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Peeler v. Foss

United States District Court, E.D. California

July 15, 2019

TAMMY FOSS, Acting Warden, Salinas Valley State Prison, [1] Respondent.



         Brice Peeler, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Peeler is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Salinas Valley State Prison. Respondent has answered, and Peeler has replied.


         On March 20, 2014, Peeler was charged by second amended information with two counts of assault on a peace officer with a semiautomatic firearm (Counts 1 and 2), evading a peace officer while driving recklessly (Count 3), and being a felon in possession of firearm (Count 4). The information alleged as to Counts 1 and 2 that Peeler personally used a firearm. The information additionally alleged as enhancements that Peeler had suffered a prior serious felony conviction for criminal threats, had suffered a prior strike conviction, and had served three prior prison terms. Peeler pled not guilty, denied the allegations, and proceeded to a jury trial. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying the charges against Peeler and the evidence presented at trial:

Sacramento County Sheriff's Detective Kevin Reali testified he received a call from Nevada County Sheriff's Detective Bingham on September 14, 2012, asking for help in serving a felony warrant on [Peeler]. Bingham told him [Peeler] might be armed with a handgun. Five days later, Bingham called again and asked Reali to check a house in the Antelope area of Sacramento. Reali saw a man leave the house, put something in the trunk of a Volvo, and get in the driver's seat. After a woman entered the Volvo, the Volvo left, and Reali tried to reach Bingham, without success. Reali reached Detective Jeff Martin, who asked him to check on a white panel van at a Walmart, because [Peeler] was thought to use it to hide things. Martin testified he told Reali that multiple informants had recently seen [Peeler] with “a handgun and/or a small assault style rifle” and that he always carried those weapons with him. Reali saw the van, called back-up, and when other officers arrived, Reali returned to the Antelope house.
Reali learned a team comprised of Nevada and Placer County officers had found the Volvo in Orangevale, and went to discuss with those officers how to apprehend [Peeler] safely, given that they understood he might be armed, and there were two females in the Volvo, which was in motion. Reali entered Sergeant Gregory Coauette's unmarked Ford Expedition, “and we were maybe fifth or sixth . . . in the conga line, as you might say, into following the Volvo away. . . .”
The Volvo turned into a parking lot and most of the “conga line” followed, but Reali and Coauette remained on Greenback Lane, so that when the Volvo unexpectedly left the parking lot, they were directly behind [Peeler] in the Ford. Coauette thought the line of unmarked cars behind them was perhaps eight or nine vehicles long. The Volvo's occupants looked back at the cars following them, and accelerated suddenly. The officers activated the Ford's lights and siren and pursued [Peeler], who attempted to elude the officers at high speed, running stop signs. When he stopped the Volvo, [Peeler] fled on foot. Reali saw [Peeler] held a handgun; Coauette ducked because [Peeler] pointed his gun over his shoulder, towards the officers, as he ran in front of their car. By the time Reali was able to get out of the car, [Peeler] had reached a lawn and jumped over a fence. To Reali, [Peeler] seemed to aim more towards Coauette. Coauette saw the gun “pointed straight in the window at me.” “That handgun stayed on target [i.e., pointed at Coauette] for quite a while.” Reali had feared he and Coauette would be shot. Although Reali planned to shoot [Peeler] due to the risk he presented to the public and to the officers, by the time he got out of the car, [Peeler] had made it to the fence.
A pistol was found in a tomato garden of a residential yard not far from where [Peeler] was captured, after he repeatedly defied orders to stop. The chamber was clear, as shown by moving the slide back, but the magazine was loaded. According to the testimony, “All you had to do was pull back on the slide and it would load the next cartridge [in the magazine].” The pistol, magazine, and cartridges from the magazine, were introduced into evidence and shown to the jury. The gun was not fired, nor was an effort made to chamber a round to see if it would jam.
A binder was found in the Volvo which contained pages listing different law enforcement radio frequencies.
The parties stipulated [Peeler] was a convicted felon.

