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Lemmon v. Frauenheim

United States District Court, E.D. California

July 12, 2019

KEVIN FRANK LEMMON, Petitioner,
v.
SCOTT FRAUNHEIM, Warden, Respondent.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2013 convictions for murder, robbery and burglary. Petitioner was originally sentenced to nine years plus life without the possibility of parole in state prison. Petitioner asserts a total of nine claims in violation of his federal constitutional rights. After careful review of the record, this court concludes that the petition should be denied.

         II. Procedural History

         On June 12, 2013, a jury found petitioner guilty of first degree murder (count one - Cal. Pen. Code § 187(a)), first degree robbery (count two - Cal. Pen. Code § 211), and first degree burglary (count three - Cal. Pen. Code § 459); further, the jury found true both robbery and burglary special circumstances as to count one (Cal. Pen. Code, § 190.2(a)(17)), as well as a true finding regarding count two: robbery in concert (Cal. Pen. Code, § 213(a)(1)(A)). (ECF No. 14-1 at 240-45 & 14-8 at 105-09.[1]) On August 23, 2013, petitioner was sentenced to a determinate term of nine years plus life without the possibility of parole. (ECF No. 14-2 at 43-45, 47-50 & 14-8 at 119-36.)

         Petitioner appealed the conviction to the California Court of Appeal, Third Appellate District. The Court of Appeal modified petitioner's sentence by staying the imposition as to count two and its enhancements and directed the trial court to amend the abstract of judgment to correct a clerical error; it otherwise affirmed the conviction on September 29, 2016; the opinion was then modified without change to the judgment and rehearing was denied on October 25, 2016. (ECF No. 14-18.)

         Petitioner filed a petition for review in the California Supreme Court, which was denied on December 14, 2016. (ECF No. 14-19.)

         Petitioner filed the instant petition on August 7, 2017. (ECF No. 1.) Respondent answered on November 21, 2017. (ECF No. 11.) Thereafter, respondent lodged the record with this court on January 24, 2019.[2] (ECF No. 14.) III. Facts[3]

