United States District Court, E.D. California
MARCUS A. NICKELBERRY, Petitioner,
J. SOTO, Warden, California State Prison, Los Angeles County,  Respondent.
JAMES K. SINGLETON, Jr., Senior District Judge.
Marcus A. Nickelberry, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Nickelberry is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at California State Prison, Los Angeles County. Respondent has answered, and Nickelberry has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 18, 2010, Nickelberry was charged with two counts of robbery (counts 1 and 2), one count of possession of a short-barreled shotgun (count 3), one count of possession of a firearm by a felon (count 4), and one count of receiving stolen property (count 5). The information alleged that he personally used a firearm during the commission of the robbery counts and that he had suffered one prior strike conviction. Shortly thereafter, Nickelberry was arraigned and pled not guilty to the charges.
On direct appeal of his conviction, the California Court of Appeal recounted the following facts underlying the charges against Nickelberry:
On the morning of December 6, 2009, [Nickelberry], who was armed with a shotgun, approached a customer leaving a pizza restaurant in Vallejo, and demanded all the customer's money. The customer pushed on [Nickelberry's] weapon so that it would remain pointed down, backed up toward a building, tripped, and fell down. His cell phone fell out of his pocket, and [Nickelberry] took the phone. [Nickelberry] then entered the pizza restaurant, pushed the shotgun into a restaurant employee, and demanded money. The employee recognized [Nickelberry] as the same person who had earlier asked for a free pizza, and had hung around the restaurant for about 15 minutes, stating that he was waiting for his cousin. The employee gave [Nickelberry] money from the restaurant's cash register, totaling between $120 and $150.
[Nickelberry] fled the restaurant, got into a gray/silver truck, and fled to a Vallejo home that he occasionally visited. Police searched the home and found a brown briefcase belonging to [Nickelberry] that contained a sawed-off shotgun, later identified as the one used during the robbery. Police also recovered the cell phone taken from the pizza restaurant customer.
People v. Nickelberry, No. A130014, 2012 WL 1427376, at *1 (Cal.Ct.App. Apr. 25, 2012).
On April 27, 2010, the trial court held a hearing on pre-trial motions, including a motion filed by Nickelberry's counsel to strike the prior conviction pursuant to People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996),  and Nickelberry's oral Marsden  motion to substitute counsel. With respect to the Marsden motion, the court closed the courtroom and engaged in a lengthy discussion with Nickelberry as to his complaints about counsel's performance and elicited responses from counsel. The court denied both motions.
On June 28, 2010, Nickelberry filed a written Marsden motion alleging that counsel failed to: 1) communicate with him; 2) perform adequate investigation; 3) prepare and present an affirmative defense; 4) secure expert witnesses; 5) prepare and file motions; 6) impeach prosecution witnesses; 7) present evidence at motion hearings; and 8) declare prejudice due to his alleged role as a surrogate prosecutor against Nickelberry's interests. That same day, the court denied the motion as untimely.
Two days later, a different trial judge heard Nickelberry's renewed Marsden motion in a closed courtroom. That judge also allowed Nickelberry to explain at length his reasons for seeking new counsel. At the conclusion of the hearing, the court denied the motion on the merits. Nickelberry indicated that he did not wish to file a Faretta  motion to dismiss counsel and represent himself.
On July 1, 2010, Nickelberry proceeded to jury trial. The following day, the jury found Nickelberry guilty of counts 1 through 4 and found true the fire enhancement allegation. Immediately thereafter, the bifurcated prior conviction allegation was tried to the court, and the court found the allegation true. The court subsequently sentenced Nickelberry to an aggregate term of 26 years and 4 months in state prison.
Through counsel, Nickelberry appealed his conviction, arguing that: 1) trial counsel was ineffective for failing to move to suppress items seized from the home where he was found; 2) trial counsel was also ineffective for not moving to suppress evidence seized from his truck; 3) trial counsel was likewise ineffective for failing to move to exclude a one-on-one show-up identification; 4) trial counsel failed to meaningfully cross-examine prosecution witnesses; 5) trial counsel delivered a constitutionally-ineffective closing argument; 6) the trial court erred in denying his motions to substitute counsel; 7) the trial court erred by denying him a continuance to retain private counsel; 8) the court erred by admitting as an exhibit a photograph of his truck; 9) the prosecutor committed misconduct by eliciting testimony about Nickelberry's unemployment; 10) the prosecutor engaged in misconduct by attempting to lessen the prosecution's burden of proof and eliminate the presumption of innocence; 11) the prosecutor's closing argument regarding Nickelberry's connection to the truck constituted misconduct; 12) his conviction should be reversed due to cumulative error; and 13) his imposed sentence violates the prohibition against cruel and unusual punishment.
