Opinion
Civil No. 03cv0023-W(POR).
October 31, 2005
REPORT AND RECOMMENDATION DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Gilbert Lopez Araiza is a state prisoner proceeding pro se on a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254. Petitioner's application raises five grounds for relief. First, Petitioner contends his appellate counsel was ineffective by failing to argue that the evidence presented at trial was insufficient to support his conviction. (Petition at 6.) Second, Petitioner contends that the trial court's denial of his motion to exclude autopsy photographs was an abuse of discretion and that his appellate counsel's failure to raise this issue on appeal denied him the effective assistance of counsel. (Petition at 7.) Third, Petitioner contends that under the doctrine of stare decisis, the Court of Appeal abused its discretion by upholding Petitioner's conviction despite the occurrence of a speedy trial violation. (Petition at 8.) Fourth, Petitioner contends that the trial court erroneously excluded third party culpability evidence, violating his right to due process. (Petition at 9.) Fifth, Petitioner contends that his appellate counsel was ineffective by failing to argue that the bloody thumbprint found at the scene of the crime was by itself insufficient evidence to support his conviction. (Petition at 9a.) This Court has reviewed the Petition for Writ of Habeas Corpus, Respondent's Answer, Petitioner's Traverse, and all supporting documents. After thorough review, this Court finds Petitioner is not entitled to the relief requested and recommends Petitioner's application for habeas corpus relief be DENIED.
STATEMENT OF FACTS
On January 14, 1983, Petitioner and Mario Pacheco boarded a jitney van with the intent of robbing the 67-year-old driver, Ralph Twiss, in order to buy heroin. (Lodgment No. 4 at 749.) After boarding, Mr. Pacheco pushed Mr. Twiss into the back of the van, climbed into the driver's seat and drove away. (Id.) Petitioner struggled with Mr. Twiss in the back of the van, stabbing him several times. (Id. at 751.) Mr. Twiss eventually died as a result of the attack. Mr. Twiss's wallet and coin changer were later found to be missing from the van, and Petitioner's bloody thumbprint was found on the passenger side of the van. (Lodgment No. 2 at 277, 354-64; Lodgment No. 3 at 522, 545-56; Lodgment No. 4 at 668-74, 716-24.)
While the incident was occurring, Pamela Romine and Esther Vasquez were driving home from work together when they noticed the commotion ensuing inside the van. (Lodgment No. 2 at 292-93.) Concerned that someone was being severely injured, Ms. Romine followed the van. (Id. at 294-303.) Although the van temporarily eluded her, she and Ms. Vasquez found it parked in an apartment complex parking lot. (Id. at 303-07.) They approached the van and found Mr. Twiss moaning for help. (Id. at 307-08.) Both Ms. Romine and Ms. Vasquez recounted the events they witnessed to the police later that night. (Lodgment No. 1 at 100; Lodgment No. 2 at 309.)
Prior to Ms. Romine and Ms. Vasquez arriving, Petitioner and Mr. Pacheco had parked the van in the apartment complex parking lot and proceeded to Carlos Ramirez's apartment to buy heroin. (Lodgment No. 4 at 754.) Once inside, Petitioner and Mr. Pacheco began arguing and Mr. Pacheco told Petitioner that he had "messed up." (Lodgment No. 3 at 414; Lodgment No. 4 at 760.) Petitioner agreed he had "messed up," but claimed he had to do it because the "old man was going to hit the gas and run it off the cliff." (Lodgment No. 3 at 414.) Petitioner then approached Mr. Ramirez to discuss the situation, but Mr. Ramirez refused to listen for fear of being involved in the crime. (Id. at 415.) Petitioner and Mr. Pacheco then purchased $200 of heroin from Mr. Ramirez and all three used the drug. After about 25 minutes, Petitioner and Mr. Pacheco left the apartment. (Lodgment No. 4 at 756.) Mr. Pacheco was eventually arrested, convicted and imprisoned for the murder. (Id. at 748.)
The San Diego Police Department (SDPD) issued a warrant for Petitioner's arrest, conducted surveillance upon Petitioner's residence in San Ysidro and contacted both Mexican and U.S. authorities at the border, providing them with Petitioner's information. (Lodgment No. 1 at 41, 53, 104-05.) However, the SDPD was unsuccessful in their efforts to apprehend Petitioner. Eventually, the SDPD received reports that Petitioner was in Mexico, so the SDPD Mexican liaison began working with Mexican authorities in an effort to locate Petitioner in Mexico. (Id. at 82-88.) From 1983 to 1991, the liaison searched through Mexican records approximately every two months searching for information regarding Petitioner. (Id. at 122.) Petitioner was also posted on the San Diego County Top Ten Most Wanted List three times throughout the 1980's. (Id. at 38-40.) In 1997, an officer from the Fugitive Apprehension Team of the SDPD worked together with the Mexican liaison and conducted a fingerprint search on Mexican records. (Id. at 55.) Finally, in 1999, Petitioner was located in Guadalajara, Mexico. (Id. at 64.) The Mexican authorities arrested and expelled Petitioner from Mexico, placing him on an airplane bound for Los Angeles where he was arrested by U.S. officials. (Id. at 68.)
STATE COURT PROCEEDINGS
On February 2, 2000, Petitioner was charged with first degree murder, robbery, and kidnaping. (Lodgment No. 6 at 5-6.) Prior to trial, Petitioner filed a motion to dismiss the charges, arguing violations of both his right to due process, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, and his right to a speedy trial, as guaranteed by the California Constitution. (Id. at 133-34.) Specifically, Petitioner argued the sixteen year pre-arrest delay prejudiced him in three ways: first, his memory of the events had faded such that he could not fully recount the events at trial; second, Ms. Vasquez, a percipient witness to the crime, died before trial, robbing Petitioner of her testimony; and third, the van could not be investigated because it was returned to its owner. (Id. at 154.) The trial court conducted a hearing, but denied the speedy trial motion, finding no actual or presumed prejudice, and finding that any prejudice suffered was outweighed by the government's justification for the delay. (Lodgment No. 1 at 147-49.)
