United States District Court, C.D. California
ORDER: DENYING HABEAS PETITION; DISMISSING ACTION WITH PREJUDICE; AND DENYING A CERTIFICATE OF APPEALABILITY
MARGARET A. NAGLE, Magistrate Judge.
On May 7, 2013, Petitioner, a California state prisoner, filed a habeas petition, which pleaded three claims ("Petition"). Respondent filed an Answer to the Petition and lodged the pertinent portions of the state record ("Lodg."). Petitioner thereafter filed a Traverse. The matter is fully briefed and under submission to the Court.
PRIOR STATE PROCEEDINGS
Petitioner was tried jointly with codefendant Patrick McMillan in the Santa Barbara County Superior Court, although they were tried before separate juries. On March 5, 2010, the jury found Petitioner guilty of first degree residential robbery, first degree burglary with a person present, forcible rape, sexual penetration by foreign object, and cruelty to a child by endangering health. The jury also found true numerous enhancement allegations related to gang conduct and personal use of a firearm. (Lodg. No. 1, Clerk's Transcript ("CT") 700-09.) In addition, the jury found that Petitioner committed the rape and sexual penetration offenses during the course of a residential burglary within the meaning of California Penal Code § 667.61 (California's "One Strike" law). (CT 705, 707.) Petitioner thereafter was sentenced to a total term of 26 years plus 25 years to life. (CT 732-35, 799-802; Lodg. No. 9 at 2.)
Petitioner appealed and raised the three claims alleged in the Petition. (CT 794-95; Lodg. Nos. 5, 8.) On March 7, 2012, the California Court of Appeal affirmed Petitioner's convictions in a written, reasoned decision. Petitioner sought review in the California Supreme Court. (Lodg. No. 11.) On June 13, 2012, the California Supreme Court denied review summarily. (Lodg. No. 12.)
BRIEF SUMMARY OF THE EVIDENCE AT TRIAL
"Jane Doe" grew up in Lompoc, California, and was still living there in October 2008. She lived with Troy Grant, her boyfriend, and their son Dante, who was a year and a half old, and Dasha, Grant's child from a previous relationship, who was six years old. (Lodg. No. 3, Reporter's Transcript ("RT") 291-93, 648-49.) Doe had met Petitioner a few times prior to October 15, 2008, including at the home of her friend Bridgette Oliver, but Doe was not Petitioner's friend. Doe had not seen codefendant McMillan before October 15, 2008. (RT 344-45.). Oliver was acquainted with Petitioner and had seen Petitioner with McMillan on several occasions. (RT 756-57.) Grant went to the same high school as McMillan and had seen Petitioner around, but Grant was not a friend of either man. (RT 650.)
On October 15, 2008, Grant left home to work a night shift. Doe remained at home and put the two children to bed around 9:30 p.m. (RT 299-300, 655.) Oliver, who was Doe's best friend at the time, was at the house, and they watched television. Oliver left around 11:00 p.m., and Doe went to bed 15 minutes later. (RT 300-02.)
Doe fell asleep but woke when she heard a "fidgeting" sound coming from her front door knob. She sat up, got out of bed, and heard a "big boom." Two men ran into the room: one - who Doe identified as McMillan - had a "net" stocking over his face; and the other wore a gorilla mask and was holding a bat and a firearm. Both men were wearing gloves and referred to each other as "Cuz, " a term Doe understood to be a name that members of the Crips gang call each other. McMillan grabbed Doe from behind and used his elbow to put pressure on her neck. (RT 301-09, 342-43.)
The two men demanded money and "weed, " i.e., marijuana. McMillan was choking Doe so "hard" that she started to lose sight and could not breathe. McMillan knelt Doe facedown over the bed and told the other man to get something to tie up her feet. Doe felt someone attempt to tie her ankles with a wire. (RT 309-11.) One of the intruders pulled Doe's pants down. She felt both men's hands on her. One of the men penetrated her vaginally with his penis, and it was painful. Thereafter, she was penetrated vaginally by a plastic object. (RT 311-15.)
