United States District Court, N.D. California
ORDER RE HABEAS CORPUS PETITIONS AND CERTIFICATES OF
APPEALABILITY RE: MULLAN, DKT. NO. 1, ESSIEN, DKT. NO.
DONATO United States District Judge.
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.
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.
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).
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.
appellate court described the rape in the bedroom and a
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.
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.
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.
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.
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.
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.
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.
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).
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.
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”).
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,
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.
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 ...