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Pogue v. Swarthout

United States District Court, E.D. California

March 28, 2014

TRAVELL DARNELL POGUE, Petitioner,
v.
GARY SWARTHOUT, Respondent.

ORDER SUBSTITUTING WARDEN GARY SWARTHOUT AS RESPONDENT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER'S STATE LAW CLAIM, DENY THE REMAINDER OF THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 34), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY

SHEILA K. OBERTO, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the first amended petition (FAP), which was filed on July 15, 2013. Respondent filed an answer to the originally filed petition and requested that it serve as the answer to the FAP. By order dated July 16, 2013, the Court authorized the FAP, directed that the previously filed answer be considered as the answer to the FAP, and granted Petitioner thirty (30) days to file a traverse. Although the order was served on Petitioner at the address listed in the docket, Petitioner did not file a traverse.

I. Jurisdiction and Substitution of Respondent

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997).

The challenged judgment was rendered by the Superior Court of the State of California, County of Kern (KCSC), located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. Accordingly, the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. Williams v. Taylor , 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran , 562 U.S. B, ___, 131 S.Ct. 13, 16 (2010) (per curiam).

An answer was filed on behalf of Respondent Anthony Hedgpeth, Warden of the Salinas Valley State Prison (SVSP), who pursuant to the judgment had custody of Petitioner at the SVSP, his institution of confinement when the petition and answer were filed. (Doc. 23, 6; doc. 1, 1.) Petitioner thus named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court , 21 F.3d 359, 360 (9th Cir. 1994). The fact that Petitioner was transferred to the California State Prison-Solano (CSP-SOL) at Vacaville, California after the petition was filed does not affect this Court's jurisdiction. Jurisdiction attaches on the initial filing for habeas corpus relief and is not destroyed by a transfer of the petitioner and the accompanying custodial change. Francis v. Rison , 894 F.2d 353, 354 (9th Cir. 1990) (citing Smith v. Campbell , 450 F.2d 829, 834 (9th Cir. 1971)). Accordingly, the Court has jurisdiction over the person of the Respondent.

However, in view of the fact that the warden at CSP-SOL is Gary Swarthout, it is ORDERED that Gary Swarthout, Warden of CSP-SOL, be SUBSTITUTED as Respondent pursuant to Fed.R.Civ.P. 25.[1]

II. Procedural Summary

On August 28, 2008, at a jury trial in the KCSC, Petitioner was convicted of attempted murder, first degree burglary, and assault with a deadly weapon. (2 CT 380-89.) The jury found as to the murder charge that Petitioner personally used a deadly weapon, a knife, and that in committing the crime he inflicted great bodily injury. (Id. at 381-82.) As to the burglary charge, the jury found that "another person, other than an accomplice, was present in the residence" (id. at 385); and as to the assault with a deadly weapon charge, the jury found that Petitioner personally inflicted great bodily injury (id. at 387).

Petitioner was sentenced to thirteen years in prison, including nine years for the attempted murder, one year for use of a knife, and three years for infliction of great bodily injury. (2 CT 393-96.) The respective sentences for the burglary and assault convictions, along with their related enhancements, were stayed under Cal. Pen. Code § 654. (Id. at 396.)

Petitioner appealed to the Court of Appeal of the State of California, Fifth Appellate District (CCA), and raised the following claims: 1) ineffective assistance of trial counsel for failing to request an alibi instruction, 2) instructional error from the failure of CALJIC No. 2.90 properly to inform the jury of the reasonable doubt standard, 3) prejudicial prosecutorial misconduct, and 4) improper enhancement of his sentence. (LD 1, App. Op. Brf.)[2] On November 16, 2009, the CCA affirmed the judgment in an unpublished, decision in People v. Travell Darnell Pogue, case number F056268. (LD 4.) The CCA did not consider Petitioner's sentence enhancement claim because he withdrew that claim. (LD 3, Applt.'s Reply Brf., 17.)

On January 21, 2010, Petitioner's petition for review was summarily denied by the California Supreme Court (CSC) without a statement of reasons or citation to authority in People v. Travell Darnell Pogue, case number S178612. (LD 6.)

