Vlahos-Schmidt v. Larkin

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Edward M. Chen, United States District Judge

         I. INTRODUCTION

         Ginger Vlahos-Schmidt filed this pro se action for a writ of habeas corpus under 28 U.S.C. § 2254. The Court issued an order to show cause why the writ should not be granted. Respondent has filed an answer and Ms. Vlahos-Schmidt has filed a traverse. For the reasons explained below, the petition will be DENIED.

         II. BACKGROUND

         A. The Crime

         On June 28, 2011, Ms. Vlahos-Schmidt stabbed her housemate, Zenon Lopata. At trial, Ms. Vlahos-Schmidt admitted stabbing Mr. Lopata, and the critical question was whether the stabbing was done in self-defense based on his behavior that day and on previous occasions. The California Court of Appeal described the evidence at trial about the household history and the criminal episode that led to Ms. Vlahos-Schmidt's conviction for assault with a deadly weapon:

The Prosecution’s Case

[Zenon] Lopata, defendant, and Alicia Brown shared a three-bedroom flat on the top floor of an old Victorian on the corner of East 15th Street and 24th Avenue in Oakland. Each roommate had his or her own bedroom and shared a common kitchen, living room, and hallway.

On February 20, 2011, Brown invited a group of musician friends to spend the night in the common area of the apartment. Lopata was unhappy about that and phoned the landlord from his room to complain. Defendant overheard the conversation and when he opened the door to his room, she stabbed him in the bicep with a pocket knife. He admitted pushing defendant, but denied slapping her in the face. The guests came to her defense, “beat[ing him] up and jump[ing] in [his] face.” Lopata called 911 three times and said his life had been threatened, but “nobody came.” Police dispatch evidence corroborated Lopata's calls.

There was also a dispute that day over vodka. Defendant had been drinking Lopata's vodka the day before and had promised to replace it the next day. Lopata asked defendant if she had replaced the vodka, and since she had not, Brown went out to get more.

For many weeks after that incident, there was no conversation or socializing between the three roommates, but by June 28, defendant and Lopata had begun talking again. Defendant had downloaded the television series “Weeds” on her laptop, and she offered to watch it with him. They plugged the computer into the television in his bedroom and watched the show for an hour and a half or two hours. He was in his chair eating and having “a few shots” while defendant sat on his bed drinking beer and vodka.

For some reason Lopata could not remember, a dispute arose and defendant punched him in the face. Defendant is a small woman, and he is 5 feet, 10 inches tall and weighs 220 pounds. She did not hit him very hard, but it was hard enough that he wanted the evening to be over. He pushed her out of his room and placed the laptop on the counter in the kitchen. She was not injured and went to her room.

About 10 or 15 minutes later, while he was hanging clothes in his room, he heard running steps and felt a big jolt in his back on the left side. He forcefully pushed her away from him and she fell to the ground against the heater and Alicia Brown's door. It is possible she could have been injured, but he did not see it because he was bleeding profusely and was in great pain as he knocked on Brown's door. He denied punching defendant in the face.

Defendant got up and ran away, yelling at Lopata that she was going to “call her friends at Hells Angels to have them kill me.” At that point, he saw the knife in her hand. Lopata could not find his cell phone and Brown refused to open her door, so Lopata called 911 from the manager's apartment downstairs. Evidence of the 911 call was presented. This time, the police came right away and he was transported to Highland Hospital by ambulance. Defendant was detained and disarmed of the knife outside the gate to the apartment building. Her nose was injured, and she was distraught. Photos taken of both defendant and Lopata at the scene were admitted into evidence.

Lopata acknowledged that defendant had accused him of throwing her down the stairs, tossing her out of a futon, and spanking her, but Lopata maintained, “that never happened.” He denied telling defendant “your time is coming to an end, darling. You're going to get what's coming to you.” He denied calling somebody on February 20 and saying, “you've got to come over here; we've got to kill these bitches.” He did admit throwing a slipper that defendant had left in his room down the hallway in her direction.

The Defense Case

.Defendant testified in her own behalf. Significantly, she testified to prior assaults and threats committed by Lopata. According to defendant, when she moved into the apartment in October 2010, Brown and Lopata already lived there. At first, they all got along well; she and Lopata cooked and ate together. Things began to change after a month. Lopata would get pushy and mad if defendant declined to drink with him. Lopata pretty much drank all day. He made mean, derogatory comments to defendant, argued with everything she said and put her down.

Once, in November or December 2010, for no apparent reason, Lopata overturned a futon while defendant was reclining on it. Lopata then went into his room and stayed there for the rest of the night. The next day Lopata apologized and acknowledged that his actions were “uncalled for.”