         In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the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 December 2011, defendant Lemmon and his girlfriend Amanda Welcher were living in the home of Charles Deckard and Camelle Lowrey on Orion Way. Defendant Freed's brother, Bobby, also lived in the Orion Way house. Defendant Freed was not living at the Orion Way house, but had stayed there for a couple of nights before the incident. Kevin Matthews, who accepted a plea agreement in exchange for his testimony, was a friend of Lemmon's. [Fn. Omitted.]
Matthews went to the Orion Way house with Lemmon and Welcher because Matthews wanted methamphetamine. At the house, Matthews got methamphetamine from Lemmon. On the way there, they stopped for gas where Welcher got a phone call.
Following the call she said something to Lemmon, whereupon Lemmon asked Matthews to go with him to retrieve some of Welcher's belongings from the victim, Steven Johnson. Matthews, Lemmon, and Freed left in Lemmon's truck. Lemmon said if Johnson did not hand over Amanda's belongings, they would “kick his ass.” Lemmon drove Matthews and Freed to the Hilltop Lodge. They parked at a nearby restaurant parking lot, where they saw three teenage boys outside of room 117.
They thought the boys might be with the victim in room 117. Lemmon and Freed got out of the truck, while Matthews drove the truck around the parking lot. After a few minutes, Matthews parked and got out of the truck, and Lemmon and Freed returned to the truck.
Lemmon asked to use Matthews's cell phone to call Amanda Welcher. Lemmon asked Welcher for confirmation that they had the right room. After the phone call ended, Lemmon said that the victim had $1, 900 and a bag of methamphetamine. Lemmon said they would get Amanda's things and if there was anything else, they would take it. They got back in the truck, and parked at another nearby parking lot.
Lemmon had a can of pepper spray, and he handed Matthews a crowbar, which Matthews refused. Matthews did not see anything in Freed's possession. Freed's plan was to knock on the victim's door and ask for a glass of water. Matthews was supposed to stand outside and keep watch.
Freed and Lemmon did not go directly to room 117 because Lemmon was concerned about the three boys. Eventually Freed knocked on the door. When Johnson answered, Freed asked for a glass of water and said, “do you remember me?” Johnson said he did not, then Freed “cracked the guy in the face and entered the room.” Lemmon ran into the room. Matthews could hear fighting and things being tossed in the room.
People began to look out their doors and windows. One couple asked what was going on. Matthews told them a young girl was in trouble. Matthews went to the room, and saw through the partially open door that Lemmon was swinging his right arm back. He saw a backpack in Lemmon's right hand. Matthews closed the door and went back to the truck.
Matthews, Lemmon, and Freed all got to the truck at about the same time. Lemmon was carrying two backpacks. Freed was rubbing his face and breathing heavily. He complained about his vision and breathing. Freed was yelling and complaining during the trip back to the Orion Way house about being sprayed in the face. They were all three having a hard time breathing because of the smell of pepper spray in the vehicle.
Lemmon complained that Freed had gone overboard. Freed said, “What was I supposed to do? He was fighting back.” Lemmon said, “[W]e were only supposed to rough the guy up.” Freed had a folding knife in his hand, held it up, and asked Lemmon what he should do with it. Lemmon responded, “Fuck you; that's on you.” Lemmon told Freed to get rid of the knife, so Freed tossed the knife out the window. Lemmon asked Freed what he had taken out of the victim's pocket. Freed answered “this, ” and threw a couple of wadded bills on the dash.
Matthews later showed police where Freed had thrown the knife. The knife was found during a police search of the area Matthews indicated. The knife had dried blood on the blade. DNA testing of the dried blood on the knife blade matched the victim's DNA. There was also DNA on the knife handle. The profile of the primary contributor of the DNA on the handle matched Freed's DNA.
When Lemmon, Freed, and Matthews got to the Orion Way house, Freed and Lemmon immediately went to the bathroom to wash their faces. They pulled the truck they had driven into the garage. Freed said he might have hurt some guy. He mentioned using a knife and stabbing someone. He said, “I think he's dead” and “I think I stabbed him eight deep and he's dead.” Freed owned a silver folding knife.
Lemmon was upset with Welcher because the backpacks did not belong to her. Both backpacks contained boxer shorts, socks, and men's toiletries. One backpack contained pornographic DVD's and Amanda was upset about these because “[t]hey were 18 and under.” There were papers in the backpacks, which Matthews burned in the barbeque pit.
Sergeant Todd Cogle of the Redding Police Department responded to the murder scene after receiving a call regarding a disturbance in room 117 at the Hilltop Lodge. He arrived around 9:00 p.m. Upon arriving at room 117, he found the night manager of the motel, Pamela Kunkler, with a male subject, Johnson, who was on the ground and bleeding. Kunkler had received a call from the 911 operator that a man was hurt, so Kunkler went to check it out.
Medical personnel arrived shortly after Cogle, and Cogle could see when they lifted the victim's shirt that he had several stab wounds on his chest. The victim was identified as Steven Johnny Johnson. Cogle also noticed that the room smelled like pepper spray. It made Cogle's eyes water, and made him cough. He also noticed the medical staff coughing. Cogle found a black can that looked like a mace can lying on the floor about four to five feet from the body. Subsequent testing of DNA from the spray can matched Lemmon's DNA profile. DNA testing excluded Johnson, Matthews, and Freed as contributors to the DNA on the spray can.
Jeff Woodard was living at the Hilltop Lodge on December 14, 2011. He remembered seeing two or three people walking by his room. Will Williams, a police investigator, interviewed Woodard following the incident. Woodard told Williams that there had been a commotion, and that one person had gone to see what was going on. When that person walked by Woodard, he told Woodard there was no problem, that they were there helping a 14-year-old girl who had been in a room with a man. Woodard also told Williams that one of the three men, a heavyset rough-looking man with an olive complexion, had been rubbing his eyes. Freed was around five feet six inches tall and weighed 350 pounds.
Ismael Porras was a friend of defendant Freed. He testified he did not know defendant Lemmon before he came to jail. Porras had been homeless in December 2011.
Between 12:00 a.m. and 4:00 a.m. on December 15, police officers observed a person carrying several bags get into a car at the Orion Way house. The car was registered to Porras. Porras later admitted leaving the house with two backpacks he got from Freed. He said the backpacks contained toiletry items.
Johnson suffered five stab wounds: three to the chest, one on the neck, and one to the upper abdomen. The cause of death was multiple stab wounds leading to blood loss.

