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Garrett v. Beard

United States District Court, C.D. California

June 28, 2019

DAYMON C. GARRETT, Petitioner,
JEFFREY BEARD, Respondent.



         I. SUMMARY

         Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") and all of the records herein, including the February 6, 2019 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation" or "R&R") and petitioner's objections thereto filed on June 6, 2019 ("Objections"). The Court has made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge, and overrules the Objections. The Court has considered and overruled all of petitioner's objections, and discusses petitioner's principal objections herein.


         A. Petitioner's Objection to the Asserted Lack of Opportunity to File a Reply to the Answer

         Petitioner claims he was deprived of his statutory right to file a reply to the Answer because he assertedly did not receive respondent's Answer until after the Report and Recommendation was filed. (Objections at 2). The Answer bears a proper proof of service for petitioner's address on record at the time the answer was filed. Compare Answer at 105 with Docket No. 16 (petitioner's most recent filing prior to the Answer showing an address at California State Prison at Corcoran); Petition at 1 (listing same address). In any event, petitioner was aware by December of 2014, by virtue of service upon him and his presumed receipt of the Court's November 21, 2014 order granting respondent's final extension for filing the Answer (Docket No. 30), and the Court's December 8, 2014 order authorizing the filing of an oversized answer (Docket No. 35), that the Answer was due to have been filed on or about December 6, 2014. If petitioner did not receive the Answer, it does not bespeak diligence that petitioner did nothing to alert the Court to that fact or to inquire about why no answer was filed until after the Report and Recommendation was issued in February of 2019. The Court sent petitioner the Answer as soon as he advised he did not have the Answer (see Docket No. 42), extended petitioner's deadline to file objections to the Report and Recommendation on multiple occasions (see Docket Nos. 41-42, 45-48), and accepted petitioner's oversized Objections which the Court presumes contain any arguments petitioner wants the Court to consider in response to the Answer. Petitioner identifies no argument that he would have made in a response to the Answer that he has not also made in the Objections. Accordingly, the Court discerns no prejudice from petitioner's asserted failure timely to receive the Answer or asserted inability to file a separate reply addressing respondent's contentions.

         B. Petitioner's Objections to the Recommended Denial of his Claim under Batson v. Kentucky, 476 U.S. 79 (1986)

         Petitioner contends that the state court decisions denying his Batson claim were unreasonable under 28 U.S.C. section 2254(d) because the state courts did not conduct a Ml comparative juror analysis to evaluate the credibility of the prosecutor's reasons for removing the jurors at issue. See Objections at 3-4; see also Lodged Doc. 18 at 37 (California Court of Appeal noting that under California law it was not required to do a comparative juror analysis for any jurors beyond those whose similarities were argued before the trial court).

         There is no clearly established federal law requiring that the state court conduct a comparative juror analysis. See R&R at 35-36 (citing, inter alia, Murray v. Schriro, 745 F.3d 984, 1005 (9th Cir. 2014) ("Batson and the cases that follow it do not require trial courts to conduct a comparative juror analysis. ... [A federal habeas court] conduces] its own formal comparative juror analysis to make factual comparisons with the state court's factual determinations. Thus, [a habeas court] us[es] a fomial comparative juror analysis to review the reasonableness of the factual detentions underlying the state court's decision.. .. [I]n order for us to discharge our responsibility under AEDPA to review a Batson claim under section 2254(d)(2), we often will have to conduct a formal comparative juror analysis, and our responsibility to conduct a comparative juror analysis is not contingent on whether the state court previously performed or did not perform a comparative juror analysis.") (emphasis original)). Hence, the state courts' comparative juror analysis limited to those jurors whose similarities were argued before the trial court could not have been an unreasonable under 28 U.S.C. section 2254(d)(1).

         Based on this Court's own extensive comparative juror analysis, the state courts' denial of petitioner's Batson claim was not an unreasonable determination of the facts in light of the evidence presented under 28 U.S.C. section 2254(d)(2). See R&R at 37-50. Contrary to petitioner's conclusory allegations (Objections at 4-5), the state courts considered the merits of petitioner's claim and reasonably found that the prosecutor's race-neutral reasons were genuine. The fact that petitioner disagrees with this conclusion does not mean that he was denied due consideration.

         C. Petitioner's Objections to the Recommended Denial of His Jury Instruction Claim

         Petitioner contends that the trial court's failure sua sponte to give an instruction that accomplice testimony must be corroborated, as it related to Gray's testimony implicating petitioner in the charged crimes, deprived petitioner of the right to present a complete defense. (Objections at 5-7, 11, 13). Petitioner argues that the harm from the failure to give the instruction is evident from the fact that petitioner's first trial ended in a mistrial and the jury in the second trial deliberated for a considerable amount of time. (Objections at 5). Petitioner also argues that the California Court of Appeal applied the wrong harmless error standard to his claim. See Objections at 6, 11-12 (citing Chanman v. California, 386 U.S. 18, 24 (1967)). These objections do not alter the Court's conclusion that petitioner suffered no prejudicial error from the failure to instruct the jury with CALCRIM 335.

         First, it does not appear that the Court of Appeal relied on the harmless error standard set forth in Chapman in denying this claim. See Lodged Doc. 18 at 20 (finding no harm from the failure to instruct because there was sufficient corroborating evidence in the record supporting Gray's testimony; citing People v. Miranda, 44 Cal.3d 57, 100 (1987) and People v. Williams, 49 Cal.4th 405, 456 (2010), which do not apply Chapman). Whatever standard the Court of Appeal applied, on federal habeas review the Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) standard applies: a constitutional trial error justifies habeas relief only if the error had a substantial and injurious impact in determining the jury's verdict. See R&R at 66-67, 69 (finding petitioner had failed to show the instructional error was harmful under Brecht, and therefore die Court of Appeal's harmlessness finding was not unreasonable). "[T]he Brecht standard 'subsumes' the requirements that § 2254(d) imposes when a federal habeas petitioner contests a state court's determination that a constitutional error was harmless under Chapman." Davis v. Ayala, 135 S.Ct. 2187, 2198 (20151: see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (habeas court must assess prejudice under Brecht, "whether or not the state appellate court recognized the error and reviewed it for harmlessness under the 'harmless beyond a reasonable doubt' standard set forth in Chapman'").

         Second, "[n]o clearly established federal law, as determined by the Supreme Court, holds that a state court's failure to give a pinpoint jury instruction on the defense theory of the case violates a criminal defendant's due process right to 'be afforded a meaningful opportunity to present a complete defense.'" Larsen v. Paramo, 700 Fed.Appx. 594, 596 (9th Cir.) (citations omitted), cert, denied. 138 S.Ct. 483 (2017). Petitioner's citation to Conde v. Henry,198 F.3d 734, 739 (9th Cir. 1999) (evaluated under pre-AEDPA standards, noting "It is well established that a criminal defendant is entitled to adequate instructions on a defense theory of the case.") (see Objections at 13), is not contrary, since the case is not a Supreme Court decision and concerned federal criminal procedure, not the requirements of the Constitution. See Glebe v. Frost,574 U.S. 21 (2014) (per curiam) ("As we have repeatedly emphasized, however, circuit precedent does not constitution 'clearly established Federal law, as determined by the Supreme Court'"). While the Supreme Court has recognized the right to instructions as to any recognized defense for which there exists ...

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