United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
MICHAEL J. SENG, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Charles French of the office of the California Attorney General.
I. PROCEDURAL BACKGROUND
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kern, following his conviction by jury trial on April 1, 2008, of assault with a deadly weapon by a life inmate upon a correctional officer by means of force likely to produce great bodily injury with an enhancement for inflicting great bodily injury. (Clerk's Tr. at 1196-97.) On June 13, 2008, Petitioner was sentenced to an indeterminate term of 21 years to life to be served consecutively to the sentence of 20 years to life that Petitioner was already serving. (Id.)
Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District on March 2, 2009. (Lodged Docs. 1-4.) The appeal was denied on November 5, 2009. (Id.) On December 11, 2009, Petitioner filed a petition for review with the California Supreme Court. (Lodged Doc. 5.) The petition was summarily denied on January 13, 2010. (Lodged Doc. 6.)
Petitioner filed a habeas petition with the Fifth District Court of Appeal on July 13, 2010. (Lodged Doc. 8.) The petition was denied without prejudice on March 7, 2011 for failing to exhaust remedies in the superior court. (Lodged Doc. 11.) On April 8, 2011, Petitioner filed a petition for writ of habeas corpus with the Kern County Superior Court. (Lodged Doc. 7.) The petition was denied on April 25, 2011. (Lodged Doc. 10.) Finally, Petitioner filed a habeas petition with the California Supreme Court on July 2, 2012. (Lodged Doc. 9.) The petition was denied as untimely October 17, 2012. (Lodged Doc. 12.)
Petitioner filed his federal habeas petition on November 1, 2012. (Pet., ECF No. 1.) The petition raised eight different claims for relief, listed as follows:
1.) That appellate counsel was ineffective for failing to raise claims that the state destroyed exculpatory evidence, that there was insufficient evidence of Petitioner's intent to commit the crime, that the trial court failed to instruct the jury on Petitioner's theory of provocation, and that the trial court abused its discretion in failing to admit evidence of the victim's bad acts;
2.) That the trial court admitted inflammatory and prejudicial photos of the victim, violating Petitioner's due process;
3.) That the state violated Petitioner's due process in failing to obtain a defense witness in federal custody; and
4.) Cumulative error.
(Pet. at 4-8, ECF No. 1.)
Respondent filed an answer to the petition on March 11, 2013. (Answer, ECF No. 15.) Petitioner filed a traverse on July 29, 2013. (ECF No. 26.) The matter stands ready for adjudication.
II. STATEMENT OF THE FACTS
First, we turn to the evidence at trial. Michael Lippert, a correctional officer at California Correctional Institution in Tehachapi (CCI), called Craig Terry, a correctional officer working the control room at CCI, to let him know which inmates to let out for doctor's appointments. One was Brown's cellmate, whom Terry so informed on the public address system. After giving him time to get ready, Terry opened the cell door, but Brown stepped out instead. On the public address system, Terry ordered him to return to his cell, but he did not, so Terry called Lippert and told him, "Brown was out on the tier and would not return to his cell."
From downstairs, Lippert "repeatedly asked [Brown] to lock up, " but his response was "negative." Brown, "quite agitated, " started "swearing" at Lippert. Watching Lippert and Brown talk to each other, Terry saw Brown "throw his arms up in like a defiant manner, like he was refusing a direct order." On the public address system, Terry ordered Brown "to return to his cell" four or five times, but he did not comply. Lippert walked upstairs to "order him to lock up" and pointed his pepper spray at him "in case [he] needed to use it."
Once he was upstairs, Lippert saw Brown facing him in "a bladed stance, slightly skewed from facing you straight on, one foot slightly in front of the other. And his arms were down to his sides, slightly bent, " and his fists were "clenched" in a fighting stance. Lippert fired his pepper spray. Brown charged him and struck "three to four heavy blows" to his head. Lippert lost consciousness.
From the control room, Terry saw Brown "striking [Lippert] about the face and chest" a total of about 10 times, some before he fell, some after he fell. After Lippert fell, Brown straddled him and kept striking him in the face until a rubber bullet Terry fired hit him in the lower back. Brown immediately stopped the assault and, after glancing behind him, looked at Terry in the control room and ran back into his cell.
Testifying in his own defense, Brown acknowledged leaving his cell and not going back inside even after Lippert "continued to give [him] direct orders to go back into the cell." The prison was on lockdown, racial wars were in progress, and he was concerned for his and his cellmate's safety. Brown told Lippert he would go back into his cell as soon as his cellmate left the cell. Lippert told him he needed to lock up or his cellmate would not see the doctor. Brown told Lippert he did not care if his cellmate saw the doctor. Saying he would spray Brown and lock him up if he did not lock up voluntarily, Lippert "pointed his pepper spray" at him, "took a defensive stance, " and again told him to lock up. Brown again told Lippert he would go back into his cell as soon as his cellmate left the cell. Lippert pepper sprayed him. Brown "automatically respond[ed] in self-defense, " striking him "four to five times" "real hard" "with clenched fists." After Lippert lost consciousness and fell, Brown did not touch him again. He never got on top of him.
