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Berry v. McDonald

United States District Court, E.D. California

March 26, 2015

SPENCER E. BERRY, Petitioner,
McDONALD, Warden, Respondent.


BARBARA A. McAULIFFE, 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. Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on May 31, 2012, and on behalf of Respondent on September 26, 2012. Pending before the Court is the petition for writ of habeas corpus, which was filed on May 18, 2012, and transferred to this Court on June 1, 2012. Respondent filed an answer on October 4, 2012, and Petitioner filed a traverse on October 26, 2012. A supplemental answer was filed on November 24, 2014, and a supplemental traverse on January 13, 2015.

I. Jurisdiction

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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

The challenged judgment was rendered by the Superior Court of the State of California, County of Stanislaus (SCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights. Accordingly, the Court concludes that it has jurisdiction over the subject matter of the action 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 only 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. ___, ___, 131 S.Ct. 13, 16 (2010) (per curiam).

An answer was filed on behalf of Respondent Warden Mike McDonald, who, pursuant to the judgment, had custody of Petitioner at his institution of confinement at the time the petition and answer were filed. (Doc. 18.) 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).

Accordingly, the Court concludes that it has jurisdiction over the person of the Respondent.

II. Background

On July 9, 2009, Petitioner was convicted by jury trial in the SCSC of feloniously inflicting cruel corporal punishment and injury on a thirteen-year-old child in violation of Cal. Pen. Code § 273d(a). In a bifurcated proceeding on July 10, 2009, the trial court found true allegations that Petitioner had a prior serious felony conviction for attempted robbery within the meaning of Cal. Pen. Code §§ 664, 211, and 667(d). The court also found true a prior prison term enhancement within the meaning of Cal. Pen. Code § 667.5(b). On December 3, 2009, the court sentenced Petitioner to prison for the middle term of four years, doubled that term to eight years pursuant to the Three Strikes Law, and added a consecutive term of one year for the prior prison term enhancement. Petitioner's total sentence was nine years. (Amended ans., exh. A, doc. 19-1, 3.)

Petitioner appealed the judgment, but his conviction was affirmed, and numerous petitions for habeas corpus relief filed in the state courts were denied.

On June 5, 2012, this Court dismissed without leave to amend Petitioner's state claims, including his challenges to the adequacy of his counsel's assistance based on the California constitution; his contention that the state court erred in its application of the state sentencing laws because Petitioner actually had only one prior "strike" with a current conviction for a non-violent, non-serious offense, which did not warrant a doubled term; a challenge to the authenticity of photographs that had been considered in proceedings in the trial court, which constituted a claim of error concerning the trial court's ruling on a state law issue of authentication of evidence; and a claim of bias of a state court judge in state collateral review proceedings (as distinct from his claim of a biased tribunal during trial court proceedings). (Doc. 8.)

II. Standard of Decision and Scope of Review

Title 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 distinct from 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 then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. 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. In order 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. Further, 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 under section 2254(d)(1) 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.

Title 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 that was on the merits and was 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). For relief to be granted, a federal habeas court must find that the trial court's factual determination was such that a reasonable fact finder could not have made the finding; that reasonable minds might disagree with the determination or have a basis to question the finding is not sufficient. Rice v. Collins, 546 U.S. 333, 340-42 (2006).

To conclude that a state court finding is unsupported by substantial evidence, a federal habeas court must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record. Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004). To determine that a state court's fact finding process is defective in some material way or non-existent, a federal habeas court must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact finding process was adequate. Id. at 1000.

With respect to each claim, the last reasoned decision must be identified in order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d). 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). 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).

Where the state court decides an issue on the merits, but its decision is unaccompanied by an explanation, a habeas petitioner's burden must be met by showing that here was no reasonable basis for the state court to deny relief. Harrington v. Richter, 131 S.Ct. 770, 784. In such circumstances, this Court should perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Medley v. Runnels, 506 F.3d 857, 863 n.3 (9th Cir. 2007), cert. denied, 552 U.S. 1316 (2008); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Independent review is not the equivalent of de novo review; rather, the Court must still defer to the state court's ultimate decision. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

However, the deferential standard of § 2254(d) applies only to claims that have been resolved on the merits by the state court. If a claim was not decided on the merits, then this Court must review it de novo. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004). The deferential standard of § 2254(d) sets a substantially higher threshold for relief than does the standard of de novo review, which requires relief for an incorrect or erroneous application of federal law. Renico v. Lett, 559 U.S. 766, 773 (2010).

