United States District Court, E.D. California
F. BRENNAN MAGISTRATE JUDGE
is a state prisoner proceeding without counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He challenges a judgment of conviction
entered against him on May 23, 2012, in the Sacramento County
Superior Court on charges of second degree robbery with use
of a weapon. He seeks federal habeas relief on the following
grounds: (1) destruction of evidence by law enforcement
authorities violated his right to due process; (2) his trial
counsel rendered ineffective assistance; and (3) the trial
court’s admission into evidence of an inflammatory
photograph violated his right to due process. Upon careful
consideration of the record and the applicable law, the court
concludes that petitioner’s application for habeas
corpus relief must be denied for the reasons discussed below.
unpublished memorandum and opinion affirming
petitioner’s judgment of conviction on appeal, the
California Court of Appeal for the Third Appellate District
provided the following factual summary:
In May 2012, a jury found defendant Erin Crawford guilty of
second degree robbery, during which he personally used a gun.
The trial court sentenced him to 12 years in state prison.
Defendant's focus on appeal centers on a photographic
exhibit of him, in which he appears to be holding a gun. He
contends the trial court abused its discretion under Evidence
Code section 352 in admitting the photo into evidence, and
trial counsel was ineffective for failing to argue other
bases for excluding it. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2009, the pregnant victim and her husband had
returned to their home after an outing at about 9:45 p.m.
They parked the car in their stall immediately in front of
their apartment, and began to unload the trunk. As her
husband handed her purse to the victim, two men approached
them from behind. Both were masked. One of them snatched the
purse from the victim with sufficient force to bruise the
shoulder on which she had started to place the strap. The
robber holding the purse jumped over a nearby fence. The
remaining robber was unsuccessful in his first attempt to
scale the fence. As the husband started to approach him, the
second robber pulled up his shirt. The victim heard him tell
her husband that he had a gun, but did not see one. Her
husband, who did not recall either of the robbers saying
anything, could see what appeared to be a
“silver-looking gun” (of the type that loads from
the bottom with a magazine and has a slide on the top) tucked
into the second robber's waistband. The second robber
pulled it out slightly, indicating that the husband should
not pursue him. The armed robber then successfully jumped
over the fence.
Neither the victim nor her husband could identify the robbers
because of the masks. To the husband, the first robber
appeared thinner and the second appeared out of shape. The
purse-snatcher was about six feet tall, and the armed robber
was a couple of inches shorter. The husband had been
approached a couple of days earlier out of the blue by a
couple of Latino neighbors when he was outside, who had
engaged him in what he thought was a “suspicious”
conversation. Because he saw these neighbors drive away at a
high rate of speed after the robbery, he initially described
the robbers as being Latino during the 911 call. (These
neighbors actually were Indian, and were in fact attempting
to chase down the robbers, but lost them in the darkness of a
field.) However, in talking to the police later, the husband
“was pretty positive” the robbers were “two
Black males” because “their hands look[ed]
dark.” The victim also saw dark skin through the
eyeholes of the masks. Although she could not identify
defendant in court as one of the robbers, she thought his
eyes protruded in a similar fashion to one of the robbers.
The victim had run away, screaming for help while dialing 911
on her cell phone. One of the neighbors was standing outside
talking on his cell phone when she caught his attention.
Based on the skin color of their exposed wrists, he believed
the robbers were “two Black males.” Before the
second robber had vaulted the fence, he removed his mask and
the neighbor could see his face momentarily, and his
dreadlocked hair. He was about 100 feet away. However, as he
admitted to the police, it was dark and he could not get a
On their return, the Indian neighbors found a cell phone at
the base of the wall where the robbers had scaled it. They
gave it to the police, who were talking to the neighbor who
had seen the one robber's face. The neighbor looked at
the cell phone's “wallpaper” and recognized
it as a picture of the robber he had just seen. The neighbor
later selected defendant's picture in a photo lineup that
police had prepared after identifying defendant as the person
owning the phone; the neighbor was 60 percent certain of the
In examining the Kyocera cell phone, the police determined
there had been an exchange of calls between defendant and his
then-girlfriend shortly before the robbery. The girlfriend
also attempted to call the phone later on the night of the
robbery. There was a photo stored to the cell phone a week
earlier. It showed defendant holding what appeared to be a
silver gun. In the opinion of the investigating detective,
this was a real gun because a replica typically has a
different-colored tip, usually orange. She could not tell
from the picture if it was an “airsoft” gun (one
which fires air-pressured rounds).
When interviewed in October 2009, defendant asserted that he
had lost the cell phone soon after buying it. At trial,
defendant testified the lost phone was a different one. His
girlfriend had bought the recovered cell phone for him, and
had playfully seized it from him on the day before the
robbery. He believed it was still in her possession on the
day of the robbery, when he went to dinner and a movie with
his girlfriend and her family. The gun in the picture of him
was a BB gun that was in his girlfriend's possession;
just before taking the picture, she had pretended to threaten
to kill him with it if he ever were unfaithful to her. When
she saw that he took her seriously, she asked him to pose
with it because she found “bad boys” arousing.
She took the gun back after photographing him. Defendant
never felt the need to have his former girlfriend produce the
BB gun in his defense.
People v. Crawford, No. C071437, 2013 WL 6020805, at
**1-2 (Cal.Ct.App. 3rd Dist. Nov. 14, 2013).
Standards of Review Applicable to Habeas Corpus
application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted only
for violations of the Constitution or laws of the United
States. 28 U.S.C. § 2254(a). A federal writ is not
available for alleged error in the interpretation or
application of state law. See Wilson v. Corcoran,
562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S.
62, 67-68 (1991); Park v. California, 202 F.3d 1146,
1149 (9th Cir. 2000).
28 U.S.C. § 2254(d) sets forth the following standards
for granting federal habeas corpus relief:
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;
(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.
purposes of applying § 2254(d)(1), “clearly
established federal law” consists of holdings of the
United States Supreme Court at the time of the last reasoned
state court decision. Thompson v. Runnels, 705 F.3d
1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher,
___ U.S. ___, 132 S.Ct. 38 (2011); Stanley v.
Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Circuit court precedent “may be persuasive in
determining what law is clearly established and whether a
state court applied that law unreasonably.”
Stanley, 633 F.3d at 859 (quoting Maxwell v.
Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However,
circuit precedent may not be “used to refine or sharpen
a general principle of Supreme Court jurisprudence into a
specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 133 S.Ct.
1446, 1450 (2013) (citing Parker v. Matthews, 132
S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to
“determine whether a particular rule of law is so
widely accepted among the Federal Circuits that it would, if
presented to th[e] [Supreme] Court, be accepted as correct.
Id. Further, where courts of appeals have diverged
in their treatment of an issue, it cannot be said that there
is “clearly established Federal law” governing
that issue. Carey v. Musladin, 549 U.S. 70, 77
court decision is “contrary to” clearly
established federal law if it applies a rule contradicting a
holding of the Supreme Court or reaches a result different
from Supreme Court precedent on “materially
indistinguishable” facts. Price v. Vincent,
538 U.S. 634');">538 U.S. 634, 640 (2003). Under the “unreasonable
application” clause of § 2254(d)(1), 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. Lockyer v. Andrade, 538 U.S. 63,
75 (2003); Williams, 529 U.S. at 413; Chia v.
Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this
regard, 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.”
Williams, 529 U.S. at 412. See also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); Lockyer,
538 U.S. at 75 (it is “not enough that a federal habeas
court, in its independent review of the legal question, is
left with a ‘firm conviction’ that the state
court was ‘erroneous.’”). “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.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly,
“[a]s a condition for obtaining habeas corpus from a
federal court, a state prisoner 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.”
Richter, 562 U.S. at 103.
state court’s decision does not meet the criteria set
forth in § 2254(d), a reviewing court must conduct a de
novo review of a habeas petitioner’s claims.
Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.
2008); see also Frantz v. Hazey, 533 F.3d 724, 735
(9th Cir. 2008) (en banc) (“[I]t is now clear both that
we may not grant habeas relief simply because of §
2254(d)(1) error and that, if there is such error, we must
decide the habeas petition by considering de novo the
constitutional issues raised.”).
court looks to the last reasoned state court decision as the
basis for the state court judgment. Stanley, 633
F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). If the last reasoned state court
decision adopts or substantially incorporates the reasoning
from a previous state court decision, this court may consider
both decisions to ascertain the reasoning of the last
decision. Edwards v. Lamarque, 475 F.3d 1121, 1126
(9th Cir. 2007) (en banc). “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.” Richter, 562 U.S. at 99. This
presumption may be overcome by a showing “there is
reason to think some other explanation for the state
court’s decision is more likely.” Id. at
785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Similarly, when a state court decision on a
petitioner’s claims rejects some claims but does not
expressly address a federal claim, a federal habeas court
must presume, subject to rebuttal, that the federal claim was
adjudicated on the merits. Johnson v. Williams, ___
U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
the state court reaches a decision on the merits but provides
no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether
habeas corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“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, 336 F.3d
at 853. Where no reasoned decision is available, the habeas
petitioner still has the burden of “showing there was
no reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98.
summary denial is presumed to be a denial on the merits of
the petitioner’s claims. Stancle v. Clay, 692
F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal
court cannot analyze just what the state court did when it
issued a summary denial, the federal court must review the
state court record to determine whether there was any
“reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 98. This court
“must determine what arguments or theories ... 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 Supreme]
Court.” Id. at 102. The petitioner bears
“the burden to demonstrate that ‘there was no
reasonable basis for the state court to deny
relief.’” Walker v. Martel, 709 F.3d
925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S.
is clear, however, that a state court has not reached the
merits of a petitioner’s claim, the deferential
standard set forth in 28 U.S.C. § 2254(d) does not apply
and a federal habeas court must review the claim de novo.
Stanley, 633 F.3d at 860; Reynoso v.
Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph
v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Destruction of Evidence
first ground for relief, petitioner claims that the police
violated his right to due process by intentionally destroying
exculpatory evidence in the form of a videotape that may have
depicted the robbery of which he was convicted. ECF No. 1 at
7-10. The underlying facts of this claim can be understood by
a review of various parts of the state court record.
trial court, petitioner filed a pretrial motion “to
dismiss or for sanctions” based on “destruction
of evidence and denial of due process.”
Reporter’s Transcript on Appeal (RT) at 29. At the
hearing on that motion, petitioner’s counsel explained
the factual background, as follows:
On August 10th, 2009, these two folks reported having been
robbed. And initially the husband of the husband and wife
pair reported to 9-1-1- that he was robbed by two males he
believed to be Hispanic, believed them to be neighbors,
thought they were related to a burgundy sedan.
That same evening when interviewed by police, both the
husband and wife described the assailants as black men, made
no mention of any relationship to the car.
The following day, August 11th, the female victim’s
brother called law enforcement, reported that the suspects
were back again in the area where the cell phone was
recovered on the 10th, the night before, and appeared to be
looking as though they were looking for lost property.
Those two people were detained. They were Avinik And
Shwanneel Chand. During the course of that detention, neither
of the complaining witnesses were home.
There’s no indication that law enforcement made any
effort to contact Mr. Beazer, who is the other eyewitness,
but Officer Hall of the Sacramento Police Department did go
to the management of the apartment complex and was able to
view surveillance tape from the night before.
And the report indicates that Officer Hall reported that he
was able to verify that Avinik Chank was chasing after
It’s unclear from the information that we have, whether
or not Officer Hall saw a person or persons being chased or
if he saw Avinik ...