Opinion
Case No. CV 14-09675 VBF (AFM)
07-11-2017
WINDER E. BARRIOS, Petitioner, v. NEIL MCDOWELL, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, Senior United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
INTRODUCTION
Petitioner, an inmate at Ironwood State Prison, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254). The Petition raises four grounds for federal habeas relief, directed to petitioner's criminal convictions for his participation in a series of robberies, including a home-invasion robbery. Petitioner's trial was notable for the fact that he and his co-defendant escaped custody for one day during the trial.
An initial Report and Recommendation was issued in this case on May 18, 2017. This Final Report and Recommendation is issued only to remove erroneous citations in the initial Report and Recommendation to the decision of the three-judge panel in Godoy v. Spearman, 834 F.3d 1078 (9th Cir. 2016). Otherwise, this Final Report and Recommendation is substantively identical to the initial Report and Recommendation.
For the reasons discussed below, the Court recommends that the Petition be denied and that this action be dismissed with prejudice.
PROCEDURAL HISTORY
On May 4, 2010, a Los Angeles County Superior Court jury convicted petitioner of five counts of second-degree robbery, two counts of home-invasion robbery, two counts of false imprisonment by violence, two counts of assault with a firearm, and one count of first-degree burglary. The jury also found true allegations of firearm use by petitioner. Petitioner's co-defendant, Jose Aldana, was convicted by a separate jury of several crimes. Petitioner was sentenced to state prison for 42 years 8 months. (4 Reporter's Transcript ["RT"] 2407-15, 2424-31; 5 RT 5426; 2 Clerk's Transcript ["CT"] 368-79, 453.)
Petitioner appealed, raising claims corresponding to Grounds One and Two of the Petition. (Respondent's notice of lodging, Lodgment 17.) In an unpublished opinion filed on November 20, 2012, the California Court of Appeal rejected petitioner's claims and affirmed the judgment. (Lodgment 2.) Petitioner raised the same claims in a Petition for Review in the California Supreme Court, which summarily denied review on January 23, 2013. (Lodgments 3, 20.)
Petitioner next filed a series of habeas petitions in the California courts. On February 6, 2014, petitioner filed a habeas petition in the California Court of Appeal, in which he raised two claims of ineffective assistance of counsel corresponding to Grounds Three and Four of the Petition. (Lodgment 4.) On February 27, 2014, the California Court of Appeal denied the petition without prejudice to petitioner refiling a habeas petition in the Los Angeles County Superior Court with either an accompanying declaration by trial counsel or an accompanying declaration by petitioner describing his attempts to contact trial counsel. (Lodgment 5.)
On March 28, 2014, petitioner filed a habeas petition in the Los Angeles County Superior Court, again raising claims corresponding to Grounds Three and Four of the Petition. (Lodgment 6.) The petition did not include a declaration by trial counsel or petitioner. (Id.) The Superior Court denied the petition in a reasoned decision filed on May 2, 2014. (Lodgment 7.)
On June 4, 2014, petitioner filed a habeas petition in the California Court of Appeal, raising claims corresponding to Grounds Three and Four of the Petition. (Lodgment 8.) The petition included a declaration by petitioner stating that his trial counsel had not responded to petitioner's request for a declaration. (Lodgments 9, 11.) On June 16, 2014, the California Court of Appeal denied the petition without comment or citation of authority. (Lodgments 10, 11.)
On July 21, 2014, petitioner filed a habeas petition in the California Supreme Court, raising claims corresponding to Grounds Three and Four of the Petition, with petitioner's accompanying declaration. (Lodgment 12.) On October 1, 2014, the California Supreme Court denied the petition without comment or citation of authority. (Lodgment 13.)
Petitioner filed the instant Petition on December 18, 2014.
On May 18, 2015, respondent filed a Motion to Dismiss the Petition as untimely. Petitioner filed an Opposition on July 6, 2015. On July 21, 2015, this action was transferred to the calendar of the undersigned Magistrate Judge. On September 11, 2015, the Court denied respondent's Motion to Dismiss without prejudice and ordered supplemental briefing on the merits of petitioner's claims.
On February 22, 2016, respondent filed an Answer. On April 11, 2016, petitioner filed a three-page Reply. On April 12, 2016, the Court appointed counsel for petitioner in the interests of justice, given the procedural complexity of the statute of limitations issue. On February 28, 2017, petitioner's counsel filed a Supplemental Reply.
SUMMARY OF THE EVIDENCE
Based on its independent review of the record, the Court adopts the following summary from the California Court of Appeal's opinion as a fair and accurate summary of the evidence presented at petitioner's trial. (Lodgment 2 at 2-5.)
The Ninth Circuit has held that the factual summary set forth in a state appellate court opinion is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1), which a party may rebut only by clear and convincing evidence that the facts were otherwise. See Brown v. Horell, 644 F.3d 969, 972 (9th Cir. 2011); Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); Mejia v. Garcia, 534 F.3d 1036, 1039 n.1 (9th Cir. 2008). Petitioner has not attempted to rebut the Court of Appeal's factual summary. --------
[Petitioner], codefendant Jose Aldana, and a third man committed four robberies in the Hollywood area between about 9:30 and 10:00 p.m. on March 26, 2009. (All further unspecified date references are to 2009.) Each victim was alone in a parked car when a black pickup truck pulled alongside the victim's car. Two men emerged from the truck, one pointed a shotgun at each victim, and they demanded money. Each victim handed over one or more items to the men. The men took victim Kate Taylor's GPS system. Three of the four victims (Jerry Baxter, Julio Licon, and Taylor) identified [petitioner] and Aldana at trial as the robbers. Baxter testified that the robbers' truck was a Nissan, and victims Dane Woodward, Baxter, and Licon testified that the black truck had a paper license plate that said "Miller" and appeared to be the same truck in which [petitioner] and
Aldana were riding when arrested.
On the morning of March 27, [petitioner], Aldana, and a third man went to the gated Encino home of Robert Smith. Smith's 19-year-old daughter Jenna and the family's housekeeper, Olga Carpio, were in the house. Carpio opened the gate for the men, who stated over the intercom that they were the gardeners. A black truck drove in, and few minutes later, [petitioner] and Aldana appeared outside the glass entry door, which Carpio was cleaning. Aldana pointed a shotgun at Carpio's stomach and demanded that she open the door. After she did, they forced her back to the kitchen. By the time they reached the kitchen, [petitioner] had the shotgun and was pointing it at Carpio. Aldana taped her to a chair and covered her eyes with masking tape. A little later, Jenna awoke and entered the kitchen. She saw Carpio taped to a chair and a man standing behind Carpio pointing a gun at Carpio's head. The gun looked like the one in the photograph of the shotgun recovered from the black truck when [petitioner] and Aldana were arrested. Jenna ran, but the man with the gun ran toward Jenna. The men chased her, threw her down, and carried her to the kitchen, where they taped her to a chair and taped her eyes nearly shut. Jenna felt the barrel of the gun pressed against her cheek and heard the men moving around quickly. After she heard the front door close and no longer heard the men in the house, she phoned her father and 911. The men had ransacked the house and taken two large flatscreen televisions and two laptop computers. Smith identified as his two laptops recovered from [petitioner's] apartment.
