Opinion
Case No. 05cv1610-WQH (BLM).
March 3, 2006
REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California.
On August 12, 2005, Petitioner Renaldo Gibson, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner challenges his conviction and 30 years-to-life prison sentence. Respondent filed an Answer on November 16, 2005, and Petitioner filed a Traverse on December 29, 2005.
This Court has considered the Petition for Writ of Habeas Corpus ("Pet."), the Answer, Respondent's Memorandum of Points and Authorities ("Resp't Mem."), the Traverse, and all supporting documents submitted by the parties. For the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.
I. FACTUAL BACKGROUND
The following facts are taken from the California Court of Appeal's opinion in People v. Gibson, Appeal No. D041730. See Opinion of the California Court of Appeal, Lodgment 7 ("Lodgment 7"). This Court presumes the state court's factual determinations to be correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e) (1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).FACTUAL BACKGROUND
Prosecution Case
At approximately 4:00 a.m. on April 7, 2002, when Gibson was returning to the United States from Mexico, he was detained at the port of entry after a drug-sniffing dog alerted the customs officers to the possible presence of illegal drugs in the vehicle he was driving. When he was approached by a customs inspector, Gibson was urinating in the vehicle while seated in the front seat. [footnote: The prosecution's theory was that he was urinating in an attempt to cover up the smell of the marijuana. The defense theory was that his insulin-dependent diabetes made it difficult for him to control his need to urinate.] Gibson told the customs inspector that he was not bringing anything back from Mexico; he had owned the car for two days; he had been in Mexico for a few hours and was going home to Los Angeles; and he had sole possession of the car while in Mexico. At secondary inspection, hidden under a black rubber covering in the engine compartment of the car, the inspector found 61 packages containing 75.2 pounds of marijuana worth about $29,328 to $45,120.
After waiving his Miranda [footnote: Miranda v. Arizona (1966) 384 U.S. 436] rights, Gibson told a customs officer he had had the car (a red Mustang) for a couple of days and was going to buy it from a person named Bill. After questioning Gibson in a matter designed to build rapport, the officer asked: "Look, I will be straight with you. How much did they pay you to drive the car across the border?" Gibson answered that he had been paid $1,000. When asked who paid him and who he was going to meet, Gibson did not answer. Gibson then asked what was in the car. When the customs officer informed him that the car contained 70 pounds of marijuana, Gibson seemed surprised, and stated: "That's more than they told me that was going to be in the car." Gibson stated that the woman who was with him in the car (Rosalba Magallon) knew nothing about the marijuana. Crediting this claim, the officers eventually released Magallon.Defense Case
Gibson's friend, Humberto Gonzalez, was the registered owner of the Mustang driven by Gibson to the border. Gibson's passenger, Magallon, testifies that Gonzalez, whom she knew from high school, had called and asked her to drive from Los Angeles to Tijuana and San Diego to party. The plan was to pick up another car (which turned out to be the Mustang) in Tijuana. Magallon recruited her friend, Jessica Martinez, to drive them in Martinez's car. Gibson, Gonzalez, Magallon, and Martinez all went in Martinez's car to a club in Tijuana. After they left the club, they went to a parking structure where the Mustang was parked. Gonzalez and Martinez went to the border in Martinez's car, and Gibson and Magallon went in the Mustang. According to Magallon, the plan was to meet at a gas station in San Diego and continue on to another club. When they arrived at the border and the dogs started sniffing the Mustang, Magallon asked Gibson what was going on. Gibson told her not to worry about it, that it was nothing.
Gibson, testifying in his own defense, stated that when they left the club in Tijuana, Gonzalez told Gibson that his car had been repaired in Tijuana. Gonzalez asked Gibson to drive it back so that Gonzalez could ride with Martinez. Gibson acknowledged that he told the customs officials the car belonged to him, but denied that he told them he was paid for bringing it across the border and denied that he made the remark that there was more marijuana than he was told there would be. Gibson explained that when an officer stated that a green leafy substance was found in the vehicle, Gibson admitted that it was his because he though the officer was referring to a small bag of marijuana that Magallon had and he did not want Magallon to get in trouble. When the officers informed him 75 pounds of marijuana was found in the car, Gibson told the officers that was more than he was admitting to having. Gibson testified he was incredulous and thought he was set up. He claimed he did not know anything about the marijuana in the car other than the small amount Magallon may have possessed. . . .
