Opinion
MEMORANDUM AND ORDER DENYING PETITIONER'S REMAINING CLAIMS PROCEEDINGS [Claims A(1)(e), A(2)(b), A(2)(c), A(3)(a), A(3)(b), A(3)(c), B(2)(a), B(2)(b), B(2)(c), B(2)(d), B(2)(e), B(3)(a), B(3)(b), and B(3)(c)]
JAMES V. SELNA, District Judge.
Petitioner, a California state prisoner under sentence of death, initiated this federal habeas corpus action on April 12, 1995, when he requested a stay of execution and appointment of counsel. (Request for Appointment of Counsel and for Stay of Execution of Death Sentence, filed Apr. 12, 1995). He filed the original Petition for Writ of Habeas Corpus on September 20, 1996 and the operative Corrected Petition for Writ of Habeas Corpus on October 17, 1996. (Petition for Writ of Habeas Corpus, filed Sept. 20, 1996; Petition for Writ of Habeas Corpus (Corrected), filed Oct. 17, 1996 ("Crctd. Pet."); see also Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus (Corrected), filed Sept. 25, 1996 ("Crctd. Ps&As")).
The Corrected Petition alleges petitioner's claims in extremely conclusory fashion. Were the Court to limit its consideration to the four corners of the Corrected Petition, the Court would dismiss the all of petitioner's claims for lack of specificity. See James v. Borg , 24 F.3d 20, 26 (9th Cir.) ("Conclusory allegations [of ineffective assistance of counsel] which are not supported by a statement of specific facts do not warrant habeas relief."), cert. denied sub nom. James v. White, 513 U.S. 935 (1994); Campbell v. Wood , 18 F.3d 662, 679 (9th Cir.) (conclusory allegations are insufficient to justify an evidentiary hearing), reh. and reh. en banc denied, 20 F.3d 1050 (9th Cir.), cert. denied, 511 U.S. 1119 (1994); 1 R. Hertz, J. Liebman, Federal Habeas Corpus Practice & Procedure, § 11.6, at 572-77 (4th ed. 2001) (laying out the requirements for pleading facts in habeas petitions). However, petitioner filed memoranda of points and authorities which lend specificity to his claims. (Crctd. Ps&As, supra; Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus, filed Sept. 20, 1996). The Court incorporates the specific allegations of these memoranda into the corrected petition.
After filing the operative petition, petitioner moved for an evidentiary hearing. (Notice of Motion and Motion for Evidentiary Hearing, filed Jan. 8, 1999). On October 5, 1999, the Court denied in part petitioner's request for an evidentiary hearing and deferred rulings on several claims involving the prosecution's jailhouse informant witness, William Acker. (Order on Petitioner's Motion for Evidentiary Hearing, filed Oct. 5, 1999 (hereafter, "Evid. H. Ord.")). Specifically, the Court denied an evidentiary hearing on four claims on the basis that the claims were without merit. (Evid. H. Ord., at 7-12 (Claim A(1)(a) (Ineffective assistance of trial counsel based on trial counsel's failure to investigate and present witnesses and evidence)), 16-19 (Claim A(1)(c) (IAC based on trial counsel's failure to investigate and present evidence of petitioner's impaired mental state)), 26-27 (Claims A(1)(d) and A(2)(a) (IAC based on trial counsel's failure to investigate and present, and a claim under Brady v. Maryland , 373 U.S. 83 (1963), based on the prosecution's failure to disclose, impeachment evidence related to Acker)), 32-33 (Claim C(1) (the California Supreme Court's denial of discovery and an evidentiary hearing violated due process)). The Court denied a hearing on four claims on the basis that it could decide the claims based on the record. (Evid. H. Ord., at 12-13 (Claim A(1)(b) (IAC based on trial counsel's failure to investigate and present character evidence)), 19-20 (Claim A(1)(f) (IAC based on trial counsel's failure to request a jury instruction on the unreliability of informant testimony)), 27-30 (Claim A(3)(a) (the trial court violated due process when it "removed from the jury's consideration the determination of an element of the special circumstance allegation that the victim was a peace officer killed in the performance of his duties")), 30-32 (Claim B(1)(b) (penalty phase IAC based on trial counsel's failure to "investigate the law relating to the sole mitigating factor presented as a defense and explain such factor to the jury.")). The court deferred ruling on two claims pending discovery. (Evid. H. Ord., at 19 (Claim A(1)(e) (IAC based on trial counsel's failure to investigate and present evidence Acker was a government agent)), 27 (Claim A(2)(b) (prosecution's knowing use of false testimony by Acker)). Petitioner did not seek an evidentiary hearing on: Claim A(2)(c), the prosecution "misstated the law during argument to the jury" (Crctd. Pet., at 9), Claim A(3)(b), the trial judge instructed the jury on the special circumstance "under an overbroad standard" (Crctd. Pet., at 9), Claim A(3)(c), the trial court failed to give a specific cautionary instruction on Acker's testimony (Crctd. Pet., at 10), Claim B(1)(a), petitioner's trial attorney was ineffective in the penalty phase when he "failed to adequately investigate and present mitigating background and character evidence relating to [p]etitioner" (Crctd. Pet., at 10), Claims B(2)(a)-(e), for prosecutorial misconduct in the penalty phase (Crctd. Pet., at 10-12), and Claims B(3)(a)-(c), for erroneous jury instructions and admission of photographs in the penalty phase. (Crctd. Pet., at 12).
On July 24, 2000, respondent moved for judgment on the pleadings on five claims: Claim A(1)(b) (IAC: trial counsel's failure to investigate and present character evidence), Claim A(1)(f) (IAC: failure to request a jury instruction on the unreliability of informant testimony), Claim A(3)(a) (the trial court violated due process when it removed the "peace officer killed in the performance of his duties" element of the special circumstance from the jury's determination), Claim B(1)(a) (IAC: trial counsel failed adequately to investigate and present mitigating background and character evidence at the penalty phase), and Claim B(1)(b) (penalty phase IAC: trial counsel failed to "investigate the law relating to the sole mitigating factor presented as a defense and explain such factor to the jury."). (Motion for Judgement on the Pleadings as to Claims A(1)(b), A(1)(f), A(3)(a), B(1)(a) and B(1)(b), filed Aug. 7, 2000). On September 26, 2001, the Court granted summary adjudication to respondent on Claims A(1)(b), A(1)(f), A(3)(a), B(1)(a), and B(1)(b), "except for that portion of Claim A(3)(a) which alleges that the jury instruction on the validity of the search warrant on petitioner's parents' house violated petitioner's due process rights." (Memorandum and Order Granting and Denying Summary Adjudication of Claims, filed Sept. 25, 2001, at 38). The Court denied summary adjudication on this portion of Claim A(3)(a) and ordered additional briefing on this issue and Claims A(1)(e), A(2)(b), A(2)(c), A(3)(b), A(3)(c), B(2)(a), B(2)(c), B(2)(d), B(2)(e), B(3)(a), B(3)(b), and B(3)(c). ( Id., at 38-39; Minute Order dated Nov. 9, 2001; Minute Order dated Nov. 30, 2001).
On February 5, 2003, the Court issued a tentative ruling denying Claim A(3)(a) on the merits and, on February 6, 2003, heard oral argument on the claim. (See [Tentative] Memorandum and Order Granting Summary Adjudication of Claim A(3)(a) to Respondent, served Feb. 5, 2003). The Court has not issued a final ruling on Claim A(3)(a).
On June 18, 2003, the Court, on reconsideration in light of Woodford v. Garceau , 538 U.S. 202 (2003), of its prior ruling to the contrary, held that the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies to this case. (Ruling on Respondent's Motion for Reconsideration of Application of AEDPA to the Petition, filed Jun. 18, 2003; see Evid. H. Ord., supra, at 4-5 (ruling pre-Garceau, that AEDPA did not apply to this case)).
After discovery, petitioner moved for reconsideration of that part of the Court's October 5, 1999 Order which denied Claim A(2)(a), petitioner's Brady claim based on the prosecution's failure to disclose evidence impeaching prosecution witness William Acker. (Notice of Motion and Motion for Reconsideration, filed Jun. 5, 2003). The Court denied this motion on September 19, 2003. (Order on Respondent's [sic: Petitioner's] Motion for Reconsideration of October 5, 1999 Order, filed Sept. 19, 2003).
Meanwhile, the parties briefed the remaining claims. The Court ordered the parties to provide supplemental briefing on claim A(3)(a), petitioner's Bouie claim and the related issue of whether the search warrant Deputy Williams was executing when he was shot was defective. (Minute Order, dated Nov. 9, 2001, at 1-2). The Court ordered the parties to propose a schedule for briefing the remaining undecided claims. ( Id., at 2).
Bouie v. City of Columbia , 378 U.S. 347, 353-54 (1964) ("an unforeseeable judicial enlargement of a criminal statute, applied retroactively, " violates due process).
Acting pursuant to this order, petitioner filed his opening brief on the defective warrant issue on January 9, 2002. (Petitioner's Brief, re Defective Warrant, filed Jan. 9, 2002). Respondent filed a brief on the defective warrant issue on March 15, 2002. (Respondent's Supplements Brief re Allegedly Defective Search Warrant, filed Mar. 15, 2002). Petitioner replied on this issue on April 15, 2002. (Petitioner's Reply to Respondent's Supplements Brief re Allegedly Defective Search Warrant, filed Apr. 15, 2002). On January 14, 2002, respondent filed an opening brief on petitioner's Bouie claim. (Respondent's Opening Brief re Claim A(3)(a), filed Jan. 14, 2002). Petitioner filed his brief on this claim on March 15, 2002. (Petitioner's Opposition Brief re Claim A(3)(a), filed Mar. 15, 2002). Respondent replied April 15, 2002. (Respondent's Reply Brief re Claim A(3)(a), filed Apr. 15, 2002).
The Court adopted the briefing schedule the parties submitted in response to the Court's November 9, 2001 minute order. (Minute Order, dated Nov. 30, 2001; Joint Status Report re Joint Proposed Briefing Schedule for Summary Resolution of Outstanding Claims, filed Nov. 28, 2001). Pursuant to that schedule, respondent filed an opening brief addressing claims A(1)(e), A(2)(b), A(2)(c), A(3)(b), A(3)(c), B(2)(a), B(2)(b), B(2)(c), B(2)(d), B(2)(e), B(3)(a), B(3)(b), and B(3)(c) ("the remaining claims"), on March 15, 2002. (Respondent's Supplemental Brief in Response to Court's Order of November 9, 2001, filed Mar. 15, 2002). Petitioner filed his responsive brief on May 16, 2002. (Petitioner's Opposition to Respondent's Supplemental Brief in Response to Court's Order of November 9, 2001, filed May 16, 2002 ("Ptr's. May 16, 2002 Opp.")). On June 17, 2002, respondent filed a reply brief on the remaining claims. (Respondent's Reply Brief Regarding Claims A(2)(c), etc., filed Jun. 17, 2002). Petitioner filed a sur-reply on July 15, 2002. (Petitioner's Sur-Reply to Respondent's Reply Brief of June 17, 2002 Regarding Claims A(2)(c), etc., filed Jul. 15, 2002).
The Court's October 5, 1999 order on petitioner's request for an evidentiary hearing deferred rulings on claims A(1)(e) and A(2)(b), and, initially, the Court ordered, and the parties included, briefing on these claims in their supplemental briefing on the remaining claims. However, in his first motion for reconsideration of the Court's October 5, 1999 order, petitioner stated that discovery had turned up no new evidence regarding these claims, and the parties discontinued further briefing on them. (See Notice of motion and Motion for Reconsideration, filed Jun. 5, 2003, at 7 n.7; Respondent's Brief Regarding Claims A(1)(e) and A(2)(b), filed Jun. 23, 2003). The Court addressed that motion in a separate order. (Memorandum and Order Denying Petitioner's Second Motion for Reconsideration, filed Jul. 14, 2008).
On March 16, 2005, the case was transferred to Hon. James V. Selna, and, on April 27, 2005, Judge Selna ordered one additional round of briefing to update the status of petitioner's outstanding claims. On July 22, 2005 and October 13, 2005, respectively, respondent and petitioner each filed their supplemental briefs. (Respondent's Supplemental Brief, filed Jul. 22, 2005; Petitioner's Supplemental Brief, filed Oct. 13, 2005).