The Court of Appeal affirmed the judgment of conviction in an unpublished, reasoned opinion issued on April 25, 2012. Nickelberry, 2012 WL 1427376, at *19. Counsel for Nickelberry petitioned for review in the California Supreme Court, raising his Marsden and prosecutorial misconduct claims. The Supreme Court denied the petition without comment on July 25, 2012.
On June 12, 2012, Nickelberry filed in the California Supreme Court a counseled petition for a writ of habeas corpus. The petition raised the remaining claims he unsuccessfully raised before the Court of Appeal-ineffective assistance of counsel, evidentiary error, error in denying a continuance, and cumulative error-and reasserted to the Supreme Court his claims that the trial court erred in denying his Marsden motions and the prosecutor committed misconduct. The California Supreme Court summarily denied the petition on July 25, 2012.
Nickelberry timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on May 1, 2013.
In his pro se Petition, Nickelberry raises the 13 claims that he unsuccessfully raised on direct appeal, namely that: counsel rendered ineffective assistance (claims 1 through 5); the trial court erred in denying his motions to substitute counsel (claim 6) and for a continuance (claim 7) and in admitting an exhibit that lacked foundation (claim 8); the prosecutor committed misconduct (claim 9 through 11); his conviction should be reversed due to cumulative error (claim 12); and his sentence constitutes cruel and unusual punishment (claim 13).
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Nickelberry has not replied to Respondent's answer. The relevant statute provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248; see also Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict the allegations of the return, the court must accept those allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
A. Ineffective Assistance of Counsel (Claims 1 through 5)
Nickelberry first claims that his trial counsel rendered constitutionally-inadequate assistance in a number of respects.
1. Strickland Standard on Habeas Review
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment." Id. The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Thus, Nickelberry must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985).
An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding: The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable-a substantially higher threshold." And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
It is through this highly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d) standard. See Knowles, 556 U.S. at 123 (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
2. Failure to Suppress Tangible Evidence (Claims 1 and 2)
Nickelberry claims that defense counsel should have filed motions to suppress evidence found at both the house where he was apprehended and in his truck. In considering this claim on direct appeal, the Court of Appeal laid out the following facts:
At the preliminary hearing, a police officer testified that he received a description of the vehicle in which the robbery suspect fled, and he located a vehicle matching that description parked in the neighborhood. A resident near where the vehicle was parked told the officer that the vehicle's owner had entered a nearby house. The officer requested additional units, set up a perimeter around the house, and called the occupants out of the house using an intercom system. A woman described by the officer as "[t]he actual homeowner, an elderly black female" (Jennifer Banks) came out of the house, and told the officer that [Nickelberry] was still in the home. Banks also told the officer that [Nickelberry] had arrived at her home 15 minutes before she spoke to police, and that he was carrying a brown briefcase when he arrived.
The officer testified that "[a]fter [Nickelberry] came out [of the house], we then continued to announce and then we were confident that, um, there was potentially no one else in the house, we went in and searched the house for additional suspects; cleared the house." He further testified that, following the issuance of a search warrant, the officer searched a brown briefcase identified by Ms. Banks as belonging to [Nickelberry], and found a sawed-off shotgun inside that matched the description of the weapon used during the robbery.
On cross-examination, defense counsel asked, "When you went into the house the first time, was that done by the permission of Ms. Banks?" The officer answered, "Yes, it was."
Witnesses told the police officer who responded to the pizza restaurant that the suspect had fled in a silver, older model Ford pickup truck. The officer searched the neighborhood and found a vehicle matching that description. The license plate did not belong to the vehicle, but a check of the truck's vehicle identification number showed that the truck was registered to [Nickelberry]. A picture of the truck admitted at trial revealed a hat matching the description of the one worn by [Nickelberry] during the robbery, and the hat found in the truck also was admitted into evidence.
