United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the amended petition filed July 20, 2012. (ECF No. 49-1 ("Ptn.").) Petitioner challenges his 2008 conviction for first degree murder and theft, for which he was sentenced to a prison term of life without the possibility of parole. (Id. at 5.)
Petitioner claims that: (1) because law enforcement officers obtained his statement in violation of his federal due process rights, the statement should have been suppressed; (2) he was denied his Sixth Amendment right to present a full defense when the trial court excluded exculpatory evidence; and (3) he was denied his Sixth Amendment right to effective assistance of trial counsel when his attorney failed to investigate and present a "diminished actuality" defense.
Respondent has filed an answer to the petition (ECF No. 59), and petitioner has filed a traverse (ECF No. 60-1). Upon careful consideration of the record and the applicable law, the court will recommend that the petition be denied.
In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, set forth the factual background as follows:
Defendants Gerald Howard and Carmel Murphy lured Donte Rogers to a park, shot him in the head and abdomen, and emptied the pockets of his pants. In a joint trial with separate juries, Howard was found guilty of first degree murder while lying in wait and misdemeanor petty theft, both while armed. Murphy was found guilty of first degree murder and robbery, both while armed.
FACTUAL AND PROCEDURAL BACKGROUND
About 10:30 p.m. one night in February 2005, Rogers drove Monica Bracamonte (who was the sister of Rogers's brother's girlfriend) to the store in his Cadillac to get some milk for Bracamonte's niece. At the store, Rogers received a phone call from Howard to pick him up at Howard's house and take him to the park to meet Howard's girlfriend. After picking up Howard, Rogers drove with Howard and Bracamonte to the park. At the park, Howard walked to a nearby building, talked on the phone for a few minutes, came back to the car, and asked Rogers to get out. Rogers complied, and he and Howard walked around the building out of Bracamonte's sight. Less than five minutes later, Bracamonte heard two gunshots.
About 10 minutes after the gunshots, Howard returned to the car with Murphy, and he asked Bracamonte to get out of the car. Thinking nothing of it, Bracamonte complied. Murphy got in the car where Bracamonte had been sitting. Howard told Bracamonte that Rogers wanted to speak with her. As Bracamonte walked to the building with Howard behind her, she heard a clicking noise and something fall to the ground. She turned around and saw Howard, who was now wearing gloves, pick up a gun off the ground and place it under his arm. He told her to go back to the car, and she complied.
Howard drove Rogers's Cadillac a couple blocks to where Murphy's Jeep was parked. Murphy got out of the Cadillac and into her Jeep. Murphy followed Howard as he dropped off Bracamonte at Bracamonte's sister's apartment. As Bracamonte got out of the Cadillac, she heard Murphy say, "Pop her too.'" When Bracamonte got to the apartment, she told her sister and Rogers's brother what had happened. Rogers's brother tried to call Rogers but received no answer.
Rogers's brother and Bracamonte's sister went to the park and found Rogers's dead body. He had been shot in the back of the head and in the abdomen. His pants were pulled down and one of his pockets turned inside out.
Howard and Murphy were arrested on February 10, 2005. They were interviewed by police separately and then placed in an interview room together.
Howard's defense was that he was the "duped pawn" and Murphy was the "queen." To support his defense, he introduced the testimony of Tawon Woodruff, who had met Howard on a number of occasions. According to Woodruff, Howard was "weak-minded, " unintelligent, and did things he did not want to do. Howard also introduced the testimony of his sister, Leslie Knight. According to Knight, Howard was slow to understand things and gullible.
People v. Howard, 2010 WL 54290 (Cal.App. 3 Dist. Jan. 8, 2010). The facts as set forth by the state court of appeal are presumed correct, 28 U.S.C. §2254(e)(1).
II. Procedural History
On March 20, 2008, following a trial, a jury in the Sacramento County Superior Court found petitioner guilty of first degree murder with special circumstance (Cal. Pen. Code § 187) and theft (Cal. Pen. Code § 484). (Ptn. At 5.)
Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District. (Ptn. At 6.) On January 8, 2010, the California Court of Appeal affirmed the judgment. (Id.) Petitioner then filed a petition for review in the California Supreme Court. On April 22, 2010, the California Supreme Court denied review. (Id.)
Proceeding pro se, petitioner commenced this federal action on April 13, 2011. (ECF No. 1.) Respondent filed an answer to the original petition. (ECF No. 16.) Along with his traverse, petitioner filed a motion for appointment of counsel. (ECF Nos. 17, 18.) The court appointed counsel for petitioner on August 26, 2011. (ECF No. 20.)
On July 20, 2012, petitioner through counsel filed a proposed amended petition and a motion to stay this action while he exhausted state remedies as to a new claim that trial counsel was ineffective in failing to present a "diminished actuality" defense. (ECF No. 49.) On September 27, 2012, the court granted petitioner's motion and administratively stayed this action pending the exhaustion of state remedies. (ECF No. 54.)
Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising the "diminished actuality" claim. (ECF No. 58.) Pursuant to a request by the state supreme court under Rule 8.385(b) of the California Rules of Court, both the state Attorney General's office and the Sacramento County Office of the Public Defender filed informal responses to the petition. (ECF Nos. 58-1, 58-2; see ECF No. 58-4 at 2.) Petitioner filed a reply to the informal responses. (ECF No. 58-3.) On August 14, 2013, the California Supreme Court denied the petition. (ECF No. 56-1.)
Two weeks later, the undersigned re-opened the instant federal action. (ECF No. 57.) Respondent filed an answer to the amended petition (ECF No. 59), and petitioner filed a traverse (ECF No. 60-1.)
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "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.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410 (2000). "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. 652, 664 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or... 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 in a prior decision of this Court." Id . "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id . Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[, ]" the Supreme Court has cautioned that "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. 63, 75 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002). Specifically, the petitioner "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." Harrington, supra, 131 S.Ct. at 786-787. Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
"When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits - but that presumption can in some limited circumstances be rebutted." Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). "When the evidence leads very clearly to the conclusion that a federal claim was inadvertently ...