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Paul Murray v. Suzan L. Hubbard

April 26, 2013


The opinion of the court was delivered by: Jon S. Tigar United States District Judge



Petitioner seeks federal habeas relief from his state convictions. For the reasons 0 stated herein, the petition for such relief is DENIED. 21


In 2008, an Alameda County Superior Court jury convicted petitioner of first degree 23 murder and attempted murder, consequent to which he received a sentence of life in state 24 prison without the possibility of parole. He was denied relief on state judicial review. 25 This federal habeas petition followed. 26 Evidence presented at trial demonstrated that in 2003 petitioner, while robbing a gas 27 station, shot and killed cashier Paul Bajwa, and shot and severely wounded another 28 employee, Sohan Singh. Singh, who did not regain consciousness for several months after the shooting,identified petitioner as the perpetrator at the preliminary hearing and trial, 2 though he failed to identify petitioner's picture in a photo line-up while in the hospital. 3

Petitioner was identified by his wife, Undeener Foots, and her mother, Rommie Holmes, as 4 the person in the gas station video surveillance footage recorded on the night of the 5 robbery. Foots, who had no prior knowledge of the robbery, recounted at trial that 6 petitioner, some time after the robbery, said, "I fucked up. I fucked up big . . . Shit didn't 7 go like it was supposed to go." In a later telephone conversation, he said, in Foots's words, 8 that "he robbed some shit, it all went bad and blew up." (Ans., Ex. D-8 at 1-3). 9

As grounds for federal habeas relief, petitioner claims that (1) the trial court 10 violated his due process and jury trial rights when it denied his motion to sever; (2) the 11 trial court violated his right to confront witnesses when it denied his request for 12 information about the identity of an informant against him; (3) his right to a fair trial and

due process were violated by the restitution imposed; (4) defense counsel rendered 14 ineffective assistance; (5) there was cumulative error; (6) appellate counsel rendered 15 ineffective assistance; (7) the admission of surveillance photographic evidence violated his 16 rights to due process and trial by jury; (8) the admission of other crimes evidence violated 17 his right to due process; and (9) the admission of evidence about his tattoos denied him due 18 process. 19


This Court may entertain a petition for writ of habeas corpus "in behalf of a person 21 in custody pursuant to the judgment of a State court only on the ground that he is in 22 custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 23

§ 2254(a). The petition may not be granted with respect to any claim that was adjudicated 24 on the merits in state court unless the state court's adjudication of the claim: "(1) resulted 25 in a decision that was contrary to, or involved an unreasonable application of, clearly 26 established Federal law, as determined by the Supreme Court of the United States; or (2) 27 resulted in a decision that was based on an unreasonable determination of the facts in light 28 of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state 2 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 3 of law or if the state court decides a case differently than [the] Court has on a set of 4 materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412--13 5

(2000). "Under the 'unreasonable application' clause, a federal habeas court may grant the 6 writ if the state court identifies the correct governing legal principle from [the] Court's 7 decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 8

413. "[A] federal habeas court may not issue the writ simply because that court concludes 9 in its independent judgment that the relevant state-court decision applied clearly 10 established federal law erroneously or incorrectly. Rather, that application must also be 11 unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" 12 inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. 14


I. Motion to Sever

Petitioner claims without elaboration that the trial court's denial of his motion to 17 sever unrelated charges violated his rights to a fair trial and a jury, and resulted in 18 prejudice.*fn1 This claim was raised only to the state supreme court, which summarily denied 19 it. If there is no reasoned state court decision on a petitioner's claims, the federal court 20 must conduct "an independent review of the record" to determine whether the state court's 21 decision was an objectively unreasonable application of clearly established federal law. 22

Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). 23

The relevant facts are as follows. Petitioner first faced five criminal charges. The 24 first three were based on the events at the gas station. The remaining two were based on a 25 robbery of two people at a different location three weeks before the gas station robbery. 26

Before trial, petitioner had pleaded no contest to the last two charges. The jury, then, was 27 asked to try only the first three charges. 2

A federal court reviewing a state conviction under 28 U.S.C. § 2254 does not concern itself with state law governing severance or joinder in state trials. Grisby v. 4 Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). Nor is it concerned with the procedural right 5 to severance afforded in federal trials. Id. Its inquiry is limited to the petitioner's right to a 6 fair trial under the United States Constitution. To prevail, therefore, the petitioner must 7 demonstrate that the state court's denial of his severance motion resulted in prejudice great 8 enough to render his trial fundamentally unfair. Id. In addition, the impermissible joinder 9 must have had a substantial and injurious effect or influence in determining the jury's 10 verdict. Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). Of particular 11 importance in assessing prejudice are the "cross-admissibility of evidence and the danger 12 of 'spillover' from one charge to another, especially where one charge or set of charges is weaker than another." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (citations 14 removed). 15

Habeas relief is not warranted here. First, petitioner's conclusory allegation does not provide any details or supporting information. Accordingly, this claim is DENIED 17 because it does not meet the specificity requirements of Mayle v. Felix, 545 U.S. 644, 655 18

(2005). Second, there has been no showing of prejudice. The jury convicted petitioner of 19 the charges arising from the gas station robbery. Petitioner's no contest plea removed the 20 remaining charges from the jury's consideration prior to trial, therefore rendering moot his 21 severance claim. That the trial court denied his motion to sever prior to his pleading guilty 22 cannot have resulted in any perceivable harm - let alone caused a constitutional violation 23 - to petitioner's defense at trial on the remaining charges. In its independent review of 24 the ...

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