Nickelberry, 2012 WL 1427376, at *2-3.
With respect to the items found at the house, the appellate court concluded:
[T]he testimony above demonstrates that such a challenge would have lacked merit, because police initially searched the home with the consent of the homeowner. "With regard to a warrantless search of property, it is well settled that such is reasonable under the Fourth Amendment where proper consent is given." ( People v. Oldham (2000) 81 Cal.App.4th 1, 9; see also People v. Carr (1972) 8 Cal.3d 287, 298 [search not unreasonable when made with consent of third party whom police reasonably and in good faith believe has authority to consent].) Once they saw the briefcase suspected to be connected to [Nickelberry] in the course of the lawful search, the police obtained a search warrant before seizing and searching it. We agree with respondent that all these facts support a finding that the search of the house, as well as the search and seizure of the briefcase, was lawful, and that defense counsel was not obligated to make a meritless motion to suppress. ( People v. Catlin (2001) 26 Cal.4th 81, 163.)
Id. at *2.
The Court of Appeal likewise rejected the claim that counsel should have moved to suppress evidence from the truck after finding that the record did not indicate why counsel acted or failed to act in the manner challenged and counsel's approach could have been a reasonable, tactical decision. Id. at *3. The appellate court further concluded that Nickelberry failed to establish prejudice because he could not demonstrate a reasonable probability that, but for counsel's failure to file such a motion, the result of the trial could have been different. Id. It reasoned:
The pizza restaurant employee positively identified [Nickelberry] both on the day of the robbery and at trial, and the restaurant customer whose cell phone was taken said that, although he was "not a hundred percent on [his] identification, " [Nickelberry] looked like the person who robbed him. The jury also heard testimony that the gun located in the home where [Nickelberry] was found was connected to him, and that it matched the description of the gun used during the robbery. Police also recovered the cell phone taken during the robbery at the home where [Nickelberry] was found. Even absent testimony regarding the contents of [Nickelberry's] truck, there is no reasonable probability that [Nickelberry] would have been acquitted.
With respect to the evidence obtained from the home, the Court of Appeal's conclusion that the officers obtained from the homeowner valid consent to search the home was not an unreasonable determination of the facts. The United States Supreme Court held in Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973), that the voluntariness of consent "is a question of fact to be determined from all the circumstances." The Court of Appeal reviewed the circumstances surrounding the alleged consent and found the consent to be voluntary. That determination was not unreasonable. Because the officers lawfully entered the home and obtained a search warrant before seizing and searching the briefcase found within it, it would have been futile for Nickelberry's counsel to move to suppress the evidence seized as a result of that search. Thus, counsel was not ineffective for failing to present such a motion. Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (failure to raise a meritless argument does not constitute ineffective assistance).
Likewise, the appellate court's rejection of Nickelberry's claim regarding evidence seized from the truck was reasonable. There is no evidence in the record that the officers conducted a warrantless search of the vehicle. Even assuming that the police searched the truck without a warrant, the record indicates that such search was proper. Probable cause exists if "there is a fair probability that contraband or evidence of a crime will be found in a particular place, " based on the totality of circumstances. Dawson v. City of Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). This "merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief' that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false." Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). Here, the vehicle was registered to Nickelberry and, once the employee identified Nickelberry as the robber, the police had ample cause to believe that the vehicle had been used in the robberies.
Moreover, the Court of Appeal's determination that Nickelberry failed to demonstrate prejudice is also reasonable. As the Court of Appeal observed, given the evidence against Nickelberry, it was not unreasonable for the state court to conclude that, had counsel successfully moved to exclude the cap found in the truck, the result of the proceeding would have been different. Under these circumstances and given the deference afforded the state court's determination, this Court does not find unreasonable the state court's conclusion that Nickelberry was not prejudiced by counsel's failure to suppress the evidence seized from the truck. Accordingly, Nickelberry cannot prevail on his claims that trial counsel should have moved to suppress the tangible evidence.