People v. Lemmon, 2016 WL 5462412 at *2-4 (Sept. 29, 2016). IV. Standards for a Writ of Habeas Corpus 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).

         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.

28 U.S.C. § 2254(d).

         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, 132 S.Ct. 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 412 (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, 569 U.S. 58, 64 (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.[4] Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 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 v. Taylor, 529 U.S. at 411. 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 fair-minded 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 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on 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, 568 U.S. 289, (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the petitioner's federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith, 539 U.S. 510, 534 (2003).

         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 101. 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).

         V. Petitioner's Claims

         A. The Sufficiency of the Evidence Pertaining to the Murder Conviction

         Petitioner claims there is insufficient evidence to support his conviction for first degree murder because “[i]n the absence of accomplice Kenneth Matthews' uncorroborated testimony … about an intent to rob Steven Johnson via a planned surprise attack, there is no substantial evidence that petitioner committed first degree felony murder … [and] [b]ecause the record reflects a reasonable probability jurors relied on this theory to convict, reversal is required.” (ECF No. 1 at 16.) Respondent contends the state court reasonably determined there was sufficient evidence to support the first degree murder conviction. (ECF No. 11 at 16-19.)

         The last reasoned rejection of petitioner's first claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

A. There is Sufficient Evidence to Support a Finding of First Degree Murder
In finding a defendant guilty of a crime, the jury cannot rely solely on the testimony of an accomplice. An accomplice's testimony must be corroborated by other evidence that tends to connect the defendant with the commission of the offense. (§ 1111.) The jury was instructed that defendants could be found guilty of first degree murder based on either of two theories: malice aforethought, or felony-murder based on robbery, attempted robbery, and/or burglary. The only evidence that the defendants intended to rob Johnson via a planned surprise attack came through Matthews's testimony. Lemmon argues there is insufficient evidence of first degree murder because absent Matthews's uncorroborated testimony, there is no evidence of Lemmon's mental state, i.e., no evidence Lemmon intended to kill or intended to steal from anyone, and no evidence of malice or lying in wait.
We first consider the argument as to felony-murder. The mental state the prosecution is required to prove for a conviction of first degree murder is that the defendant had the specific intent to kill, and acted with premeditation and deliberation. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223.) However, under the felony-murder rule, the ordinary mental-state elements of first degree murder are eliminated, and the only criminal intent required to be proved is the specific intent to commit the particular underlying felony. (People v. Chavez (2004) 118 Cal.App.4th 379, 385.) This means that for the jury to properly convict under a felony-murder theory, the only criminal intent the prosecution was required to prove was that defendant had the specific intent to commit robbery, attempted robbery, or burglary. Lemmon argues the only evidence of an intent to commit one of these crimes came solely from the testimony of accomplice Matthews. He argues that other than Matthews's testimony, the evidence was that his intent in going to the Hilltop Lodge and in using the pepper spray in the victim's motel room was solely to retrieve his girlfriend's property.
Lemmon misconstrues the corroboration requirement. It is not necessary that there be independent corroborative evidence sufficient to establish every element of the offense. (People v. Luker (1965) 63 Cal.2d 464, 469.) Nor is it necessary there be independent corroborative evidence sufficient to establish every fact to which the accomplice testifies. (Ibid.) Instead, there need only be independent evidence that tends to connect the defendant with the commission of the offense, so as to reasonably satisfy a jury that the accomplice is telling the truth. (Ibid.) “Although the corroborating evidence must do more than raise a conjecture or suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.” [Citation.] “[The] corroborative evidence may be slight and entitled to little consideration when standing alone. [Citation.] [Citation.] Finally, ‘[unless] a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.'” (People v. Szeto (1981) 29 Cal.3d 20, 27.)