The Smith's real gardener arrived the same morning and saw a black Nissan Frontier pickup truck with a paper dealer plate that said "Miller" parked near the house with televisions in the truck bed. The
truck in which [petitioner] and Aldana were arrested looked like the truck the gardener saw. Security camera footage from the home of one of Smith's neighbors showed a black Nissan truck driving toward the Smith house with an apparently empty bed, then driving in the opposite direction about 30 minutes later with what appeared to be big screen televisions in the bed. Portions of the video were played at trial.
On the night of March 30, a silver Escalade pulled up next to Wesley Swafford as she sat in her parked car in the Hollywood area. Aldana got out of the passenger side of the Escalade, pointed a shotgun at Swafford's face, and demanded that she give him "everything." She handed over her purse, car keys, and phone. Her phone was recovered from the rear floorboard of a silver Escalade registered to [petitioner].
[Petitioner] and Aldana were arrested in the Hollywood area on the night of April 2 in the black Nissan truck with "Miller" plates. The police found Taylor's GPS system, a loaded shotgun, and additional shotgun shells inside the truck.
Over the course of two interviews by police, [petitioner] admitted committing the five robberies in the Hollywood area, personally using the shotgun in each of the Hollywood robberies (including the Swafford robbery), the burglary at the Smith home, and the crimes against Carpio. Initially, [petitioner] tried to minimize his responsibility, claiming that although he entered the house with the gun, he held it at his side, did not point it at anyone, did not see anyone taped up, did not see Jenna, and almost immediately after entry, went outside to remain by the truck while his two companions did everything else. He gradually admitted that he remained inside the house, he had the gun on Carpio while Aldana taped her, he kept the gun with him and remained in the kitchen with Carpio after she was
taped, he saw Jenna on the floor, and he talked to Jenna, but he denied being the one who used the shotgun on Jenna. Near the end of the interview, when a detective confronted [petitioner] about the anxiety Jenna experienced, [petitioner] said, "I was talking to her." The detective said, "Yeah — yeah, okay. You have a shotgun; right?" [Petitioner] said, "No, but I didn't — I didn't pull out —" The detective repeated, "Yeah, but you had a shotgun." [Petitioner] replied, "Yeah, I understand." A videotape of [petitioner's] interview regarding the crimes at the Smith home was played at trial. The prosecution also introduced a surreptitiously recorded video of [petitioner] and Aldana conversing in a holding cell. [Petitioner] insisted that they would "[o]nly accept four" robberies "[a]nd no more."
The registered owner of the black Nissan truck was Hector Carpio, who was Olga Carpio's cousin. The third robber, Quinones, was married to another of Carpio's cousins, who had helped Olga at the Smith home for several months two years before the crimes.
[Petitioner] recalled the investigating officer for the crimes at the Smith house as a witness regarding her attempts to question Olga Carpio about Hector Carpio.
PETITIONER'S CLAIMS
1. The evidence presented at trial was insufficient to support the firearm enhancement as to victim Jenna Smith. (Petition at 5; Supplemental Reply at 21-23.)
2. The trial court erred in denying petitioner's second motion for mistrial based on the publicity generated by petitioner and Aldana's escape from custody during their trial. (Petition at 5.)
3. Trial counsel was ineffective for failing to file a motion to suppress petitioner's second statement to the police because petitioner's waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), was invalid. (Petition at 6; Supplemental Rely at 5-21.)
4. Trial counsel was ineffective for failing to investigate and raise an issue as to petitioner's mental incompetency. (Petition at 6.)
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
"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."
Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Carey v. Musladin, 549 U.S. 70, 74 (2006).
Although a particular state court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." See Williams, 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." See Early, 537 U.S. at 8.
State court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts.'" See Early, 537 U.S. at 11 (citing 28 U.S.C. § 2254(d)) (emphasis added). A state-court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state the Strickland standard correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Visciotti, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An "unreasonable application" is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699 (2002). Moreover, review of state court decisions under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." See Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
As the Supreme Court explained in Harrington v. Richter, 562 U.S. 86, 102 (2011):
"Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here [i.e., where there was no reasoned state-court decision], 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 this Court."Furthermore, "[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 fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner's claims in Grounds One and Two were denied by the California Court of Appeal in a reasoned decision on direct appeal. The claims then were presented in the Petition for Review, which the California Supreme Court summarily denied. Thus, the California Court of Appeal's decision on direct appeal constitutes the relevant state court adjudication on the merits for purposes of the AEDPA standard of review with respect to Grounds One and Two. See Berghuis v. Thompkins, 560 U.S. 370, 380 (2010) (where state supreme court denied discretionary review of decision on direct appeal, the decision on direct appeal is the relevant state-court decision for purposes of the AEDPA standard of review).
Petitioner's claims in Grounds Three and Four were denied by the Los Angeles County Superior Court in a reasoned decision denying his habeas petition. The claims then were presented in petitioner's habeas petitions in the California Court of Appeal and the California Supreme Court, and both courts denied the petitions without comment or citation of authority. Thus, the Superior Court's decision on collateral review constitutes the relevant state court adjudication on the merits for purposes of the AEDPA standard of review with respect to Grounds Three and Four. See Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2014) (federal habeas courts look through summary denials to the last reasoned state court decision, whether denials are on the merits or of discretionary review).
DISCUSSION
Respondent contends that petitioner's claims are untimely under the one-year limitation period of 28 U.S.C. § 2244(d). (Answer at 4-11.) This argument, however, raises complex issues regarding statutory and equitable tolling, while the merits of petitioner's claims are straightforward in comparison. The Court therefore will resolve petitioner's claims solely on the merits. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (declining to "reach the complex questions lurking in the time bar of the AEDPA" and instead resolving the case on the merits).
A. Habeas relief is not warranted with respect to petitioner's insufficiency-of-the-evidence claim (Ground One).
In Ground One, petitioner claims that the evidence presented at trial was insufficient to support the jury's finding that petitioner personally used a firearm in commission of the offenses against victim Jenna Smith. (Petition at 5; Supplemental Reply at 21-23.)