III. Factual Summary

In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque , 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne , 555 F.3d 742, 746 n.1 (9th Cir. 2009). The following statement of facts is taken from the opinion of the CCA (LD 4):

FACTUAL BACKGROUND

After a young woman who lived across the street from Pogue repeatedly rebuffed his advances, he attacked her inside her home, punching her again and again in the face, stabbing her 15 times with a knife, and choking her so hard she gasped for air. He left only after she feigned death. A neighbor testified that before the attack the young woman asked him and his wife to keep an eye on her because Pogue was bothering her and that on the morning of the attack he saw Pogue outside her house.
The young woman's stepfather testified that he found a bloody tip of a knife blade in his bedroom shortly after the attack and that a friend of the young woman's found a knife handle in her bedroom a few days later. Her mother corroborated her stepfather's testimony about the discovery of the knife handle and testified that before the attack her daughter told her she felt threatened by the guy across the street.
A criminalist at the regional crime laboratory and a forensic DNA analyst at an independent laboratory analyzed blood from the crime scene. The young woman was the sole possible contributor of the blood on a swab of the tip of the knife blade. She and Pogue both were possible contributors of the blood on a swab of a sock wrapped around the knife handle.
The first officer to arrive at the crime scene testified that the young woman identified her attacker as the young man who lived across the street from her. Pogue's girlfriend testified that he was at home with her at the time of the attack. (LD 4, 2.)

IV. Ineffective Assistance of Counsel

Petitioner contends his rights to counsel, due process of law, and a fundamentally fair trial were violated by trial counsel's failure to request an alibi instruction.

A. Standard of Decision and Scope of Review

With respect to the nature and scope of this Court's review in this proceeding, 28 U.S.C. § 2254 provides in pertinent part:

(d) 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.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, ___ U.S. ___ , 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade , 538 U.S. 63, 71 (2003); Williams v. Taylor , 529 U.S. 362, 412 (2000).

A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor , 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state- court decision contradicts [it]." Early v. Packer , 537 U.S. 3, 8 (2002).

A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small , 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams , 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams , 529 U.S. at 410. A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that 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). Even a strong case for relief does not render the state court's conclusions unreasonable. Id.

To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster , 131 S.Ct. at 1398. Habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, ___ U.S. ___ , 132 S.Ct. 1195, 1199 (2012).

In assessing whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster , 131 S.Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. A state court decision on the merits based on a factual determination will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceedings. Miller-El v. Cockrell , 537 U.S. 322, 340 (2003).

B. Ineffective Assistance of Counsel

1. Legal Standards

The law governing claims concerning ineffective assistance of counsel is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d). Premo v. Moore, ___ U.S. ___ , 131 S.Ct. 733, 737-38 (2011); Canales v. Roe , 151 F.3d 1226, 1229 n.2 (9th Cir. 1998).

To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show that 1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) unless prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687-94 (1984); Lowry v. Lewis , 21 F.3d 344, 346 (9th Cir. 1994).

With respect to this Court's review of a state court's decision concerning a claim of ineffective assistance of counsel, the Supreme Court has set forth the standard of decision as follows:

To establish ineffective assistance of counsel "a defendant must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance , 556 U.S. ___, ___, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). In addressing this standard and its relationship to AEDPA, the Court today in Richter, ___ U.S., at ___-___, 131 S.Ct. 770, gives the following explanation:
"To establish deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness.' [Strickland, ] 466 U.S., at 688 [104 S.Ct. 2052]. A court considering a claim of ineffective assistance must apply a strong presumption' that counsel's representation was within the wide range' of reasonable professional assistance. Id., at 689 [104 S.Ct. 2052]. The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' Id., at 687 [104 S.Ct. 2052].
"With respect to prejudice, a challenger must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'...
"Surmounting Strickland's high bar is never an easy task.' Padilla v. Kentucky , 559 U.S. ___, ___ [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland , 466 U.S., at 689-690 [104 S.Ct. 2052]. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting' to second-guess counsel's assistance after conviction or adverse sentence.' Id., at 689 [104 S.Ct. 2052]; see also Bell v. Cone , 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, ' not whether it deviated from best practices or most common custom. Strickland , 466 U.S., at 690, 104 S.Ct. 2052.
"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, ' id., at 689 [104 S.Ct. 2052]; Lindh v. Murphy , 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is doubly' so, Knowles , 556 U.S., at ____, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at ____ [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). 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."