After the prosecution presented testimony indicating that 75.2 pounds of marijuana was found in the Mustang, the court informed the jury that the parties had stipulated that the "marijuana was possessed for sale and not for personal use." The jury was later instructed that the elements of possession of marijuana for sale are: (1) control or the right to control the marijuana; (2) knowledge of its presence; (3) knowledge that the substance had a narcotic character; (4) specific intent to sell the marijuana; and (5) the marijuana was in an amount sufficient to be used for sale or consumption. (See CALJIC No. 12.21.)
During closing argument to the jury, both the prosecution and the defense referred to the stipulation and told the jury that the disputed issue was whether Gibson had knowledge of the presence of the marijuana. The prosecutor argued: "As you remember, there's a stipulation in this case that the marijuana . . . was possessed for sale. Our issue is much more, knowledge. It's not that somebody didn't have, what is it, 30 or $50,000 worth of marijuana, for personal use." [Italics added by California Court of Appeal.] While delineating the elements of the offense of possession for sale, the prosecutor noted that the element of possession with intent to sell was established by the stipulation, stating: "Next element, that you possessed with intent to sell. And you remember the stipulation in this case, that this marijuana was possessed for sale. There's no doubt about that."
In like vein, defense counsel stated that the only challenged element in the case was whether Gibson knew about the marijuana in the car, arguing: " Now, the issue here, and I said it from the beginning, was knowledge, because that was the element necessary for both charges, that Mr. Gibson knew that 75 pounds of marijuana was in the car that he drove. We haven't challenged the fact that he drove it. We haven't challenged any other element in the case. We even stipulated. No tricks, no smoke screens, no nothing. [¶] . . . Now I'm going to be pragmatic because this case calls for it. Again, we're not hiding the ball, no tricks. Just get right at the issue here. And what you've got to believe here, what you're going to have to consider is either Gibson was set up or he knew, he played some active role, of course, he knew the marijuana was in the car, he drove the car, that he was being paid $1,000 to drive the car, and that he knew. That's where it comes down to." [Italics added by California Court of Appeal.] Defense counsel then proceeded to analyze the state of the evidence to support the position that Gibson's knowledge had not been proven beyond a reasonable doubt, in particular pointing to the fact that Gonzalez was the owner of the car and that it was his idea to get the car in Tijuana, and asserting that Gibson was set up by Gonzalez.
During deliberations, the jury sent the court a note, asking for clarification on the element of specific intent to sell the marijuana, to wit: "#4 That person possessed the substance with the specific intent to sell the same. Question: Could we get more clarification for this item? Does he physically need to be the `seller' or does he need to have knowledge that someone else is selling it?" With defense counsel's agreement, the court sent the jury a responsive note, stating: "The stipulation recited by counsel that the 75.2 pounds of marijuana was possessed for sale and not for personal use controls."
II. PROCEDURAL BACKGROUND
On June 4, 2002, the District Attorney of San Diego County charged Petitioner with possession of marijuana for sale in violation of California Health and Safety Code section 11359 and transportation of more than 28.5 grams of marijuana in violation of California Health and Safety Code section 11360, subdivision (a). Respondent's Brief, Lodgment 4 at 1. It was further alleged that Petitioner had five prison priors under California Penal Code section 667.5, subdivision (b), and four strike priors under California Penal Code section 667, subdivision (b)-(i). Id.On December 2, 2002, Petitioner admitted the prior allegations.Id. On December 9, 2002, the jury found Petitioner guilty of counts one and two. Id. On February 21, 2003, the court sentenced Petitioner to a total term of 30 years to life, consisting of a term of 25 years to life for count two and five consecutive one-year terms for each of the five prison priors.Id.
Petitioner filed a consolidated appeal and petition for writ of habeas corpus. Lodgment 7 at 2. Petitioner challenged his conviction of possession of marijuana for sale based on various arguments pertaining to the element of specific intent to sell.Id. Petitioner also assigned error to the trial court's denial of his request to dismiss prior strikes and argued that his life sentence constituted cruel and/or unusual punishment. Id. Petitioner further argued that his counsel was incompetent for agreeing to the stipulation. Id. at 10. On June 7, 2004, the California Court of Appeal, Fourth Appellate District, Division One, affirmed the trial court's judgment and denied the petition for writ of habeas corpus. Id.