1. Legal Standard.
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); accord Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Thus, a state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). But the prisoner faces a "heavy burden" to prevail on such a claim. See Juan H., 408 F.3d at 1274, 1275 n.13. Under Jackson v. Virginia, 443 U.S. 307, 319 (1979) (italics in original), the question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
When determining the sufficiency of the evidence, a reviewing court makes no determination of the facts in the ordinary sense of resolving factual disputes. See Sarausad v. Porter, 479 F.3d 671, 678 (9th Cir.), vacated in part, 503 F.3d 822 (9th Cir. 2007), rev'd on other grds, 555 U.S. 179 (2009). Rather, the reviewing court "must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." See Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995); see also Jackson, 443 U.S. at 319, 324, 326. Thus, in determining the sufficiency of the evidence, "the assessment of the credibility of witnesses is generally beyond the scope of review." See Schlup v. Delo, 513 U.S. 298, 330 (1995); see also United States v. Lindsey, 634 F.3d 541, 552 (9th Cir. 2011); Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) ("A jury's credibility determinations are . . . entitled to near-total deference under Jackson.").
Moreover, while "'mere suspicion or speculation cannot be the basis for the creation of logical inferences,'" see Maass, 45 F.3d at 1358 (citation omitted), "'[c]ircumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury's fact-finding function is concerned,'" Payne v. Borg, 982 F.2d 335, 339 (9th Cir. 1992) (citation omitted). Furthermore, "to establish sufficient evidence, the prosecution need not affirmatively 'rule out every hypothesis except that of guilt.'" Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc) (quoting Wright v. West, 505 U.S. 277, 296 (1992) (plurality opinion)).
In post-AEDPA cases, where, as here, a state court has issued a reasoned decision rejecting a claim of insufficient evidence under a standard that is not "contrary to" Jackson, a reviewing federal court applies an additional layer of deference. See Juan H., 408 F.3d at 1274. A federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees; rather, it "may do so only if the state court decision was 'objectively unreasonable.'" Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam); see also Juan H., 408 F.3d at 1275 n.13. This "double dose of deference . . . can rarely be surmounted." See Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011); see also Coleman v. Johnson, 566 U.S. 650, 132 S. Ct. 2060, 2062 (2012) (per curiam) ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.").
Thus, a state court's resolution of an insufficiency of the evidence claim is evaluated under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2). See Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) ("When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1), . . . we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case."); see also Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) ("The pivotal question, then, is whether the California Court of Appeal . . . unreasonably applied Jackson in affirming Petitioner's conviction for second-degree murder."); Boyer, 659 F.3d at 965 ("[T]he state court's application of the Jackson standard must be 'objectively unreasonable' to warrant habeas relief for a state court prisoner."); Juan H., 408 F.3d at 1275 ("[W]e must ask whether the decision of the California Court of Appeal reflected an 'unreasonable application of' Jackson and Winship to the facts of this case.") (citing 28 U.S.C. § 2254(d)(1)).
Finally, in adjudicating an insufficiency of the evidence claim, a federal habeas court "look[s] to [state] law only to establish the elements of [the crime] and then turn[s] to the federal question of whether the [state court] was objectively unreasonable in concluding that sufficient evidence supported [the conviction]." See Juan H., 408 F.3d at 1278 n.14 (citing Jackson, 443 U.S. at 324 n.16); Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) ("The Jackson standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.") (internal quotation marks omitted).
2. Analysis.
The jury found that petitioner personally used a shotgun while committing his crimes against Jenna Smith (home-invasion robbery, false imprisonment by violence, and assault with a firearm). One of the three burglars pressed a gun to Smith's cheek while she was taped to the chair, but she could not identify who it was because her eyes had been taped shut. (2 RT 369.) Petitioner claims that the evidence failed to establish that it was petitioner, rather than one of the other two burglars, who pressed the gun to Smith's cheek.
The California Court of Appeal rejected this claim because the evidence permitted an inference that petitioner personally used a firearm in chasing and helping subdue Smith, even before she was taped to the chair (Lodgment 2 at 5-6):
Although Jenna Smith was unable to identify which of the three burglars had the shotgun, substantial evidence supports the jury's finding of personal use by [petitioner]. Carpio testified that [petitioner] was the man who pointed the shotgun at her while Aldana taped her to the chair, and [petitioner] admitted this. [Petitioner] further admitted that he kept the gun and stayed with Carpio in the kitchen after she was taped. He insisted that his two accomplices were the ones who gathered the loot from the house. Jenna Smith testified that when she walked into the kitchen, she saw a man pointing a gun at Carpio, and that man then chased her when she attempted to run away.
The jury could reasonably infer that [petitioner] was the man who was pointing a gun at Carpio when Smith entered the kitchen, and that he was thus the man who chased Smith. The jury could further infer that [petitioner] continued to hold the gun as he chased Smith and helped his accomplices to subdue her. Carrying the gun while overcoming Smith's attempt to flee and while she was being restrained constitutes personal use in the commission of robbery and false imprisonment. (People v. Carrasco (2006) 137 Cal. App. 4th 1050, 1059.) In addition, [petitioner's] statements when confronted by the detective about Smith's anxiety were reasonably viewed as an adoptive admission that he had the shotgun when was talking to Smith. Accordingly, we conclude that substantial evidence supports the jury's finding on the personal firearm-use allegations with respect to Smith.
Based on its independent review of the record, the Court concurs with the California Court of Appeal that the evidence presented at trial was sufficient to establish petitioner's identity as a perpetrator who personally used a firearm against Jenna Smith. The evidence established that petitioner pointed a shotgun at the other victim, Olga Carpio, in the kitchen. (2 RT 645, 651-52.) When Smith walked into the kitchen, a man was pointing a gun at Carpio, and then that same man used a shotgun to chase Smith and help subdue her in a chair. (2 RT 363-66.) A reasonable jury could infer that this man was petitioner, particularly because he had earlier pointed the shotgun at Carpio and because the other two burglars were the ones who gathered loot from the house. (2 CT 266-67, 276.)
In his Supplemental Reply, petitioner raises two points. First, petitioner argues that the California Court of Appeal's reliance on Carrasco was erroneous. (Supplemental Reply at 21-22.) In Carrasco, 137 Cal. App. 4th at 1059, the California Court of Appeal noted that "when a defendant deliberately shows a gun, or otherwise makes it presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." (Emphasis added.) According to petitioner, there was in fact evidence in this case to suggest any purpose other than intimidating Jenna Smith, specifically, petitioner's purpose to control the housekeeper, Olga Carpio. (Supplemental Reply at 22.) Petitioner therefore does not dispute that he pointed the gun at Carpio before Smith walked into the room.
