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Whitaker v. Virga

United States District Court, E.D. California

March 13, 2015

MARCUS WHITAKER, Petitioner,
v.
WARDEN VIRGA, Respondent.

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF THE COURT TO SUBSTITUTE THE NAME OF JEFF MACOMBER FOR WARDEN VIRGA AS THE PROPER RESPONDENT

JENNIFER L. THURSTON, 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.

PROCEDURAL HISTORY

In 2008, Petitioner was convicted of first degree murder during the attempted commission of a robbery, attempted robbery, robbery, and being a felon in possession of a firearm. He was sentenced by the Merced County Superior Court to an indeterminate sentence of life without the possibility of parole. He remains in the custody of the California Department of Corrections and Rehabilitation. (Doc. 57, Ex. A).

Petitioner filed a direct appeal in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed Petitioner's conviction on June 8, 2010. (Doc. 57, Ex. A). Petitioner then filed a petition for review in the California Supreme Court that was summarily denied. (Lodged Document ("LD") 6).

Petitioner filed the instant petition which contained two unexhausted claims. Thus, the Court granted him leave to withdraw the unexhausted claims (Docs. 46; 47) and Petitioner proceeds here only as to the remaining claims. Respondent answered the amended petition[1] (Doc. 57) to which Petitioner filed his Traverse. (Doc. 62).

FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the 5th DCA's unpublished decision[2]:

After listening to music at a nightclub in Merced, Javier Mendoza, Antonio Miranda, and his brother Jose Miranda drove home and parked, and then "some guys jumped out, one on one side and two on the other, " from a car that parked behind them. A man with a rifle demanded money from Javier, who gave him the money from his wallet. The other two men demanded money from Jose, who yelled, "No money, no money." Shots rang out. The men drove off. Jose lay dying on the ground.
A jury found Marcus Dion Whittaker guilty of, inter alia, murder during the attempted commission of a robbery. On appeal, he argues an evidentiary issue, two instructional issues, and ineffective assistance of counsel. We affirm the judgment

(Doc. 57, Ex. A, pp. 2-3).

DISCUSSION

I. Jurisdiction

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, 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 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Merced County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d).

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 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his 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); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000).

In Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has "said time and again that an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "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 of fairminded disagreement." Harrington, 131 S.Ct. at 787-788.

The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "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." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

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, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

III. Review of Petitioner's Claims.

The petition alleges the following as grounds for relief: (1) denial of due process when the trial court admitted evidence of a prior uncharged robbery; (2) trial error in instructing the jury with CALCRIM No. 375 without also giving a specific limiting instruction on the use of the prior uncharged robbery; and (3) ineffective assistance of trial counsel in failing to request a specific limiting instruction regarding the prior uncharged robbery.

A. Admission of Prior Uncharged Robbery

Petitioner first contends that his due process right to a fair trial was compromised by the trial court's admission of evidence of a prior uncharged robbery. The Court disagrees.

1. The 5th DCA's Opinion.

The 5th DCA rejected Petitioner's claim as follows:

Whittaker argues that the admission of evidence of a prior uncharged robbery was an abuse of discretion and a denial of due process. The Attorney General argues the contrary. Before trial, Whittaker filed a motion, on the authority of Evidence Code sections 352 and 1101, subdivision (a), to "exclude prejudicial propensity evidence" of an armed robbery of a taco truck in Merced two days before the commission of the charged crimes. On the authority of Evidence Code section 1101, subdivision (b), the prosecutor filed a motion in limine to admit evidence of the crime on issues of motive, intent, and common plan or scheme. Whittaker filed supplemental points and authorities characterizing the evidence at issue as "inherently prejudicial."
At the hearing on the motions, the court disclaimed the possibility of admissibility on the issues of motive or intent and narrowed the inquiry solely to admissibility on the issue of common plan or scheme. The court noted "a good deal of similarity" between the two cases since both involved African-American perpetrators, Hispanic victims, and a firearm, occurred within only a day or two of each other, and shared two of the same perpetrators (one of whom was Whittaker). Characterizing the issue more as one of weight than of admissibility, the court noted "sufficient similarities" between the two crimes and, citing Evidence Code sections 352 and 1101, subdivision (b), found the prior more probative than prejudicial on the issue of common plan or scheme.
At trial, several witnesses, some testifying inconsistently, some testifying reluctantly, some testifying under grants of immunity, established, inter alia, that a woman who was paid to drive for a robbery took Whittaker and Raymond Brown, both African-Americans, both armed with firearms, to the taco truck where, with a gunpoint threat to "pop" someone if he did not cooperate, they took cash, clothing, jewelry, and other property from three Hispanic men. Police searching Whittaker's residence recovered property from the taco truck robbery.
As the last of those witnesses, a former detective, had almost finished testifying, Whittaker objected on the ground that the prosecutor's last question was "interfusing the current case with the prior." Sustaining the objection, the court characterized the prosecutor's question about "the robbery/homicide that these two men were involved in" as "threading [sic ] very dangerously close to jury confusion and prejudice." The prosecutor withdrew the question, both parties finished examining the witness, and the court, stating that the instruction the jury was about to hear would appear in the final instructions, too, read the following version of CALCRIM No. 3.75 modified to address common plan or scheme:
"The People have presented evidence that the defendant committed the offense of robbery that was not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the robbery.
"Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that ...

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