Petitioner filed a petition for review in the California Supreme Court, which was denied on August 18, 2004. Order of the California Supreme Court, Lodgment 9.
III. STANDARD OF REVIEW
Title 28 of the United States Code, 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).
The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(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 the State court proceeding.28 U.S.C. § 2254(d). Summary denials do constitute adjudications on the merits. Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).
A state court's decision is "contrary to" clearly established federal law if the state court: (1) "arrives at a conclusion opposite to that reached" by the Supreme Court on a question of law; or (2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state court's decision is an "unreasonable application" of clearly established federal law where the state court "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (emphasis added) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.
Finally, habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C. § 2254(d)(2). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
IV. DISCUSSION
In his petition for writ of habeas corpus, Petitioner alleges that he is entitled to federal habeas relief on the grounds that: (1) Petitioner's trial counsel was ineffective; and (2) the trial court unconstitutionally directed a verdict against Petitioner. Pet. at 5. Respondent argues that the Petition should be denied because Petitioner has failed to demonstrate that the California Court of Appeal's decision on the merits was contrary to, or involved an unreasonable application of, clearly established federal law or that the decision was based on an unreasonable determination of the facts presented. Answer at 2.
A. Petitioner is Not Entitled to Habeas Relief on the Basis of His Ineffective Assistance of Counsel Claim.
Petitioner contends that his trial counsel was ineffective in violation of Petitioner's rights under the Sixth and Fourteenth Amendments. Pet. at 5. Petitioner argues that trial counsel failed to protect Petitioner's interests by stipulating to the fourth element of the offense in count one, even though Petitioner claims he never admitted to possession of marijuana.Id. This stipulation, Petitioner argues, formed the basis for the jury's verdict. Id.
The California Supreme Court summarily denied Petitioner's petition for review, so this Court must look through to the last reasoned state court decision. See Ylst, 501 U.S. at 801-06. Here, the last reasoned state court decision came from the California Court of Appeal, which rejected Petitioner's contention:
A declaration submitted with Gibson's habeas corpus petition indicates that defense counsel agreed to the stipulation for purposes of gaining credibility with the jury. To prevail on a claim of ineffective representation, the defendant "must overcome the strong presumption that counsel's actions were sound trial strategy under the circumstances prevailing at trial." The decision to concede an element of an offense to gain jury credibility on another disputed issue is a tactical approach recognized by the courts as legitimate and the fact that a strategy turns out to be unsuccessful does not alone establish a claim of incompetence. On the facts of this case, showing the transportation of approximately $29,000 to $45,000 worth of marijuana across the border, no reasonable trier of fact could have found that the drugs were merely for personal use and not for sale. Thus, it was certainly reasonable for counsel to seek to gain credibility with the jury by conceding that the drugs were not for personal use. . . .
Gibson also argues that his counsel's agreement to the stipulation was incompetent because by conceding that the marijuana was possessed for sale, he in effect conceded that he knowingly possessed the drugs, thereby eviscerating his defense that he did not know about the presence of the drugs. This interpretation of the effect of the stipulation is belied by the record. During the parties' arguments, the jury was clearly told that the disputed issue was whether Gibson had knowledge of the presence of the drugs. Gibson himself took the stand and testified he did not know about the marijuana. On this record, no reasonable jury would have interpreted the stipulation to constitute a concession to the knowledge element of the offense. Thus, Gibson's argument that counsel was incompetent because the stipulation eviscerated his defense is unavailing.
Lodgment 7 at 8-11 (citations omitted).
To prevail on his petition for writ of habeas corpus, Petitioner must demonstrate that the California Court of Appeal's rejection of his ineffective assistance of counsel claim is contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts presented.
Under clearly established federal law, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove ineffective assistance of counsel, a defendant must show: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Id. at 687. The proper measure of attorney performance is "simply reasonableness under prevailing professional norms." Id. at 688. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689. To determine whether errors of counsel prejudiced the defense, a court "must consider the totality of the evidence before the judge or jury" and consider whether "the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors." Id. at 696.