Petitioner's theory that he personally used the gun only against Carpio but not against Smith in this scenario relies on an overly narrow interpretation of personal use as a matter of California law. A finding of personal use will be sustained even if the gun is pointed at a person other than the victim because it serves to control and neutralize the conduct of both people. See People v. Granado, 49 Cal. App. 4th 317, 329-30 (1996) (affirming finding of personal use even when the gun is directed at the victim's companion, because it serves to neutralize both the victim and the companion, who is prevented from going to the victim's assistance). Indeed, Jenna Smith did not even have to be aware of the gun, so long as petitioner used it to facilitate his crimes against her. See Granado, 49 Cal. App. 4th at 329-30 (affirming personal use enhancement even when the victim "did not notice the gun"); see also People v. Hajek, 58 Cal. 4th 1144, 1199 (2014) (same even when the victim was not inside the house where the assailant personally used a knife against her family), abrogated on other ground by People v. Rangel, 62 Cal. 4th 1192, 1216 (2016). It also makes no difference that petitioner may not have been actually holding the gun while committing the underlying base felonies against Smith or that he passed the gun around to his confederates during various stages of the home-invasion robbery as he claims he did. Petitioner's attempted "compartmentalization of the ongoing criminal event improperly attempts to take a 'snapshot' of the crime." See People v. Wilson, 44 Cal. 4th 758, 807-08 (2008) (defendant's firearm use need not be strictly contemporaneous with the base felony because "the control and fear created by his initial firearm display continued throughout the encounter," and affirming personal use finding even where the gun was being passed around among the assailants and was not in the defendant's hand when he was committing the base felony) (citing People v. Masbruch, 13 Cal. 4th 1001, 1011 (1996) (personal gun use "is not limited to a 'snapshot' of the moments immediately preceding" the offense)). A reasonable jury therefore could conclude from the evidence presented at trial that petitioner's personal use of the shotgun during various stages of the home-invasion robbery was an act in furtherance of his commission of crimes against Smith.
Second, petitioner argues that the California Court of Appeal's rejection of this claim was based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) because the Court of Appeal ignored highly probative and central evidence. (Supplemental Reply at 22-23.) According to petitioner, the California Court of Appeal ignored evidence suggesting that the identity of the person who held a gun to Smith was someone other than petitioner: Smith's testimony suggested that the man who used a gun on her was wearing a mask, while Carpio testified that it was only petitioner's co-perpetrator, not petitioner himself, who wore a mask. (2 RT 367, 651.) Petitioner's argument is misplaced because the Court reviews an insufficiency-of-the-evidence claim under § 2254(d)(1), not § 2254(d)(2), in order to determine whether the state court unreasonably applied the Jackson standard. See Emery, 643 F.3d at 1213-14; Long, 736 F.3d at 896; Boyer, 659 F.3d at 965; Juan H., 408 F.3d at 1275. Under the Jackson standard, it was not objectively unreasonable for the California Court of Appeal to conclude that the evidence was sufficient to establish that the gunman was petitioner because he was seen earlier pointing the shotgun at Carpio and because his two confederates were the ones who looted the house. And even if the evidence permitted conflicting inferences about whether petitioner was the gunman pressing the gun to Smith's cheek, petitioner's earlier use of the shotgun constituted personal use of a firearm against Smith. In any event, to the extent that the testimony about the perpetrators' masks suggested a different conclusion about the identity of the gunman who pressed the gun against Smith's cheek, the Court must presume that the jury resolved that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326 (federal habeas court must presume that the jury resolved any conflicts in the record in favor of the prosecution); see also Cavazos v. Smith, 565 U.S. 1, 7 (2011) (rejecting insufficiency-of-the-evidence claim where the jury "was presented with competing views of how [the victim] died" and credited the prosecutor's theory).
In sum, a reasonable jury could conclude that petitioner personally used a firearm in the commission of the crimes against Jenna Smith. Accordingly, the California Court of Appeal's rejection of this claim did not involve an unreasonable application of the Jackson standard.
B. Habeas relief is not warranted with respect to petitioner's claim directed to the denial of his second motion for a mistrial (Ground Two).
In Ground Two, petitioner claims that the trial court prejudicially erred by denying his second motion for a mistrial without properly considering whether the news of petitioner and Aldana's escape had affected the jury. (Petition at 5.)
1. Background.
As recounted below, the trial court did conduct two inquiries regarding the circumstances of the escape and denied the defense's first motion for mistrial. Petitioner is claiming in Ground Two that the trial court should have conducted a third inquiry sua sponte before denying his second motion for mistrial.
On the fourth day of trial, petitioner and his co-defendant, Aldana, escaped from their custody at the Peter Pitchess Detention Center. (3 RT 1201-02.) The trial court found that petitioner and Aldana had escaped from custody and exercised its authority to proceed with the trial in their absence. (3 RT 1208.)
News of the escape had been broadcast by the media. (3 RT 1209.) After discussing the matter with the parties, the trial court decided to tell the jurors about the escape: "The information concerning the defendants' escape is now out in the news media, their names have been revealed. I do not believe this information can be contained. Most people already know that this escape has happened. [¶] So it seems to me that not revealing that fact would be ineffectual, that they will indeed find out sooner or later. And if they find out in the trial process, that itself can lead to misuse of that information." (Id.)
The trial court then gave the jury an admonishment stating that the defendants were entitled to a presumption of innocence and that their escape could not be used as evidence of guilt (3 RT 1218-19):
And so now you see that in the courtroom, neither of the defendants are here. The fact that the defendants are not here does not alter the rules that relate to the trial process.
Each defendant is still entitled to the presumption of innocence. Each defendant still retains their right not to be compelled to testify.
The burden of proof still rests with the prosecution, and the standard of proof remains beyond a reasonable doubt.
A fair trial depends upon the jurors' ability and competence to follow these rules.
Now, it has come to this court's attention that the defendants have escaped from jail. That fact is on the news, it is on the Internet, and I suspect some of you know already and many of you will probably find out later.
Now, this is again on the local news and on the Internet. Their escape, if that is a fact, is not evidence of guilt.
The jury cannot use that fact against the defendant as evidence
of guilt in this case. It cannot become the subject of discussion during deliberations, and cannot be used as evidence to establish any of the elements of the charged offenses.
Each juror must be able to abide by these rules. The integrity and fairness of the jury trial process requires each juror to strictly adhere to these rules.
Each juror must be able to set this fact aside and not use it as evidence of guilt against either of the defendants.
To the extent that it is within your control, each juror must not read, listen to, or watch any news report, or commentary about this purported escape.