3. Failure to Suppress Show-Up Identification (Claim 3)
Nickelberry likewise contends that counsel was ineffective for failing to move to suppress the employee's in-court identification based on a suggestive field show-up. On direct appeal, the Court of Appeal noted:
The pizza restaurant employee testified at the preliminary hearing that about 30 to 40 minutes after the robbery, he was taken to view a suspect. The employee viewed [Nickelberry] standing about 20 to 30 feet away, during daylight hours. [Nickelberry] was in handcuffs, standing outside a police car with two or three police officers next to him, and [Nickelberry] was the only suspect the restaurant employee was asked to view. At trial, the employee testified that he viewed [Nickelberry] about an hour after he was robbed, and that he identified [Nickelberry] as the person who committed the crime.
Nickelberry, 2012 WL 1427376, at *4.
It ultimately rejected Nickelberry's claim after concluding that there was insufficient evidence in the record to demonstrate that the show-up identification was unduly suggestive. Such a determination constitutes a decision on the merits. See Phelps v. Alameida, 569 F.3d 1120, 1126 n.8 (9th Cir. 2009) (rejection of claim for failure to state prima facie case constitutes denial on the merits of the claim).
Evidence derived from a suggestive pretrial identification procedure may be inadmissible if the challenged procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." See Simmons v. United States, 390 U.S. 377, 384 (1968). To determine the admissibility of identification testimony, courts use a two step analysis. United States v. Love, 746 F.2d 477, 478 (9th Cir. 1984). First, they determine whether the identification procedure was impermissibly suggestive. Id. Each case must be considered on its own facts, and whether due process was violated depends on the totality of the surrounding circumstances. Simmons, 390 U.S. at 383-84. If the court finds that a challenged procedure is not impermissibly suggestive, the due process inquiry ends. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985). However, if a court finds that the procedure was impermissibly suggestive, it then determines whether the identification was nevertheless reliable under the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Love, 746 F.2d at 478.
The factors to be considered in evaluating the reliability of an identification after an impermissibly suggestive identification procedure include:
 the opportunity of the witness to view the criminal at the time of the crime,  the witness' degree of attention,  the accuracy of the witness' prior description of the criminal,  the level of certainty demonstrated by the witness at the confrontation, and  the length of time between the crime and the confrontation.
Biggers, 409 U.S. at 199-200. These five indicia of reliability must be balanced by the reviewing court against the corrupting effect of the suggestive pretrial identification procedure to determine whether the in-court identification should have been admitted. Manson v. Braithwaite, 432 U.S. 98, 114 (1977). In a motion to suppress, the defense bears the burden to show the unconstitutionality of the identification procedure. See People v. DeSantis, 831 P.2d 1210 (Cal. 1992).
Again, to prevail on a claim of ineffective assistance of counsel predicated on counsel's failure to file a motion to suppress evidence, a petitioner must establish both that the motion would have been meritorious and a reasonable probability that the jury would have reached a different verdict absent the introduction of the evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003). Nickelberry does not do so here because he fails to demonstrate that the field show-up identification procedure was impermissibly suggestive or unreliable given the totality of the circumstances.
First, the mere fact that the employee identified Nickelberry in a one-person field show-up did not itself render such identification invalid or inadmissible. See United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996). Nor does the fact that petitioner was obviously in police custody. See, e.g., id. at 1209-10 (upholding show-up of defendant standing by side of road near police officers who were holding robber's wig, hat and sunglasses); Bagley, 772 F.2d at 492-93 (upholding identification at show-up where defendant was seated in police car, handcuffed, and surrounded by police). And as the Court of Appeal concluded, none of the arguments Nickelberry advanced on appeal regarding the alleged suggestiveness of the show-up were supported by the record.
Moreover, even assuming that the show-up was impermissibly suggestive, Nickelberry's claim fails because the record supports the conclusion that the field show-up identification was nevertheless reliable under the totality of the circumstances. Here, the employee identified Nickelberry within an hour of the robbery. His testimony indicates that he had ample time to observe Nickelberry, who had been in the pizza restaurant for approximately 15 minutes before the robbery. Again, there is no evidence in the record supporting Nickelberry's assertions on direct appeal that police officers acted improperly or otherwise coerced a positive identification.
In light of the foregoing, there is no reasonable probability that a motion to suppress the field show-up identification and its potential fruits would have succeeded. Nickelberry is therefore not entitled ...