Here, there was sufficient evidence connecting Lemmon to the crime. He was observed leaving the Orion Way house with Freed and Matthews, saying he was going to pick up his girlfriend's clothes from her ex. Lemmon was seen by two witnesses at the Hilltop Lodge on the night of the murder, and was seen going into one of the downstairs rooms. He came back to the Orion Way house with Freed, who admitted to stabbing and possibly killing someone. His DNA was found on a pepper spray can in the victim's motel room, along with the victim's body. Additionally, “‘Flight tends to connect an accused with the commission of an offense and may indicate that an accomplice's testimony is truthful.' [Citation.]” (People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1378.) There was evidence Lemmon was discovered by a police dog hiding inside an old big-screen television cabinet. This was sufficient to reasonably tend to connect Lemmon with the commission of the crime.
For the same reason, it was not necessary to have independent evidence of lying in wait or malice. All that was needed was corroborating evidence that tended to connect Lemmon to the commission of the crime. Because there was evidence connecting Lemmon to the commission of the crime, it was not necessary to have independent corroboration of Lemmon's intent either under a felony-murder or premeditation/lying-in-wait theory.
Lemmon also makes the argument that there was no evidence, other than Matthews's testimony, of a robbery or burglary because there was no evidence anything was stolen. This is untrue. There was evidence that Johnson had his driver's license when he checked in at the motel. However, none of Johnson's belongings were found in the motel room, and his driver's license was eventually found in the trash at an RV park. The jury could have reasonably inferred, apart from Matthew's testimony, that Johnson would have had some personal belongings with him in the motel room, and that those personal belongings included the backpacks containing men's toiletries given to Porras by Freed.

(People v. Lemmon, slip op., ECF No. 14-18 at 10-13.)

         Legal Standards & Analysis

         The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Thus, one who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Nevertheless, the petitioner “faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). On direct review, a state court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Federal habeas relief is available only if the state court determination that the evidence was sufficient to support a conviction was an “objectively unreasonable” application of Jackson. Juan H., 408 F.3d at 1275 n.13.

         Habeas claims based upon alleged insufficient evidence therefore “face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). As noted by the Supreme Court:

First, on direct appeal, “it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'”

(Citations omitted).

         The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. In performing a Jackson analysis, a jury's credibility determinations are “entitled to near-total deference.” Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). When the factual record supports conflicting inferences, the federal court must presume that the trier of fact resolved the conflicts in favor of the prosecution and must defer to that resolution. Jackson, 443 U.S. at 326.

         Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513 U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a federal court's scope of review under Jackson, holding that “a reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1 (2011) (per curiam). Jackson “makes clear that it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.” Id. at 2. Under Cavazos, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. at 2 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

         Significantly, the United States Supreme Court has held that “there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them.” Caminetti v. United States, 242 U.S. 470, 495 (1917); see United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993) (“The uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face”). “When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions.” United States v. Augenblick, 393 U.S. 348, 352 (1969). Hence, the requirement of California Penal Code § 1111 that “‘a conviction cannot be had upon the testimony of an accomplice unless it be corroborated' is a matter of state law, which does not implicate a federal constitutional right” and cannot be the basis of federal habeas relief. Barco v. Tilton, 694 F.Supp.2d 1122, 1136 (C.D. Cal. 2010).

         California's statutory law prohibiting convictions based solely on uncorroborated accomplice testimony is only a state law rule: it is not required by Constitution or federal law. See Laboa v. Calderdon, 224 F.3d 972, 979 (9th Cir. 2000). Therefore, because petitioner's claim is grounded in the state law requirement that accomplice testimony be corroborated, he cannot show a constitutional violation based on the alleged inadequate corroboration. Takacs v. Engle, 768 F.2d 122, 127 (6th Cir. 1985) (“If uncorroborated accomplice testimony is sufficient to support a conviction under the Constitution, there can be no constitutional right to instruct the jury that it must find corroboration for an accomplice's testimony”); see also United States v. Fritts, 505 F.2d 168, 169 (9th Cir. 1974) (holding on direct review that trial court's failure sua sponte give cautionary instruction on accomplice testimony did not warrant reversal). See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus”).

         Moreover, a review of the record reveals the Court of Appeal's determination that there exists corroborating testimony so as to provide sufficient evidence for purposes of petitioner's murder conviction is adequately supported. There is independent evidence tending to connect petitioner with the commission of the offenses of which he was convicted; it is more than evidence that merely raises a conjecture or suspicion of guilt. (See, e.g., testimony of witnesses Deckard, Ellis, Gaxiola, Harney, Lowrey, Matthews, R., Mills, M.)

         A review of this record confirms the state court's determination was reasonable. A rational trier of fact could have found the essential elements of the crimes of murder, robbery and burglary beyond a reasonable doubt. Jackson, 443 U.S. at 319. The jury's conclusions are supported by substantial evidence and are entitled to this court's deference. Bruce v. Terhune, 376 F.3d at 957. There was evidence, accepted as credible by the jury, sufficient to sustain petitioner's convictions. Schlup v. Delo, 513 U.S. at 330.

         For the same reasons persuasively articulated by the Court of Appeal in finding that there was sufficient independent evidence to convict petitioner of first degree murder, there was more than ample evidence to satisfy the requirements of Jackson with respect to those convictions. Cavazos, 565 U.S. at 1-2.

         In sum, petitioner is not entitled to relief because his claim cannot establish a constitutional violation based on alleged inadequate corroboration of an accomplice's testimony. Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law”). Neither has petitioner established that the state court's determination that there was sufficient evidence to support his conviction was unreasonable or contrary to Supreme Court precedent, nor were the state court's factual determinations unreasonable. 28 U.S.C. § 2254. Petitioner is thus not entitled to relief on his claim and the undersigned hereby recommends ground one be denied.

         B. The Sufficiency of the Evidence Pertaining to the Robbery & Burglary Convictions

         Petitioner claims there is insufficient evidence to support his convictions for robbery and burglary and the attendant special circumstances finding, because, like the claim asserted in ground one, “the only evidence … came from the uncorroborated testimony of accomplice Matthews.” (ECF No. 1 at 22-23.) Respondent maintains that the state court's determination of this claim was reasonable. (ECF No. 11 at 19-20.)

         The last reasoned rejection of petitioner's claim is the decision of the California Court of Appeal for the Third Appellate District on petitioner's direct appeal. The state court addressed this claim as follows:

B. There Was Sufficient Evidence to Support the Special Circumstance Finding
Lemmon was sentenced to life without the possibility of parole because the jury found true the special allegations that Johnson's murder occurred during the commission of robbery and burglary.
Lemmon argues that the prosecution was required to prove the corpus delicti of the robbery and burglary, and that it could not do so with the uncorroborated testimony of Matthews. As shown above, there was sufficient corroborating evidence of robbery and burglary because there was evidence connecting Lemmon to the crimes.
Even if there were not any corroborating evidence of the robbery and burglary, we would not reverse. The corpus delicti rule states that the prosecution must prove the fact of injury and the existence of a criminal agency as its cause, and cannot rely exclusively on the extrajudicial statements of the defendant. (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-69.) The rule also applies to the extrajudicial statements of a codefendant. (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 396-97.) However, the rule is applicable only to extrajudicial statements. Here, there was in-court testimony from Matthews, thus the corpus delicti rule was satisfied.