Petitioner argues that his trial counsel erred in entering the stipulation and that this error prejudiced Petitioner's defense because the jury's verdict was based on the stipulation rather than the evidence presented at trial. Pet. at 5. Although the California Court of Appeal did not expressly mention the United States Supreme Court's Strickland opinion, it is clear from the quoted passage above that the California Court of Appeal did in fact apply the Strickland standard to the facts of this case. The California Court of Appeal presumed that trial counsel's performance was reasonable and required Petitioner to demonstrate that trial counsel's performance was deficient and that the deficiency prejudiced the defense. Because the California Court of Appeal applied the correct federal law standard, this Court will construe Petitioner's argument as a claim that the California Court of Appeal's decision constitutes an "unreasonable application" of clearly established federal law. Thus, it is Petitioner's burden to show that the California Court of Appeal applied Strickland to the facts of his case in an objectively unreasonable manner. See Woodford v. Visciotti, 537 U.S. 19, 25 (2003).
A state court need not cite the controlling United States Supreme Court precedents, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 9 (2003).
The California Court of Appeal found that trial counsel's decision to enter into the stipulation was not outside prevailing professional norms but rather was a reasonable tactical approach for the purpose of gaining jury credibility. Trial counsel's strategy for gaining jury credibility is clear from his closing argument to the jury:
Now, the issue here, and I said it from the beginning, was knowledge, because that was the element necessary for both charges, that Mr. Gibson knew that the 75 pounds of marijuana was in the car that he drove. We haven't challenged the fact that he drove it. We haven't challenged any other element in the case. We even stipulated. No tricks, no smoke screens, no nothing.
Lodgment 2 at 295. Trial counsel's decision to stipulate to undisputed facts in order to maintain credibility with the jury while challenging other aspects of the prosecution case is "the sort of calculated risk that lies at the heart of an advocate's discretion." See Yarborough v. Gentry, 540 U.S. 1, 9-10 (2003) (quoting J. Stein, Closing Argument § 204, p. 10 (1992-1996)) ("[I]f you make certain concessions showing that you are earnestly in search of the truth, then your comments on matters that are in dispute will be received without the usual apprehension surrounding the remarks of an advocate.").
The evidence and argument presented during Petitioner's trial were directed at the critical, contested issue: whether Petitioner knowingly possess the marijuana located in the vehicle he was driving. The facts that he was driving the car, that the car contained approximately 75 pounds of marijuana, and that 75 pounds of marijuana is an amount associated with sales, not personal consumption, are easily proven. Given the ease of proof of those issues, trial counsel's tactical decision not to contest those facts, and instead, focus on the knowledge element is reasonable. As trial counsel later explained, the stipulation "avoid[ed] the necessity of the prosecution calling an expert witness to opine that such a large amount of marijuana would only be for sales." Declaration of Nancy J. King, Lodgment 6, exhibit A. The California Court of Appeal reasonably concluded that no reasonable trier of fact could have found that the drugs were merely for personal use and not for sale. Lodgment 7 at 9. Under these circumstances, trial counsel's decision to stipulate that the drugs were possessed for sale falls within "the wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689.
In fact, Petitioner admitted during his testimony that he was driving the vehicle. Lodgment 2 at 198.
Even assuming that trial counsel's performance could be considered deficient, Petitioner fails to demonstrate that absent the stipulation, there is a reasonable probability that the jury would have had a reasonable doubt about Petitioner's guilt. See Strickland, 466 U.S. at 696. The fact that Petitioner was driving a car containing over 75 pounds of marijuana with an estimated market value of $29,000 to $45,000 constitutes overwhelming evidence that the drugs were possessed for sale, not personal use. Thus, the California Court of Appeal's finding that the stipulation did not prejudice Petitioner's defense is reasonable.
Petitioner's argument that the stipulation "became the basis for the jury's verdict" is unsupported by the facts of this case. The stipulation affected no more than three out of the five elements of the offense in count one and only one out of the three elements of the offense in count two. Significantly, the critical element of Petitioner's knowledge of the marijuana was left for the jury's determination and was vigorously contested by defense counsel. Thus, the jury verdict convicting Petitioner of both offenses necessarily turned on the jury's finding that Petitioner did in fact possess the requisite knowledge. Considering the totality of evidence in the record, this Court finds that even had no stipulation been entered, the jury likely still would have found Petitioner guilty of both offenses beyond a reasonable doubt. Therefore, the California Court of Appeal reasonably concluded that trial counsel's decision to enter into a stipulation did not prejudice Petitioner's defense.