People v. Peeler, No. C076528, 2015 WL 1254623, at *1-2 (Cal.Ct.App. Mar. 17, 2015).

         At the conclusion of the three-day trial, the jury found Peeler guilty on Counts 1, 3, and 4, and not guilty on Count 2. The jury also found true the firearm enhancement, and the trial court found true the prior conviction and prior prison term enhancements. The trial court subsequently sentenced Peeler to an aggregate determinant imprisonment term of 38 years and 8 months.

         Through counsel, Peeler appealed his conviction. On appeal, Peeler: 1) sought review of the materials reviewed in camera during his Pitchess hearing;[2] 2) contended that no substantial evidence showed that the pistol he used was operable; and 3) argued that trial counsel was ineffective because she conceded liability on one count and failed to promptly move to strike an officer's “gratuitous” testimony. The Court of Appeal unanimously affirmed the judgment against Peeler in a reasoned, unpublished decision issued on March 17, 2015. Peeler, 2015 WL 1254623, at *4. The California Supreme Court summarily denied review on June 25, 2015.

         Peeler then filed in the Sacramento County Superior Court a pro se petition for writ of habeas corpus that raised 38 grounds for relief. The superior court denied the petition, finding that the claims were largely raised on appeal or should have been raised on appeal, see In re Dixon, 264 P.2d 513, 514 (Cal. 1953) (holding that habeas relief is unavailable if “the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction”), and the remainder of the claims lacked merit.

         Peeler then raised those 38 claims in a pro se habeas petition in the Court of Appeal, which Respondent opposed by way of informal response. The Court of Appeal denied the petition without comment on September 15, 2016. The Supreme Court also summarily denied a similar petition on December 14, 2016.

         Peeler timely filed a pro se Petition for a Writ of Habeas Corpus to this Court about a week later. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A). Briefing on the First Amended Petition at Docket No. 22 (“Petition”) is now complete, and the case is before the undersigned judge for adjudication.


         In his pro se Petition before this Court, Peeler raises the 38 claims he raised to the California state courts on habeas review, namely that: 1) trial counsel rendered ineffective assistance by failing to consult a handwriting expert in an attempt to show that a handwritten radio frequency document did not belong to Peeler; 2) Peeler's right to a fair trial was violated when the trial court informed the jury that he was in custody; 3) the prosecutor engaged in vindictive prosecution by amending the information to add a criminal charge after the preliminary hearing was held; 4) the admission of hearsay testimony by several law enforcement witnesses violated his rights to due process, a fair trial, and to confront the witnesses against him; 5) trial counsel rendered ineffective assistance by failing to object to the admission of hearsay evidence that law enforcement officers were aware of the possibility that Peeler possessed one or more firearms; 6) the inclusion of peace officers as a sworn juror and an alternate violated his rights to a fair trial and impartial jury; 7) trial counsel was ineffective for allowing a peace officer to be impaneled as a juror; 8) trial counsel was ineffective for failing to object to the court informing the jury that Peeler was in custody; 9) the admission of a photograph of Peeler lying on the ground in handcuffs violated his right to a fair trial because it depicted tattoos that were inherently prejudicial; 10) trial counsel was ineffective for failing to object to the admission of the photograph; 11) trial counsel was ineffective for failing to object to a statement that wig-wag lights are only available for law enforcement vehicles; 12/13/14) the prosecutor committed misconduct by presenting false testimony; 15) his convictions were obtained as a result of an illegal wiretap, and trial counsel was ineffective for failing to move to suppress evidence that law enforcement tracked his cell phone using GPS without a warrant; 16/17) counsel was ineffective for failing to impeach law enforcement witnesses regarding alleged inconsistencies in their testimony; 18/25) there was insufficient evidence that his firearm was operable to support his assault on a peace officer with a semiautomatic firearm conviction and the true finding on the firearm enhancement; 19) the trial judge was biased against him in violation of his due process rights; 20) the imposition of a prior prison term enhancement was improper under Proposition 47; 21) the trial court violated his right to a fair trial and the presumption of innocence by informing the jury of his prior conviction; 22) trial counsel was ineffective for failing to file a motion to sever the felon in possession of a firearm charge; 23) appellate counsel was ineffective for failing to raise meritorious issues on appeal; 24) his Eighth Amendment rights were violated when the trial court imposed excessive restitution without considering his ability to pay; 26) trial counsel was ineffective for conceding guilt on the evading charge; 27) trial counsel was ineffective for failing to object to prejudicial statements during Detective Reali's testimony; 28) the cumulative effect of the errors warranted reversal of his conviction; 29) the prosecutor violated Brady[3] by failing to investigate and prove that the handwriting of the radio frequency documents was not his; 30) trial counsel was ineffective for advising Peeler not to testify; 31) trial counsel was ineffective for failing to object to the court's failure to instruct the jury on lesser related offenses; 32) his sentence violated due process and the constitutional prohibition against double jeopardy; 33) trial counsel was ineffective for failing to file a Pitchess motion as to Sergeants Barnhart and Machado; 34) trial counsel was ineffective for failing to object when the prosecutor allegedly gave his personal opinion in summation that Peeler was guilty as charged; 35) appellate counsel was ineffective for failing to raise prosecutorial misconduct on direct appeal; 36/38) trial counsel was ineffective for failing to present the defenses of voluntary intoxication and entrapment; and 37) the admission of the binder of law enforcement radio frequencies found in Peeler's car violated the Confrontation Clause.