People v. Brown , 2009 Cal.App. Unpub. LEXIS 8845, 3-6 (Cal.App. 5th Dist. Nov. 5, 2009).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor , 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the conviction challenged arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court has jurisdiction over the action.
B. Legal Standard of Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy , 521 U.S. 320, 326 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.
Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor , 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's 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).
1. Contrary to or an Unreasonable Application of Federal Law
A state court decision is "contrary to" federal law if it "applies a rule that contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are materially indistinguishable from" a Supreme Court case, yet reaches a different result." Brown v. Payton , 544 U.S. 133, 141 (2005) citing Williams , 529 U.S. at 405-06. "AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.... The statue recognizes... that even a general standard may be applied in an unreasonable manner" Panetti v. Quarterman , 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The "clearly established Federal law" requirement "does not demand more than a principle' or general standard.'" Musladin v. Lamarque , 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle (or principles) to the issue before the state court. Lockyer v. Andrade , 538 U.S. 63, 70-71 (2003). A state court decision will involve an "unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams , 529 U.S. at 409-10; Woodford v. Visciotti , 537 U.S. 19, 24-25 (2002). In Harrington v. Richter , the Court further stresses that "an unreasonable application of federal law is different from an incorrect application of federal law." 131 S.Ct. 770, 785 (2011), (citing Williams , 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado , 541 U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading outcomes in case-by-case determinations." Id .; Renico v. Lett , 130 S.Ct. 1855, 1864 (2010). "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 this Court." Knowles v. Mirzayance , 129 S.Ct. 1411, 1419 (2009), quoted by Richter , 131 S.Ct. at 786.
2. Review of State Decisions
"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the claim rest on the same grounds." See Ylst v. Nunnemaker , 501 U.S. 797, 803 (1991). This is referred to as the "look through" presumption. Id. at 804; Plascencia v. Alameida , 467 F.3d 1190, 1198 (9th Cir. 2006). Determining whether a state court's decision resulted from an unreasonable legal or factual conclusion, "does not require that there be an opinion from the state court explaining the state court's reasoning." Richter , 131 S.Ct. at 784-85. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id . ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.'").
Richter instructs that whether the state court decision is reasoned and explained, or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; 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." Id. at 786. Thus, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id . (citing Lockyer v. Andrade , 538 U.S. at 75). AEDPA "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Id . To put it yet another way:
As a condition for obtaining habeas corpus relief 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.
Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts are the principal forum for asserting constitutional challenges to state convictions." Id. at 787. It follows from this consideration that § 2254(d) "complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for later federal habeas proceedings." Id . (citing Wainwright v. Sykes , 433 U.S. 72, 90 (1977).
3. Prejudicial Impact of Constitutional Error
The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson , 507 U.S. 619, 623 (1993); see also Fry v. Pliler , 551 U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante , 499 U.S. 279, 310 (1991); United States v. Cronic , 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza , 297 F.3d 911, 918, n. 7 (2002). Musalin v. Lamarque , 555 F.3d at 834.
III. REVIEW OF PETITION
A. Claim One: Ineffective Assistance of Counsel
In his first claim, Petitioner contends that appellate counsel was ineffective for failing to raise several issues on appeal. (See Pet. at 4-7.)
1. State Court Decision
Petitioner first presented this claim by way of a petition for writ of habeas corpus to the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 8.) The court denied the petition without prejudice for Petitioner's failure to properly exhaust the claim in the superior court. (Lodged Doc. 11.) Petitioner returned to the Kern County Superior Court, filed a petition for writ of habeas corpus, and the superior court denied it in a reasoned decision. (Lodged Docs. 7, 10.) Petitioner then filed a petition for writ of habeas corpus with the California Supreme Court. (Lodged Doc. 9.) The court denied the petition with citations to In re Robbins , 18 Cal.4th 770, 780 (1998) and In re Clark , 5 Cal.4th 750, 767-769 (1993), indicating that the petition was untimely filed. See Walker v. Martin , 131 S.Ct. 1120, 1124 (2011). While the State court's denial of the claims on procedural grounds generally gives rise to a procedural bar that would foreclose this Court's review of Petitioner's claim, procedural default is an affirmative defense that Respondent was obligated to raise and preserve. See Trest v. Cain , 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997); Franklin v. Johnson , 290 F.3d 1223, 1232 (9th Cir. 2002).
As Respondent did not plead that these claims are barred by procedural default, the Court finds this defense has been waived. See Morrison v. Mahoney , 399 F.3d 1042, 1046 (9th Cir. 2005) (noting that affirmative defenses, such as procedural default, should be raised in the first responsive pleading in order to avoid waiver).
Here, where the last state court decision did not address the merits of the petition, the court, under § 2254(d), must determine what arguments or theories could have supported, the state court's decision and determine whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with Supreme Court law. Richter , 131 S.Ct. at 786. Because the California Supreme Court's opinion denied the claims on ...