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Mullan v. Arnold

United States District Court, N.D. California

April 20, 2017

JACOB MULLAN Petitioner,
ERIC ARNOLD Respondent. EKANEM ESSIEN Petitioner,


          JAMES DONATO United States District Judge.

         Petitioners Jacob Christian Mullan and Ekanem Kufreobon Essien, currently in custody as California state prisoners, seek federal habeas relief under 28 U.S.C. § 2254(d) arising out of convictions at a joint trial. The requests are largely overlapping and the Court addresses both petitions in this order. They are denied.

         A California state jury convicted petitioners of forcible rape while acting in concert. The jury found gang enhancements based on affiliations with the “Fremont Mexican Territory” (FMT), a gang aligned with the Norteños. Essien was convicted of second-degree robbery and again sentenced with a gang enhancement. Braian Calvo, a third defendant who is not a petitioner here, was tried with petitioners and convicted of various counts and sentenced with gang enhancements.

         In a state court appeal, Essien and Mullan raised several alleged trial errors. The California Court of Appeal issued a reasoned decision rejecting all of petitioners' contentions. People v. Essien et al., No. A134046, 2013 WL 5838521 (Cal.Ct.App. Oct. 31, 2013).


         The material facts leading up to petitioners' convictions are undisputed. As the Court of Appeal recounted, in the early hours of January 29, 2011, pseudonymous victim Jane Doe got a call from a friend about a party at the home of an acquaintance, Eric Kuehn. Doe had been to Kuehn's house before, and went over. Essien, Mullan, and Calvo were at the party. Calvo, who was 18 years old at the time, “began flirting aggressively with Doe, ” but she rebuffed him because of his young age. Essien, 2013 WL 5838521, at *2. The party broke up while it was dark outside, and Kuehn suggested Doe stay until the sun came up. Doe and Kuehn watched television in his bedroom, where she had been before without incident. Essien, Mullan, and Calvo joined them.

         The appellate court described the rape in the bedroom and a subsequent assault:

Suddenly, Essien walked over and pushed Doe onto the bed. At first she thought he was playing, but Essien continued to hold her down as she told him to stop. Mullan pulled Doe's jeans and underwear down around her ankles. Essien began having sex with Doe while she resisted. Kuehn lay on the bed next to her, but did nothing; Mullan was behind Essien and held Doe's legs. After Essien raped Doe for a few minutes, Mullan stepped up to the foot of the bed and began having sex with Doe as she screamed and thrashed on the bed. Calvo, who was sitting on the futon, said, “That's what you get, bitch.” Kuehn told Mullan to stop because his parents would wake up, and Mullan stopped about a minute later. Doe got up, pulled up her pants, grabbed her purse and left the room. Kuehn opened the front door of the house for her and she walked outside.
Doe took her cell phone out of her purse to call her parents and was about to dial the number when the three defendants came up behind her. Essien punched her right eye, took her purse (which contained her cash and driver's license) and ran up the street. Calvo punched Doe in the left eye, took her phone and ran away. Doe looked at Mullan and said, “What the hell, ” and he ran off. Doe chased Calvo because she wanted her phone, and he punched her again in the left eye. She continued to chase him but gave up after he punched her in the left leg, causing her to fall.

         A married couple encountered Doe on the street and called 911. A police officer responded and Doe was taken to a hospital for care. A sexual assault response team nurse examined Doe and collected samples. A forensic analysis did not yield scientific evidence linking the petitioners to Doe.

         Doe initially did not cooperate with the police investigation, and did not tell them she had been at Kuehn's house. A few days after the incident, however, she advised a detective that “she had changed her mind and would cooperate, indicating she was afraid of retaliation because her assailants were in a gang.” Id. at *3. Doe identified Mullan, Essien, and Calvo in photographs and in person at trial.

         The district attorney charged Essien and Mullan with rape in concert under California Penal Code section 264.1(a), with an allegation the crime was committed for the benefit of a criminal street gang under section 186.22(b)(1). Essien and Calvo were also charged with second-degree robbery, again with a gang enhancement allegation under section 186.22(b)(1). Calvo was charged with assault by means of force likely to produce great bodily injury under section 245(a)(1), with a gang enhancement allegation.

         The trial court denied defendants' motion for separate trials and they were jointly tried before a single jury. All three defendants were convicted as charged and the gang enhancements alleged for each of them were found to be true. Essien was sentenced to 34 years and 4 months in prison, and Mullan was sentenced to 16 years in prison.

         Petitioners filed a direct appeal. The Court of Appeal denied all of petitioners' claims, including the claims that are now pending before the Court. The California Supreme Court summarily denied review.

         Mullan and Essien now contend that: (1) they were denied a fair trial by the joint trial; (2) they were denied a fair trial by admission of expert witness testimony on gangs; (3) there was insufficient evidence to support the gang enhancements for the sexual assault; and (4) the cumulative effect of these errors made the trial unfair. Essien brings additional claims alleging insufficient evidence to support the gang enhancement for the robbery and that his Faretta request to represent himself was improperly denied.


         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs federal habeas review and sets a high bar for petitioners to cross. Under AEDPA, a federal court may not grant a habeas petition for any claim that was adjudicated on the merits in state court unless that adjudication resulted in (1) 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) 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).

         For claims under the “contrary to” clause of section 2254(d)(1), “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 v. Taylor, 529 U.S. 362, 412-13 (2000). “[A]s the statutory language makes clear, ” under section 2254(d)(1), the “source of clearly established law” is restricted to the Supreme Court's jurisprudence. Id. at 412. The “unreasonable application” language in section 2254(d)(1) has been narrowly construed. Under controlling precedent, “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (emphasis in original; quoting Williams, 529 U.S. at 410). “If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” Id. at 102.

         For a state court's factual findings, section 2254(d)(2) “authorizes federal courts to grant habeas relief in cases where the state-court decision ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). A federal court “may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable.” Id. The same standard of unreasonableness applies under subsections (d)(1) and (d)(2) of section 2254. Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000). Section 2254(d)(2) also sets “a daunting standard -- one that will be satisfied in relatively few cases. Nevertheless, the standard is not impossible to meet.” Taylor, 366 F.3d at 1000; see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable”).

         The California Supreme Court summarily denied the petitions for review, and so the California appellate court's decision is reviewed here. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).


         I. JOINDER

         The appellate court upheld the denial of petitioners' motion to sever the trial. Essien, 2013 WL 5838521, at *6-9. Petitioners say this deprived them of a fair trial because it exposed the jury to evidence about events such as Calvo's hitting of the victim that would otherwise not have been presented. See Dkt. No. 2 at 52-53; Dkt. No. 3 at 35-36.

         No clearly established Supreme Court precedent addresses when a trial in state court must be severed for multiple defendants. Martinez v. Yates, 585 F. App'x 460, 460 (9th Cir. 2014). The Supreme Court noted in a footnote in United States v. Lane that “misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” 474 U.S. 438, 446 n.8 (1986). But the Ninth Circuit has held this footnote “does not qualify as clearly established federal law under federal habeas law.” Collin ...

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