Premo v. Moore , 131 S.Ct. at 739-40 (quoting Harrington v. Richter , 131 S.Ct. 770 (2011)).

2. The State Court Decision

The last reasoned decision must be identified to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming , 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae , 339 F.3d 1107, 1112-13 (9th Cir. 2003).

Here, the CCA's decision was the last decision in which the state court adjudicated Petitioner's claims on the merits. Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim are presumed to rest upon the same ground. Ylst v. Nunnemaker , 501 U.S. 797, 803 (1991). This Court will thus "look through" the unexplained decision of the California Supreme Court to the CCA's last reasoned decision as the relevant state court determination. Id. at 803-04; Taylor v. Maddox , 366 F.3d 992, 998 n.5 (9th Cir. 2004).

The pertinent portion of the CCA's decision is as follows:

DISCUSSION

1. Alibi Instruction

Pogue argues that his attorney's failure to request an alibi instruction was ineffective assistance of counsel. The Attorney General argues the contrary.
The parties agree, and the record confirms, that Pogue's attorney did not request, and the court did not give, an alibi instruction. The parties agree, too, that a court, on request, has a duty to give an alibi instruction on a record of substantial alibi evidence but, in the absence of a request, has no sua sponte duty to do so. (See, e.g., People v. Freeman (1978) 22 Cal.3d 434, 437-439 ( Freeman ).) On that background, Pogue argues that "it would have been appropriate for defense counsel to seek pinpoint instructions explaining the sole defense theory presented by the evidence-alibi-to the jurors" since his girlfriend and his mother testified he was at home at the time of the attack.
The right to counsel protects the due process right to a fair trial not only by guaranteeing "access to counsel's skill and knowledge" but also by implementing the constitutional entitlement to an "ample opportunity to meet the case of the prosecution.'" ( Strickland v. Washington (1984) 466 U.S. 668, 684-686 ( Strickland ).) To establish ineffective assistance, the defendant must show that counsel's performance "fell below an objective standard of reasonableness" and prejudiced the defense. ( Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 ( Ledesma ).) To establish prejudice, the defendant must make a showing "sufficient to undermine confidence in the outcome" of a "reasonable probability" that but for counsel's performance "the result of the proceeding would have been different." ( Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel's performance. ( Strickland, supra, at p. 697.)
In People v. Alcala (1992) 4 Cal.4th 742, where the defense was alibi, the defendant claimed reversible error on the ground that the court failed to instruct sua sponte on alibi. ( Id. at p. 803.) The court did instruct, however, with CALJIC Nos. 2.20 ("Believability of Witness"), 2.21.1 ("Discrepancies in Testimony"), 2.22 ("Weighing Conflicting Testimony"), 2.27 ("Sufficiency of Testimony of One Witness"), and 2.90 ("Presumption of Innocence-Reasonable Doubt-Burden Of Proof"). ( Ibid. ) "For the purpose of instructing with respect to an alibi defense, it is sufficient that the jury be instructed generally to consider all the evidence, and to acquit the defendant in the event it entertains a reasonable doubt regarding his or her guilt." ( Id. at p. 804, citing Freeman, supra, 22 Cal.3d at p. 438.) Rejecting the defendant's claim as meritless, our Supreme Court held that the jury "was so instructed." ( Alcala, supra, at p. 804.)
Here, as in Alcala, the court instructed the jury with CALJIC Nos. 2.20, 2.21.1, 2.22, 2.27, and 2.90. ( Alcala, supra, 4 Cal.4th at p. 803.) Here, as in Alcala, the absence of an alibi instruction was harmless in light of sufficient general instruction with respect to an alibi defense. ( Id. at p. 804.) Since the law and the record preclude Pogue from showing that "the result of the proceeding would have been different" had his attorney requested an alibi instruction (see Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218), we reject his ineffective assistance of counsel argument solely on the issue of prejudice without evaluating his attorney's performance. (See Strickland, supra, 466 U.S. at p. 697.)