The trial court also considered a pretrial motion by Petitioner to exclude autopsy photographs of Mr. Twiss. (Lodgment No. 1 at 167.) The court denied this motion as well, finding the photographs relevant and not unduly prejudicial. (Id. at 179-81.) Petitioner proceeded to trial and a jury found him guilty on all counts. (Lodgment No. 7 at 315-20.)
On direct appeal to the Court of Appeal, Petitioner argued that the trial court erroneously denied his speedy trial motion. However, the Court of Appeal affirmed the trial court's findings that: 1) Petitioner suffered no actual or presumed prejudice, 2) the delay was caused by Petitioner's fugitive status in Mexico, and 3) the SDPD conducted a diligent and continuous search for him. (Lodgment No. 10 at 5.) Petitioner did not seek review of the Court of Appeal's opinion with the California Supreme Court. (Lodgment No. 11(a) at 6.) Instead, on November 14, 2001, Petitioner filed a Petition for Writ of Habeas Corpus with the California Supreme Court, raising all five claims presented to this Court. (Lodgment No. 11(a) at 2-5.) On May 1, 2002, the California Supreme Court denied the Petition without comment. (Lodgment No. 12.)
Although Petitioner states in his Petition that he filed a Petition for Writ of Habeas Corpus with the Superior Court (Case No. SCD148151) and with the Court of Appeal (Case No. D035517) before filing with the California Supreme Court, these case numbers correspond with his trial court case number and direct appeal case number, respectively. This Court has no record that Petitioner filed a Petition for Writ of Habeas Corpus with either the Superior Court or the Court of Appeal following his direct appeal. However, because Petitioner properly filed his Petition with the California Supreme Court, he has exhausted his state remedies.
FEDERAL COURT PROCEEDINGS
On January 15, 2003, District Court Judge Whelan dismissed this action without prejudice because Petitioner failed to name the correct Respondent and he failed to allege exhaustion of state judicial remedies. Petitioner was instructed to file a First Amended Habeas Petition no later than March 24, 2003. On August 30, 2004, Judge Whelan granted Petitioner's request for reconsideration of the Court's prior dismissal of January 15, 2003, reopening this matter. On September 30, 2004, Petitioner filed a First Amended Habeas Petition, supported by a Memorandum of Points and Authorities. On December 8, 2004, the Respondent Attorney General filed an Answer. On December 28, 2004, Petitioner filed a Traverse, including exhibits. On March 8, 2005, Petitioner made a request to this Court for case disposition.
SCOPE OF REVIEW
Title 28, U.S.C. section 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court 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).
A federal habeas corpus petition must allege a deprivation of one or more federal rights to present a cognizable claim pursuant to section 2254. A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief because no constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Habeas corpus proceedings under section 2254 measure state convictions against federal constitutional requirements applicable to the states. A federal district court does "not sit as a `super' state supreme court" with general supervisory authority over the proper application of state law.Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986). Instead, federal courts may only intervene in state judicial proceedings to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996.Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). The current petition was filed on September 30, 2004, and is governed by the AEDPA. As amended, section 2254(d) now reads:
(d) 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 State court proceeding.28 U.S.C. § 2254(d).
To obtain federal habeas relief, Petitioner must satisfy either section 2254(d)(1) or section 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). Section 2254(d)(1) requires this Court to look to "Federal law, as determined by the Supreme Court of the United States." Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc) (reversed on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997)). "[A] writ may only issue when the state court decision is `contrary to, or involved an unreasonable application of,' an authoritative decision of the Supreme Court." Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997) (abrogated on other grounds byWilliams).
A state court decision can be "contrary to" clearly established Supreme Court precedent under section 2254(d)(1) in two ways. First, a state court decision is contrary to clearly established precedent if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law. Second, a state court decision is contrary to Supreme Court precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a different result. Williams, 529 U.S. at 405-06. The inquiry into whether a state court's interpretation of federal law is "contrary to" clearly established federal law, is itself a question of federal law to which the district court owes no deference to the state courts. Cordova v. Baca, 346 F.3d 924, 929 (9th Cir. 2003).
A state court decision can involve an "unreasonable application" of clearly established United State Supreme Court precedent in two ways. First, a state court decision involves an unreasonable application of Supreme Court precedent if the state court identifies the correct governing legal rule from a Supreme Court case but unreasonably applies it to the facts of the particular state prisoner's case. Williams, 529 U.S. at 407. Second, a state court decision involves an unreasonable application of Supreme Court precedent if the state court either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id.
The AEDPA also requires deference be given to state court findings of fact, with state court factual determinations presumed correct unless the petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Although claims under section 2254(d)(2) are rare, perhaps because of this deferential standard, a state court decision may be found to be "based on an unreasonable determination of the facts in light of the evidence presented" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F. 3d 1484, 1500 (9th Cir. 1997) (overruled on other grounds,Lindh v. Murphy, 521 U.S. 320 (1997)).