McMillan stood up and again asked Doe for the location of money and weed, and Doe told him the items were in the car and also in a jacket belonging to Grant. The man in the gorilla mask obtained a backpack from the car, which contained the marijuana; however, there was no money in Grant's jacket. McMillan again asked for money, and Doe told him it was in a jacket in the closet in her son's room. During this time, McMillan had Doe in a chokehold. He forced her to go to her son Dante's room, and the man in the gorilla mask retrieved the money from a jacket and went outside. Approximately $1, 100 was taken. Dante was awake as this occurred. (RT 315-18.) McMillan took Doe into the hallway and said she had the option of either being tied up or knocked out. Doe was crying and said, "just let me go." McMillan walked Doe into Dasha's bedroom, knelt her over the bed, and told her to not move and to count to a thousand. Dasha was awake and crying. McMillan left. (317-19.)
Shortly after McMillan left Dasha's room, Doe gathered the children and her purse and left in her car. She called Grant and told him what happened, and he told her to bring the children to his workplace, which Doe did. All of them then went to the hospital. Grant called Oliver, who came and stayed with Doe, and Grant took the children to Doe's mother. (RT 319-21, 657-59.)
Thereafter, a SART (Sexual Assault Response Team) nurse examined Doe. (RT 330, 333, 846-48.) Although Doe had difficulty breathing and swallowing, because her throat and neck felt crushed due to the chokehold, she was able to describe the attack and the intruders to Grant. (RT 332-33, 660, 865, 868.) Doe had bruising and abrasions in numerous areas of her body, her vaginal area was painful and tender, and the back of her neck was red, swollen, and tender. (RT 334-38, 859-62, 868-69, 874, 877-79.) Doe described the incident to the SART nurse and to a police officer, who interviewed her at the SART location. (RT 854-73, 1028-36.)
Doe went to her parents' home after she left the SART location. Oliver showed up 30 minutes later. (RT 339.) Doe described the incident to Oliver, including the assailants' appearances. They looked at the MySpace website, Doe saw a photograph of McMillan, and she recognized him as the man who wore the net stocking mask. Doe called Detective Clancy, who had interviewed Doe at the SART location, and both Doe and Oliver told Clancy that: when Doe described the assailants, Oliver said she thought she knew who one of them was; Oliver brought up McMillan's photograph on MySpace; and Doe said right away that the man depicted was one of the assailants. (RT 340-44, 1064-65.)
McMillan was arrested on October 17, 2008, with $1, 250.50 on his person. (RT 933-34, 1077.) Detective Clancy interviewed McMillan a few days later, and Petitioner stated that: after he finished work on October 15, 2008, he came to Lompoc and visited Aundrice Dixon; he left Dixon's home at 11:00 p.m.; he then picked up Gloria Thomas; and they spent the night at his home in Santa Maria. (RT 1074-76.)
A week later, Detective DeLauretis interviewed Dixon. She told him she had seen McMillan and Petitioner on the afternoon of October 15, 2008, walking through her apartment complex, and they stopped by her residence at around 4:00 or 5:00 p.m. (RT 941-42.)
On November 3, 2008, Detectives Clancy and DeLauretis interviewed Thomas. (RT 948.) Some time after October 16, 2008, Thomas, who had read an article about the crime in the newspaper, asked McMillan if he was involved, and he responded, "I was not there." Thomas asked McMillan if Doe has been raped, and he said, "Not to my knowledge." (RT 951-52.) Thomas thereafter started to cry during the interview and said she was scared. She said that, during the same conversation with McMillan, he told her she needed to get his car and remove some clothing from his house (which she did), and he also said, "We did go in the house." (RT 952-53, 1058.) McMillan asked Thomas to get a message to Petitioner, who had not yet been located by the police, "to stay where he's at and not come in, " and to have her boyfriend give a false alibi for Petitioner. (RT 953-55, 1058.) Thomas stated that she was not with McMillan on the evening of October 15, 2008, as he claimed. (RT 954.)
Detective Clancy interviewed Oliver on November 4, 2008. Oliver stated that when she spoke with Doe after the incident and heard Doe's descriptions of the assailants, Oliver believed that Doe was describing McMillan and Petitioner. Oliver said that Petitioner and McMillan were always together, and around that time frame, she spoke with Petitioner daily. Petitioner called Oliver on October 15, 2008, while she was at Doe's house, and again on October 16, 2008, at which time he said "he didn't rape nobody, " and she told him to turn himself in. (RT 755, 1068-70.) At trial, Oliver denied having told anyone that Petitioner matched the description of the second assailant. (RT 755.) Oliver testified that when she told Detective Clancy she had advised Petitioner to turn himself in, it "had nothing to do with" the crimes committed against Doe and, instead, related to an outstanding warrant for something else. (RT 761.)