The trial court then questioned each juror individually and obtained affirmations from them that they understood and were able to follow the trial court's admonishment. (3 RT 1221-24.) Counsel for petitioner and for his co-defendant then unsuccessfully brought the first motion for mistrial. (3 RT 1235.)
Later that day, Juror No. 17 from petitioner's jury informed the trial court that it would be difficult for him to follow the admonishment and that he had already formed an opinion of petitioner's guilt and could not be swayed from it. (3 RT 1239-41.) Juror No. 17 was excused from petitioner's jury. (3 RT 1242-43.)
The next day, petitioner was back in court. (3 RT 1501.) The trial court held a second proceeding by explaining the circumstances to the jury and giving them another admonishment (3 RT 1503-04):
Yesterday I had a discussion with you concerning the absence of the defendant, and now you see that the defendant is with us again. I also spoke with you concerning the defendant's constitutional rights.
I indicated to you that he is entitled to the presumption of innocence, that the defendant retains his right not to be compelled to
testify, that the burden of proof rested with the prosecution, and that for you the burden is beyond a reasonable doubt, meaning that that is the burden that the prosecution must meet before you are allowed by law to convict anyone of a crime, including [defendant].
I also spoke to you about — to the extent possible, that you were not to view any news reports or commentaries about the alleged escape by [defendant] and . . . Aldana, and I asked you that — I asked you two questions: Number 1, I asked you whether or not you understood the admonition; and, No. 2, whether or not you were able to follow the admonition; and all of you indicated to me that you understood the admonition and that you were able to follow that admonition.
Now that he is here . . . nothing has changed concerning your duties. It remains the same. It's constant. It doesn't change because the defendant is here or he is not here. It doesn't matter. It remains the same.
Do all or you understand?
All of petitioner's jurors responded affirmatively, and, when asked by the trial court, no juror indicated he or she would have "a problem" applying the rules the trial court had set forth. (3 RT 1504.)
Later in the trial, petitioner's counsel brought a second motion for mistrial. (4 RT 1844.) Counsel cited news reports in which Supervisor Mike Antonovich had commented that petitioner and Aldana were "illegal immigrants" who "should just be deported." (Id.) Without holding another hearing or inquiry of the jury, the trial court denied the motion, citing the fact that it had already admonished the jury twice and concluding that it had no reason to suspect any juror had violated the admonishments. (4 RT 1845-46.)
2. Analysis.
Petitioner contends that the trial court's denial of his second motion for a mistrial violated his right to due process, particularly because the trial court ruled on the motion without conducting a third inquiry sua sponte as to whether the jury had been affected by the "changed circumstances" consisting of Antonovich's comments that petitioner and Aldana were "illegal immigrants." (Petition at 5; Lodgment 20 at 17.) The California Court of Appeal rejected petitioner's argument that the trial court had a sua sponte obligation to make an additional inquiry about Antonovich's comments before denying the second motion for mistrial (Lodgment 2 at 11):
Here, [petitioner] did not ask the court to make any additional inquiry of the jurors. He also did not allege, let alone make "a threshold showing that some jurors had, in fact, seen" any of the news coverage, much less Antonovich's comments. The trial court had already repeatedly told the jury to avoid exposure to news in general and news stories about [petitioner's] escape in particular. The court had also repeatedly told the jury that it could only base its verdicts upon evidence presented in court, that the escape was not evidence in the case and could not to be used as evidence against [petitioner] or even considered or discussed during deliberations. We presume that the jury followed the court's admonitions and instructions. (People v. Williams (2010) 49 Cal. 4th 405, 469 (Williams); Prieto, supra, 30 Cal. 4th at pp. 272-273; People v. Adcox, supra, 47 Cal.3d at p. 253.) The trial court's prior inquiries to the jurors regarding their ability to follow the admonitions provided no reason to believe that jurors disobeyed the admonition.
The Supreme Court has held that the remedy for allegations of potential juror bias is a hearing, at which the trial court determines the circumstances of what transpired, the impact on the jurors, and whether or not it was prejudicial. See Remmer v. United States, 347 U.S. 227, 229-30 (1954); see also Smith v. Phillips, 455 U.S. 209, 216 (1982). The Ninth Circuit, however, has held that these Supreme Court cases do not mandate a hearing whenever an allegation of jury misconduct or bias is raised. See Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005); Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003) ("Remmer and Smith do not stand for the proposition that any time evidence of juror bias comes to light, due process requires the trial court to question the jurors alleged to have bias."). Rather, the decision to conduct a hearing into alleged juror bias and to determine its extent and nature is within the trial court's discretion. See Tracey, 341 F.3d at 1044 ("Indeed, our own cases have interpreted Smith and Remmer as providing a flexible rule.").
In particular, "neither Remmer nor Smith demand that a judge conduct a hearing sua sponte into allegations of juror misconduct." Indeed, no such duty is clearly established by Supreme Court precedent. See Sims, 414 F.3d at 1157 ("We have not been directed to, nor can we identify, any decision of the Supreme Court that can rationally be understood to stand for the proposition that a trial judge has a duty, sua sponte, to conduct a hearing when presented with [allegations of potential juror bias].") In the absence of Supreme Court precedent on this issue, it follows that the California Court of Appeal's rejection of this claim could not have resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. See Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law."). It also follows that it is unnecessary for the Court to consider whether the trial court's failure to conduct an additional inquiry in this case was harmless error. See Sims, 414 F.3d at 1157 n.4 ("Because we find that there is no clearly established duty for a trial judge to sua sponte conduct a hearing on claims of potential juror bias, we need not reach the question of whether or not the violation of such a duty was prejudicial to the appellant in this case.").
In any event, the record reflects that the investigation actually conducted by the trial court was more than adequate. The trial court conducted two inquiries into the circumstances of petitioner and Aldana's escape, including two admonishments to the jury to disregard the escape and two affirmations from the jurors that they understood and were able to follow the admonishments. The trial court excused the only juror who was unable to follow the admonishment. (3 RT 1239-43.) It was within the trial court's discretion not to conduct a third inquiry sua sponte in light of Antonovich's comments, especially because the comments amounted to only another circumstance of the escape and because petitioner presented no evidence that the jurors were even aware of them. Instead, the jurors were presumed to have followed the admonishment not to view any news reports or commentaries about the escape, and no evidence suggested that any juror who remained on the jury failed to follow it. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (jury is presumed to have followed the instructions given to them); see also Tracey, 341 F.3d at 1037 (trial court's decision not to hold a more elaborate hearing on potential juror bias was within its discretion in part because it gave a curative instruction not to discuss the case until the close of evidence). Accordingly, it was not objectively unreasonable for the California Court of Appeal to conclude that the trial court's denial of petitioner's second motion for a mistrial under these circumstances without an additional inquiry did not violate petitioner's right to a fair trial.