Summary or so-called "post card" denials are deemed merits adjudications, even if they do not explicitly reference the federal claim or provide any analysis. Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002) (amended, 311 F.3d 928 (9th Cir. 2002)). In such cases, when the California Supreme Court denies a habeas petition, the federal court must "look through" the unexplained California Supreme Court decision, to the last reasoned decision, as the basis for the state court's judgment. Y1st v. Nunnemaker, 501 U.S. 797, 303-04 (1991). However, in the absence of a reasoned state court decision, the federal court must conduct an independent review of the record to determine whether the state court erred in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
In this case, the Supreme Court of California denied the Petition for Writ of Habeas Corpus without comment. (Lodgment No. 12.) Therefore, this Court will look through the California Supreme Court's decision to the last reasoned decision rendered by a state court on each separate claim. In the absence of a reasoned decision on a particular claim, this Court will conduct an independent review of the record to determine whether the Supreme Court of California erred in its application of clearly established federal law.
DISCUSSION
Petitioner asserts five grounds for relief in his habeas petition. First, Petitioner contends his appellate counsel was ineffective by failing to argue that the evidence presented at trial was insufficient to support his conviction. (Petition at 6.) Second, Petitioner contends that the trial court's denial of his motion to exclude autopsy photographs was an abuse of discretion and that his appellate counsel's failure to raise this issue on appeal denied him the effective assistance of counsel. (Petition at 7.) Third, Petitioner contends that under the doctrine of stare decisis, the Court of Appeal abused its discretion by upholding Petitioner's conviction despite the occurrence of a speedy trial violation. (Petition at 8.) Fourth, Petitioner contends that the trial court erroneously excluded third party culpability evidence, violating his right to due process. (Petition at 9.) Fifth, Petitioner contends that his appellate counsel was ineffective by failing to argue that the bloody thumbprint found at the scene of the crime was by itself insufficient evidence to support his conviction. (Petition at 9a.)
I. Appellate Counsel's Failure To Argue The Sufficiency Of The Evidence On Appeal
Petitioner contends his appellate counsel was ineffective by failing to argue that the evidence presented at trial was insufficient to support his conviction. (Petition at 6.) Specifically, Petitioner argues that the only evidence presented was the uncorroborated testimony of his accomplice, Mr. Pacheco, and that under California law, the uncorroborated testimony of an accomplice is insufficient evidence by itself to support a conviction. (Petitioner's Memorandum of Points and Authorities (PA) at 7.)
Petitioner presented this claim to the California Supreme Court in a habeas petition, and that Court denied the claim without comment. (Lodgment No. 12.) Because the California Supreme Court did not articulate its rationale for denying this claim and because this claim was not presented to any other state court, there is no state court decision to which this Court can defer. Accordingly, this Court must conduct an independent review of the record to determine whether the California Supreme Court's decision was objectively reasonable. Delgado, 223 F.3d at 982.
The Supreme Court has recognized that the Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 53 (1932). In addition, the Supreme Court has held that "the right to counsel is the right to effective assistance of counsel."McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970).
The standard for measuring a claim of ineffective assistance of appellate counsel mirrors the two-prong test set forth inStrickland v. Washington, 466 U.S. 668 (1984), regarding trial counsel. Morrison v. Estelle, 981 F.2d 425, 427 (9th Cir. 1992). For ineffective assistance of counsel to provide a basis for habeas relief, Petitioner must first demonstrate that counsel's performance was deficient, which "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Second, Petitioner must show counsel's deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious they deprived Petitioner "of a fair trial, a trial whose result is reliable." Id. Both prongs of the Strickland test must be satisfied; failure to satisfy one prong eliminates the need to consider the other. Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002).
Additionally, "appellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal." Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (citing Jones v. Smith, 231 F.3d 1227, 1239 n. 8 (9th Cir. 2000)). See also Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985).
Because Petitioner argues his appellate counsel was ineffective by failing to argue the sufficiency of the evidence on appeal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, 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) (emphasis in original).
Here, the record contains substantial evidence that supports Petitioner's conviction. First, Mr. Pacheco's testimony established that he and Petitioner planned only to rob Mr. Twiss, but the situation elevated to the point that Petitioner stabbed Mr. Twiss several times. Furthermore, Mr. Pacheco testified that both he and Petitioner went to Mr. Ramirez's apartment after the incident to buy heroin. (Lodgment No. 4 at 748-56.) Finally, Mr. Pacheco testified that he spoke to the police on April 29, 1983 and admitted that he and Petitioner committed the crime. (Id. at 756-57.)
Contrary to Petitioner's contention that Mr. Pacheco's testimony was the only incriminating evidence presented, the record contains additional evidence that supports his guilt. At trial, Mr. Ramirez testified that when Petitioner and Mr. Pacheco arrived at his apartment, they made the following statements: 1) Mr. Pacheco told Petitioner, "You shouldn't have done that. You messed up." (Lodgment No. 3 at 414.) 2) Petitioner admitted to Mr. Pacheco, that he "messed up." (Id. at 415.) 3) Petitioner told Mr. Pacheco that he "had to do it because [the old man] wanted to push the gas and go off the cliff." (Id. at 414.) 4) Petitioner tried to discuss how he "messed up" with Mr. Ramirez, although Mr. Ramirez refused to listen for fear of being implicated in a crime. (Id. at 415.) Thus, Mr. Ramirez's testimony corroborates Mr. Pacheco's testimony.
Additionally, the record contains evidence that Petitioner's bloody thumbprint was found on the passenger side of the van. (Lodgment No. 2 at 354-64; Lodgment No. 3 at 522, 545-56; Lodgment No. 4 at 668-74, 716-24.) Thus, the record contains substantial evidence, aside from Mr. Pacheco's testimony, that supports Petitioner's guilt. Regardless, even if Mr. Pacheco's testimony was the only evidence presented, federal law holds that "the uncorroborated testimony of a co-conspirator is sufficient evidence to sustain a conviction `unless the testimony is incredible or unsubstantial on its face.'" United States v. Ramirez-Robles, 386 F.3d 1234, 1241 (9th Cir. 2004) (citing United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986)). Petitioner has made no showing that Mr. Pacheco's testimony was incredible or unsubstantial on its face.
