the United States Supreme Court reversed the Sixth Circuit, observing that, even if the comments directed the jury's attention to inappropriate considerations, the petitioner had not shown that the comments were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 2155 (quoting Harrington v. Richter, 131 S. Ct. at 786-87). The Supreme Court noted that in Darden v. Wainwright the Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker,*fn5 and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations," the Sixth Circuit's decision was unwarranted. Parker, 132 S. Ct. at 2155 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Under these standards, Petitioner's prosecutorial misconduct argument fails. Contrary to Petitioner's assertion, the court did not prohibit argument concerning Petitioner's alleged disappearance and apprehension in Oklahoma months later. Although the court declined to give a flight instruction, the prosecutor's statements that Schantz had testified that Schantz did not see Petitioner any more after the incident and that Petitioner was apprehended in Oklahoma months after the shooting were based on the evidence. See United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005) ("It is not misconduct for the prosecutor to argue reasonable inferences based on the record.") (citation and internal quotations omitted). Furthermore, any argument that Petitioner's alleged disappearance showed a consciousness of guilt added little to the prosecution's case. Even assuming arguendo the prosecutor attempted to argue flight showing consciousness of guilt, the lapse of many months between the crime and Petitioner's eventual apprehension in Oklahoma undercut the strength of any inference that Petitioner fled after the shooting out of consciousness of guilt. Moreover, the evidence that Koontz returned to the apartment after the shooting without Petitioner, that Schantz allegedly did not see Petitioner again, and that Petitioner was apprehended months later in Oklahoma was not inconsistent with the defense theory of mistaken identification.
In sum, this Court cannot conclude that the prosecutor's challenged statements were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker, 132 S. Ct. at 2155; see also Pitts v. King, 2006 WL 1796626, at *5 (S.D. Miss. June 6, 2006) (prosecutor did not commit misconduct in closing by commenting on fact that Petitioner left the crime scene, although judge gave no flight instruction). The Court of Appeal's rejection of Petitioner's claim of prosecutorial misconduct was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to habeas relief on Ground Two of the Petition.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.