C. Habeas relief is not warranted with respect to petitioner's ineffective-assistance-of-counsel claims (Grounds Three and Four).
In Ground Three, petitioner claims that his counsel was ineffective for failing to file a motion to suppress his statements to the police because they were taken in violation of Miranda. (Petition at 6; Supplemental Rely at 5-21.) In Ground Four, petitioner claims that his counsel was ineffective for failing to raise the issue of petitioner's mental incompetency. (Petition at 6.)
1. Legal Standard.
In Strickland v. Washington, 466 U.S. 668, 694 (1984), the Supreme Court held that there are two components to an ineffective assistance of counsel claim: "deficient performance" and "prejudice." "Deficient performance" in this context means unreasonable representation falling below professional norms prevailing at the time of trial. See Strickland, 466 U.S. at 688-89. To show "deficient performance," petitioner must overcome a "strong presumption" that his lawyer "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Further, petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. The Court must then "determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." Id. The Supreme Court in Strickland recognized that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. Accordingly, to overturn the strong presumption of adequate assistance, petitioner must demonstrate that "the challenged action cannot reasonably be considered sound trial strategy under the circumstances of the case." See Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir. 1999).
To meet his burden of showing the distinctive kind of "prejudice" required by Strickland, petitioner must affirmatively "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694; see also Richter, 562 U.S. at 111 ("In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently."); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (noting that the "prejudice" component "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair").
Moreover, it is unnecessary to address both Strickland requirements if the petitioner makes an insufficient showing on one. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed."); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other."); Williams v. Calderon, 52 F.3d 1465, 1470 and n.3 (9th Cir. 1995) (disposing of an ineffective assistance of counsel claim without reaching the issue of deficient performance because petitioner failed to make the requisite showing of prejudice).
In Richter, the Supreme Court reiterated that the AEDPA requires an additional level of deference if state court has rejected an ineffective assistance of counsel claim. "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." See Richter, 562 U.S. at 101. As the Supreme Court further observed (id. at 105):
"'Surmounting Strickland's high bar is never an easy task.' Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity
of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' Id., at 689, 104 S. Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S .Ct. 2052.
"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' id., at 689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in tandem, review is 'doubly' so, Knowles, 556 U.S., at -, 129 S. Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S. Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."
2. Counsel's failure to move to suppress petitioner's statement to the police as to the home-invasion robbery (Ground Three).
In Ground Three, petitioner claims that his counsel was ineffective for failing to move to suppress his statement to the police about the home-invasion robbery because his waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), was invalid. (Petition at 6; Supplemental Rely at 5-21.)
In order to establish deficient performance in this context, petitioner must show that counsel's failure to file a particular motion was out of "the wide range of professionally competent assistance." See Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008) (quoting Strickland, 466 U.S. at 690). In order to establish prejudice in this context, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious; and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (citing Kimmelman v. Morrison, 477 U.S. 365, 373-74 (1986)). A motion under Miranda would have been granted as meritorious if counsel could have shown that petitioner's waiver of his Miranda rights was not voluntary, knowing, or intelligent. See Miranda, 384 U.S. at 479.
a. background.
During the investigation of the robberies, petitioner was interviewed by the police twice. Petitioner is not raising any constitutional challenge to the first interview, which addressed the Hollywood robberies. Petitioner is challenging only the second interview, which addressed the home-invasion robbery at the Smith home. (2 CT 240-305.)
During the interview about the home-invasion robbery, petitioner waived his right to remain silent and his right to the presence of an attorney. (2 CT 243-44.) Petitioner then admitted, in detail, his participation in the offenses and in particular, he admitted personally using a shotgun against victim Jenna Smith. (2 CT 302-03.)
Petitioner claims that his waiver of his Miranda rights was invalid because the Miranda warnings were not given to him in his native language of Spanish and because he was hearing voices at the time of the waiver. (Petition at 6.) He also claims that counsel's failure to raise this issue was prejudicial because there was no evidence other than petitioner's admission to the police to establish that he personally used a firearm against Jenna Smith. (Supplemental Reply at 20.)
In his Supplemental Reply, petitioner also argues for the first time that the Miranda warnings themselves were defective. (Supplemental Reply at 16-18.) According to petitioner, he was advised of his right to the "presence" of an attorney before and during any questioning (2 CT 243), but he was not advised of his right to "consult" with an attorney. The Court is under no obligation to consider this argument because it is being raised for the first time in the Supplemental Reply. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief."). Moreover, this new argument about the adequacy of the Miranda warnings, which is different in substance from petitioner's original claim about the validity of his Miranda waiver, is unexhausted. See Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988) (per curiam) (for purposes of exhaustion, claim that Miranda waiver was invalid is different in substance from claim that suspect was not informed of his Miranda rights). Finally, "it is perfectly clear that [petitioner] does not raise even a colorable federal claim." See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The officers' warning to petitioner that he had a right to the "presence" of an attorney before and during any questioning — rather than a right to "consult" with an attorney — adequately apprised petitioner of his right to counsel under Miranda. See Miranda, 384 U.S. at 444 (prior to questioning, a suspect must be warned he has a "right to the presence of an attorney, either retained or appointed") (emphasis added); see also United States v. Davis, 2016 WL 3092110, at *5 (D. Nev. Jun. 1, 2016) ("A reasonable person would understand that the right to the presence of an attorney would include the right to consult with an attorney prior to and during questioning. The defendant's argument that a suspect would be appointed an attorney prior to questioning but would not be allowed to consult with that attorney is an unnecessarily narrow interpretation that defies common sense.") Thus, habeas relief would be unavailable for this new Miranda argument in any event.
Accordingly, the only remaining issue in Ground Three is petitioner's initial claim that counsel was ineffective for failing to file a motion to suppress petitioner's statement to the police about the home-invasion robbery because his Miranda waiver was invalid on account of his language problems and auditory hallucinations.
b. analysis.
In rejecting petitioner's claim, the Los Angeles County Superior Court did not address the deficient-performance prong but rejected the claim solely for lack of prejudice: The Superior Court specifically reasoned that even had the suppression motion been granted, there was no reasonable probability of a more favorable outcome because evidence other than petitioner's statement had proven his guilt. (Lodgment 7 at 2-3.)