Petitioner confessed that: he and McMillan broke into Doe's home, stole marijuana, and attempted to tie Doe up; and McMillan physically assaulted Doe, although Petitioner denied that either man raped her. (Lodg. No. 2 at 85-95, 104, 109-10, 112-13, 116-17, 132-36.) Evidence of Petitioner's confession was not presented to McMillan's jury. (RT 988-1000, 1003-13, 1015.)
PETITIONER'S HABEAS CLAIMS
In Ground One, Petitioner contends that his Confrontation Clause rights were violated by the admission of evidence of certain statements by codefendant McMillan (who did not testify) to Petitioner and third parties, both in writings and telephone conversations. (Petition at 5 and attachment 7-a(1).)
In Ground Two, Petitioner contends that insufficient evidence was presented at trial to support the California Penal Code § 186.22(b)(1) criminal street gang enhancement allegations found by the jury to be true. (Petition at 5 and attachment 7-b(1).)
In Ground Three, Petitioner contends that the trial court violated Petitioner's rights to due process and a fair trial by permitting the gang expert to testify about inflammatory gang-related evidence. (Petition at 5-6 and attachment 7c-(1).)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner whose claim has been "adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: "(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." See also Harrington v. Richter , 131 S.Ct. 770, 784 (2011) ("By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).").
Clearly established federal law, for purposes of Section 2254(d)(1) review,  means Supreme Court holdings in existence at the time of the relevant state court decision. Greene v. Fisher , 132 S.Ct. 38, 44-45 (2011); see also Cullen v. Pinholster , 131 S.Ct. 1388, 1399 (2011); Richter , 131 S.Ct. at 785. Deference to a state court decision is required absent a Supreme Court decision that either "squarely addresses'" the issue in the case before the state court or establishes a legal principle that "clearly extends'" to a new context. Varghese v. Uribe , 736 F.3d 817, 824 (9th Cir. 2013) (citation omitted), cert. denied, 134 S.Ct. 1547 (2014); Moses v. Payne , 555 F.3d 742, 760 (9th Cir. 2009); see also Richter , 131 S.Ct. at 786 (it "is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by'" the Supreme Court) (citation omitted). While circuit precedent is relevant "to ascertain whether [a circuit] has already held that the particular point in issue is clearly established by Supreme Court precedent, " circuit precedent may not "be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450-51 (2013) ( per curiam ); see also Murray v. Schriro , 745 F.3d 984, 997 (9th Cir. 2014) ("Our precedent cannot be mistaken for clearly established Supreme Court law.").
Under Section 2254(d)(1)'s first prong, a state court decision is "contrary to" clearly established federal law if the state court applies a rule that contradicts the relevant Supreme Court holdings or reaches a different conclusion than that reached by the high court on materially indistinguishable facts. Price v. Vincent , 123 S.Ct. 1848, 1853 (2003). "Thus, the contrary to' prong requires a direct and irreconcilable conflict with Supreme Court precedent." Murray , 745 F.3d at 997.
Section 2254(d)(1)'s second, "unreasonable application" prong constitutes an objective standard that is not satisfied merely by finding that a state court erred in applying clearly established federal law. Richter , 131 S.Ct. at 785; Lockyer v. Andrade , 123 S.Ct. 1166, 1174 (2003). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro v. Landrigan , 127 S.Ct. 1933, 1939 (2007) ("AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with clear and convincing evidence.'"); see also Xiong v. Felker , 681 F.3d 1067, 1074 (9th Cir. 2012) (a finding that the state court was incorrect or erroneous is insufficient to warrant habeas relief, because the Section 2254(d)(1) "inquiry is strictly limited to whether the state court's application of clearly established Supreme Court precedent" was objectively unreasonable), cert. denied, 133 S.Ct. 989 (2013).
