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Flowers v. Foulk

United States District Court, N.D. California

September 1, 2017

F. FOULK, Warden, Respondent.


          CLAUDIA WILKEN, United States District Judge

         Petitioner Joseph Flowers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state convictions of robbery and kidnapping. Respondent Fred Foulk filed an answer and Petitioner filed a traverse. Having considered the parties' papers, the record, and relevant authority, the Court DENIES the petition and rules on a number of associated requests as described herein.


         The underlying facts are restated in this Court's March 9, 2016 order granting in part Respondent's motion to dismiss. Docket No. 74.

         Petitioner filed this petition for writ of habeas corpus on February 7, 2014. On March 10, 2014, Petitioner filed a motion for a stay and abeyance of his petition so that he could exhaust in state court new grounds for his claim of insufficient evidence. The Court granted the motion on March 18, 2014, and stayed the petition. The California Supreme Court denied relief on April 9, 2014. On June 3, 2014, this Court lifted the stay and ordered Petitioner to file a Second Amended Petition.

         On August 22, 2014, the Court issued an order to show cause, in which the Court deemed the documents at Docket Numbers 25 and 27 together to constitute the operative petition and ordered Respondent to file an answer or motion to dismiss within sixty days.

         Petitioner's claims in the amended petition were as follows. Claim 1, ineffective assistance of counsel: (a) trial counsel was ineffective for failing to investigate victim Chen Wei's background; (b) trial counsel was ineffective for failing to move to dismiss the kidnapping count based on a discrepancy between the victim's name as listed on the information and the victim's own recitation of her name at trial; and (c) appellate counsel was ineffective for failing to raise on appeal the ineffective assistance of trial counsel. Claim 2, trial court errors in violation of due process: (a) the trial court failed to grant a mistrial after a prosecution witness revealed that Petitioner was a parolee at large; (b) after a prosecution witness testified, in violation of a pretrial exclusionary order, that Petitioner was a pimp, the trial court failed to admonish the jury to disregard the testimony; and (c) the trial court failed to issue a ruling on the defense's pretrial Aranda[1]/Bruton[2] motion. Claim 3, prosecutorial misconduct: (a) the prosecutor failed to disclose evidence relating to the credibility of Chen Wei; and (b) the prosecutor presented false evidence regarding the identity of the kidnap victim. Claim 4, denial of right to counsel: Petitioner was not allowed confidential visits with trial counsel at the county jail. Claim 5, actual innocence: (a) evidence of an alibi was not presented; and (b) evidence of the identity of the kidnap victim was insufficient to support the conviction of kidnapping for robbery. Claim 6: cumulative error: the cumulative effect of errors alleged in claims 1 through 5 violated due process.

         Respondent moved to dismiss claims 2(b), 4, and 5(b) as procedurally defaulted and claims 1(a)-(c), 3(b), and 6 as unexhausted. On March 9, 2016, the Court granted the motion in part and dismissed claims 2(b) and 4 as procedurally defaulted based on a rule from In re Dixon, 41 Cal.2d 756 (1953), which “prohibits California state courts from considering habeas claims that should have been raised on direct appeal but were omitted, ” Lee v. Jacquez, 788 F.3d 1124, 1126 (9th Cir. 2015). In the same order, the Court granted Petitioner's motion to withdraw claim 1(a) and the part of claim 1(c) relating to claim 1(a).

         On March 28, 2016, the Court granted in part Respondent's motion for leave to file a motion for reconsideration and permitted Respondent to submit supplemental briefing on whether claim 5(b) was procedurally defaulted. On May 4, 2016, in lieu of an answer, Respondent filed a motion to dismiss claims 1(b), the remainder of 1(c) and 3(b) as procedurally defaulted. On September 6, 2016, the Court granted Respondent's motions. The Court dismissed claims 1(b), 1(c), 3(b), and 5(b) as procedurally barred under In re Clark, 5 Cal.4th 750, 797-98 (1993) (invoking procedural bars of untimeliness and successiveness).

         Following these orders, Petitioner's remaining claims are 2(a), 2(c), 3(a), 5(a) and 6. On January 3, 2017, Respondent filed his answer. On February 2 and March 11, 2017, the Court granted Petitioner extensions of time to file his traverse. Petitioner has filed his traverse.[3]


         A federal court may entertain a habeas petition from a state prisoner “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). Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a district court may not grant habeas relief 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); Williams v. Taylor, 529 U.S. 362, 412 (2000).

         A state court decision is “contrary to” Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13. A state court decision is an “unreasonable application of” Supreme Court authority, that is, it falls under the second clause of § 2254(d)(1), if it correctly identifies the 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. The federal court on habeas review 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.” Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ. Id. at 409. Under AEDPA, the writ may be granted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         If constitutional error is found, habeas relief is warranted only if the error had a “substantial and injurious effect or influence in determining the jury's verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

         The court “look[s] through” unexplained state-court opinions on a habeas claim and applies the standard of § 2254(d) to the last “explained” state-court opinion absent “strong evidence” that a later unexplained opinion rested upon different grounds. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); see also Kernan v. Hinojosa, 136 S.Ct. 1603, 1605-06 (2016) (per curiam). The Supreme Court has directed that “[w]hen a federal claim has been presented to a state court and the state court has denied relief, ” even if the court gives no reasons for its decision, “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.” Johnson v. Williams, 568 U.S. 289, 298 (2013) (quoting Harrington, 562 U.S. at 99).


         I. Claim 2(a): The trial court refused to grant a mistrial on the basis of a witness' reference to Petitioner as a parolee at large.

         The last explained state court opinion on this claim is that of the California Court of Appeal. In dismissing this claim, that court reasoned as follows:

“We review a trial court's ruling on a motion for mistrial for abuse of discretion. [Citation.] Such a motion should only be granted when a defendant's ‘chances of receiving a fair trial have been irreparably damaged.' [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 128.) Even if prosecutorial misconduct is involved, this court will not reverse a conviction absent prejudice to the defendant. (See People v. Riggs (2008) 44 Cal.4th 248, 298 [under California misconduct law, no reversal unless “reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted”; under federal law, no reversal “unless the challenged action ‘“so infected the trial with unfairness as to make the resulting conviction a denial of due process”'”].) Thus, if “any reasonable jury would have reached the same verdict” even in the absence of Holton's statement, the trial court's ruling will stand. (People v. Bolton (1979) 23 Cal.3d 208, 214-215.)
We need not address whether prosecutorial misconduct occurred. No matter the answer to that question, the passing comment by Holton was cured by instruction and not prejudicial. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 554-555 [upholding the trial court's denial of a motion for mistrial, finding it “doubtful that any reasonable juror would infer from the [witness's] fleeting reference to a parole office that defendant had served a prison term for a prior felony conviction”].) The surveillance tapes, the testimony from Chen and Patterson, and the fingerprint evidence strongly support the jury's verdict and link defendant with the charged crimes. (See Id. at p. 555; cf. People v. Ozuna (1963) 213 Cal.App.2d 338, 341-342 [reversing denial of mistrial when defendant called “ex-convict” and the evidence of guilt was not “so strong as to preclude a finding of innocence”].) Further, the trial court admonished the jury to ignore Holton's statement, and we presume the admonition avoided prejudice. (People v. Bennett (2009) 45 Cal.4th 577, 612 [“We assume the jury followed the admonition and that prejudice was therefore avoided.”].)

People v. Flowers, No. A129473, 2012 WL 2168589, at *4 (Cal.Ct.App. June 15, 2012) (alterations ...

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