III. Biased Tribunal

Petitioner alleges that he suffered a denial of his rights to due process and a fundamentally fair trial because of the absence of an impartial tribunal. Petitioner alleges that the trial judge was biased because he denied Petitioner's habeas corpus petition even though an unspecified pleading contained accusations that the same judge was guilty of bias and prejudice; ordered Petitioner to pay $1500.00 in restitution without holding a hearing on ability to pay (which was reversed on appeal); and denied Petitioner's motions to set aside the verdict, for a new trial, to strike a prior conviction pursuant to Cal. Pen. Code § 667(d), to substitute counsel, and for bail pending appeal. Petitioner further alleges that the trial court had concluded that Petitioner was dangerous and thus prejudged the issue of bail. (Doc. 1 at 18.)

A. Procedural Default

Respondent contends that this Court should not review Petitioner's bias claim because of Petitioner's procedural default in the state court.[1] Respondent argues that the state court's reliance on the successive nature of Petitioner's applications in post-conviction collateral proceedings constitutes an independent and adequate state ground for denying Petitioner's claim and thus precludes review by this Court. (See LD 15, LD 14-LD 23.) However, Respondent acknowledges that it appears that the state court might have passed on the merits of Petitioner's claim. (Doc. 19, 36-37.) Respondent contends that in any event, Petitioner has not shown that the state court's denial of his claim was contrary to, or an unreasonable application of, any Supreme Court precedent. (Doc. 19, 37.)

A procedural default is not jurisdictional. Trest v. Cain, 522 U.S. 87, 89 (1997). Instead, it proceeds from concerns of comity and federalism because a prisoner's failure to comply with a state's procedural requirement for presenting a federal claim has deprived the state courts of an opportunity to address the claim in the first instance. Coleman v. Thompson, 501 U.S. at 831-32. In a habeas case, it is not necessary that the issue of procedural bar be resolved if another issue is capable of being resolved against the petitioner. Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Likewise, the procedural default issue, which may necessitate determinations concerning cause and miscarriage of justice, may be more complex than the underlying issues in the case. In such circumstances, it may make more sense to proceed to the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). The Court will proceed to consider the merits of Petitioner's claim in the interest of economy.

A fair trial in a fair tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955); see Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). Fairness requires an absence of actual bias and of the probability of unfairness. In re Murchison, 349 U.S. at 136. Bias may be actual, or it may consist of the appearance of partiality in the absence of actual bias. Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995). A showing that the adjudicator has prejudged, or reasonably appears to have prejudged, an issue, is sufficient. Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992).

However, there is a presumption of honesty and integrity on the part of decision makers. Withrow v. Larkin, 421 U.S. 35, 46-47 (1975). Further, opinions formed by a judge on the basis of facts introduced or events occurring in the course of the current proceedings do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky v. United States, 510 U.S. 540, 555 (1994). Thus, stern and even short-tempered efforts at courtroom administration, and judicial remarks during the course of a trial that are critical, disapproving, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. at 555-56. Likewise, "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women... sometimes display" do not establish bias. Id.

Here, there is no basis for concluding that any bias or prejudice entered into, or had any effect on, the judge's rulings. The fact that the trial court may have made a procedural error concerning the setting of restitution or entered numerous rulings against Petitioner in the course of motion proceedings does not overcome the presumption where, as here, the trial court considered the pertinent pleadings and papers, held hearings on Petitioner's various motions, and made appropriate rulings. (RT 1-10, 12-24, 220-29, 302; CT 36, 132 147, 177.) With respect to the motion for bail pending appeal, the trial court had presided over all the evidence admitted at trial and had sentenced Petitioner to a doubled middle term. In sentencing Petitioner, the court had relied on the vulnerability of the victim, the infliction of minor physical but considerable emotional injury, the absence of any provocation, Petitioner's active participation, Petitioner's failure to express remorse, and the danger that the court concluded that Petitioner presented to the public safety. (RT 306.) It thus was not unreasonable after conviction and sentence for the court to inform Petitioner and his counsel with respect to the application for bail on appeal that Petitioner would have to show the court why Petitioner did not present a danger to society. (Doc. 1, 57-67.) In denying bail, the trial court expressly relied on 1) the fact that the violent commitment offense had occurred only several days after Petitioner had been released from custody, and 2) Petitioner's long criminal history. (Id. at 67.)