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

         The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.'” Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

         To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

         In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).


         A. Procedural Bar

         As an initial matter, Respondent urges the Court to find that a large number of Peeler's claims are procedurally defaulted from habeas review. Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). This Court may not reach the merits of procedurally defaulted claims, that is, claims “in which the petitioner failed to follow applicable state procedural rules in raising the claims.” Sawyer v. Whitley, 505 U.S. 333, 338 (1992). “The state-law claim may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits.” Walker v. Martin, 131 S.Ct. 1120, 1127 (2011). Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case “clearly and expressly” states that its judgment rests on a state procedural bar. Teague v. Lane, 489 U.S. 288, 298-99 (1989) (quoting Harris v. Reed, 489 U.S. 255, 262-63 (1989)). “In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default.” Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks and citation omitted).

         The record reflects that Peeler raised Grounds 2-4, 6, 9, 15, 19, 21, 24, 29, 31, and 37 on state habeas in the Sacramento County Superior Court, which found the claims to be barred because they could have been, but were not, raised on direct appeal. See In re Dixon, 264 P.2d 513, 514 (Cal. 1953) (“The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constitu[t]ing an excuse for failure to employ that remedy, the writ will not lie where the claimed error could have been, but were not, raised upon a timely appeal from a judgment of conviction.”); see also In re Seaton, 95 P.3d 896, 901 n.4 (Cal. 2004) (“What we mean when we invoke the Dixon bar is that the claim is based on the appellate record, and thus was fully cognizable on appeal insofar as it was preserved at trial.”). While the Ninth Circuit has not explicitly found that a Dixon default is an independent and adequate state law ground, it has indicated that it is likely to do so with respect to the time period at issue here. See Bennett v. Mueller, 322 F.3d 573, 580-86 (9th Cir. 2003) (suggesting in dicta that Dixon rule would constitute an independent and adequate state-law ground when applied after the California Supreme Court's 1998 decision in In re Robbins, 959 P.2d 311 (Cal. 1998)); see also Flores v. Roe, 228 Fed.Appx. 690, 691 (9th Cir. 2007) (finding claim procedurally barred based on Dixon); cf. Park v. California, 202 F.3d 1146, 1152-53 (9th Cir. 2000) (holding that Dixon bar was not independent state law ground prior to Robbins). Some courts in this district have accordingly concluded that habeas review is foreclosed when the petitioner has failed to place the adequacy of the Dixon rule at issue and has not shown cause and prejudice or that a miscarriage of justice would result if the claim were not heard. See, e.g., Stribling v. Grounds, No. 12-cv-3084, 2013 WL 5817668, at *4-5 (E.D. Cal. Oct. 29, 2013); Cantrell v. Evans, No. 07-cv-1440, 2010 WL 1170063, at *13-14 (E.D. Cal. Mar. 24, 2010).