Furthermore, Petitioner's suggestion that trial counsel erred by entering into the stipulation because "Petitioner did not even admit to possession of marijuana" is unsupported by the record and by Petitioner's own trial testimony. On direct examination, Petitioner admitted that he was driving the car in which marijuana was found. Lodgment 2 at 198. The record contains no evidence which contradicts Petitioner's testimony that Petitioner drove the car in which marijuana was found. Petitioner fails to explain how trial counsel's decision to stipulate to facts which are uncontradicted and which are supported by Petitioner's own sworn testimony could constitute ineffective assistance of counsel.
The complete text of the stipulation which was read into the record is as follows: "It is stipulated between the parties that the substance found in the car the defendant was driving was 75.2 pounds of marijuana, a controlled substance. It it further stipulated that the marijuana was possessed for sale and not for personal use." Lodgment 2 at 64.
For the reasons stated above, this Court finds that the California Court of Appeal's decision rejecting Petitioner's ineffective assistance of counsel claim was reasonable and consistent with clearly established federal law. Accordingly, this Court RECOMMENDS that Petitioner's ineffective assistance of counsel claim be DENIED. B. Petitioner is Not Entitled to Habeas Relief on the Basis of His Claim that the Trial Court Directed a Verdict on Count One.
Petitioner contends that the trial court's answer to the jury's request for clarification directed the jury's verdict in violation of the Sixth Amendment. Pet. at 5. Petitioner argues that the trial court "told the jury that the marijuana was for sale," thus removing that element from the jury's deliberation process. Id. The California Court of Appeal rejected Petitioner's contention:
[Gibson] argues that the effect of the trial court's response was to direct a guilty verdict on the possession for sale charge. He argues that he could not be found guilty of possession with intent to sell unless he personally intended to sell the marijuana, and that both the stipulation and the trial court's response to the jury question removed this issue from the jury's consideration. Preliminarily, we disagree with Gibson's contention that intent to personally sell the drugs is required in order to establish intent to sell. Further, to the extent there may have been error in the stipulation or the trial court's response to the question, we conclude it was harmless beyond a reasonable doubt.
In People v. Parra, the court held that a defendant could be convicted of possession of a controlled substance for sale if he or she had the specific intent that someone sell it, even without an intent to personally sell the substance. The court reasoned that there was "no meaningful distinction in culpability between the defendant who actually sells the controlled substance and the defendant who transports it with the specific intent that someone else will sell it, as they both share in the specific intent to sell." We agree with this conclusion. Accordingly, the trial court did not err in failing to respond to the jury's question by the telling the jury that personal intent to sell was necessary, because this is not the law. . . .
Assuming that the stipulation or the court's response to the jury's question erroneously conceded the element of specific intent, the record establishes that any such error was harmless beyond a reasonable doubt. It is virtually certain that if the jurors discredited Gibson's testimony and credited the officers' testimony so as to conclude Gibson knew about the drugs in the vehicle, they would infer he intended that the drugs be sold. To the extent there was evidence suggesting that Gibson may not have known the full amount of marijuana hidden in the vehicle (i.e., based on his statement to the officers in this regard), the evidence that he conceded he was being paid $1,000, as well as the fact that his statement indicated he knew there was some amount of contraband, create a compelling inference that he knew about, and intended to participate in, the narcotics sales operation by carrying the contraband across the border. Thus, even if the stipulation had been more narrowly worded or if the trial court had answered the jury's question by apprising it that defendant must intend that someone sell the drugs, we have no doubt that the verdict would have been the same.
Lodgment 7 at 7-10 (italics in original) (citations omitted). This Court must analyze whether the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254 (d).
Under clearly established federal law, "a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . regardless of how overwhelmingly the evidence may point in that direction."Rose v. Clark, 478 U.S. 570, 578 (1986). This rule stems from the Sixth Amendment's clear command to afford jury trials in serious criminal cases. Id. A "directed verdict" results when a trial judge's actions foreclose independent jury consideration of whether the proven facts establish the contested elements of the charged offense. Powell v. Galaza, 328 F.3d 558, 563 (9th Cir. 2003) (citing Carella v. California, 491 U.S. 263, 266 (1989);Sandstrom v. Montana, 442 U.S. 510, 521 (1979)).