(LD 4, 3-5.)

3. Analysis

Petitioner premises his claim of ineffective assistance on counsel's failure to request an instruction that would have explained the alibi defense theory and the prosecution's burden of proof with respect to alibi evidence. In his arguments to the CCA and the CSC, Petitioner noted that the then-current standard alibi instruction, CALCRIM number 3400, informed the jury that the People must prove that the defendant was present and committed the charged offenses; defendant contended he did not commit the crimes and was elsewhere when the crimes were committed; defendant did not need to prove he was elsewhere at that time; if the jury had a reasonable doubt about whether the defendant was present when the crime was committed, it must find the defendant not guilty; but the defendant may also be guilty if he aided and abetted or conspired with someone to commit the crimes even if he was not present. (LD 1, Aplt.'s Op. Brf., 22 n.3; LD 5, Petn. for Rev., 9.)

Trial counsel argued to the jury that the initial photographic identification by the victim at the hospital suggested that Petitioner was the perpetrator, the DNA evidence was likely the result of an unintentional transfer made by law enforcement officers who had handled evidence and Petitioner soon after the crime, and the remaining physical evidence was inconsistent with Petitioner's having committed the crime. Counsel stated, "The eyewitness identification in this case, when you weigh it against the physical evidence of the shoe and the lack of blood, it has to go." (3 RT 637.) Counsel also argued that there was the alibi testimony of the Petitioner's girlfriend and mother. (Id. at 639.)

The jury instructions informed the jury regarding the prosecution's burden of proof beyond a reasonable doubt, the elements of the offenses and the enhancements, the jury's duty to judge the credibility of witnesses and factors pertinent to that judgment, discrepancies in witnesses' testimony, the weighing of conflicting testimony, and the sufficiency of the testimony of one witness. (2 RT 349-63, 330-47.) The jury was instructed concerning the burden of proving identity based solely on eyewitnesses:

The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged.
If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.

(Id. at 346.) The jury was further instructed on the factors to be considered when evaluating eyewitness testimony regarding defendant's identity as the perpetrator, including the believability of the eyewitness as well as many other factors bearing upon the accuracy of the identification. (Id. at 347-48.)

The foregoing review of the instructions given reflects that the jury was in effect instructed on the burden to prove beyond a reasonable doubt that the defendant was the perpetrator, that the burden rested on the People and not the defendant, and that if the jury had a reasonable doubt about whether the defendant was present when the crime was committed, it must find the defendant not guilty. Reasonable doubt was defined, and standard instructions concerning circumstantial evidence and conflicting inferences were given. (3 RT 327-28.)

Considering the defense argument and the entirety of the instructions, Petitioner received sufficient instructions on the alibi defense theory and the prosecution's burden of proof with respect to alibi evidence such that the state court reasonably concluded that Petitioner had not shown a probability of a different result if a pin-point alibi defense instruction had been given.

In sum, the state court's decision was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Accordingly, it will be recommended that the Court deny Petitioner's claim of ineffective assistance of counsel based on failure to request an alibi instruction.

V. Instruction on Reasonable Doubt

Petitioner claims that the reasonable doubt instruction given to the jury, CALJIC No. 2.90, violated his due process rights because it failed to inform the jury that "the burden of proof beyond a reasonable doubt requires proof beyond a reasonable doubt of each fact necessary to prove the charged offense, " as the Court in In re Winship held was required by the Due Process Clause. (Doc. 34, 30.) Respondent argues that the state court's adjudication of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent.

This claim was raised on direct appeal to the CCA (LD 1, 33-47), which denied the claim (LD 4 at 5-7); it was then raised again in a petition for review (LD 5, 15-21), which was summarily denied by the CSC without a statement of reason or authority (LD 6). This ...


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