"[S]o long as fairminded jurists could disagree' on the correctness of the state court's decision, " habeas relief is precluded by Section 2254(d). Richter , 131 S.Ct. at 786 (citation omitted); see also id. at 786-87 (a petitioner is required to prove that the state decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement"). "Under § 2254(d), a habeas court must determine what arguments supported or, as [in the case of a silent denial of relief], 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 of a prior decision of this Court." Id. at 786. A federal court has the authority to issue habeas relief only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id .; see also Murray , 745 F.3d at 998 ("The deferential standard imposed under AEDPA cloaks a state court's determination with reasonableness, so long as fairminded jurists could disagree' as to whether a claim lacks merit.") (citation omitted).
"AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, '... and demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett , 130 S.Ct. 1855, 1862 (2010) (citations omitted). "[T]he purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction." Greene , 132 S.Ct. at 43 (citation and quotation marks omitted); see also Richter , 131 S.Ct. at 786 (the AEDPA standard was intended to be "difficult to meet"). "The petitioner carries the burden of proof." Pinholster , 131 S.Ct. at 1398.
The three claims set forth in the Petition indisputably are governed by the Section 2254(d) standard of review, because these three claims were raised on direct appeal and resolved on their merits. For purposes of its Section 2254(d)(1) analysis, the Court looks through the California Supreme Court's silent denial to the reasoned decision of the California Court of Appeal resolving both claims on their merits. Cannedy v. Adams , 706 F.3d 1148, 1158-59 (9th Cir.), amended by 733 F.3d 794, cert. denied, 134 S.Ct. 1001 (2013); see also Berghuis v. Thompkins , 130 S.Ct. 2250, 2259 (2010) (when claims were raised on appeal and denied by state court of appeal on their merits in a reasoned decision, and the state supreme court denied discretionary review, the "relevant state-court decision" for purposes of Section 2254(d) review was the state court of appeal decision); Ortiz v. Yates , 704 F.3d 1026, 1034 (9th Cir. 2012) (a federal habeas court must "look through state-court summary denials to the last reasoned state-court opinion on the claim at issue, " i.e., the California Court of Appeal's decision on appeal affirming the petitioner's conviction).
I. Petitioner's Confrontation Clause Claim Does Not Warrant Federal Habeas Relief.
In Ground One, Petitioner contends that he was deprived of his federal constitutional rights under the Confrontation Clause, because evidence was presented of written and oral statements made by codefendant McMillan to Petitioner and third parties. Specifically, Petitioner complains about evidence admitted regarding telephone calls between McMillan and Gloria Thomas, letters from McMillan to Petitioner, and letters from McMillan to third parties. Petitioner complains that: these communications constituted inadmissible hearsay and, thus, were inadmissible; and moreover, because McMillan did not testify at trial, Petitioner was deprived of his right to confront and cross-examine McMillan about these communications. He contends that the state court erred in finding that, under California law, the statements at issue were admissible under two exceptions to the hearsay rule and, further, were not barred by the Bruton rule (discussed infra ). (Petition at 5 and attachment 7a-(1).)
The California Court of Appeal made extensive factual findings relevant to Ground One. Under 28 U.S.C. § 2254(e)(1), these factual findings are presumed true unless rebutted by clear and convincing evidence. See, e.g., Miller-El v. Cockrell , 123 S.Ct. 1029, 1041 (2003). As neither party has challenged such findings, and they are consistent with the Court's own review of the record, the Court quotes them below as background for Ground One.
Prior to trial, McMillan made a motion for severance arguing that admission of certain statements by [Petitioner] would deny him the right to cross-examination if [Petitioner] did not testify. [Petitioner] joined in the motion arguing that admission of statements by McMillan would have the same effect if McMillan did not testify. The trial court denied severance but ordered separate juries for McMillan and [Petitioner].
While in jail awaiting trial, McMillan and [Petitioner] exchanged numerous written communications referred to as "letters" or "kites." There were also letters and telephone calls by McMillan and [Petitioner] to third parties. In motions in limine, the prosecution sought a ruling that the written and telephonic communications were admissible as admissions, adoptive admissions, statements between co-conspirators, evidence giving context to other evidence, and evidence relied on by the prosecution's gang expert. McMillan and [Petitioner] argued that admission would violate the Bruton/Aranda ...