Another time, shortly before February 20, 2011, Lopata threw defendant onto the futon and spanked her when she refused to drink with him. Defendant talked to Brown, a few of her friends, and the landlord about this incident.

On February 20, 2011, defendant asked Brown to go to the store to get more vodka, because Lopata's vodka was running low and defendant was afraid he would get angry when he ran out of it. When Lopata ran out of vodka before Brown returned, he yelled at defendant, grabbed her arms, and brought her towards him really hard. Because she was afraid of defendant who was out of control, she had a pocket knife in her hands. When Lopata would not let go of her, she brought the knife down onto his arm. “[T]hen he let go” and pushed her away. Some musician friends of Brown were staying at the apartment at the time of this incident.

Defendant heard Lopata say several times that he was calling the police. She also overheard Lopata say to someone on the phone: “You need to get over here now. We need to kill a couple of these bitches over here. We have two bitches. We need to take care of them.” She told Brown to call the police and then waited outside with her son for the police to arrive for about 40 minutes. When no one came, defendant left with her son. She did not make a police report. After this incident, she asked the landlords to let her out of her contract, but they refused to do so.

Defendant was not on speaking terms with Lopata for many months after the February 20 incident. At some point, Lopata started making small talk with her when her son was visiting, and she was courteous to Lopata to keep the peace in front of her son.

Lopata kept asking defendant if she would let him watch the last season of the television series “Weeds” before the new season began, and on June 28 she agreed. She set up the computer and sat down to watch it with him for a few minutes before leaving to do something else, but he closed the door to his room after she sat down. She felt very uncomfortable with the door closed, but she “just played it off, ” talking to him for a few minutes before making an excuse to exit. She left and entered the room several times to “see where he was in the series, being courteous.”

Right before the incident, defendant left to smoke a cigarette outside on the balcony. It was raining, and she put on her jacket. In the jacket pocket was a knife she had put there earlier in the day when she went to a store in a dangerous part of the neighborhood to buy cigarettes. After smoking her cigarette for about five minutes, she went back inside to check on Lopata again. “As soon as I turned the corner to his room, he started punching me in the face[.]” Defendant was pinned against the door and could not move while he was hitting her. Defendant was scared, shocked, and in pain. She “didn't know if he was going to stop.” She pulled the knife out of her jacket pocket, “swung with it” just once with her right hand and connected. She was not aiming at any part of his body and could not see what she was doing because she “was being pummeled in the face.” When the knife connected with Lopata he stopped hitting defendant. Defendant testified on cross-examination that she stabbed Lopata in self-defense. She did not, however, call the police that night.

Defendant ran as fast as she could out the door, slipped on a towel Lopata kept outside his door, and hit the heater with her left shoulder and arm. She caught herself before she fell down and continued running out the front door with the knife and sheath in her hand. She got into her car and drove to a friend's house for help. The friend did not respond to her honking and yelling outside his house. She drove back to her apartment and parked the car in the secure parking area.

She was detained by police when she walked into the front yard of the apartment building. Defendant testified she had a broken nose, a lump on her forehead, a chipped and loose tooth, and a swollen face. Her eyes turned black the next day. She was taken by ambulance to the hospital. Defendant gave her statement to the police about what Lopata had done to her. However, at the hospital, “the woman” who arrested defendant said she did not write down defendant's statement; she just wrote that defendant wanted to wait until she spoke to an attorney.

Alicia Brown testified that on the night of June 28, she arrived home from work around 6:00 p.m. and heard defendant in Lopata's room. It sounded friendly. She went into her room and turned on her music. She did not see or hear the altercation.

Nor did Brown see the altercation between defendant and Lopata on February 20. However, she generally corroborated defendant's version of the events leading up to that altercation and its aftermath. In particular, she testified that while she and defendant were waiting for the police to arrive, Lopata told somebody on the phone, “You need to get over here. We need to kill these bitches.” Brown called 911 and left the apartment. The police responded two hours later. Brown also testified that while she never saw Lopata hit or hurt defendant, she was afraid of Lopata.

Defendant's former boyfriend testified as a character witness. In the eight or nine years he had known defendant, he had never known her to be physically assaultive or violent, even when she had too much to drink.

One of the visiting musicians testified about the confrontation between defendant and Lopata on February 20. Lopata became loud, rude and angry. Defendant was trying to calm him down and Lopata was yelling at her. Lopata pushed defendant forcefully into the wall. The visitor confronted Lopata about his behavior, but Lopata responded that he could do whatever he wanted to defendant because it was his house. The visitor did not see defendant stab Lopata in the arm.