         Likewise, Peeler raised Grounds 12-14 in the habeas petition in the Superior Court. The court denied these claims for failure to state a prima facie case, with citation to People v. Duvall, which requires that facts be stated fully and with particularity, and that documentary evidence should be provided. 886 P.2d 1252, 1258 (Cal. 1995) (stating that habeas petitions “should both (i) state fully and with particularity the facts on which relief is sought as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations” (citations omitted)).

         If a petition is dismissed for failure to state the facts with particularity-that is, with a cite to In re Swain, 209 P.2d 793, 796 (Cal. 1949) (a California habeas petition must state “with particularity the facts” upon which relief is sought)-the petitioner may file a new petition curing the defect. See Gaston v. Palmer, 417 F.3d 1030, 1037 (9th Cir. 2005); see Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). There is no reason the result should be any different when the defect in the state petition is the failure to attach documentary evidence. Neither the failure to attach documentary evidence nor the failure to plead with particularity are irremediable errors. It therefore appears that the California courts would have allowed Peeler to file a new state petition remedying these defects. See Cross v. Sisto, 676 F.3d 1172, 1177 (9th Cir. 2012) (California state court's denial of petitioner's habeas petition with citation to Swain constituted dismissal without prejudice and with leave to amend to plead required facts with particularity and thus did not signify that petitioner's claims were procedurally barred as a matter of state law).

         It is unnecessary, however, for this Court to decide whether any procedural bar exists to bar these claims here because, even assuming that such bar does not exist, as discussed below, Peeler is not entitled to relief on the merits of any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (in the interest of judicial economy, the court may address a petition's merits without reaching procedural issues); cf. Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (declining “to reach the complex questions lurking in the time bar of the AEDPA” where the district court “decided the case on the merits, and on the merits it was right as a matter of law”).

         B. Merits

         1. Unfair Trial Claims (Grounds 2, 6, 19, 21)

         Peeler first brings a number of claims based on an alleged deprivation of his constitutional right to a fair trial. “Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that ‘one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.'” Holbrook v. Flynn, 475 U.S. 560, 567-68 (1986) (quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).

         Peeler contends in Ground 2 that his right to a fair trial was violated when the trial court informed the jury that he was in custody. The Clerk's Transcript of the Record on Appeal indicates that the trial court intended to inform the jury during voir dire that Peeler was in custody, however, the voir dire examination is not part of the trial transcript included in the record, despite Peeler's ability to have it included. See Cal. R. Ct. 8.320(c)(3) (oral proceedings of voir dire examination not typically included in the Reporter's Transcript in normal Record of Appeal), 8.324(b)(2)(A) (a defendant may nonetheless apply for the superior court to include the voir dire examination in the record). The record is thus devoid of any of the court's statements to the jury about Peeler's custodial status. This lack of evidentiary support is fatal to his claim. Woodford v. Visciotti, 537 U.S. 19, 15 (2002) (per curiam) (holding that state habeas petitioner carries the burden of proof).