(People v. Lemmon, slip op., ECF No. 14-18 at 13.)

         Legal Standards and Analysis

         The standards concerning sufficiency of the evidence and accomplice testimony were provided above. And, the corroborative evidence, in fact, was adequate to connect petitioner with the crimes. Notably, the corroborative evidence required by California Penal Code § 1111 “need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy a fact finder the accomplice is telling the truth.” People v. Williams, 16 Cal.4th 153, 246 (1997) (amended Sept. 24, 1997); see also Odle v. Calderon, 884 F.Supp. 1404, 1418 (N.D. Cal. 1995) (petitioner's claim that his murder conviction relies solely on uncorroborated testimony does not establish basis for federal habeas relief).

         Petitioner's claim in ground two is predicated on the success of his claim in ground one. However, because the undersigned determined petitioner is not entitled to relief in ground one, ground two necessarily suffers the same fate. Because there exists no clearly established Supreme Court rule requiring that accomplice testimony be corroborated, and because the Court of Appeal's determination that sufficient evidence supported petitioner's robbery and burglary convictions, the state court's determination is neither contrary to, nor does it involve an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254. Hence, petitioner is not entitled to relief and it is hereby recommended that the claim asserted in ground two be denied.

         C. The Mistake of Fact Defense

         Petitioner asserts that the trial court's failure to instruct the jury concerning a mistake of fact defense violated his due process rights. Relatedly, he argues that trial counsel provided ineffective assistance by failing to request an instruction on the mistake of fact defense. (ECF No. 1 at 24-26.) In reply, respondent argues the state court's denial of petitioner's claim involved the application of state law and therefore the state court's adjudication of the claim is binding on this court. Further, respondent argues, trial counsel cannot be said to have provided ineffective assistance for failing to request a mistaken of fact defense instruction to which petitioner was not entitled. (ECF No. 11 at 20-21.)

         Addressing this issue, the Third District Court of Appeal determined as follows:

Both Defendants argue the trial court erred in failing to sua sponte instruct the jury on the defense of mistake of fact with respect to the robbery and burglary counts. Lemmon argues: “The prosecution's case against [him] was a house of cards built on the prosecution's theory that appellant committed, aided and abetted, or conspired to commit robbery and burglary. To keep this house of cards from collapsing, the prosecution had to prove [he] intended to deprive Johnson of his property permanently.” Defendants argue that since there was evidence their intent was merely to retrieve Welcher's belongings, and not steal Johnson's belongings, the trial court erred when it did not sua sponte give a mistake of fact defense.[4] Defendants further argue their trial counsel was ineffective in failing to request a mistake of fact instruction.
[FN. 4] CALCRIM No. 3406, the mistake of fact instruction, provides:
“The defendant is not guilty of ___<insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
“If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit ___<insert crime[s]>.
“If you find that the defendant believed that ___<insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for ___<insert crime[s]>.
“If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for ___<insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).”
However, even if the backpacks had contained Welcher's belongings, this fact would not have made the robbery or burglary an innocent act. “It is no defense to a charge of robbery (or of theft) that the victim was not the true owner of the property taken. Theft can be committed against one who was himself a thief.” (People v. Moore (1970) 4 Cal.App.3d 668, 669.) Neither a victim's illegal acquisition, nor illegal possession of property precludes a larceny conviction. (2 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 22, p. 46; see also People v. Nelson (1880) 56 Cal. 77, 82 [“ ‘If A steal goods from B, and C afterward steals the same goods from A, C is a felon both as to A and B.' [Citation.]”].)
Thus, the trial court had no duty to give a mistake of fact instruction because even if Johnson's backpacks had contained Welcher's property, the act of barging into Johnson's motel room and forcibly taking the backpacks from Johnson's possession would not have been an innocent act. It necessarily follows that ...

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