In light of the substantial evidence presented, this Court finds that had appellate counsel presented this claim on appeal, it would not have provided grounds for reversal. "[A]ppellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal." Wildman, 261 F.3d at 840. Thus, an independent review of the record demonstrates that appellate counsel's performance was sufficient, therefore, there is no need to determine whether Petitioner was prejudiced underStrickland. Therefore, this Court finds that the California Supreme Court's denial of this claim was neither contrary to, nor an unreasonable application of the clearly established federal law established in Strickand. Thus, Petitioner is not entitled to habeas relief on the basis of this claim.
II. The Autopsy Photographs
Petitioner contends that the trial court's denial of his motion to exclude autopsy photographs was an abuse of discretion and that his appellate counsel's failure to raise this issue on appeal denied him the effective assistance of counsel. (Petition at 7.) Specifically, Petitioner contends that the admission of the autopsy photographs violated his Fifth Amendment right to due process because the photographs were inflammatory, cumulative and their probative value was outweighed by their prejudicial effect. (PA at 18-21.) Additionally, Petitioner contends that the trial court abused its discretion by violating the doctrine of stare decisis. (PA at 21-25.)
Respondent contends that Petitioner does not present a cognizable question for federal habeas review because his argument concerns a state evidentiary ruling, which is inappropriate for federal review. Furthermore, Respondent argues that the trial court properly admitted the photographs. (Answer at 15.)
Because this claim was presented to the California Supreme Court in a habeas petition that was denied without comment, this Court applies the following rebuttable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Nunnemaker, 501 U.S. at 803-06. Therefore, this Court will look to the last reasoned decision rendered by a state court, which was the trial court's denial of Petitioner's pretrial motion to exclude the autopsy photographs.
The clearly established federal law is contained in Estelle, which holds, "[o]rdinarily, federal habeas corpus does not lie to review questions about the admissibility of evidence." Estelle, 502 U.S. at 62. The inquiry of whether evidence is properly admitted under state law:
is no part of a federal court's habeas review of a state conviction. We have stated many times that "federal habeas corpus relief does not lie for errors of state law." Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.Id. at 67-68 (citations omitted).
"The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result denies a fundamentally fair trial guaranteed by due process." Fuller v. Roe, 182 F.3d 699, 703 (9th Cir. 1999).
[F]ailure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief. While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness. The issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point.Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991) (citation omitted).
"Denial of due process in a criminal trial `is the failure to observe that fundamental fairness essential to the very concept of justice. . . . [W]e must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.'"Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986) (citing Lisenba v. California, 314 U.S. 219, 236 (1941)). "Unless fundamental fairness is abridged, federal court interference is unwarranted." Kealohapauole, 800 F.2d at 1465 (citing Chavez v. Dickson, 280 F.2d 727, 735 (9th Cir. 1960)). "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must `be of such quality as necessarily prevents a fair trial.'" Jammal, 926 F.2d at 920 (citing Kealohapauole, 800 F.2d at 1465).
Additionally, the 9th Circuit has found that although evidence may be admitted in violation of state evidentiary standards, the admission of such evidence will not warrant federal habeas corpus relief where a jury could make a rational inference from such evidence. For instance, in Jammal, the state trial court admitted evidence that at the time of the defendant's arrest, he had $135,000 in cash stored in the trunk of his vehicle. The Court of Appeal found that such evidence was erroneously admitted character evidence, because it branded the defendant as a drug dealer, but found the error harmless.Jammal, 926 F.2d at 919. In the defendant's federal habeas corpus petition, the 9th Circuit denied relief, finding that even if the defendant suffered some prejudice as a result of the erroneously admitted evidence, the jury could nonetheless make a rational inference from such evidence, thus, due process was not violated. Jammal, 926 F.2d at 920 (citing Kealohapauole, 800 F.2d at 1465).
In Kealohapauole, the trial court admitted a gruesome autopsy videotape, in which the body of the victim had been badly decomposed. The defendant argued that the evidence lacked probative value, was highly inflammatory and the prosecution could have proven the cause of death by less inflammatory evidence. However, the Court found that although the videotape was not pleasant to watch, it did not render the trial fundamentally unfair so as to violate due process because the jury could make a rational inference relating to the cause of death. Kealohapauole, 800 F.2d at 1466.
Here, the trial court considered the evidence under proper state evidentiary procedures. It noted that the photographs were all taken at the coroner's office after the body had been washed, which reduced their prejudicial effect. (Lodgment No. 1 at 179; Lodgment No. 3 at 492.) This Court agrees with the trial court and finds that clean wounds present an objective and sterile depiction of the incident, as compared to photographs of uncleaned wounds. Although the photographs may have been unpleasant to view, this alone did not render the trial fundamentally unfair. Kealohapauole, at 1466.
The prosecution presented two witnesses to analyze the photographs: Richard Carey, who worked as a crime scene detective in this case and Dr. David Masamichi Katsuyama, who performed the autopsy on Mr. Twiss. (Lodgment No. 3 at 476; Lodgment No. 4 at 592.) Both witnesses testified that the wounds depicted in the photographs were "defensive wounds." (Lodgment No. 3 at 492-98; Lodgment No. 4 at 602.) As the trial court found, the presence of defensive wounds is relevant to the jury's determination of premeditation, deliberation, and/or malice. (Lodgment No. 1 at 179.) Indeed, these photographs could have allowed the jurors to make rational inferences regarding the nature and extent of the victim's struggle, especially if the wounds are cleaned, because the direction and location of the cuts are more visible. Thus, the photographs are probative. Only if "there are no permissible inferences the jury may draw from the evidence" is due process violated. Jammal, 926 F.2d at 920.
This Court finds that the trial court's admission of the autopsy photographs was neither contrary to, nor involved an unreasonable application of, clearly established federal law. It must be stressed that this Court does not sit to review state evidentiary decisions. Only if the admission of evidence violates due process will this Court interfere. Because the jury could have made rational inferences from the photographs in relation to the incident, due process was not violated in this regard. Therefore, Petitioner is not entitled to habeas relief for the admission of the photographs.
Petitioner also contends that the trial court abused its discretion by violating the doctrine of stare decisis regarding the admissibility of autopsy photographs. (PA at 21-25.) However, whether or not the state court violated the doctrine of stare decisis regarding state law is not a cognizable claim for which habeas relief can be granted. This Court is concerned only with the application of clearly established federal law, and as discussed above, federal law was not violated by the admission of the autopsy photographs.
In that regard, Petitioner cites the following California cases: People v. Smith, 108 Cal. Rptr. 698 (Cal.Ct.App. 1973); People v. Burns, 241 P.2d 308 (Cal.Ct.App. 1952);People v. Marsh, 221 Cal. Rptr. 311 (Cal.Ct.App. 1985);People v. Redston, 293 P.2d 880 (Cal.Ct.App. 1956); People v. Terry, 466 P.2d 961 (Cal. 1970); People v. Brawley, 461 P.2d 361 (Cal. 1969) and California Evidence Code section 352.
Finally, Petitioner contends that his appellate counsel's failure to argue this issue on appeal denied him the effective assistance of counsel. (Petition at 7.) Because the California Supreme Court denied this claim without comment, and because there has been no reasoned opinion issued by a state court regarding this claim, this Court conducts an independent review of the record to determine whether the California Supreme Court's denial of this claim was objectively reasonable. Delgado, 223 F.3d at 982.
As discussed above, the photographs were relevant to the case, and not unduly prejudicial, thus, the trial court was within its discretion in admitting the photographs. As previously stated, "appellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal." Wildman, 261 F.3d at 840. There is nothing before this Court to demonstrate that had appellate counsel presented this claim, it would have resulted in reversal. Thus, this Court finds that appellate counsel's performance was not deficient, rendering the need to analyze prejudice unnecessary. Rios, 299 F.3d at 805. This Court finds that the Supreme Court's denial of Petitioner's claim of ineffective assistance of counsel was neither contrary to, nor involved an unreasonable application of,Strickland. Accordingly, Petitioner is not entitled to habeas relief in this regard.
III. Petitioner's Speedy Trial Motion
Petitioner contends that under the doctrine of stare decisis, the Court of Appeal abused its discretion by upholding Petitioner's conviction despite the occurrence of an alleged speedy trial violation. (Petition at 8.) Specifically, Petitioner argues that the sixteen year pre-arrest delay violated his speedy trial rights. (PA at 26.) Petitioner also contends that the trial court erroneously found that the SDPD conducted a continuous and diligent search for him. (PA at 31.) Finally, Petitioner requests an evidentiary hearing to determine whether the SDPD's efforts to apprehend Petitioner were continuous and diligent. (PA at 36.)
Respondent contends that the California courts reasonably applied the Supreme Court precedent established in United States v. Marion, 404 U.S. 307 (1971), by not applying the Sixth Amendment's speedy trial protection and presuming prejudice. Specifically, Respondent contends that substantial evidence supports the trial court's factual findings that: 1) the pre-arrest delay was caused by Petitioner's fugitive status in Mexico, 2) the SDPD's efforts to apprehend Petitioner were continuous and diligent, 3) Petitioner does not demonstrate actual prejudice, and 4) any prejudice suffered is sufficiently justified. (Answer at 21.)
This claim was presented to the California Supreme Court in a habeas petition, which was denied without comment. Thus, this Court applies the following rebuttable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."Nunnemaker, 501 U.S. at 803-06. Unlike Petitioner's previous claims, this claim was presented on direct appeal to the Court of Appeal. (Lodgment No. 8 at 9.) Therefore, this Court will look to the decision rendered by the Court of Appeal to determine whether it was objectively reasonable.
A. Sixth Amendment Speedy Trial Protection
Petitioner contends that the Court of Appeal violated the doctrine of stare decisis by upholding his conviction because it erroneously applied the Fifth Amendment's speedy trial protection, which requires Petitioner to prove substantial prejudice. (Petition at 8.) Petitioner contends the Court of Appeal should have instead applied the Sixth Amendment's speedy trial protection as established in Doggett v. United States, 505 U.S. 647 (1992). (PA at 26-28.)
Clearly established federal law holds that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an `accused[.]'" Marion, 404 U.S. at 313. "Only `a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections' of the 6th Amendment's guarantee of a speedy trial." Id. at 320. "Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend that reach of the amendment to the period prior to arrest." Id. at 321 (footnote omitted).
The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before trial. The Clause does not, for example, limit the length of a preindictment criminal investigation even though "the [suspect's] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life."United States v. Loud Hawk, 474 U.S. 302, 311-12 (1986) (citingUnited States v. MacDonald, 456 U.S. 1 (1982)).
Here, although a warrant was issued for Petitioner's arrest in 1983, neither an indictment nor information was issued against him. (Lodgment No. 1 at 41.) In support of his argument, Petitioner cites Doggett, however, this case involved a substantial delay following the issuance of an indictment. Doggett, 505 U.S. at 647. Thus, Petitioner's reliance upon the Sixth Amendment and Doggett is misplaced, because his Sixth Amendment speedy trial right was not triggered until he was arrested in 1999. The Court of Appeal cited People v. Martinez, 996 P.2d 32 (Cal. 2000), which holds that where a felony criminal complaint, but neither an indictment nor information has been filed, the Sixth Amendment's speedy trial protection does not apply. Martinez, 996 P.2d at 35-36. Instead, Martinez holds that in a situation involving pre-arrest delay, the protections afforded by the Fifth Amendment's due process clause should be applied, which requires a showing of substantial prejudice. Martinez, 996 P.2d at 42-45; Lodgment No. 10 at 3. Martinez is consistent with clearly established federal law, as set forth in Marion. Therefore, this Court finds that the Court of Appeal's adjudication of this claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as established in Marion. Accordingly, Petitioner is not entitled to habeas relief in this regard.
B. Fifth Amendment Speedy Trial Protection
Alternatively, Petitioner may argue that the pre-arrest delay violated his Fifth Amendment due process right. Although the Fifth Amendment was mentioned only once in Petitioner's Memorandum of Points and Authorities (and not at all in the actual Petition), this Court has a duty to construe pro se pleadings liberally. Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). Applying a liberal construction standard ensures the protection of Plaintiff's interests in that his pleadings will be afforded any benefit of the doubt.Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Therefore, this Court will construe Petitioner's claim as if he affirmatively pled that his Fifth Amendment due process right was violated as a result of the substantial pre-arrest delay. Accordingly, this Court will look to whether the Court of Appeal reasonably applied federal law regarding the Fifth Amendment's protection of Petitioner's speedy trial rights.
"Generally, the statute of limitations for a particular crime limits the government's delay in bringing an information and protects the defendant from the effects of excessive delay. However, delay violating a defendant's Fifth Amendment due process rights requires dismissal of the charges even if the statute of limitations has not expired." United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998) (citing United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992)).
The well-settled test for determining whether a defendant's due process rights have been violated is in two parts. First, "a defendant must prove that he suffered actual, non-speculative prejudice from the delay," meaning proof that demonstrates exactly how the loss of evidence or witnesses was prejudicial. The defendant's burden to show actual prejudice is heavy and is rarely met. The second part of the test applies only if the defendant has demonstrated actual prejudice. In the second part, the delay is weighed against the reasons for it, and the defendant must show that the delay "offends those fundamental conceptions of justice which lie at the base of our civil and political institutions."United States v. Barken, 412 F.3d 1131, 1134 (9th Cir. 2005) (citations omitted). See also United States v. Lovasco, (1977) 431 U.S. 783, 790; United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995); Huntley, 976 F.2d at 1290; United States v. Sherlock, 962 F.2d 1349, 1353-54 (9th Cir. 1989).
Here, the Court of Appeal cited Martinez for the proposition that under the Fifth Amendment, Petitioner must prove prejudice and that any such prejudice may be outweighed by the government's justification for the pre-arrest delay. Martinez, 996 P.2d at 44; Lodgment No. 10 at 5. Again, the Court of Appeal's citation to Martinez is consistent with clearly established federal law.
As discussed by the Court of Appeal, the trial court made three relevant findings. First, it found that Petitioner was not prejudiced in being deprived of Ms. Vasquez's testimony. (Lodgment No. 1 at 146-47.) Next, it found that although defense counsel was unable to investigate the van, it was sufficiently preserved by photographs, reports and fingerprint information. (Id. at 147.) Finally, it found that neither Petitioner nor any of the percipient witnesses demonstrated a loss of memory regarding the events. (Id.) The Court of Appeal affirmed these findings on appeal. (Lodgment No. 10 at 4-5.)
Petitioner does not explicitly refute these findings in either his Petition or in his Memorandum of Points and Authorities, because the crux of his argument here is that prejudice should be presumed. However, the applicable standard requires proof of actual prejudice. Barken, 412 F.3d at 1134.
Relying upon Martinez, the Court of Appeal first looked at whether, based on the evidence presented, Petitioner suffered actual prejudice. On direct appeal, Petitioner argued that he suffered actual prejudice in three areas: the deprivation of Ms. Vasquez's testimony, his own faded memories, and inability to analyze the crime scene prior to trial. (Lodgment No. 8 at 11.) However, the Court of Appeal determined that Petitioner had not demonstrated actual prejudice because Ms. Vasquez's testimony was substantially similar to Ms. Romine's, who testified at trial; the van was sufficiently preserved with photographs, reports, and fingerprint information; and Petitioner made no showing that he suffered any loss of memory. (Lodgment No. 10 at 5.) This Court finds that the Court of Appeal's affirmation was a reasonable application of clearly established federal law.
Next, the Court of Appeal applied the balancing test required under Barken, and determined that any prejudice demonstrated was outweighed by the justification for the delay. (Id. at 5.) It based its conclusion on the finding that the pre-arrest delay was largely due to Petitioner's fugitive status in Mexico, and that the SDPD conducted a continuous and diligent effort to apprehend Petitioner. (Lodgment No. 10 at 5.) In making these findings, this Court finds that the Court of Appeal's application of Martinez, a state court case, was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not entitled to habeas relief in this regard.
However, Petitioner intimates that his speedy trial claim is based on an "unreasonable determination of the facts" under section 2254(d)(2), where he states "the presentation of his federal claim to the state court . . . carried little meaning if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." (PA at 31.) However, to succeed under section 2254(d)(2), Petitioner would have to prove that this determination was "so clearly erroneous that it would not be debatable among reasonable jurists." Jeffries, 114 F.3d at 1500. This Court finds that both the trial court's findings and the Court of Appeal's affirmation of those findings are not erroneous, but are objectively reasonable. Petitioner merely argues that the court came to the wrong conclusion in light of the facts presented; an argument insufficient to prove that the trial court came to an unreasonable determination of the facts. Thus, Petitioner is not entitled to habeas relief in this regard.
C. Evidentiary Hearing
Petitioner requests an evidentiary hearing to establish whether the SDPD's efforts to apprehend him were actually continuous and diligent as found by the trial court and affirmed by the Court of Appeal.
28 U.S.C. section 2254(e)(1) provides:
"In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. § 2254(e)(1).
[A]s amended by the AEDPA, 28 U.S.C. § 2254(e) now substantially restricts the district court's discretion to grant an evidentiary hearing. . . . Under the amended statutory scheme, a district court presented with a request for an evidentiary hearing . . . must determine whether a factual basis exists in the record to support the petitioner's claim. If it does not, and an evidentiary hearing might be appropriate, the court's first task in determining whether to grant an evidentiary hearing is to ascertain whether the petitioner has "failed to develop the factual basis of a claim in State court." If so, the court must deny a hearing unless the applicant establishes one of the two narrow exceptions set forth in § 2254(e)(2)(A) (B). If, on the other hand, the applicant has not "failed to develop" the facts in state court, the district court may proceed to consider whether a hearing is appropriate, or required under Townsend.Baja v. Ducharme, 187 F.3d 1075, 1077-78 (9th Cir. 1999).
A petitioner is entitled to a federal evidentiary hearing on his factual allegations if one of the following Townsend factors is satisfied: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; and (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing. Townsend v. Sain, 372 U.S. 293, 313 (1963).
Here, Petitioner presents no new evidence rebutting the correctness of the trial court's factual finding that the SDPD's efforts were continuous and diligent. This Court is required by section 2254(e)(1) to defer to state court factual findings in the absence of clear and convincing evidence to the contrary. Only when a factual finding is rebutted with clear and convincing evidence should an evidentiary hearing be considered under section 2254(e)(2), at which point the Court would determine whether Petitioner "failed to develop the factual basis of his claim" at trial.
As discussed above, Petitioner has not presented clear and convincing evidence to rebut the trial court's finding that the SDPD's efforts to apprehend Petitioner were continuous and diligent. Rather, he simply seeks to reach a more favorable determination of this issue based upon the same facts already presented at the pretrial evidentiary hearing. As this Court must defer to state court findings of fact, an evidentiary hearing in this case would be inappropriate. Thus, this Court never reaches the section 2254(e)(2) inquiry. Accordingly, no evidentiary hearing is warranted.
D. Ineffective Assistance Of Counsel
Petitioner contends that he was denied the effective assistance of counsel regarding his speedy trial claim, but he fails to address in either his Petition or his Memorandum of Points and Authorities exactly how his counsel's performance was deficient or in what manner he was prejudiced, the requisite elements to prove ineffective assistance of counsel under Strickland. (PA 28-30.) Further, it is unclear from Petitioner's Memorandum of Points and Authorities whether he contends that his appellate counsel or his trial counsel was ineffective, thus, both counselors' performances will be addressed.
As with Petitioner's previous claims of ineffective assistance of counsel, they were denied by the California Supreme Court without comment, thus, there is no reasoned opinion rendered by a state court regarding this claim. Because there is no state court decision to which this Court can defer, this Court will independently review the record to determine whether the California Supreme Court's denial of the claim was objectively reasonable. Delgado, 223 F.3d at 982.
Here, appellate counsel raised the speedy trial issue on direct appeal, as the sole issue. Thus, this Court finds that his performance was sufficient. Likewise, this Court finds that trial counsel's performance was sufficient, because he submitted pretrial motions and successfully obtained a pretrial evidentiary hearing to determine whether Petitioner suffered a speedy trial violation. Thus, this Court finds that the California Supreme Court's denial of this claim was neither contrary to, nor involved an unreasonable application of Strickland. Accordingly, Petitioner is not entitled to habeas relief in this regard.
IV. The Trial Court's Exclusion Of Third Party Culpability Evidence
Petitioner contends that the trial court's exclusion of third party culpability evidence violated his Fifth Amendment right to due process. (Petition at 9.) In Petitioner's Memorandum of Points and Authorities, he alleges that this exclusion also violated his Sixth Amendment right to present a defense. (PA at 40.) Petitioner also contends that his appellate counsel's failure to raise this issue on appeal denied him the effective assistance of counsel. (PA at 39.) Specifically, Petitioner argues that evidence of bloody footprints leading to Mr. Ramirez's apartment should have been entered into evidence in order to show that someone other than Petitioner could have committed the crime. (PA at 41.)
Respondent contends that Petitioner ignores the record because it clearly shows that Petitioner's trial counsel declined the court's offer for an evidentiary hearing to demonstrate the validity of such third party culpability evidence, and instead, it was trial counsel's defense strategy to introduce such evidence through the cross-examination of Mr. Ramirez. (Answer at 14-15.)
This claim was presented to the California Supreme Court in a habeas petition, which was denied without comment, thus, this Court applies the following rebuttable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Nunnemaker, 501 U.S. at 803-06. Therefore, this court will look to the decision rendered by the trial court prior to trial, as it dealt with the issue of third party culpability evidence.
A. Fifth Amendment Right To Due Process And Sixth Amendment Right To Present A Defense
"Evidence of third-party culpability is not admissible `if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense.'" People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993); quoting Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983).
The record shows that when the parties were discussing the prosecution's motion to exclude all third party culpability evidence prior to trial, the court offered the defense an opportunity to determine the relevance of such information in an evidentiary hearing. (Lodgment No. 1 at 196.) However, defense counsel declined, stating,
Your honor, it's my understanding through our discussions yesterday that both [the prosecution] and myself did not wish to proceed on a 402 hearing, and to either try to get the evidence before the jury on cross-examination of the People's witnesses, and then I believe we would try to get some of the evidence through direct examination of someone by the name of Luis Soto.
(Id. at 203.)
Although Petitioner never called Luis Soto to the stand, he succeeded in bringing the third party evidence before the jury through Mr. Ramirez's cross-examination, which included the following exchange:
Q: And on the night in question that we're talking about, you and Mario Pacheco got on that van right in front of your apartment, 34; is that correct?
A: No, I never got on the van, sir.
Q: And after you got on that van —
Prosecution: Objection, your Honor. Argumentative at this point. Assumes facts not in evidence.
The Court: Sustained.
Q: After that van was in the parking lot, you got out of the van; is that correct?
Prosecution: Objection.
A: I never stepped foot in that van in my life, sir.
Q: But you're aware that van was parked in that parking lot that night. And you're aware that the sidewalk leads right to your house; is that correct?
A: Yes, it does.
Q: And you actually saw the bloody footprints that were on that sidewalk that went right to your apartment; is that correct?
A: I never seen no bloody footprints.
Q: But you actually are aware that there were bloody footprints out there, aren't there?
A: (Shakes head.)
Q: Did they tell you there were bloody footprints going right to your door?
A: That's what they were talking about. The whole apartment complex was talking about what happened.
(Lodgment No. 3 at 450-51.)
The record does not indicate the existence of any other corroborating evidence with respect to the culpability of Mr. Ramirez. Thus, the evidence of the bloody footprints leading to Mr. Ramirez's door demonstrates a mere suspicion toward him, making it likely that the evidence would have been ruled inadmissible had there been a 402 hearing, in light of the information defense counsel referenced in discussing the motion to exclude third party culpability. (Lodgment No. 1 at 190-195, 205-209.) Because direct evidence of the footprints was likely inadmissible and because Petitioner succeeded in bringing in this evidence through the cross-examination of Mr. Ramirez, this Court finds that the trial court's pretrial treatment of the third party culpability evidence was neither contrary to, nor involved an unreasonable application of, clearly established federal law regarding the Fifth and Sixth Amendments, for the simple fact that the trial court did not exclude the evidence. Rather, it was trial counsel's strategy to introduce such evidence through cross-examination. Accordingly, Petitioner is not entitled to habeas relief in this regard.
B. Ineffective Assistance Of Appellate Counsel
Petitioner contends that appellate counsel's failure to argue the trial court's erroneous exclusion of third party culpability evidence implicating Mr. Ramirez denied him effective assistance of counsel. (PA at 39.) However, as discussed above, it was trial counsel's strategic choice to forgo the evidentiary hearing and instead introduce the evidence through cross-examination, a choice that appears to be a sound strategy based on the facts of the case. Regarding strategy, the Supreme Court stated:
In Strickland we said that "[j]udicial scrutiny of a counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Thus, even when a court is presented with an ineffective-assistance claim not subject to § 2254(d)(1) deference, a defendant must overcome the "presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"Bell v. Cone, 535 U.S. 685, 698 (2002) (citing Strickland, 466 U.S. at 689). Because Petitioner failed to prove appellate counsel's performance was deficient, there is no need to determine whether Petitioner suffered prejudice. This Court finds that the California Supreme Court's denial of this claim was neither contrary to, nor an unreasonable application of Strickland. Accordingly, Petitioner is not entitled to habeas relief on the basis of this claim.
V. Appellate Counsel's Failure To Raise A Sufficiency Of The Evidence Argument Regarding The Bloody Thumbprint
Petitioner contends he was denied the effective assistance of appellate counsel because appellate counsel failed to argue that the only evidence presented supporting Petitioner's guilt was the bloody thumbprint and that it was insufficient evidence to support his conviction. (Petition at 9a.)
Respondent contends that the record contains additional evidence demonstrating Petitioner's guilt and that this argument contradicts his first claim regarding the sufficiency of the evidence. (Answer at 11.)
Petitioner presented this claim to the California Supreme Court in a habeas petition, and that Court denied the claim without comment. (Lodgment No. 12.) Because this claim was not presented to any other state court, there is no state court decision to which this Court can defer. Accordingly, this Court conducts an independent review of the record to determine whether the California Supreme Court's decision was objectively reasonable.Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
This Court finds that Petitioner's fifth claim contradicts his first claim, in which he contends that the only evidence presented that supported his guilt was the uncorroborated testimony of Mr. Pacheco. Contrarily, he now argues here that the only evidence presented was the bloody thumbprint, which was by itself insufficient to support his conviction, and that appellate counsel's failure to raise this issue on appeal denied him the effective assistance of counsel. Petitioner's claim rests on the presumption that Mr. Pacheco's uncorroborated testimony should have been excluded, leaving only the bloody thumbprint. However, even under California law, uncorroborated accomplice testimony is admissible; it is simply insufficient by itself to support a conviction. People v. Tewksbury, 544 P.2d 1335, 1346 (Cal. 1976). Regardless, as discussed above, additional evidence, including Mr. Ramirez's testimony, was admitted at trial along with the bloody thumbprint and Mr. Pacheco's testimony. Moreover, it was properly admitted. Thus, this Court finds that raising this issue on appeal would have been futile, thus, appellate counsel's performance was sufficient, eliminating the need to consider prejudice.
This Court finds that based on an independent review of the record, the California Supreme Court's denial of this issue was neither contrary to, nor involved an unreasonable application ofStrickland. Therefore, Petitioner is not entitled to habeas relief in this regard.
CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an order: (1) approving and adopting this Report and Recommendation and (2) directing that judgment be entered denying the Petition. This Report and Recommendation is submitted to United States District Judge Thomas J. Whelan, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.IT IS ORDERED that no later than November 30, 2005 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than December 14, 2005. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).