People v. Vlahos-Schmidt, Cal.Ct.App. No. A133704, June 12, 2013 Opinion (“Cal.Ct.App. Opinion”) at 2-6.

         B. Procedural History

         Following a jury trial in Alameda County Superior Court, Ms. Vlahos-Schmidt was found guilty of assault with a deadly weapon, and was found to have inflicted great bodily injury. On October 28, 2011, she was sentenced to a total of five years in state prison, composed of the low term of two years for the assault and a consecutive three-year term for the great bodily injury enhancement.

         Ms. Vlahos-Schmidt appealed. The California Court of Appeal affirmed the judgment of conviction. The California Supreme Court denied her petition for review. Ms. Vlahos-Schmidt also filed unsuccessful state habeas petitions before filing this action.

         In her federal petition for writ of habeas corpus, Ms. Vlahos-Schmidt asserts the following claims: (1) the exclusion of some of her proposed testimony about a prior threat and prior violence by the victim violated her right to testify; (2) she received ineffective assistance of counsel; (3) the prosecutor engaged in misconduct in his closing argument; (4) cumulative error; and (5) ineffective assistance of appellate counsel.

         The Court issued an order to show cause why the writ should not be granted. Respondent has filed an answer and Ms. Vlahos-Schmidt has filed a traverse. The matter is now ready for a decision on the merits.

         III. JURISDICTION AND VENUE

         This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

         IV. STANDARD OF REVIEW

         This Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         The Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless 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).

         “Under the „contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

         “Under the „unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A federal habeas court making the „unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was „objectively unreasonable.'” Id. at 409.

         The state-court decision to which § 2254(d) applies is the “last reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). “When there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst, 501 U.S. at 803. The presumption that a later summary denial rests on the same reasoning as the earlier reasoned decision is a rebuttable presumption and can be overcome by strong evidence. Kernan v. Hinojosa, 136 S.Ct. 1603, 1605-06 (2016). Although Ylst was a procedural default case, the “look through” rule announced there has been extended beyond the context of procedural default and applies to decisions on the merits. Barker, 423 F.3d at 1092 n.3. In other words, when the last reasoned decision is a decision on the merits, the habeas court can look through later summary denials to apply § 2254(d) to the last reasoned decision.

         Section 2254(d) generally applies to unexplained as well as reasoned decisions. “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.” Harrington v. Richter, 562 U.S. 86, 99 (2011). When the state court has denied a federal constitutional claim on the merits without explanation, the federal 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 [the U.S. Supreme] Court.” Id. at 102.

         V. DISCUSSION

         A. Limitations On Testimony About Victim's Past Conduct

         1. Background

         At trial, a critical issue was whether Ms. Vlahos-Schmidt had acted in self-defense when she admittedly stabbed Mr. Lopata. The court allowed Ms. Vlahos-Schmidt to testify about several prior incidents of a threatening and violent nature, but refused to allow her to testify about two particular incidents. Ms. Vlahos-Schmidt contends in her federal habeas petition that the exclusion of this testimony violated her constitutional right to testify.

         Throughout trial, the parties focused on the history of altercations and arguments between Ms. Vlahos-Schmidt and Mr. Lopata that preceded the June 28th stabbing.^[1] After the cross-examination of Mr. Lopata, the prosecutor objected that defense counsel had been referring to more incidents than those that had been discussed during in limine proceedings where it had been determined which past incidents would be admitted in evidence. RT 90. The prosecutor wanted advance notice of events not previously discussed so their admissibility could be litigated before the evidence was presented to the jury, or he wanted the evidence excluded. RT 90-91. The trial court eventually ruled that the defense would be limited to presenting evidence about “the shoe issue, the spanking on the Futon, and the slapping in the face shortly before the February 20 incident.” RT 92-93. The trial court apparently based its ruling on state law requirements for reciprocal discovery and explained that the defense had not “made a motion to bring that [evidence] in. We just can't have random things coming in.” RT 93.

         The trial court's evidentiary ruling put limits on Ms. Vlahos-Schmidt's testimony because she was the only one, other than Mr. Lopata, who was present for two particular incidents. RT 93. Ms. Vlahos-Schmidt thus was not allowed to testify to an incident in November 2010 where Mr. Lopata “pushed [Ms. Vlahos-Schmidt] down the steps while they were smoking.” RT 93. And Ms. Vlahos-Schmidt was not allowed to testify to an incident in March 2011 in which Mr. Lopata told her, “„Your time is coming to an end, darling. You are going to get what you deserve.'” RT 184. (During his testimony, Mr. Lopata had denied that either incident occurred. RT 85, 88.)