In Powell, the Ninth Circuit reversed the district court's denial of a petition for writ of habeas corpus on the grounds that the trial judge's instructions to the jury unconstitutionally directed a guilty verdict against Powell.Powell, 328 F.3d at 563. Powell was charged with failure to appear at a sentencing hearing. Id. at 559. Under California law, the crime of failure to appear has two elements: (1) willful failure to appear as required and (2) specific intent to evade the process of the court. Id. at 560. Powell did not challenge the first element of the crime; instead, Powell's defense was that he did not specifically intend to evade the process of the court. Id. At trial, Powell testified regarding the circumstances surrounding his failure to appear. Id. at 561. Immediately after the prosecution's cross-examination of Powell, the trial judge told the jury that Powell's testimony:
. . . doesn't relate in the slightest to the subject of intent. In fact, if you look carefully and logically at what has been said here about why the defendant didn't come to court, it doesn't vindicate or eliminate the intention to evade the court process. In fact, it starts with an admission that he intended to evade the court process.Id. The Ninth Circuit found that the trial judge's statement in effect instructed the jury that the specific intent element of the crime had been satisfied. Id. at 563-64. Because the trial judge's instruction removed the only contested issue from the jury's consideration, the trial judge's instruction amounted to an unconstitutional "directed verdict." Id. at 564.
In contrast, in the instant case, the trial judge's response to the jury's request for clarification did not remove any contested issue from the jury's consideration. As previously discussed, the critical, contested issue in Petitioner's trial was knowledge of the marijuana. The judge's response did not affect that issue; it merely indicated that the stipulation governed the issue of whether the marijuana was for sale or personal use. The trial judge's response to the jury's request for clarification, even if erroneous, could not have affected the jury's determination of Petitioner's knowledge of the marijuana. As such, the California Court of Appeal reasonably concluded that the trial judge's response did not constitute an unconstitutional "directed verdict" because the trial judge in no way foreclosed the jury from determining the only contested issue in the case.
Petitioner argues only that the trial court's response to the jury's request for clarification constitutes a directed verdict. Pet. at 5. Petitioner does not allege that the stipulation itself constitutes a directed verdict.
To the extent that Petitioner's position is that the trial judge's answer to the jury's request for clarification was an unreasonable application of state law, this Court is without authority to review it. In considering a petition for writ of habeas corpus, this Court's role is solely to determine whether the state court's decision is contrary to clearly established federal law, not whether the state court inappropriately applied state law. See Estelle v. McGuire, 503 U.S. 62, 67-68 (1991).
A directed verdict is not subject to harmless error review.Neder v. United States, 527 U.S. 1, 17 n. 2 (1999) (citingRose, 478 U.S. at 578). However, trial court error which does not amount to a directed verdict is subject to harmless error review. Id. at 18. Having found reasonable the California Court of Appeal's decision that the trial judge did not direct the verdict, this Court will next review the California Court of Appeal's determination that any error by the trial court was harmless.
Trial court error is considered harmless where it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder, 527 U.S. at 18. A reviewing court making this harmless-error inquiry does not "become in effect a second jury to determine whether the defendant is guilty." Id. at 19. Rather, a court asks whether the error "had substantial or injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Having reviewed the record of Petitioner's trial, this Court finds that even if the trial judge erred in advising the jury that the stipulation controlled the "for sale" element, this error did not have a substantial or injurious effect or influence in determining the jury's verdict. As previously discussed, the stipulation did not address Petitioner's knowledge of the marijuana and, therefore, could not have affected the jury's determination of that element, which was the only contested issue in the case. Therefore, the California Court of Appeal's decision that any trial court error was harmless is objectively reasonable. Accordingly, this Court RECOMMENDS that Petitioner's claim that the trial court directed a verdict be DENIED.
CONCLUSION AND RECOMMENDATION
In sum, this Court finds that Petitioner has failed to present evidence suggesting that any part of the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). As such, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED and the case dismissed with prejudice.For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition.
IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than March 24, 2006. 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 April 14, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
IT IS SO ORDERED.