The Court's review of the deficient-performance prong is de novo. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (federal court applies de novo standard to element of Strickland claim that was never reached by the state court). Under de novo review, counsel's failure to file a motion to suppress the statement under Miranda was not outside of the wide range of professionally competent assistance so as to constitute deficient performance. Neither of the two circumstances petitioner raises — the absence of Miranda warnings in Spanish and the fact he was hearing voices — even when considered in combination would have given counsel reason to investigate and raise a Miranda issue on the ground that petitioner's waiver was not voluntary, knowing, or intelligent.
Petitioner's allegation that counsel should have investigated whether he was unable to understand the Miranda warnings because of his language problem is contradicted by the transcript of the interview itself, which demonstrated his fluency in English. Petitioner's answers throughout the interview were responsive to the officers' questions, he was able to converse with the officers in detail, and the officers had no apparent trouble understanding petitioner's answers in English. (2 CT 240-305.) It was also significant that petitioner affirmatively stated in English that he understood his rights before waiving them. (2 CT 243-44.) These circumstances militate in favor of the validity of petitioner's Miranda waiver. See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127-28 (9th Cir. 2005) (suspect's alleged difficulty with English did not invalidate Miranda waiver where there was "no indication by any of the officers that [the suspect] had difficulty understanding English nor that the officers had trouble understanding his English"); United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986) ("Most importantly, after [the officer] explained each of his rights to him in English, appellant stated that he understood his rights.").
Although petitioner did in fact use the assistance of a Spanish-language interpreter during the trial proceedings, this did not mean he was unable to understand the Miranda warnings in English, given the other circumstances demonstrating his understanding of his rights. See, e.g., United States v. Abou-Saada, 785 F.2d 1, 10 (1st Cir. 1986) (suspect's Miranda waiver was not rendered invalid by the fact that he used an interpreter during court proceedings); United States v. Tellez, 586 F. App'x 242, 243 (7th Cir. 2014) (same); see also Valdez v. Ward, 219 F.3d 1222, 1231 (10th Cir. 2000) (suspect's Miranda waiver was valid even though he had "some limitations in his ability to speak English and therefore occasionally referred to an interpreter to express himself at trial"). It therefore would not have been unreasonable under these circumstances for counsel to fail to file a motion to suppress based on petitioner's alleged language problem.
Petitioner's allegation that counsel should have investigated whether he was unable to understand the Miranda warnings because he was hearing voices is also belied by the interview itself and unsupported by any competent evidence. The interview reflected not only petitioner's facility in English, but also his ability to answer questions coherently and articulately. The trial record contained no medical evidence that would have alerted counsel of the possible invalidity of petitioner's Miranda waiver because of a mental issue. However, as belated support for his claim, petitioner has attached to his Supplemental Reply a two-page medical record that was apparently issued near the time of petitioner's escape. (Supplemental Reply, Exhibit 1.) This medical record, however, does not support petitioner's claim that counsel should have investigated whether his Miranda waiver was invalid. According to the record, petitioner did tell a nurse that he was hearing voices, but he also said he was "fine" and "just stressed out of going to court every day." (Supplemental Reply, Exhibit 1.) The nurse noted petitioner had no history of mental illness and also observed that he was calm and cooperative, answered questions appropriately, and displayed no bizarre or unusual behavior. (Id.) Such evidence would not have been sufficient indicia of incompetence to give counsel reason to doubt the validity of petitioner's Miranda waiver.
In sum, counsel's performance was not deficient for failing to file a motion to suppress petitioner's statement because the record does not contain sufficient indicia to have given counsel reason to think that petitioner's alleged language difficulties and alleged auditory hallucinations rendered his Miranda waiver invalid.
In any event, even assuming that counsel's failure to file a motion to suppress petitioner's second statement to the police did fall outside of the wide range of professionally competent assistance so as to constitute deficient performance, petitioner has not demonstrated prejudice. First, even if counsel had filed the motion to suppress the statement, it was not reasonably probable that the trial court would have granted the motion as meritorious. The record contains no evidence that petitioner's Miranda waiver was invalid because of his alleged language difficulties and alleged auditory hallucinations, and the transcript of the interview reflected petitioner's comprehension and coherence. See Shackleford v. Hubbard, 234 F.3d 1072, 1080 (9th Cir. 2000) (finding no reasonable probability that counsel would have prevailed on Miranda issue with evidence of petitioner's alleged fatigue and mental deficiencies because petitioner was lucid, coherent, and articulate during the police interview).
Second, even had the motion to suppress been granted by the trial court, there was no reasonable probability that the trial would have had an outcome more favorable to petitioner. The Superior Court explained that the independent evidence of petitioner's guilt of the home-invasion robbery was strong (Lodgment 7 at 2, 3):
As a general matter, confessions and admissions can be powerful evidence that prove both an element of an offense and the identity of the perpetrator. In the instant case, the petitioner's statements under custodial interrogation prove both. However, independent evidence pertaining to the elements of the offenses as well as the question of identity was extremely strong. This was no razor thin case that turned on the petitioner's statements that are claimed to have been received in violation of Miranda.
. . . .
As for the home invasion robbery, petitioner was identified by one of the victims in court. Furthermore, upon a search of petitioner's apartment, computers belonging to the Smith family were found inside of his apartment.
There was no prejudice to the introduction of the statements.
The Superior Court's rejection of this claim for lack of prejudice under the Strickland standard was not objectively unreasonable. The evidence of petitioner's guilt of the home-invasion robbery, apart from his statements to the police, strongly militates against a finding of prejudice. See generally Hardy v. Chappell, 832 F.3d 1128, 1141 (9th Cir. 2016) (no prejudice under Strickland where there was strong or overwhelming evidence of guilt); Strickland, 466 U.S. at 696 ("[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support."). One of the victims, Olga Carpio, identified petitioner as one of the assailants in the home-invasion robbery. (2 RT 641.) Carpio also testified that petitioner pointed a gun at her in the kitchen sometime before Jenna Smith walked into the kitchen. (2 RT 645, 651-52, 656.) From Carpio's testimony, the jury could have reasonably inferred that petitioner personally used a firearm in the commission of the crimes against victim Jenna Smith, as discussed above. Petitioner's identity as one of the assailants in the home-invasion robbery was further supported by evidence that two of the Smiths' computers were discovered in his apartment. (3 RT 1296-97.) Given this independent evidence of petitioner's guilt, the Superior Court's rejection of this claim for lack of prejudice did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.
3. Counsel's failure to investigate and raise a mental competency issue (Ground Four).
In Ground Four, petitioner claims that his counsel was ineffective for failing to investigate and raise the issue of petitioner's mental incompetency, based on petitioner's complaint that he was hearing voices at the time of his trial. (Petition at 6.)
"Counsel's failure to move for a competency hearing violates the defendant's right to effective assistance of counsel when 'there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.'" Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)).