In summary, Petitioner has not shown that the trial court prejudged the case or reasonably appeared to have prejudged the case. Petitioner has not rebutted the presumption of regularity. Whether the claim is judged under the deferential standard of § 2254(d) or under the more demanding standard of de novo review, Petitioner has not shown a violation of his right to a fair and impartial tribunal. Cf. Knowles v. Mirzayance, 556 U.S. 111, 123-24 (2009).

Accordingly, Petitioner's due process claim concerning a biased tribunal will be denied.

IV. Prosecutorial Misconduct

Petitioner argues that two prosecutors (Arno and Rees) manipulated evidence, coerced witnesses, and knowingly presented the false testimony of witnesses by 1) questioning whether photographic exhibit number 1 was authentic and declining to vouch for its authenticity, and 2) presenting the testimony of minor witnesses M and T, despite the existence of evidence showing that the witnesses' testimony was not based on personal knowledge and thus was inadmissible hearsay. (Doc. 1, 19-20.) The evidence on which Petitioner relies includes a pretrial statement of M indicating that she did not recall seeing the striking of the victim, and preliminary hearing testimony of B, the victim, that after the attack, M and T had asked her what happened, and in response the victim had told them. Petitioner argues that the prosecution's failure to correct the false testimony of M and T denied Petitioner his right to due process of law protected by the Sixth and Fourteenth Amendments. (Id. at 20, 38-41.) Petitioner asserts that the prosecutors coerced the victim to testify that she was injured when at the preliminary hearing she in fact had testified that the only marks on her face were under her ear; when asked if she had a bump somewhere, she said she did on her forehead. (CT 18.) Petitioner alleges that none of the photographic evidence shows any bruises.

The SCSC denied habeas relief on this claim because an appeal was still pending; it then denied a later petition as successive and as raising a claim that could have been raised on appeal. (LD 7-LD 10.)

A. Background

A supplemental police report of Detective Dodge documents interviews of the minor witnesses conducted at their junior high school. T stated to Detective Dodge that he awoke in his bedroom when someone kicked his bed; he saw B, the victim, sitting up, and he saw Petitioner standing over the victim and punching her in the head. (Doc. 1, 48.) At trial, T testified that he saw Petitioner hitting B on the side of her face near her ear. (RT 88.)

M, T's sister, reported to Detective Hodge that she awoke to the sound of someone screaming. She then saw Petitioner standing above B, who was sitting up, covering her face. (Doc. 1, 49.) Although M recalled seeing Petitioner standing over the victim, she did not recall any punching. (Id. at 46-50.) At trial, M testified that she awoke because B was screaming. (RT 93-94.) She then saw B being struck on her head; then someone ran out of the room and closed the door. (Id. at 94.) M recalled seeing bruises on B's face the next day. M was cross-examined with respect to her statements at trial. (Id. at 95-96.)

B. Analysis

It is an established principle that due process is violated by a prosecutor's knowing use of false testimony, or failure to correct testimony known to be false, in order to secure a conviction. Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 215-216 (1942).

Likewise, it is clearly established federal law within the meaning of § 2254(d)(1) that a prosecutor's improper conduct violates the Constitution only if it so infects the trial with unfairness as to make the resulting conviction a denial of due process. Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2153 (2012) (per curiam); see, Darden v. Wainwright, 477 U.S. 168, 181 (1986); Comer v. Schriro, 480 F.3d 960, 988 (9th Cir. 2007). Prosecutorial misconduct deprives the defendant of a fair trial as guaranteed by the Due Process Clause if it prejudicially affects the substantial rights of a defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)). The standard of review of claims concerning prosecutorial misconduct in proceedings pursuant to § 2254 is the narrow standard of due process, and not the broad exercise of supervisory power; improper argument does not, per se, violate a defendant's constitutional rights. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (citing Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996)). This Court must thus determine whether the alleged ...

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