         In any event, even assuming that the trial court informed the jury during voir dire examination that Peeler was in custody, Peeler can point to no clearly-established authority of the U.S. Supreme Court holding that due process is violated by a trial court's informing the jury of a defendant's custodial status. This case is unlike those in which the Supreme Court recognized a “constant reminder” of a defendant's custodial status, Estelle v. Williams, 425 U.S. 501, 504-05 (1976) (prison clothing), or the possibility of an adverse affect on the jury's feelings about a defendant and his dangerousness, Illinois v. Allen, 397 U.S. 337, 344 (1970) (shackles and gags). Neither of these cases or their progeny clearly establish a right within the meaning of AEDPA to have the jury remain ignorant of Peeler's custodial status. In the absence of clearly established Supreme Court law supporting his claim, Peeler cannot obtain federal habeas relief. See Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (“it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (citations and internal quotations omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law”) (citation, internal brackets and quotations omitted).

         Similarly, Peeler complains in Ground 21 that the trial court violated his right to a fair trial and denied him of the presumption of innocence when it informed the jury of his prior conviction. But the fact of Peeler having suffered a prior felony conviction was an element of the charge that he unlawfully possessed a weapon in violation of Cal. Penal Code § 12021(a)(1) (felon in possession of a weapon), and, as such, was properly admitted. See Spencer v. Texas, 385 U.S. 554, 558-69 (1967) (finding no due process violation when evidence of a prior felony conviction was admitted to prove a necessary element of a crime and the jury received a limiting instruction “that it should not consider the prior conviction as any evidence of the defendant's guilt on the charge on which he was being tried”). In fact, Peeler stipulated that he had suffered a prior felony conviction. Consequently, the jury was entitled to hear evidence regarding Peeler's prior felony conviction for the limited purpose of determining his guilt on this charge.

         Additionally, consistent with California law, the jury did not hear evidence regarding the nature of Peeler's prior offense. See People v. Cunningham, 25 P.3d 519 (Cal. 2001) (finding that “although the jury is not entitled to learn the nature of the prior conviction, it must be advised that defendant is an ex-felon where that is an element of a current charge” (citations and internal quotation marks omitted)). The parties' stipulation to this fact obviated the need for the jury to evaluate evidence to determine if Peeler had suffered a felony conviction for purposes of deciding his guilt or innocence as to that count. Thus, to the extent there was any risk of prejudice to Peeler that the jury would misapply or misconstrue his status as a felon, that risk was minimized. Given these circumstances, and in light of the express limitation in CALJIC No. 2.09 regarding the jury's consideration of the evidence of Peeler's prior conviction, the Court concludes that Peeler's rights to due process and a fair trial were not infringed by the information regarding his felony conviction. See, e.g., Spencer, 385 U.S. at 558-69.

         In Ground 6, Peeler next avers, without evidentiary support, that a peace officer was sworn as a juror and another peace officer served as an alternate. The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Due process requires that the defendant be tried by “a jury capable and willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982); see also United States v. Plache, 913 F.2d 1375, 1377-78 (9th Cir. 1990). An impartial jury consists of jurors who will conscientiously apply the law and find the facts. Lockhart v. McCree, 476 U.S. 162, 178 (1986).

         Here, however, Peeler's bare and conclusory allegation that the jury who convicted him was not impartial is manifestly insufficient to warrant habeas corpus relief. Jones v. Gomez, 66 F.3d 199, 204-05 & n. 1 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). There is simply no evidence in the record to support Peeler's claim, and as noted above, Peeler did not move to have the voir dire examination included in the record on appeal. Again, the lack of evidentiary support is fatal to his claim. Woodford, 537 U.S. at 15.

         Finally, Peeler claims in Ground 19 that the trial judge was biased against him. The Supreme Court has recognized that “the right to an impartial judge [is] among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.'” Greenway v. Schriro, 653 F.3d 790, 805 (9th Cir. 2011) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)). Where judicial bias is claimed, habeas relief is limited to circumstances in which the state trial judge's behavior rendered the trial so fundamentally unfair as to violate due process. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). To succeed on a judicial bias claim, a habeas petitioner must ...

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