         On appeal, Ms. Vlahos-Schmidt contended that the trial court's ruling excluding this evidence was an abuse of discretion and violated her federal constitutional right to testify. The California Court of Appeal agreed that there had been error, but found it harmless. The trial court had erred under state law because California law did not require the advance disclosure of a defendant's own statements. Cal.Ct.App. Opinion at 7. And the trial court erred because the introduction of this relevant evidence would not have caused an undue consumption of time. Id. at 8.

Evidence of Lopata's prior threats and acts of violence towards defendant were admissible and relevant to defendant's claim she acted in self-defense. “Of course, the right to present relevant testimony is not without limitation. The right „may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.' [Citation & fn. omitted.] But restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant's constitutional right to testify.” (Rock v. Arkansas, supra, 483 U.S. [44, 55-56 (1987)].) In our view, the court's response to defendant's proposed testimony that Lopata pushed her down the stairs and later threatened her life was disproportionate to the purposes served by Evidence Code section 352. In particular, the court abused its discretion when it prevented defendant from testifying that Lopata threatened her life, particularly after it permitted Lopata to deny he ever said, “[y]our time is coming to an end, darling. You are going to get what you deserve.”

Defendant maintains the error was prejudicial under Chapman v. California (1967) 386 U.S. 18 (Chapman) and requires reversal, but after careful review of the entire record, we do not agree [that the error was not harmless]. In fact, the court did allow the jury to consider a great deal of evidence of Lopata's prior violent behavior toward defendant which, if believed, could have supported an acquittal based on self-defense. Moreover, the court correctly instructed the jury on self-defense and antecedent threats, and evidence of one such threat was admitted. In addition, defendant testified at length about the injuries she suffered at Lopata's hands on June 28 and about the circumstances under which she stabbed Lopata in the back. Photos of both parties' injuries were admitted, as well as evidence of Lopata's 911 calls to police, and defendant's failure to call the police. “Under Chapman, the question is whether there is a reasonable doubt that the error contributed to the verdict.” (People v. James (2000) 81 Cal.App.4th 1343, 1362.) Here, we are convinced beyond a reasonable doubt the error did not contribute to the verdict because the excluded evidence was “unimportant in relation to everything else the jury considered on the question of the defendant's guilt, as revealed in the record.” (Ibid., citing Yates v. Evatt (1991) 500 U.S. 391, 403, italics added, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72–73, fn. 4.)

Cal.Ct.App. Opinion at 8-9.

         As the last reasoned decision from a state court, the California Court of Appeal's decision is the decision to which § 2254(d) is applied. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92. Ms. Vlahos-Schmidt is entitled to habeas relief only if the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law from the U.S. Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented.

         2. Analysis.

         The right to testify on one's own behalf at a criminal trial has sources in several provisions of the United States Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” Rock v. Arkansas, 483 U.S. 44, 51 (1987) (holding that Arkansas' per se rule excluding all hypnotically enhanced testimony was unconstitutional when used to restrict a defendant's right to testify). It is a fundamental Constitutional right. See Id . at 53 n.10. The harmless error standard applies if the court finds that the right to testify has been denied. See Martinez v. Ylst, 951 F.2d 1153, 1155 (9th Cir. 1991). That is, habeas relief is not available unless the error resulted in actual prejudice -- that it had a “„substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

         The California Court of Appeal impliedly held that the error by the trial court in limiting Ms. Vlahos-Schmidt's testimony was of constitutional magnitude when it applied Chapman's prejudice analysis, because Chapman “fashion[ed] a harmless-constitutional-error rule.” Chapman, 386 U.S. at 23. When, as here, the state court has found the error harmless, federal habeas relief is not available for the error “unless the harmlessness determination itself was unreasonable.” Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015) (emphasis in original). In other words, a federal court may grant relief only if the state court's harmlessness determination “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. (quoting Harrington v. Richter, 562 U.S. at 103). “A determination that the error resulted in „actual prejudice' Brecht, 507 U.S. at 637, necessarily means that the state court's harmlessness determination was not merely incorrect, but objectively unreasonable, Davis, 135 S.Ct. at 2198-99.” Mays v. Clark, 807 F.3d 968, 979-80 (9th Cir. 2015).

         At the outset, it is helpful to understand the significance of the evidence of the victim's prior acts in relation to the crime and defense offered at trial. That understanding is aided by a review of the self-defense jury instruction given in Ms. Vlahos-Schmidt's case, which correctly stated ...