A defendant is competent to stand trial if he has "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has 'a rational as well as a factual understanding of the proceedings against him.'" Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402 (1960) (per curiam)); see also Cal. Penal Code § 1367(a) ("A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner."). Indicia that are relevant to the issue of mental incompetency include a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on his competence to stand trial. See Drope v. Missouri, 420 U.S. 162, 180 (1975).
a. background.
When petitioner reappeared for trial following his escape, petitioner's trial counsel made the following comments about his client (3 RT 1501):
I just want to put a few things on record.
I know the court had indicated that he may have been complaining about hearing voices. I spoke to my client. I do not feel that there is an issue as to his competency. I feel he does want to be here and he is ready to go forward.
According to petitioner, however, he told counsel during trial that he had been hearing voices for the past few years. (ECF No. 1-3 at 32-33.) Petitioner therefore claims that counsel was ineffective for failing to raise an issue about petitioner's competency to stand trial.
The Superior Court rejected petitioner's ineffective-assistance-of-counsel claim for lack of both deficient performance and prejudice because petitioner's escape from custody belied his underlying claim of mental incompetence (Lodgment 7 at 3-4):
Concerning the issue of mental incompetence to stand trial, petitioner avers there is evidence he was hearing voices. He does not aver that he did not understand what happened. He does not present any evidence of mental illness or disease from which he suffers presently and that he suffered at the time of trial. In fact, the evidence is to the contrary. On the fourth day of testimony, near the end of the prosecution's case in chief, the petitioner, along with the co-defendant Aldana, escaped from the Peter Pitchess Detention Center. At the time of the escape, the strength of the case against the petitioner was overwhelming and the tide against them self evident. Here, two salient points become evident. First, that the petitioner undertook an effort to escape shows he fully understood the dire consequences he faced. Second, planning and then executing an actual escape, successful for a day, is not the act of an incompetent person. Care must be taken not to be discovered. Timing of when to act or not act has to be carefully observed. The petitioner possessed the mental acuity to carry out an actual escape, a rare deed even for the most mentally competent of jail inmates.
On the question of mental competence, the petitioner has failed to demonstrate any fact to trigger even a duty to investigate.
b. analysis.
It was not objectively unreasonable for the Superior Court to reject petitioner's ineffective-assistance-of-counsel claim, based on his alleged mental incompetency, for lack of deficient performance and prejudice. First, petitioner has not presented any reliable evidence that he had a mental illness or disease during his trial so as to have triggered a duty to investigate by counsel. The record before the state courts contained no evidence that petitioner had any history of irrational behavior or mental illness. See de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) ("It is important to remember that the state court at no time was confronted with evidence of a long and extensive history of irrational behavior and mental illness."). The record also contained no evidence of erratic or irrational behavior by petitioner during trial. See Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985) ("In cases finding sufficient evidence of incompetency, the petitioners have been able to show either extremely erratic and irrational behavior during the course of the trial, or lengthy histories of acute psychosis and psychiatric treatment." (citations omitted)). Petitioner's assertion that he was hearing voices, by itself, was insufficient to trigger counsel's duty to investigate. See Steinsvik v. Vinzant, 640 F.2d 949, 952 (9th Cir. 1981) (competency hearing was not required based on petitioner's statement that he was a "little confused," even when he had a history of a psychiatric hospitalization, a diagnosis of borderline chronic schizophrenia, and numerous suicide attempts).
The two-page medical report attached to petitioner's Supplemental Reply does not change this result. (Supplemental Reply, Exhibit 1.) This medical record does not appear to have been a part of the record before the state courts. The Court therefore cannot consider it because its review of petitioner's ineffective-assistance-of-counsel claim in Ground Four under the AEDPA standard is limited to the record that was before the state court that adjudicated the claim on the merits. See Pinholster, 563 U.S. at 180. Even if the medical record were properly before the Court, it would not support petitioner's claim because, as discussed above, it lacked any evidence of mental incompetence to have given counsel reason to investigate the issue.
Second, evidence that petitioner had successfully escaped custody with his co-defendant during the trial was compelling evidence that contradicted his claim that he was unable to understand the nature of his trial or to assist counsel in the conduct of a defense in a rational manner. Petitioner's escape evinced his mental acuity, his ability to plan, and his rational understanding of the consequences of his trial. See Sailer v. Gunn, 548 F.2d 271, 274-75 and n.4 (9th Cir. 1977) (finding no basis to doubt petitioner's mental competency where petitioner's actions, including an escape from custody, "strongly suggested competence"); see also Deere v. Cullen, 718 F.3d 1124, 1146 (2013) (counsel was not ineffective for failing to request a competency hearing where petitioner, in part, was able to plan the underlying crime for a few days).
In sum, the record before the state courts did not contain sufficient indicia of incompetence to give counsel reason to doubt petitioner's competency, and there was no reasonable probability that petitioner would have been found incompetent to stand trial had the issue been raised and fully considered. Accordingly, it was not objectively unreasonable for the Superior Court to reject this claim because petitioner had failed to show deficient performance and prejudice under the Strickland standard.
D. Petitioner's request for an evidentiary hearing should be denied.
Finally, petitioner requests an evidentiary hearing to resolve his claims. (Supplemental Rely at 5, 20-21.)
However, as noted above, the Supreme Court held in Pinholster, 563 U.S. at 180, that review of state court decisions under § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." By its express terms, § 2254(d)(2) restricts federal habeas review to the record that was before the state court. See also Pinholster, 563 U.S. at 185 n.7 (noting that an unreasonable determination of fact under § 2254(d)(2) must be unreasonable "in light of the evidence presented in the State court proceeding," and stating that "[t]he additional clarity of § 2254(d)(2) on this point . . . does not detract from our view that § 2254(d)(1) also is plainly limited to the state-court record."). Thus, federal courts may not consider new evidence on claims adjudicated on the merits in state court unless the petitioner first satisfies his burden under § 2254(d) and then satisfies his burden under § 2254(e)(2). See Pinholster, 563 U.S. at 181-85; Holland v. Jackson, 542 U.S. 649, 652-53 (2004). The Court's findings above that petitioner is not entitled to federal habeas relief under the AEDPA standard of review are dispositive of petitioner's request for an evidentiary hearing as to those claims. As to any other claims, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (emphasis in original). The Court has been able to resolve petitioner's claims by reference to the state court record.
Accordingly, the Court recommends that petitioner's request for an evidentiary hearing be denied.
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) accepting and adopting this Final Report and Recommendation; (2) denying petitioner's request for an evidentiary hearing; and (3) directing that Judgment be entered denying the Petition and dismissing this action with prejudice. DATED: July 11, 2017
/s/_________
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE