Crawford v. F. Foulk

          ORDER

          EDMUND F. BRENNAN MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.^[1] 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.

         I. Background

         In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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 good look.

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 identification.

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).

         II. Standards of Review Applicable to Habeas Corpus Claims

         An 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).

         Title 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; 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.

         For 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 (2006).

         A state 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.^[2] 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.

         If the 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.”).

         The 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).

         Where 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.

         A 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. at 98).

         When it 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).

         III. Petitioner’s Claims

         A. Destruction of Evidence

         In his 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.

         1. Background

         In the 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 someone.

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 ...