Petitioner filed a second motion for reconsideration of the Court's October 5, 1999 Order denying petitioner an evidentiary hearing on Claim A(1)(d), that trial counsel was ineffective for failing to investigate and present evidence impeaching Acker, and Claim A(2)(a), that the prosecution deprived petitioner of due process when it failed to disclose exculpatory information about Acker. (Notice of Motion and Motion for Reconsideration; Memorandum of Points and Authorities; Declarations, Exhibits, filed under seal Oct. 17, 2005; see also Notice of Filing Public Version of Motion for Reconsideration; Memorandum of Points and Authorities; Declarations [Redacted], filed Nov. 3, 2005). The Court has addressed that motion in a separate order.
BACKGROUND
This case arose on May 29, 1979, when plainclothes undercover Sheriff's deputies drove up to petitioner's house in unmarked cars to serve a search warrant based on an informant's tip that drugs could be purchased from petitioner's step brother, with whom petitioner resided. The deputies announced their presence and heard sounds indicating the possible destruction of narcotics, so they broke down the front door and entered the house with weapons drawn. Petitioner, who claims he did not know the men were deputies, fired one shot at an entering deputy, killing him. Another deputy shot petitioner, who paramedics carried to an ambulance. Deputies saw petitioner raise his left fist and say "Viva Puente, " a salute to the local street gang, and a deputy heard him call out "puto, " meaning "fag."
The facts of the case come from the California Supreme Court opinion affirming petitioner's conviction and death sentence on direct appeal. People v. Gonzalez , 51 Cal.3d 1179, 1199-1205 (1990), cert. denied sub nom. Gonzalez v. California , 502 U.S. 835 (1991).
On the way to the hospital, approximately two hours after the incident, petitioner told a Sheriff's deputy he did not know the entering men were police officers. However, William Acker, a jailhouse informant facing multiple murder and armed robbery charges, testified that petitioner knew the police were going to raid his house, that he planned to shoot an officer, and that he thought the officers would then retreat, allowing him to escape.
The guilt phase jury convicted petitioner of murder and found true the special circumstance that he intentionally killed a police officer engaged in the performance of his duties. After the first penalty jury deadlocked, a mistrial was declared, and a second jury, deciding only the penalty phase, returned a death verdict.
After his conviction, petitioner filed his automatic direct appeal, and an original and a supplemental petition for writ of habeas corpus, in the California Supreme Court, which that court consolidated for hearing. In People v. Gonzalez , 51 Cal.3d 1179 (1990), cert. denied sub nom. Gonzalez v. California , 502 U.S. 835 (1991), the California Supreme Court, with two dissenting opinions, affirmed the judgment, denied the habeas petitions, and, in response to respondent's petition for a writ of mandate, denied post-judgment discovery the Superior Court had ordered.
STANDARD OF REVIEW
As the Court previously ruled, the Antiterrorism and Effective Death Penalty Act of 1996 governs this case because the original petition was filed after AEDPA's effective date of April 24, 1996. (Ruling on Respondent's Motion for Reconsideration of Application of AEDPA, supra, at 2-3). See Woodford v. Garceau , 538 U.S. 202, 210 (2003).
Under AEDPA, petitioner is entitled to relief if the state court's adjudication of his claims on the merits (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d); Price v. Vincent , 538 U.S. 634, 639 (2003). A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 412-13 (2000). A state court's decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413. Where the state court has made a factual determination in the course of a habeas proceeding, that determination "shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C § 2254(e)(1).
PETITIONER'S CLAIMS
A. Claim A(1)(e)
In claim A(1)(e), petitioner alleges that trial counsel was ineffective for (1) failing to investigate and present evidence that William Acker acted as a government agent when he elicited a confession from petitioner; and (2) as a result, failing to move to exclude petitioner's confession. (Crctd. Pet., at 8; see also Petition for Writ of Habeas Corpus, In re Gonzalez, Cal. S.Ct. Case No. Crim. 24041, at 2, 7, 10 [Lodged Doc. # C1]; Declaration of Perry S. Reich, id., at 12-13; Declaration of Richard C. Chier, ¶ 6, id., at 16; Amended Petition for Writ of Habeas Corpus and Traverse, In re Gonzalez, supra, at 2, 43, 44-48 ("Am. Pet. & Tr.") [Lodged Doc. # C4] (state court analogue to claim A(1)(e))).
1. Claim A(1)(e) is Conclusory
As alleged in the corrected petition and supporting memorandum of points and authorities, claim A(1)(e) is vague and conclusory. No separate section of the memorandum of points and authorities deals with claim A(1)(e). This lack of specificity warrants dismissal of the claim. Campbell v. Wood , 18 F.3d 662, 679 (9th Cir.) (Evidentiary hearing not required on allegations that are "'conclusory and wholly devoid of specifics.'") (internal cite omitted), reh. and reh. en banc denied, 20 F.3d 1050 (9th Cir.), cert. denied, 511 U.S. 1119 (1994); James v. Borg , 24 F.3d 20, 26 (9th Cir.) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."), cert. denied sub nom. James v. White, 513 U.S. 935 (1994).
2. Claim A(1)(e) is Without Merit
Even viewing claim A(1)(e) in light of the record as a whole, the claim is without merit.
Claim A(1)(e) alleges ineffective assistance of trial counsel. To prevail on this claim, petitioner must demonstrate (1) "that counsel's representation fell below an objective standard of reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Williams v. Taylor , 529 U.S. 362, 390-91 (2000); Strickland v. Washington , 466 U.S. 668, 690-93 (1984). The Strickland standard is "clearly established federal law" for purposes of AEDPA. 28 U.S.C. § 2254(d)(1); Bell v. Cone , 535 U.S. 685, 693 (2002); Shackleford v. Hubbard , 234 F.3d 1072, 1079-80 (9th Cir. 2000), cert. denied, 534 U.S. 944 (2001).
Counsel is not ineffective for failing to make a motion that is meritless. Jackson v. Calderon , 211 F.3d 1148, 1155 (9th Cir. 2000) ("Jackson's counsel... had no grounds for moving to suppress the statement, and his decision not to make such a motion does not constitute deficient performance."), cert. denied sub nom. Jackson v. Woodford, 531 U.S. 1072 (2001); Lowry v. Lewis , 21 F.3d 344, 346 (9th Cir.) ("A lawyer's zeal on behalf of his client does not require him to file a motion which he knows to be meritless on the facts and the law."), cert. denied, 513 U.S. 1001 (1994). Thus, the outcome of petitioner's ineffective assistance claim turns on whether a motion to suppress Acker's testimony about petitioner's statements would have been successful.
In a line of cases from Massiah v. United States , 377 U.S. 201 (1964), through United States v. Henry , 447 U.S. 264 (1980), to Maine v. Moulton , 474 U.S. 159 (1985), the United States Supreme Court has held that the State violates the Sixth Amendment when, acting through an undisclosed agent, it "deliberately elicit[s]" incriminating statements from an accused "after he ha[s] been indicted" and his right to counsel has attached. Massiah , 377 U.S. at 206; see also Kuhlmann v. Wilson , 477 U.S. 436, 459 (1986); Moulton , 474 U.S. at 176-77; Henry , 447 U.S. at 269.
Petitioner's right to counsel had attached when he spoke with Acker. (See Am. Pet. & Tr., supra, at 9 (stating that Acker first spoke with petitioner "[i]n early July, 1979, one week and one half after the preliminary hearing....")). However, at least one other element of a Massiah claim, that Acker have acted at the relevant time as a government agent, is absent.
The California Supreme Court ruled on petitioner's analogous state habeas claim that petitioner failed to state a Massiah claim because he failed to show that Acker acted at the behest of the government when petitioner spoke to Acker. See People v. Gonzalez , 51 Cal.3d at 1240.
The Court stated:
For there to be a Massiah violation of a defendant's Sixth Amendment right to counsel, the person eliciting the incriminating information must be acting as a government agent. If the government directs an individual to elicit incriminating statements from a defendant, it violates the Sixth Amendment. If, however, the state obtains incriminating statements "by luck or happenstance, " Maine v. Moulton , 474 U.S. 159, it does not violate the Sixth Amendment. Similarly, generally, an informant who acts as an "entrepreneur" or "volunteer" in giving unsolicited information to the government is not an "agent" for Massiah purposes. See, e.g., Kuhlmann , 477 U.S. at 459 ("[A] defendant does not make out a violation of [the Sixth Amendment right identified in Massiah] simply by showing that an informant... voluntarily reported his incriminating statements to the police."); United States v. Brink , 39 F.3d 419, 423 (3d Cir.1994) ("An inmate who voluntarily furnishes information without instruction from the government is not a government agent, even if the informant had been an agent in the past."); United States v. York , 933 F.2d 1343, 1356 (7th Cir.) (the facts suggested the informant was an "entrepreneur" who hoped to sell information to the government, not a government agent). As the Court explained in Kuhlmann, supra:
[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since the Sixth Amendment is not violated whenever-by luck or happenstance-the State obtains incriminating statements from the accused after the right to counsel has attached, ' a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
477 U.S. at 459 (internal citations omitted); see also Robinson v. Clarke , 939 F.2d 573, 576 (8th Cir. 1991) (no Sixth Amendment violation where government did not ask informant to solicit information).
Furthermore, most "circuits agree that an informant becomes a government agent... only when the informant has been instructed by the police to get information about the particular defendant." United States v. Birbal , 113 F.3d 342, 346 (2d0 Cir.) (emphasis added; citing cases), cert. denied, 522 U.S. 976 (1997); see, e.g., Brooks v. Kincheloe , 848 F.2d 940, 945 (9th Cir.1988) (though informant solicited information from defendant before going to police, no Massiah violation where state court findings "establish that the detectives did not request Kee to elicit any information from defendant."); but see United States v. Brink , 39 F.3d 419, 424 (3d Cir.1994) ("Since the government was aware of Scott's propensity to inform on his cellmates, we believe that placing him in a cell with a pretrial detainee could represent a deliberate effort to obtain incriminating information from a prisoner in violation of his Sixth Amendment right to counsel.").
AEDPA limits the scope of clearly established federal law to the holdings (as opposed to the dicta) of the United States Supreme Court at the time of the state-court decision under review. See Lockyer v. Andrade , 538 U.S. 63, 71 (2003); Williams v. Taylor , 529 U.S. 362, 412 (2000). Only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Bruce v. Terhune , 376 F.3d 950, 954 (9th Cir. 2004). Nevertheless, circuit law may be "persuasive authority" for purposes of determining what law is clearly established and whether a state court decision is an unreasonable application of United States Supreme Court law. Duhaime v. Ducharme , 200 F.3d 597, 600 (9th Cir. 1999).
The record indicates that Acker met with law enforcement in petitioner's case after petitioner made his incriminating statements to Acker. (See 3 R.T. 603 (Acker went to law enforcement with information about petitioner "[t]he day I was sentenced" which was after he spoke to petitioner), 623 (Acker spoke to petitioner before speaking to any police officer or deputy sheriff, and the police did not ask Acker to talk to petitioner in this case: "no. He just talked to me."); 19 R.T. 4346 ("He talked to me until the day I was moved, and that was one day after I gave a statement to the detectives of the case.")). See Randolph v. People of the State of California , 380 F.3d 1133, 1144 (9th Cir. 2004) ("Any statements... made by Randolph before Moore met with the prosecution team cannot be the basis of a Massiah violation.").
The transcript of Acker's taped interview with law enforcement shows Acker said he had spoken with petitioner every day since July 7, 1979 and that, on July 20, 1979, Acker made his taped statement to Sergeant Verdugo and Deputy Overlease. (See Exhs. to Pet., Exh. 13, at 1-2). Sergeant Verdugo stated in the interview that law enforcement had spoken with Acker "on one previous occasion... and he related to us facts which he had learned from" petitioner. ( Id., at 1). Apparently referring to this and other passages in the transcript, petitioner alleged in his state habeas petition that "[t]he text of the transcript [of Acker's statement] reveals that there were in fact, earlier meetings" between Acker and law enforcement. (Am. Pet. & Tr., supra, at 9 (referring to 1 Exhs. to Am. Pet. & Tr., Exh. A [Lodged Doc. # C4]); see id., at 184 (containing the above passage), 185 ("Q. All right, getting - Bill, going back, you stated to us..."), 187 (Acker referring to "our first interview"), 191 (Sergeant Verdugo: "Okay, we're getting into a subject here which we encountered.")). However, nothing in the transcript suggests Acker spoke to law enforcement about petitioner's case before petitioner made the incriminating statements to Acker or more than once before the transcribed interview.
However, in connection with claim C, which alleges the California Supreme Court's denial of discovery in petitioner's post-conviction state habeas proceedings violated due process (Crctd. Pet., at 13), petitioner's memorandum of points and authorities refers to facts about Acker's role in other criminal cases, mostly post-dating petitioner's, which "could have been used as the basis for further investigation of the fact that Mr. Acker was used by the government to obtain confessions...." (Crctd. Ps&As, at 153; see also Am. Pet. & Tr., supra, at 1-41 (history of Acker's interactions with law enforcement)).
Specifically, an investigative report in People v. John Anthony Torres states that, in August or September, 1978, Acker was in the Los Angeles County Jail as a pro per defendant. (Exhibits in Support of Petition for Writ of Habeas Corpus, filed Sept. 20, 1996 ("Exhs. to Pet."), Exh. 40, at 1). According to Acker, an inmate gave Acker a telephone number to call and a message to give to Torres on a piece of paper. (Id.). Acker made the call and later told the police he thought the message concerned the purchase of drugs. (Id.). Three months later, on January 15, 1979, someone murdered Laouarna Gillis, a Los Angeles Police Department Sergeant's daughter. (Exhs. to Pet., Exh. 41 (newspaper account)). The case was investigated, but the District Attorney filed no charges, and Torres was the sole suspect. (Exhs. to Pet., Exh. 42). In mid-1979, also before meeting petitioner, Acker returned from prison to the Los Angeles County Jail to face murder and robbery charges. (Exhs. to Pet., Exh. 40, at 2). In early March, 1980, prior to his testimony in petitioner's first penalty trial, Acker was housed in the hospital section of Los Angeles County Jail, when Torres was returned from Soledad Prison and placed in the next cell. (Id. at 1-2). Acker claimed that during the first week of Torres' arrival he heard a song on the radio and commented about it to Torres, at which point Torres allegedly told him he had "made his bones" with the Mexican Mafia by killing Ms. Gillis. ( Id., at 2).
After petitioner's trial, the prosecution disclosed to the defense a transcript of Acker's testimony of January 22, 1981 in People v. Keith Eugene Renfrow, Los Angeles County Sup.Ct. Case No. A143615. (Exhs. to Pet., Exh. 43). Acker testified that, on October 17, 1980, Renfrow, with whom Acker was sharing a cell, approached Acker and asked Acker to "get ahold of homicide" because Renfrow "wanted to tell them about some other cases for possibility [sic] of receiving some aid on this case." ( Id., at 9-10). Acker "advised him not to, " but Renfrow "convinced me he was sincere, so I told him okay." ( Id., at 10). Acker telephoned two homicide detectives he had known since early 1979, when they had accused him of a murder, and told them Renfrow wanted to talk to them. ( Id., at 11, 13).
Acker and Renfrow were housed in the same cell for three months prior to Renfrow's confession in October 1980. (Exhs. to Pet., Exh. 43, at 14). Acker testified he liked Renfrow, they were on friendly terms, and he showed Renfrow "a few moves" of karate. ( Id., at 16). Acker testified that he had given testimony in three cases in addition to Renfrow's. (Id.). Acker claimed he was "[a]bsolutely not" trying to obtain information from Renfrow. ( Id., at 17).
Deputy Sheriff Reginald Yamato, who received Acker's call, testified he had last seen Acker two or three months before October 17, 1980, and had not known Acker and Renfrow were cell mates, or even that they were acquainted. (Exhs. to Pet., Exh. 43, at 21-23, 28). He and his partner, Bob Morck, visited Acker and Refrow in the jail hospital ward, when Renfrow gave the deputies the information about the crimes he had promised. ( Id., at 22-26).
Renfrow testified that before he was placed in Acker's cell, Acker had befriended him, passing him cigarettes. (Exhs. to Pet., Exh. 43, at 46). When he became an adult for jail system purposes, Renfrow asked to be placed in Acker's cell for protection, to avoid being housed with the general prison population. ( Id., at 46-47). Acker often asked Renfrow questions about his case and "pumped him" for information. ( Id., at 48). Three or four times a week, Acker would leave the cell, telling Renfrow he had called homicide detectives. ( Id., at 52-53). Acker had, in Renfrow's words, "a pipeline to homicide." ( Id., at 53).
A memorandum from the Ventura County District Attorney's Office shows that, on November 21, 1985, Acker told an investigator with that office that he had spoken to Theodore Francis Frank, the defendant in People v. Theodore Frank, in 1978 and that Frank had confessed to him. (Exhs. to Pet., Exh. 44, at 1-3). The report recounts that Acker told the investigator Acker met Frank after Acker had beaten up an inmate involved with a child prostitution ring. ( Id., at 1). According to Acker, Frank defended, and criticized Acker for beating up, the other inmate, to which Acker replied by saying the inmate was lucky Acker did not kill him. (Id.). Frank told Acker he "had a rape case himself, " to which Acker responded, "Yeah, but I'm quite sure it isn't baby rape." ( Id., at 2). Frank confessed to Acker that he kidnaped, raped and murdered a woman, telling Acker "he wanted to see what it felt like, he wanted death to be the climax." (Id.). Acker told Frank he did not want to talk about it, and Frank replied, "Well, you're in here for murder." ( Id., at 2). Frank later apologized for saying this, claimed "it was just an experience, " that Acker should "accept his way of thinking, " and that he was not insane but knew what he was doing; "some people use drugs and then they take that big shot of heroin and never do it again." (Id.). Frank told Acker, however, that this was not the crime Frank was in jail for, and he refused when Acker asked, to explain why he was in custody. (Id.).
In 1980, Acker testified at the penalty phase of petitioner's trial that he did not talk to Theodore Frank "ever." (19 R.T. 4404).
Petitioner alleged in his evidentiary hearing motion that these documents "provide evidence that, contrary to his testimony at petitioner's trial, Mr. Acker had an ongoing relationship with law enforcement before he allegedly approached petitioner." (Mot. for Evid. H., at 35). Referring to Renfrow's statement that Acker had a "pipeline to homicide, " petitioner alleged that "[u]nless Mr. Acker's pipeline had been recently constructed, Mr. Acker had an ongoing relationship with two detectives from homicide prior to being involved with petitioner." (Mot. for Evid. H., at 35-36). Petitioner sought discovery and an evidentiary hearing to develop these facts, since Acker was "unavailable" and "housed out of state under an assumed name, " and two detectives Refrow referred to were "never identified." ( Id., at 36).
In ruling on petitioner's evidentiary hearing motion, the Court deferred ruling on claims A(1)(e) and A(2)(b) to allow petitioner to seek discovery on them. (Order on Petitioner's Motion for Evidentiary Hearing, filed Oct. 5, 1999, at 19, 27). The parties stipulated to discovery concerning William Acker, and the Court approved the stipulation. (Stipulation and Proposed Order, filed Mar. 8, 2000). In his motion for reconsideration of the Court's Order on respondent's motion for judgment on the pleadings, petitioner stated, "[a]fter discovery, petitioner has concluded that there is no additional evidence in support of claims A(1)(e) and A(2)(b) and does not present additional evidence on these claims." (Notice of motion and Motion for Reconsideration, filed Jun. 5, 2003, at 7 n.7). The record pertaining to claim A(1)(e) is now complete.
The California Supreme Court's decision on the state court analogue to claim A(1)(e) is neither contrary to, nor an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Its conclusion that Acker elicited information from petitioner on his own, without official knowledge, promises, or encouragement is a reasonable determination of the facts in light of the evidence presented in state court. Even taking into account the additional evidence petitioner presents here, no evidence shows that Acker acted in petitioner's case at the behest of the government or that, prior to petitioner's trial, a relationship existed between Acker and law enforcement from which it could be inferred that Acker was law enforcement's agent. 28 U.S.C. § 2254(d)(2). After the opportunity for discovery, petitioner has not presented, and cannot come up with, clear and convincing evidence to controvert, or rebut the presumption of correctness applicable to, the state court's finding that Acker did not act as law enforcement's agent in petitioner's case. 28 U.S.C. § 2254(e)(1).
Evidence of Acker's involvement in the Torres, Renfrow and Frank cases, to the extent it is validly before this Court, see 28 U.S.C. § 2254(e)(2), does undermine the state court's findings that "neither the record at trial nor counsel's investigation discloses evidence that Acker's history of cooperation began before July 1979" and that Acker had provided information only in "isolated cases" prior to 1979. People v. Gonzalez , 51 Cal.3d at 1240-41 & n.37. However, even this evidence indicates only that Acker acted on his own, not that he had a "relationship" with, or acted at the behest of, the authorities. (See, e.g., Exhs. to Pet., Exh. 43, at 17 (Acker claimed that he was "[a]bsolutely not" trying to obtain information from Renfrow and that detectives "didn't even know" Renfrow was in Acker's cell). Evidence of Acker's actions in other cases would not establish that he acted as a state agent when he elicited information from petitioner.
Claim A(1)(e) is without merit.
B. Claim A(2)(b)
In claim A(2)(b), petitioner alleges the prosecution knowingly used Acker's false testimony. (Crctd. Pet., at 9; see also Ap. Op. Br., at 36-38 [Lodged Doc # B1]; Am. Pet. & Tr., supra, at 3, 42, 50-54 (state analogue to claim A(2)(b)). Petitioner does not identify the specific portions of Acker's testimony he claims were false, but this allegation appears to be directed at three elements:
(a) Acker's testimony at the guilt phase in which, petitioner alleges, Acker testified that his wife, not he, committed the Hawaii murders for which they were both convicted (Crctd. Ps&As, at 108-112 (citing 3 R.T. 603-04 and Exhs. to Pet., Exh. 18));
(b) Acker's guilt phase testimony that the only benefit he hoped to receive for testifying was protective custody and his second penalty phase claim that he was testifying because "it felt good, doing something that I knew was right" (See Crctd. Ps&As, at 112-14 (citing 3 R.T. 603, 607-09; 19 R.T. 4425-26)); and
(c) Petitioner's allegation, based on his Massiah claim, that the prosecution knew Acker "had an ongoing relationship with law enforcement before he allegedly approached petitioner" but allowed Acker to testify to the contrary at petitioner's trial. (Mot. for Evid. H., at 35).
In his evidentiary hearing motion, petitioner said the facts of this claim were not yet fully adduced because petitioner needed additional discovery. (Motion for Evid. H., at 35). As noted in connection with claim A(1)(e), discovery is now complete. (Jun. 5, 2003 Recon. Mot., supra, at 7 n.7).
The California Supreme Court discussed a narrower "false testimony" claim raised in petitioner's direct appeal: that "the prosecutor knowingly made use of false testimony at the guilt phase by allowing jailhouse informant Acker to testify untruthfully that he didn't like gangs' and that he merely desired a transfer to an out-of-state prison in return for his testimony." 51 Cal.3d at 1213. (See Ap. Op. Br., at 36-38). The state court found "no material discrepancy in Acker's testimony" because petitioner failed to prove that Acker's consistent denials of gang membership, or his statements about the benefits he was promised or given for his testimony, were false. 51 Cal.3d at 1213. The state court found that, even if Acker's testimony was false, the falsehood was not material:
Even if the authorities did assist in the tattoo removal for purposes of protecting Acker's identity, this was but a logical extension of the protective prison transfer he had always acknowledged he hoped to receive. Moreover, any inference that Acker had received benefits for his cooperation in this and other cases by the time of the second penalty trial does not establish that his contrary guilt phase testimony was false when given.
In any event, considering the information the jurors already had about Acker, additional revelations that he might be a gang member, and might have accepted protective help from the authorities, would not likely have lessened his credibility in their eyes to any substantial degree.
Id. at 1213-14.
It is clearly established that the prosecution's presentation of false evidence violates due process. Napue v. Illinois , 360 U.S. 264, 269 (1959) ("[A] State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction...."); Phillips v. Woodford , 267 F.3d 966, 984-85 (9th Cir. 2001). If the false evidence is material-reasonably likely to have affected the jury verdict-the court must reverse the defendant's conviction. United States v. Agurs , 427 U.S. 97, 103 (1985); Phillips v. Woodford , 267 F.3d at 985; see also Killian v. Poole , 282 F.3d 1204, 1208 (9th Cir. 2002) (issue is whether "there is a reasonable probability that [without all the perjury] the result of the proceeding would have been different") (alteration in original; quotation marks omitted), cert. denied, 537 U.S. 1179 (2003).
In addition, the failure to disclose the false nature of a witness' testimony violates the prosecution's obligations under Brady v. Maryland , 373 U.S. 83, 87 (1963). Under Brady and its progeny, due process obligates the prosecution to disclose material exculpatory evidence on its own and without request. See Kyles v. Whitley , 514 U.S. 419, 432-34 (1995); United States v. Bagley , 473 U.S. 667, 682 (1985); Brady v. Maryland , 373 U.S. 83, 87 (1963). To establish a Brady violation, petitioner must demonstrate that the government suppressed material, favorable information and that this suppression prejudiced him. United States v. Ciccone , 219 F.3d 1078, 1085 (9th Cir. 2000). The Brady rule applies to both exculpatory and impeachment evidence. United States v. Bagley , 473 U.S. at 676; Carriger v. Stewart , 132 F.3d 463, 479 (9th Cir. 1997) ("Material evidence required to be disclosed includes evidence bearing on the credibility of government witnesses."), cert. denied, 523 U.S. 1133 (1998). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles , 514 U.S. at 433; Bagley , 473 U.S. at 682. A "reasonable probability" does not require showing by a preponderance that the outcome would have been different, Kyles , 514 U.S. at 433-35, but is only a probability sufficient to undermine confidence in the outcome." Bagley , 473 U.S. at 682.
Of the three factual elements of claim A(2)(b) set out above, the first is easily disposed of. Acker never testified in the guilt phase that Maryann Acker committed the Hawaii murders for which both of them were convicted. Acker's relevant cross-examination testimony reads:
Q. Had you also informed on your wife concerning murders in Hawaii?
A. Had I - had I testified against my wife? No.
Q. I asked you if you'd informed on your wife. Did you?
A. I can't answer that the way you're saying it.
Q. Well, ... did you tell investigating officers about your wife's role in a murder?
A. About my own, too.
Q. All right. But you told about your wife's role; isn't that correct?
A. Yes.
(3 R.T. 604; see also 3 R.T. 605-06 (Acker claiming "I never really informed on my wife" but admitting he gave the police information about what she did or did not do), 621 (Acker admitting he "told something to the authorities" prior to petitioner about "my wife and me")). Thus, Acker admitted he told the authorities about his and his wife's role in the Hawaii murders, but he never testified to what he said his wife's role was.
With respect to the third element of claim A(2)(b), the prosecution's failure to disclose Acker's alleged ongoing relationship with the police, the California Supreme Court found that Acker, in fact, did not have an ongoing relationship with law enforcement before meeting petitioner, albeit Acker did provide law enforcement with important information in the Torres, Renfrow and Frank cases. See People v. Gonzalez , 51 Cal.3d at 1241. This finding, with which this Court agrees, is reasonable in light of the evidence before the state court.
On the second element of claim A(2)(b), based on Acker's allegedly false testimony about his motives for assisting the police and testifying, the California Supreme Court, in ruling on the more limited claim petitioner proffered on direct appeal, found petitioner had failed to present any evidence that Acker testified falsely or that, if he did, that the falsehoods were material. People v. Gonzalez , 51 Cal.3d at 1213-14. In reviewing the broader claim petitioner has presented here, the Court concurs. The California Supreme Court's finding that Acker's testimony, that he wanted an out of state transfer, contained "no material discrepancy, " Id. at 1213, is reasonable in light of the evidence presented to the state court.
Acker's statement in the penalty phase, that he testified because "it felt good, doing something that I knew was right" (19 R.T. 4426), also was not misleading in light of the other evidence presented regarding what Acker received for his testimony. The penalty phase jury already knew Acker had pled guilty to robbery murder (19 R.T. 4360-61); that, after petitioner spoke with Acker, Acker had asked the investigating detective on Acker's robbery murder case, Detective Ahn, to contact the investigators in petitioner's case because Acker feared he would not survive in California's penal institutions due to the fact "I hate gangs, " "they hate me, " and Acker wanted to "motivate Ahn" to get Acker a transfer out of state (19 R.T. 4361, 4374, 4778, 4380-82); that Acker had given law enforcement information on a murder case he and his wife were involved in and on a murder of one County Jail inmate by another (19 R.T. 4376-77); that it was "possible" Acker had given information in six or seven other cases, including some, such as the LaScola and Torres cases, in which he testified (19 R.T. 4379-80, 4404-06); that Acker had a tattoo on his back removed which said "Paramount" but which Acker claimed indicated the City he was from and not a gang affiliation (19 R.T. 4410, 4415-16, 4422-24); that Acker had not been given a life without parole sentence (19 R.T. 4413); and that Acker had participated in robberies and "could kill somebody if they had it coming." (19 R.T. 4425). Thus, Acker's testimony, that he was testifying because it felt good to do something right, was not misleading or material.
The relevant testimony occurred on redirect examination by the prosecution, and reads:
On Acker's gang membership, Los Angeles County Jail inmate and Bassett Grande gang member Martin Michael Ybarra, testified for the defense at petitioner's second penalty trial that he met Acker in jail and that Acker claimed he "belonged to Paramount":
Whether considered individually or collectively, the evidence of Acker's alleged perjury is neither probative of perjury nor material. Claim A(2)(b) is meritless.
To the extent Claim A(2)(b), as interpreted here, contains unexhausted elements, because the claim is broader than the analogous claim presented to the California Supreme Court, AEDPA permits the Court to deny such claims on the merits. 28 U.S.C. § 2254(b)(2).
C. Claim A(2)(c)
In claim A(2)(c), petitioner alleges the prosecutor misstated the law when he made the following statements during closing rebuttal in petitioner's guilt phase trial:
Let's just talk about reasonable doubt. Mr. Bengacy talks about it. There wasn't any reasonable doubt. The defense has to create reasonable doubt.
We proved our case and we called a lot of witnesses we really didn't need because we didn't know what tack were they going to take, not until maybe - what? - an hour ago that we really knew that.
For ten days we have been wrong. We have been thinking about justifiable homicide and now we are told, no, it's really only voluntary manslaughter. The reasonable doubt has to be created by the defense. They have not created any reasonable doubt. Confusion, yes, but reasonable doubt, no. Just because there are different stories that are told, the defendant takes the witness stand and says one thing, that doesn't create a reasonable doubt.
(Crctd. Pet., at 8-9; Crctd. Ps&As, at 70-71; 5 R.T. 1178). Petitioner contends this comment invited the jury to shift the burden of proof to the defense. (Crctd. Ps&As, at 70).
In addition, the prosecutor stated at the conclusion of his guilt phase rebuttal:
The defense case adds up to only one person, the only person who was there. Now, we didn't hear from Stevie Martinez. We didn't hear from the six-year-old girl. We didn't hear from the neighbors. We didn't hear from anybody. We only heard - the only person present was Mr. Gonzalez that you heard from and, ladies and gentlemen of the jury, look at the defense. It's empty. There is nothing to it. There was no defense.
(5 R.T. 1180). Petitioner contends: "The prosecutor's comment, with respect to the defendant's failure to produce a six year old child who was at the house, was all the more objectionable since there was no showing that this witness was under petitioner's control or that he ever had the ability to subpoena her, and also erroneously attempted to reverse the burden of proof." (Crctd. Ps&As., at 70).
In addressing this claim on direct appeal, the California Supreme Court stated:
As defendant suggests, the prosecution must prove every element of a charged offense beyond a reasonable doubt. The accused has no burden of proof or persuasion, even as to his defenses. However, once the prosecution has submitted proof that permits a finding beyond reasonable doubt on every element of a charge, the accused may obviously be obliged to respond with evidence that raises' or permits a reasonable doubt that he is guilty as charged. [¶] In this context, the prosecutor's remark was ambiguous. The remark was proper if it meant only that the prosecution had proved premeditated murder of a peace officer beyond a reasonable doubt, and that the weakness of the defense response had left the record devoid of any basis for reasonable doubt. The remark was improper if meant to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. Because timely objection, admonition, and instruction would have cured any prejudicial confusion, defendant's failure to intervene below waives a direct claim of misconduct.
People v. Gonzales , 51 Cal.3d at 1214-15 (citations deleted). Treating the claim as one for ineffective counsel based on counsel's failure to object, the court stated:
The prosecutor's remark was brief and mild. The jury received accurate standard instructions that the People bore the burden of proving defendant guilty beyond a reasonable doubt, and that he was presumed innocent until proven guilty. No instruction stated or implied that defendant bore any burden of proof or persuasion. Defense counsel in his closing argument reread CALJIC No. 2.90 and repeatedly emphasized the People's very, very, very high burden.' The evidence that defendant was guilty as charged was highly persuasive. Hence, counsel's failure to object to the prosecutor's reasonable doubt' argument does not undermine confidence in the guilt verdict.
Id. at 1215 (citations deleted).
As noted, petitioner procedurally defaulted on this claim by failing to raise a timely objection. Petitioner has not validly challenged the independence or the adequacy of the contemporaneous objection rule. Petitioner does contend that the California Supreme Court did not clearly and expressly rest its judgment on the default (Traverse, at 45; Ptr's. Surreply on Claims A(2)(C), et al., at 2-4), a contention which a fair reading of the California Supreme Court's decision refutes on its face. See 51 Cal.3d at 1215 (petitioner's failure to object "waives a direct claim of misconduct"). The California Supreme Court did address the merits of petitioner's prosecutorial misconduct claim, but in the context of the separate claim that petitioner's trial counsel was ineffective for failing to raise a timely objection, the argument petitioner raises in this court as cause to excuse his procedural default. (Traverse, at 46).
"Under the doctrine of procedural default, a petitioner who has defaulted on his claims in state court is barred from raising them in federal court so long as the default is pursuant to an independent and adequate state procedural rule.'" Jackson v. Roe , 425 F.3d 654, 656 n.2 (9th Cir. 2005) (quoting Coleman v. Thompson , 501 U.S. 722 (1991)).
In the traverse, petitioner notes that, to bar federal review, a procedural default must be independent of federal law and adequate to bar federal review of the claim. (Traverse, at 45-46). However, these conclusory allegations have not "place[d] that defense in issue" "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure." Bennett v. Mueller , 322 F.3d 573, 585-86 (9th Cir.), cert. denied sub nom. Blanks v. Bennett , 540 U.S. 938 (2003)
Assuming petitioner's showing of cause is adequate to overcome procedural default, however, petitioner cannot obtain habeas relief in this court because the claim's lack of merit precludes him from establishing prejudice from the default. In federal habeas corpus, the standard of review for prosecutorial misconduct is the narrow one of due process. See Darden v. Wainwright , 477 U.S. 168, 181 (1986). A prosecutor's misconduct violates due process when it renders a trial "fundamentally unfair." See id.; Smith v. Phillips , 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). The Court reviews such claims "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett , 63 F.3d 926, 929 (9th Cir.) (cite omitted), cert. denied, 516 U.S. 1017 (1995).
Notwithstanding procedural default, a federal court may review a claim "when a habeas applicant can demonstrate cause and prejudice for the procedural default." Dretke v. Haley , 541 U.S. 386, 393 (2004).
Here, the trial court instructed the jury that the presumption of innocence "places upon the state the burden of proving [the defendant] guilty beyond a reasonable doubt" and then defined reasonable doubt for the jury. (1 C.T. 208; 5 R.T. 1051; R.T. Suppl. at 13 (jury instruction as read to the jury)). Claim A(2)(c) does not challenge the correctness of this instruction. Rather, the question in this AEDPA case is whether "it was unreasonable to conclude that the prosecutor's argument and remarks did not mislead the jury into believing" that the burden was on the defense to establish a reasonable doubt as to petitioner's guilt. Brown v. Payton , 544 U.S. 133, 143 (2005) (discussing effect of prosecutor's argument on penalty jury's ability to consider mitigating evidence under Cal. Pen. Code § 190.3 "factor (K)").
Although they involved the effect of jury instructions on the jury's ability to consider mitigating evidence rather than the burden of proof, the following comments from Brown v. Payton , 544 U.S. 133 (2005), are instructive:
Petitioner is not entitled to relief on claim A(2)(c). The California Supreme Court's decision is not contrary to or an unreasonable application of United States Supreme Court precedent, and its fact findings are reasonable. The trial judge instructed the jury that the prosecution bore the burden of proof. (1 C.T. 208; 5 R.T. 1051; R.T. Suppl. at 13). The prosecutor told the jury twice in his closing argument that the prosecutor bore the burden of proving petitioner guilty beyond a reasonable doubt. (5 R.T. 1064, 1085). Defense counsel re-read and commented on the burden of proof jury instruction, stating it was a "very high standard, very, very heavy standard, heavy burden." (5 R.T. 1106-07). The prosecutor's comments came in rebuttal, in comments on the strength of the defense case. Cf. 51 Cal.3d at 1214-15 ("The remark was proper if it meant only that the prosecution had proved premeditated murder of a peace officer beyond a reasonable doubt" and the defense response "left the record devoid of any basis for reasonable doubt."). It was not "unreasonable to conclude that the prosecutor's argument and remarks did not mislead the jury" to believe the defense had the burden to prove reasonable doubt of petitioner's guilt. Payton , 544 U.S. at 143.
The prosecutor's comments regarding the failure of the defense to produce the six year old girl petitioner claimed was inside his house at the time of the shooting were not error. A "prosecutor may properly comment upon a defendant's failure to present witnesses so long as it is not phrased as to call attention to defendant's own failure to testify." United States v. Fleishman , 684 F.2d 1329, 1343 (9th Cir.), cert. denied, 459 U.S. 1044 (1982). In his closing argument, petitioner's trial counsel repeatedly mentioned the child's presence in the house when the sheriff's deputies entered as a reason why petitioner would not want to provoke a confrontation. (5 R.T. 1122, 1123, 1126, 1128, 1130, 1139). The prosecutor argued that the defense's failure to produce the six year old showed that petitioner was the only person present during the shootings and that his statements about the presence of children were not credible. (5 R.T. 1180). "[T]he propriety of the prosecutor's remarks must be judged in relation to what would constitute a fair response to the remarks of defense counsel." United States v. Lopez Alvarez , 970 F.2d 583, 597 (9th Cir.), cert. denied, 506 U.S. 989 (1992).
The prosecutor argued:
In > Griffin v. California , 380 U.S. 609, 613-15 (1965), the Supreme Court underscored that the Fifth Amendment right against self-incrimination bars the prosecution from commenting upon a defendant's failure to testify. Claim A(2)(c) does not, and cannot, raise a Griffin claim, since petitioner testified in the guilt phase.
To the extent petitioner relies on this argument by the prosecutor to claim the prosecutor shifted the burden of proof, as noted, the prosecutor's closing argument stated the prosecutor had the burden of proof (5 R.T. 1064, 1085), and the jury instructions on burden of proof cured any prejudice. United States v. Fleishman , 684 F.2d at 1344.
Claim A(2)(c) is without merit.
D. Claim A(3)(a)
Claim A(3)(a) alleges that the trial court removed from the jury's consideration an element of the special circumstance allegation that the victim was a peace officer killed in the performance of his duties. (Crctd. Pet., at 9). Petitioner argues in his memorandum of points and authorities accompanying the petition that the California Supreme Court violated ex post facto principles when it upheld the trial court's removal from the jury of the issue whether the warrant Officer Williams was serving was valid. (Crctd. Ps&As, at 117-22). Petitioner raised the state court analogue to claim A(3)(a) on direct appeal. (Petition for Rehearing, filed Dec. 18, 1990, at 35-36 [Lodged Doc. # B23]; see also Supplemental Brief Addressing the Appeal, filed May 16, 1990, at 14-20 [Lodged Doc. # B17] (addressing the decision not to allow the jury to decide the "performance of duties" issue)).
In its September 25, 2001 order, the Court granted summary adjudication to respondent on that portion of claim A3(a) involving whether the jury instructions left it to the jury to decide if Deputy Williams and the other police officers who executed the search warrant announced their identity and purpose. (Sept. 25, 2001 Order, supra, at 34).
The Court denied summary adjudication on that part of claim A3(a) which alleges the California Supreme Court's ruling that the validity of the warrant is not an element of the special circumstance was an unforeseeable judicial enlargement of Cal. Pen. Code § 190.2(a)(7). (Sept. 25, 2001 Order, at 34-36). The Court noted the potential error was not harmless because petitioner presented evidence the search warrant was defective. ( Id., at 37).
The Court has issued a tentative ruling in favor of respondent on the claim and has ruled that AEDPA applies to this case. (Feb. 5, 2003 Tentative M&O, supra; Jun. 18, 2003 Ruling, supra). Respondent now urges the Court to adopt its tentative ruling. (Rsp's. Suppl. Br., at 9).
1. Absence of "Clearly Established" Supreme Court Authority.
Application of AEDPA to this case greatly simplifies the Court's task. Under federal law clearly established at the time petitioner's conviction became final, "[a]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, violates the federal due process right to fair warning of what constitutes criminal conduct." Clark v. Brown , 450 F.3d 898, 911 (9th Cir.) (citing Bouie v. City of Columbia , 378 U.S. 347, 353 (1964)), cert. denied sub nom. Ayers v. Clark, __ U.S. __, 127 S.Ct. 555 (2006). Under Bouie and subsequent cases, "due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." United States v. Lanier , 520 U.S. 259, 266 (1997). The "touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." Lanier , 520 U.S. at 267. Novel state court constructions of criminal statutes that are "indefensible by reference to the law which had been expressed prior to the conduct in issue, " Bouie , 378 U.S. at 354, are prohibited, but courts may provide "clarity... by judicial gloss on an otherwise uncertain statute" without violating the Due Process Clause requirement of fair notice as to what conduct constitutes a particular crime. Lanier , 520 U.S. at 266.
Bouie involved two African American college students who sat at a drug store lunch counter and refused to leave when asked because no signs indicated the lunch counter would not serve African Americans. 378 U.S. at 348. The state criminal trespass statute under which they were convicted prohibited only "entry upon the lands of another... after notice from the owner... after notice from the owner or tenant prohibiting such entry..., " but, in affirming their convictions, the South Carolina Supreme Court construed the statute also to cover the act of remaining on the premises of another after receiving notice to leave. Id., at 349-50 & n.1 (quoting S. C. Code § 16-386 (1960 Cum. Supp.)). The United States Supreme Court ruled that the South Carolina Supreme Court's interpretation of the statute violated petitioners' due process right to "fair warning that the conduct for which they have now been convicted had been made a crime, " 378 U.S. at 349, because "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids." 378 U.S. at 353.
Similarly, "judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers v. Tennessee , 532 U.S. 451, 462 (2001) (internal quotes omitted). See Robertson v. Runnals, 2008 WL 60288, at *22 (N.D. Cal. 2008) (summarizing the law).
In Poland v. Stewart , 117 F.3d 1094, 1099-1101 (9th Cir. 1997), cert. denied, 523 U.S. 1082 (1998), and LaGrand v. Stewart , 133 F.3d 1253, 1260-61 (9th Cir.), cert. denied, 525 U.S. 971 (1998), the Ninth Circuit applied the Bouie principle to "the retroactive effect of decisions construing aggravating factors for imposition of the death penalty." In Webster v. Woodford , 369 F.3d 1062 (9th Cir.), cert. denied sub nom. Webster v. Brown , 543 U.S. 1007 (2004), the Ninth Circuit stated:
In non-capital cases, "Bouie applie[s] only to after-the-fact increases in the scope of criminal liability and not to retroactive sentence enhancements." Holgerson v. Knowles , 309 F.3d 1200, 1202 (9th Cir.2002) (citing United States v. Newman , 203 F.3d 700, 703 (9th Cir.), cert. denied, 531 U.S. 866 (2000)), cert. denied, 538 U.S. 1005 (2003).
Although Bouie does not apply to sentencing schemes, it was well-established at the time Webster's state conviction became final in 1992 that Bouie does apply to judicial constructions of substantive elements of criminal law such as aggravating circumstances.... California's special circumstances statute unarguably defines the unique elements of capital murder that distinguish it from other first degree murder, in conformance with Furman. It is not a mere sentencing scheme, and therefore, application of Bouie to the statute was clearly required as of 1992. Indeed, California has long applied Bouie to its special circumstances statute, and did so in this very case.
Id. at 1069. Similarly, in Clark v. Brown, supra , the Ninth Circuit, relying on Webster, held that application in that case of the California Supreme Court's interpretation of the arson felony-murder special circumstance statute in People v. Green , 27 Cal.3d 1 (1980), violated Clark's due process right to fair warning that his conduct made him death eligible. 450 F.3d at 909-16. The court stated:
A new judicial interpretation of a special circumstance provision can be challenged under Bouie because [s]pecial circumstances that make a criminal defendant eligible for the death penalty operate as "the functional equivalent of an element of a greater offense."'
Id. at 911 (quoting Webster , 369 F.3d at 1068 and Ring v. Arizona , 536 U.S. 584, 609 (2002)).
The Webster and Clark habeas petitions were filed before AEDPA's effective date and did not involve its deferential standard of review. See Webster , 369 F.3d at 1066; Clark , 450 F.3d at 904. The rule that "[s]pecial circumstances that make a criminal defendant eligible for the death penalty operate as the functional equivalent of an element of a greater offense, '" Clark , 450 F.3d at 911 (quoting Ring, supra , 536 U.S. at 609), did not become "clearly established federal law, as determined by the Supreme Court of the United States, " 28 U.S.C. § 2254(d)(1), until 2002. Compare Ring , 536 U.S. at 609 (an aggravating circumstance under Arizona law is "the functional equivalent of an element of a greater offense") with Walton v. Arizona , 497 U.S. 639, 648 (1990) ("[W]e cannot conclude that a State is required to denominate aggravating circumstances elements' of the offense or permit only a jury to determine the existence of such circumstances."). Although the California Supreme Court was free to decide how to interpret and apply Bouie to petitioner's case, this Court cannot say, given then current federal constitutional law as explicated in Walton, that how the state court did, or did not, do so was contrary to, or an unreasonable application of, federal law as determined by the United States Supreme Court. Cf. Danforth v. Minnesota, ___ U.S. ___, ___ , 128 S.Ct. 1029, 1038 (2008) ("Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas.").
Thus, at both time of trial and the California Supreme Court's decision, there was no clearly established Supreme Court authority invalidating either court's failure to require a valid warrant as an element of the jury's finding of special circumstances.
2. The Merits of Petitioner's Bouie Argument
Assuming that, as when petitioner's conviction became final in the present case on October 7, 1991, clearly established federal law required that the California Supreme Court apply Bouie-Rogers retroactivity principles to petitioner's case, Duhaime v. Ducharme, supra , 200 F.3d at 600, petitioner's federal habeas claim still fails. As discussed below, in view of the evolving scope of the Fourth Amendment concerning the exclusionary rule and its emerging good faith exception, the California Supreme Court's ruling was foreseeable, Bouie v. City of Columbia , 378 U.S. at 353-54, and certainly was not "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, " Rogers v. Tennessee , 532 U.S. at 462.
"The beginning point for a Bouie analysis is the statutory language at issue, its legislative history, and judicial constructions of the statute." Webster , 369 F.3d at 1069. A court may also examine the trend of judicial constructions of similar statutes in other jurisdictions. Id. at 1070. To evaluate petitioner's claim, the Court must examine the legal landscape as of May 29, 1979, the date of petitioner's crime. See Clark , 450 F.3d at 912 ("Because the Bouie analysis focuses on notice to the defendant, we look only to cases decided before the crime was committed."); People v. Gonzalez , 51 Cal.3d at 1199.
When a state court adjudicates the merits of an issue without providing its underlying reasoning, as it did here, the federal court conducts an independent review of the record to determine whether the state court's resolution of the issue constituted an objectively unreasonable application of clearly established federal law. Greene v. Lambert , 288 F.3d 1081, 1088-89 (9th Cir. 2002); Himes v. Thompson , 336 F.3d 848, 853 (9th Cir. 2003).
The fact that the present case involves "specific California statutes, with a long history of California judicial construction and few, if any, specific statutory counterparts in other jurisdictions" militates in favor of "confin[ing] [the Court's] examination to California law." Webster , 369 F.3d at 1070. However, in construing the peace officer special circumstance, the California Supreme Court specifically relied on federal authority. See, e.g., People v. Gonzales , 51 Cal.3d at 1222 (citing United States v. Leon , 468 U.S. 897, 915-921 (1984)). Therefore, in assessing the reasonableness of the California Supreme Court's rejection of petitioner's Bouie claim, the Court will look to California and federal law.
Indeed, in arguing in support of the trial judge's decision not to allow the jury to decide the "performance of duties" issue, respondent specifically cited Leon and its good faith exception to the exclusionary rule. (See Response to Appellant's Supplemental Brief Addressing the Appeal, filed Jun. 22, 1990, at 8 n.5 [Lodged Doc. # B18]).
Respondent contends that the language of the statute, standing alone, was enough to give petitioner fair warning that his killing of Deputy Williams might subject him to the death penalty. (Rsp's. Op. Br., at 7). However, as petitioner points out (Ptr's. Opp. on A(3)(a), at 9), the phrase "performance of... duties" had received a judicial interpretation by the time petitioner committed his crime under which a Fourth Amendment violation was a defense to criminal liability based on an officer's performance of duties. In petitioner's case, the state court modified the common-law-derived definition of "engaged in... duties, '" incorporated into previous statutory interpretation, to "include the correct service of a facially valid search or arrest warrant, regardless of the legal sufficiency of the facts shown in support of the warrant." 51 Cal.3d at 1222. Under Bouie and Rogers, therefore, this "judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, ... where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers, supra , 532 U.S. at 462.
At the time of the crime, Cal. Pen. Code § 187(a) outlawed "the unlawful killing of a human being... with malice aforethought." Cal. Pen. Code § 189 stated, in relevant part, "any... willful, deliberate, and premeditated killing... is murder of the first degree." Cal. Pen. Code § 190.2(a), stated, in relevant part, "[t]he penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found... true:... (7) the victim was a peace officer, ... who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties."
Ten years prior to the crime, in People v. Curtis , 70 Cal.2d 347 (1969), the California Supreme Court reversed a conviction of battery on a police officer, because the warrantless arrest of the defendant lacked probable cause. In People v. Henderson , 58 Cal.App.3d 349, 357-58 (1976), the defendant prevailed on a similar claim that the officer he attacked was not engaged in the lawful performance of his duties because the warrant's discrepancy with knock and notice requirements rendered it invalid. Similarly, in People v. Muniz , 4 Cal.App.3d 562, 567-69 (1970), the court reiterated the principle in Curtis. As the Court of Appeal stated in People v. Soto , 276 Cal.App.2d 81 (1969):
In rejecting petitioner's argument that the jury should have decided the issue of whether Deputy Williams was engaged in duties when petitioner killed him, the California Supreme Court extensively discussed the state of the law as of the time of its decision. People v. Gonzalez , 51 Cal.3d at 1217-22. The California Supreme Court's discussion of these precedents makes it clear that an interpretation of the phrase, "performance of... duties, '" Id. at 1219 (quoting Cal. Pen. Code § 190.3(7)), which focuses on the officer's duty to serve a facially valid warrant, rather than on the technical issue of whether the warrant was in fact legally valid, was an issue of first impression, not a "radical and unforeseen departure from former law." Hayes v. Woodford, 301 F.3d at 1088; see People v. Gonzalez , 51 Cal.3d at 1218 (stating that the court was "[s]quarely faced with the issue for the first time").
Furthermore, the California Supreme Court's construction of this phrase, in the context of an officer's duty to serve a facially valid search warrant, is a logical and foreseeable extension of the development under federal law of the good faith exception to the exclusionary rule in Fourth Amendment cases. Starting in the 1970's commentators began to discuss a good faith exception to the exclusionary rule the Court had fashioned for Fourth Amendment violations in federal courts in Weeks v. United States , 232 U.S. 383 (1914), and extended to the states in Mapp v. Ohio , 367 U.S. 643 (1961). By May of 1979, the United States Supreme Court had started to articulate the basis for the good faith exception which it later adopted in United States v. Leon , 468 U.S. 897, 907-08 (1984).
See, e.g., Bernardi, The Exclusionary Rule: Is a Good Faith Standard Needed to Preserve a Liberal Interpretation of the Fourth Amendment?, 30 De Paul L. Rev. 51 (1980); Note, Reason and the Fourth Amendment-The Burger Court and The Exclusionary Rule, 46 Fordham L. Rev. 139 (1977); Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929 (1965); see also H. Friendly, Benchmarks 260-262 (1967) (exclusion should be limited to "the fruit of activity intentionally or flagrantly illegal").
Then Chief Justice Burger, dissenting in Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), stated that the pressures on police to prevent crime result in "inadvertent errors of judgment"' and expressed concern that the exclusionary rule treats honest mistakes and flagrant Fourth Amendment violations equally. 403 U.S. at 418. This criticism is the heart of the justification for a good faith exception. Note, The Emerging Good Faith Exception to the Exclusionary Rule, 57 Notre Dame Law. 112, 119 n.60 (1981).
In Michigan v. Tucker , 417 U.S. 433 (1974), a Fifth Amendment case where the police conduct in question pre-dated Miranda v. Arizona , 384 U.S. 436 (1966), police officers questioned the defendant after giving him all but one of the Miranda warnings, the defendant's statement led to his conviction, and the defendant sought post-Miranda habeas relief. The Court denied relief and declared that technical police error did not require exclusion of evidence under the Fifth Amendment unless exclusion served the rule's deterrence rationale. 417 U.S. at 447. Because the police officers in Tucker acted in good faith and without knowledge of the subsequent Miranda decision, excluding the evidence would not achieve deterrence and was unwarranted. Id.
In United States v. Peltier , 422 U.S. 531 (1975), a case involving a border search that pre-dated, and did not comply with, the Court's decision in United States v. Almeida-Sanchez , 413 U.S. 266 (1973), the Court refused to apply Almeida-Sanchez retroactively because to do so would not serve the exclusionary rule's rationales. 422 U.S. at 542. Relying on Tucker, the Court stated that the exclusion of evidence would not deter improper police action taken in good faith reliance on current standards and that, therefore, the evidence should be admitted, even though the police violated defendant's Fourth Amendment rights. Id.
In Almeida-Sanchez, the Court held that the Fourth Amendment's probable cause requirement applied to the Border Patrol's roving warrantless search of a car more 25 miles from the border with Mexico. 413 U.S. at 273-75.
In Brown v. Illinois , 422 U.S. 590 (1975), Justice Powell, concurring in the Court's decision, differentiated between various Fourth Amendment violations, stating that the degree of attenuation necessary to remove the taint of such a violation should be greater when a "flagrantly abusive violation of Fourth Amendment rights" occurs, and less when a "technical" Fourth Amendment violation occurs. Id. at 610-11 (Powell, J. Concurring). Justice Powell noted that the exclusion of illegally-seized evidence would not serve the exclusionary rule's deterrence rationale where the Fourth Amendment violation was merely "technical" and that in such cases, "no legitimate justification for depriving the prosecution of reliable and probative evidence" exists. Id. at 612 (Powell, J., concurring).
In United States v. Janis , 428 U.S. 433 (1976), the Court held that evidence seized by a state police officer in good faith reliance on a warrant a court later declares defective is admissible in a federal tax proceeding. Since the illegally seized evidence was inadmissible in state and federal criminal trials, any additional deterrence from excluding the evidence in a civil proceeding is marginal and "does not outweigh the cost to society" of excluding reliable evidence. Id. at 453-54. The Court noted the officer's good faith, "a factor that... reduces significantly the potential deterrent effect of exclusion." Id. at 458-59 n.35.
In Stone v. Powell , 428 U.S. 465, 486 (1976), in holding that habeas petitioners who have had a full and fair opportunity to litigate their Fourth Amendment claims in state court may not re-litigate them in federal court, the Court noted that the Fourth Amendment "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons" and that "[t]he primary justification for the exclusionary rule... is the deterrence of police conduct that violates Fourth Amendment rights." 428 U.S. at 485. In dissent, Justice White said a good faith exception was warranted: "When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. The officers, if they do their duty, will act in similar fashion in similar circumstances in the future...." Id., at 540 (White, J., dissenting).
Thus, by 1976, four United States Supreme Court Justices had expressed a desire to incorporate a good faith exception into the Fourth Amendment exclusionary rule. Stone , 428 U.S. at 501 (Burger, C.J., concurring); id., at 538 (White, J., dissenting); Brown , 422 U.S. 590, 610-12 (1975) (Powell, J., concurring); Peltier , 422 U.S. 531, 537-39 (1975) (Rehnquist, J.).
Lower court decisions also foreshadowed the good faith exception. See, e.g., United States v. Kilgen , 445 F.2d 287, 289 (5th Cir. 1971) ("There is no hint of any abusive police conduct in effecting the [defendant's] arrest or in obtaining the evidence used at the trial for another crime;" the police, "with the utmost regard for the rights of the defendant, carried out their sworn duty to make an arrest and obtain evidence under the law as it then existed. No legitimate interest would be served by excluding the confession to the separate crime of stealing postage stamps because we now find the vagrancy ordinance invalid."); Wiley v. Daggett , 551 F.2d 776, 779 (8th Cir. 1977) (confession obtained after defendant's arrest under unconstitutional ordinance admissible; "[T]he good faith of the officers was an adequate basis for the ruling"), cert. denied, 434 U.S. 844 (1977).
In sum, by the time petitioner killed Deputy Williams, the evolution under federal law of the good faith exception to the exclusionary rule in Fourth Amendment cases was already well under way. Given the evolving scope of the exclusionary rule and its emerging good faith exception, in May of 1979, it was foreseeable, Bouie v. City of Columbia , 378 U.S. at 353-54, and it certainly was not "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, " Rogers v. Tennessee , 532 U.S. at 462, that the California state courts might create an analogous "good faith exception" under Cal. Pen. Code § 190.2(a)(7) by ruling that, when a police officer is killed while serving a facially valid search warrant, the actual validity of the warrant is not an element of the special circumstance.
Because the California Supreme Court's ruling that the actual validity of the warrant was not an element of Cal. Pen. Code § 190.2(a)(7) survives review under AEDPA, the Court need not address petitioner's arguments concerning the warrant's validity.
Assuming petitioner is entitled to the application of clearly established Supreme Court authority which crystallized more than a decade later, the California Supreme Court's rejection of the state court analogue to claim A(3)(a) is not contrary to, or an unreasonable application of, federal law as determined by the United States Supreme Court, and it is not based on an unreasonable determination of the facts in light of the evidence before the state courts. 28 U.S.C. §§ 2254(d)(1) & (2). Claim A(3)(a) is without merit.
E. Claim A(3)(b)
In claim A(3)(b), petitioner alleges that "[t]he trial court instructed the jury regarding a special circumstance allegation under an overbroad standard." (Crctd. Pet., at 9). In his memorandum of points and authorities, petitioner contends the Cal. Pen. Code § 190.2(a)(7) peace officer special circumstance fails to "narrow the scope of murders eligible for the death penalty, " Webster v. Woodford , 369 F.3d at 1068 n.2 (citing Furman v. Georgia , 408 U.S. 238 (1972)), in that it does not provide a "meaningful basis for distinguishing the few cases in which [a death sentence] is imposed from the many cases in which it is not, " Furman v. Georgia , 408 U.S. at 313 (White, J., concurring), and it fails to "channel the sentencer's discretion by clear and objective standards' that provide specific and detailed guidance, ' and that make rationally reviewable the process for imposing a sentence of death.'" Godfrey v. Georgia , 446 U.S. 420, 428 (1980). (Crctd. Ps&As., at 124-26). Noting that the special circumstance encompasses those murderers who "knew" and those who "should have known" the victim was a police officer engaged in the performance of duties, petitioner contends extending the statute "to encompass... constructive knowledge was impermissibly broad...." (Crctd. Ps&As., at 126).
The special circumstance states:
The victim was a peace officer, as defined in [California Penal Code] Section 830.1, 830.2, 830.3, 830.31, 830.35, 830.36, 830.4, 830.5, 830.5a, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his duties was intentionally killed and the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his duties; or the victim was a peace officer as defined in the above enumerated sections of the Penal Code, or a former peace officer under any of such sections, and was intentionally killed in retaliation for the performance of his official duties.
Cal. Pen. Code § 190.2(a)(7).
In rejecting petitioner's claim on the merits, the California Supreme Court stated:
The special circumstance of peace-officer murder requires that defendant intentionally killed a person he knew or should have known was a peace officer engaged in the performance of duties.' Defendant asserts that a standard of mere constructive-knowledge violates the Eighth and Fourteenth Amendments because it is vague and overbroad, and because it fails to draw a rational distinction, based on relative culpability, between intentional murderers who are and are not eligible for the death penalty. We have previously upheld the constructive-knowledge standard of the peace-officer special circumstance against a similar challenge. We do so here.
People v. Gonzalez , 51 Cal.3d at 1124 (citations omitted); see also People v. Rodriguez , 42 Cal.3d 730, 779-82 (1986) (explaining the State court's rationale for upholding Cal. Pen. Code § 190.2(a)(7) against constitutional challenges similar to those petitioner raises here).
In Jackson v. Calderon, 1997 WL 855516 (C.D. Cal. 1997), rev'd. in part on other grounds, 211 F.3d 1148 (9th Cir. 2000), cert. denied sub nom. Woodford v. Jackson, 531 U.S. 1072 (2001), the petitioner made a claim almost identical to the claim petitioner is raising here. There, the Court found, the jury had determined that the petitioner, Jackson, both knew and should have known that his victim was a police officer, a finding not made here. 1997 WL 855516, at *74. However, the Court also addressed the claim petitioner is raising and, in so doing, summarized the relevant United States Supreme Court authority:
Even if the jury had not specifically found that Jackson knew Wrede was a peace officer, his claim would fail on the merits. First, the Supreme Court has found that the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance. There is a special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property.' [citation to Roberts v. Louisiana , 431 U.S. 633, 636 (1977)]. Jackson relies upon Zant v. Stephens, [462 U.S. 862 , 877 (1983), ] for the proposition that the state's statutory framework for the imposition of the death penalty must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' Nevertheless, when discussing the desirability of limiting the death penalty to particular crimes, the Stephens court itself acknowledged its own holding that the murder of a peace officer may be considered as an aggravating circumstance due to the "special interest in affording protection to those public servants who regularly must risk their lives..."' [citation to Zant , 462 U.S. at 877 n.15 and Roberts , 431 U.S. at 636]
Second, and even more importantly, the Supreme Court has examined and upheld the general facial validity of California's 1977 statutory scheme governing the death penalty, which included the peace-officer special circumstance that is at issue in this case. [citation to Pulley v. Harris , 465 U.S. 37, 53 (1984) and California v. Brown , 479 U.S. 538, 540 (1987)]. The Court notes that the provision herein at issue [under the 1978 Death Penalty law], was substantially identical to the provision set forth in the 1977 statute....
Jackson, 1997 WL 855516, at *74.
Thus, federal constitutional law as determined by the United States Supreme Court, clearly established at the time petitioner's conviction became final in 1991, forecloses petitioner's argument that the police officer murder special circumstance fails to narrow the scope of murders eligible for the death penalty within the meaning of Furman, supra.
Petitioner's claim therefore boils down to the argument that the meaning of "reasonably should have known" was vague and ambiguous, allowing each juror to apply his or her own concept of what is reasonable, introducing into the deliberative process the arbitrariness and uncertainty the Court condemned in Furman, supra, and other cases. This argument makes sense only if the average juror is unable to ascertain and apply the meaning of "reasonably should have known" in the instruction reiterating the statutory language. See Rodriguez, supra , 42 Cal.3d at 781-82 (rejecting this contention).
"The mere fact that a penal statute is so framed as to require a jury upon occasion to determine a question of reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct." United States v. Ragen , 314 U.S. 513, 523 (1942); see United States v. Escobar, 1987 WL 31141, at *7 (S.D. Cal. 1987) (listing cases in which "the Supreme Court has upheld statutes that require a jury to determine whether a defendant's conduct was reasonable"). There is no reasonable likelihood that the jury has applied the challenged instruction in an arbitrary manner, Boyde v. California , 494 U.S. 370, 380 (1990), particularly here, where defense counsel focused his arguments on the contention petitioner "thought it was the Bassett gang" when he shot Deputy Williams. (5 R.T. 1129).
(See also 5 R.T. 1092 ("that is the whole case, what, in fact, is in [petitioner's] mind and what should be in [petitioner's] mind...."), 1105 (defense contention is "that if [petitioner] knew they were police officers... that he would not have shot one of the police officers."), 1119 (And the defense of my client is very, very simple, simply that he thought a gang was after him, and he killed a Sheriff's deputy in self-defense."), 1122 (theory that petitioner planned "to get himself a Sheriff's deputy" was not credible), 1130 ("There's reasonable doubt that he didn't know it was the police")).
Claim A(3)(b) is without merit.
F. Claim A(3)(c)
In claim A(3)(c), petitioner alleges that the trial court violated the federal constitution when it failed sua sponte to give a specific cautionary instruction that the testimony of informants such as William Acker must be viewed with suspicion and distrust, and is inherently unreliable. (Crctd. Pet., at 10; Crctd. Ps&As., at 122-23).
Although in the Ninth Circuit the failure to give sua sponte a special cautionary instruction regarding the credibility of a criminal informant constitutes reversible error when the informant's testimony is "important, " see United States v. Patterson , 648 F.2d 625, 631 (9th Cir. 1981); People of the Territory of Guam v. Dela Rosa , 644 F.2d 1257, 1259-60 (9th Cir. 1980), as the California Supreme Court pointed out in petitioner's case on direct appeal, People v. Gonzalez , 51 Cal.3d at 1210, California has no such requirement. See People v. Hovey , 44 Cal.3d 543, 565-66, cert. denied sub nom. Hovey v. California , 488 U.S. 871 (1988); People v. Alcala , 36 Cal.3d 604, 623-24 (1984) (citing Cal. Evid. Code § 411).
As these authorities would suggest, under clearly established federal law as determined by the United States Supreme Court, the federal constitution does not require that a trial court specifically instruct a jury to weigh an informant's testimony with care, and the trial court's failure to do so does not entitle a petitioner to relief under Section 2254; petitioner will be entitled to habeas relief on this claim only if the trial court's refusal to give the instruction resulted in a fundamentally unfair trial. See Smith v. Gibson , 197 F.3d 454, 460 (10th Cir. 1999), cert. denied, 531 U.S. 839 (2000) (pre-AEDPA case; "Because petitioner has failed to assert a recognized federal constitutional right to a cautionary jury instruction regarding an informant's testimony, he will be entitled to habeas relief on this claim only if the trial court's refusal to give the instruction resulted in a fundamentally unfair trial."); Edelbacher v. Galaza, 2007 WL 677222, at *13 (E.D. Cal. Mar. 1, 2007) (report and recommendation of Magistrate Judge rejecting claim identical to petitioner's under AEDPA), report and recommendation adopted, 2007 WL 1609874 (E.D. Cal. Jun 04, 2007); accord, Bonin v. Vasquez , 807 F.Supp. 589, 617 (C.D. Cal. 1992) (A trial court's failure to give an instruction sua sponte on the unreliability of informant testimony is not necessarily plain error requiring a reversal; "[t]he need for the instruction must be analyzed in light of the circumstances of the case.") (citations omitted), aff'd, 59 F.3d 815 (9th Cir.1995), cert. denied, 516 U.S. 1051 (1996).
Under clearly established federal law as determined by the United States Supreme Court, to obtain federal habeas corpus relief for error in the jury instructions in his state criminal trial, petitioner must show that the error rendered the trial so fundamentally unfair that the resulting conviction violates due process. See Henderson v. Kibbe , 431 U.S. 145, 154 (1977); Cupp v. Naughten , 414 U.S. 141, 147 (1973). "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson , 431 U.S., at 155.
On direct appeal, the California Supreme Court made the following findings, which petitioner does not contest:
The jurors knew Acker was a convicted murderer with a motive to cooperate. They received standard instructions that they should consider a witness's bias or interest, that a witness false in part is to be distrusted, that the uncorroborated testimony of a single witness should be carefully evaluated, and that a defendant's oral admissions should be viewed with caution. Discrepancies in informant Acker's testimony, and his possible motives for giving testimony favorable to the prosecution, were explored at some length in cross-examination and in argument. The court's failure to give a further jailhouse informant' instruction sua sponte is not reversible error.
51 Cal.3d at 1209-10 (citations omitted). No federal constitutional violation occurred because, as the California Supreme Court found, petitioner's trial counsel, through cross-examination and argument, presented his theory that Acker, as an informant, had a motive to lie, was unreliable, and was to be distrusted. Cf. Smith v. Gibson , 197 F.3d at 460 (No fundamental unfairness where "[d]efense counsel had ample opportunity to attack [informant's] credibility and was able to bring to the jury's attention the fact that [informant] was not a disinterested witness" and the trial court instructed jurors that it was their job to determine a witness's credibility, after considering "any bias, prejudice or interest the witness might have in the outcome of the trial.") (citation omitted); Cook v. Pearlman , 212 F.Supp.2d 258, 265 (S.D.N.Y. 2002) (trial court's failure to give an interested witness jury instruction did not violate due process where "[t]he trial court's jury charge permitted [petitioner] to "effectively present[]" [his] argument as to the value of the [witnesses'] testimony.'") (citations omitted).
Claim A(3)(c) is without merit.
F. Claims B(2)(a) and B(3)(a)
In claim B(2)(a), petitioner argues that the prosecutor committed misconduct in penalty phase closing argument when he told the jury not to consider sympathy for petitioner as a mitigating factor in deciding whether to impose the death penalty or life imprisonment. (Crctd. Pet., at 11; Crctd. Ps&As., at 78-81). In claim B(3)(a), petitioner argues that the trial court denied petitioner due process when it allegedly ruled that the jury may not consider sympathy for petitioner in deciding penalty. (Crctd. Pet., at 12; Crctd. Ps&As, at 126). Because these claims involve the same operative facts and raise the same fundamental issue of whether petitioner's jury was denied the opportunity to consider sympathy, the Court addresses them together.
In the penalty phase opening jury instructions, the trial judge instructed:
As jurors, you have two duties to perform. One duty is to determine the facts of the case from the evidence received in the trial and not from any other source.... Your other duty is to apply the rules of law that I state to you to the facts as you determine them and in this way to arrive at your verdict.
It is my duty in these instructions to explain to you the rules of law that apply to this case. You must accept and follow the rules of law as I state them to you.
You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling. Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence and apply the law of the case, and that you will reach a just verdict regardless of what the consequences of such verdict may be.
(2 C.T. 362-63 (CALJIC 1.00); 21 R.T. 4660; R.T. Suppl. at 53 (jury instruction as read to the jury) (emphasis added)).
In his closing argument to petitioner's second penalty phase jury, the prosecutor argued: When you walk through that door, your next job is going to be weighing the factors, weighing the factors as to the weighing of them in order to reach a verdict, but I think conceptually the easiest way for me to explain that is that think of yourselves as twelve cars on a train track. You are coming - you listen to the evidence. You go down the track, weighing the factors and you reach a verdict; however, there are ways that you can be sidetracked.
One car, two cars, get sidetracked.
* * *
Let me go to the other ones that may come up. The one that there can be a derailment, which is the emotional one.
His honor said that you are not supposed to consider sympathy or compassion. You are supposed to weigh the facts that you heard from the witness stand and the physical exhibits we are talking about.
Those are evidence. Sympathy for the defendant, if you are a person who says, well, you know, I always take the position of the underdog - the defendant's the underdog in this case, therefore I am going to be his advocate, I am going to stand up for the defendant.
His honor read to you that none of you are advocates, you are not an advocate for the defendant, so, hopefully, no one will fit into the emotional trap of saying, well, somebody should speak up in behalf of the defendant. The other, about families, you saw the defendant's sister testify, and children in and out of the court. That's something that you are not to - to weigh and consider, and should be put aside. It can - it can grab somebody, grab somebody on the jury. If you do that, you're not doing your job, you're being distracted. But, hopefully, we don't get stuck with somebody down here.
(21 R.T. 4684-87 (emphasis added)).
The California Supreme Court rejected petitioner's claim. Applying Boyde v. California , 494 U.S. 370 (1990), the state court noted that the statute and the instructions given here include a "catch-all" factor which directs consideration of "any... circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, " People v. Gonzalez , 51 Cal.3d at 1225 (quoting Cal. Pen. Code § 190.3; CALJIC, former No. 8.84.1, factor (k)), and, the court stated, "[u]nless misled, a reasonable jury should understand that this phraseology includes consideration of mitigating character and background evidence introduced at trial." Id. at 1225 (citing Boyde , 494 U.S. at 381-82).
Continuing to rely on Boyde, the California Supreme Court pointed out that the trial judge instructed the jury to consider "all of the evidence, " and the prosecutor never suggested that evidence petitioner presented in mitigation was irrelevant, so that there was no "reasonable likelihood" that the jury misconstrued the relevant scope of such evidence. Id. at 1225 (citing Boyde , 494 U.S. at 380). In a footnote, the court stated:
Boyde expressly addressed the appropriate standard for evaluating a federal constitutional claim that ambiguous instructions impermissibly restricted the jury's consideration of relevant mitigating evidence. After reviewing various past expressions of the standard, Boyde held that constitutional difficulties arise only if there is a reasonable likelihood [i.e., more than a mere possibility'] that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence....' We thus adopt the reasonable likelihood' test for defendant's claims that the ambiguous standard sentencing instruction and the no sympathy' instruction, as exploited by the prosecutor, prevented the jury from considering all relevant evidence in mitigation.
Id. at 1225 n.23 (citation omitted).
Further, the California Supreme Court cited California v. Brown , 479 U.S. 538 (1987), and stated that the trial court's instruction against "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" does not alter the analysis because, unless misled, "a reasonable jury will understand that this instruction does not foreclose compassionate evaluation of the mitigating evidence, but warns only against factually untethered' emotion, bias, or outside pressure." Gonzalez , 51 Cal.3d at 1225 (citing Brown , 479 U.S. at 542-43; emphasis in original deleted).
The California Supreme Court discussed the prosecutor's statement that "His Honor said... you are not supposed to consider sympathy or compassion." Id. at 1225-26. Noting that defense counsel raised no objection, the state court stated that, "[i]n any event, the context of the remark clearly indicates it was intended only to focus the jury on the evidence, rather than on vague pity for persons forced to defend against criminal charges, " so that there was "no reasonable likelihood that the jury misinterpreted the standard antisympathy' instruction." Id . Finally, the court said the prosecutor did not mislead the jury with his brief admonition, again "unchallenged by the defense, " that the jurors must not "weigh" or "consider" the presence of defendant's family members in court. Id., 51 Cal.3d at 1226 (footnote omitted). "[T]he jury could properly be cautioned against free-floating emotional responses that were extraneous to the statutory sentencing factors and the aggravating and mitigating evidence." Id., 51 Cal.3d at 1226 (citing Brown , 479 U.S. at 542-43).
Under federal law clearly established at the time petitioner's conviction became final, in a capital case, a capital sentencer must not be precluded from considering any mitigating evidence relating to the defendant or the crime. See, e.g., Eddings v. Oklahoma , 455 U.S. 104, 111-112 (1982); Lockett v. Ohio , 438 U.S. 586, 604 (1978) (plurality opinion). Mitigating evidence at the penalty phase allows sentencer to consider "compassionate... factors stemming from the diverse frailties of humankind." Woodson v. North Carolina , 428 U.S. 280, 304 (1976) (plurality opinion).
In California v. Brown, supra , the Court upheld the constitutionality of a jury instruction identical in material respects to that used in petitioner's case. In Brown, the trial judge instructed the jury, as the trial judge did here, that it must not be swayed by "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.'" 479 U.S., at 542. In a 5-4 decision, the majority held that this instruction did not violate the Eighth and Fourteenth Amendments for two reasons. First, the word "mere" informed the jury "to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase." Id. at 542. "By concentrating on the noun sympathy, '" the defendant had "ignore[d] the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy." Id., at 542. Second, it was "highly unlikely that any reasonable juror would almost perversely single out the word sympathy' from the other nouns which accompany it in the instruction: conjecture, passion, prejudice, public opinion, or public feeling." Id., at 542-543. "Reading the instruction as a whole, " id., at 543, a rational juror could only conclude that the instruction was intended simply to confine the jury's deliberations to issues arising from the evidence presented.
In a concurring opinion, Justice O'Connor, who provided the fifth vote for the majority, concurred because the instruction was consistent with the requirement that "the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence...." 479 U.S., at 545 (O'Connor, J., concurring). However, Justice O'Connor added:
On remand, the California Supreme Court should determine whether the jury instructions, taken as a whole, and considered in combination with the prosecutor's closing argument, adequately informed the jury of its responsibility to consider all of the mitigating evidence introduced by the respondent.... [I]n his closing remarks, the prosecutor in this case may have suggested to the jury that it must ignore the mitigating evidence about the respondent's background and character. In combination with the instructions, the comments of the prosecutor may create a legitimate basis for finding ambiguity concerning the factors actually considered by the' jury. [cite omitted] [¶] Because it is open to the California Supreme Court to determine on remand whether the jury was adequately informed of its obligation to consider all of the mitigating evidence introduced by the respondent, I concur in the judgment and opinion of the Court.
Id., at 546.
In Boyde v. California , 494 U.S. 370 (1990), the Court faced the question whether California's "catch-all" mitigating factor, Cal. Pen. Code § 190.3, factor (k), complied with the Eighth Amendment requirement "that the jury be able to consider and give effect to all relevant mitigating evidence offered by petitioner." 494 U.S. at 377-78. In concluding that factor (k) does meet this requirement, the Court stated:
In this case we are presented with a single jury instruction. The instruction is not concededly erroneous, nor found so by a court.... The claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation. We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.
Id., at 380. The factor (k) instruction "did not, as petitioner seems to suggest, limit the jury's consideration to any other circumstance of the crime which extenuates the gravity of the crime.' The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant's background and character." Id., at 382.
In Saffle v. Parks , 494 U.S. 484 (1990), the Court rejected the argument that federal constitutional law required that a capital jury be permitted to consider sympathy for the defendant in deciding sentence:
... Parks argues that the Eighth Amendment, as interpreted in 1983, required, and still requires, that jurors be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence. We disagree and conclude that adoption of this principle would create a new rule as defined in Teague and Penry.
Id., at 489. The Court explained:
We also reject Parks' contention that the antisympathy instruction runs afoul of Lockett and Eddings because jurors who react sympathetically to mitigating evidence may interpret the instruction as barring them from considering that evidence altogether. This argument misapprehends the distinction between allowing a jury to consider mitigating evidence and guiding their consideration.
Id., at 492. Lockett and Eddings addressed "what mitigating evidence the jury must be permitted to consider, " id. at 490, whereas Parks sought to instruct the jury "how it must consider the mitigating evidence." Id . "There is a simple and logical difference between rules that govern what factors the jury must be permitted to consider in making its sentencing decision, and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Id . See also Victor v. Nebraska , 511 U.S. 1, 13 (1994) (Guilt phase instructions stating "you must not be influenced by pity for a defendant or by prejudice against him, " and "[y]ou must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling" "correctly pointed the jurors' attention to the facts of the case before them").
No principled distinction exists between the argument the Court rejected in Saffle v. Parks and those petitioner is making here. Here, as in Saffle, the court instructed, and the prosecutor argued, that the jury should not allow itself to be swayed by sympathy for petitioner. They did not tell the jury it could not consider mitigating evidence. Rather, they advised how it was supposed to consider the mitigating evidence presented. As in Saffle, prohibiting jury instructions and prosecutorial arguments of this nature would require creation of a new rule. See Davis v. Maynard , 911 F.2d 415, 417 (10th Cir. 1990). The California Supreme Court's rejection of the state court analogues to petitioner's claims B2(a) and B3(a) was not contrary to or an unreasonable application of federal law. See Mayfield v. Woodford , 270 F.3d 915, 923 (9th Cir. 2001) (en banc) ("[N]o reasonable jurist could debate or find wrong the district court's denial of Mayfield's request for habeas corpus relief on" similar claims); Williams v. Schomig, 2008 WL 763233, at *8-*9 (D. Nev. Mar. 19, 2008) (citing and summarizing the relevant law in rejecting a challenge to a "no sympathy" jury instruction under AEDPA).
In any event, at trial, petitioner's counsel did not follow a strategy to elicit sympathy for petitioner. Instead, counsel focused on his contentions that William Acker's account of the murder was not credible and that petitioner did not intend to kill a police officer, but thought he was being attacked by a rival gang when he shot the officer. (21 R.T. 4703-31). Given counsel's lack of reliance on sympathy, any prosecutorial misconduct or trial court error in stating that the jury may not consider sympathy for petitioner as mitigating was plainly harmless.
Claims B(2)(a) and B(3)(a) are without merit.
G. Claim B(2)(b)
In claim B(2)(b), petitioner claims the prosecutor committed misconduct when he argued, in his penalty phase closing argument, that the jury could consider only extreme emotional disturbance as a mitigating factor. (Crctd. Pet., at 10-11; Crctd. Ps&As., at 73).
The prosecutor argued:
Extreme emotional disturbance. The judge talked about that. Well, there wasn't evidence of extreme emotional disturbance on the part of the defendant. Our position is that that would be, with the lack of that, is an aggravating factor. You can accept that or reject it.
* * *
Extreme duress. There was no evidence of extreme duress. No one was forcing the defendant to kill Deputy Jack Williams. It wasn't a situation where somebody had somebody kidnapped and, If you don't cooperate, we are going to kill a neighbor of yours, a relative of yours, or somebody close to you.
Mental disease or intoxication.... [¶] We're talking about if a person, is there something mentally wrong with a person or the person was so intoxicated with whatever, alcohol or whatever, that he somehow was beside himself, he wasn't a normal person. [¶] There was absolutely, absolutely no evidence presented as to the defendant being intoxicated or that there was any mental disease or disturbance on his part. Granted, this is not a really brilliant plan, but we are not talking about brilliance on the part of the defendant. We're talking, was there any mental disease? There was not.
(21 R.T. 4676-77).
The United States Supreme Court has repeatedly held that, in a capital sentencing proceeding, "a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as the basis for a sentence less than death." Penry v. Lynaugh , 492 U.S. 302, 318 (1989); see also Skipper v. South Carolina , 476 U.S. 1, 4 (1986); Eddings v. Oklahoma , 455 U.S. 104, 110 (1982); Lockett v. Ohio , 438 U.S. 586, 604 (1978). The sentencer must be able to "give effect to all relevant mitigating evidence offered" by a capital defendant. Boyde v. California , 494 U.S. 370, 377-78 (1990). The United States Supreme Court has refused to tolerate "[a]ny barrier" to the proper use of mitigating evidence: "Whatever the cause, the conclusion would necessarily be the same: Because the sentencer's failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand... for resentencing." McKoy v. North Carolina , 494 U.S. 433, 442 (1990) (citations, internal quotes, and alterations omitted).
The United States Supreme Court has recently reaffirmed the breadth of the range of evidence that the capital sentencer must be instructed to consider:
Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.' Thus, a State cannot bar the consideration of... evidence if the sentencer could reasonably find that it warrants a sentence less than death.'
Tennard v. Dretke , 542 U.S. 274, 284-85 (2004) (quoting McKoy , 494 U.S. at 440) (further citations, internal quotes, and alterations omitted). Applying this "low threshold for relevance, " id., the Court has rejected the view that mitigating evidence is only relevant if it demonstrates that the defendant had "a uniquely severe permanent handicap" that bore a "nexus" to the crime. Id. at 284, 289. The Court has characterized the "nexus" requirement as "a test we never countenanced and now have unequivocally rejected." Smith v. Texas , 543 U.S. 37, 45 (2004).
One of the statutory sentencing factors the jury was to consider here in deciding whether to sentence petitioner to death was "[w]hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance." Cal. Pen. Code § 190.3(d). (2 C.T. 380). Viewed in isolation, the prosecutor's argument could be seen as an invitation to the jury to ignore mitigating evidence of mental or emotional disturbance which was not extreme, in violation of the Court's mandate to give effect to all mitigating evidence. However, the trial court instructed the jury in accordance with "factor (k), " which calls for it to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Cal. Pen. Code § 190.3(k). (2 C.T. 381). Under this instruction, the jury was free to consider mitigating evidence of mental or emotional disturbance which was not extreme. Defense counsel's closing argument focused on the facts and circumstances of the crime, and counsel made no claim that petitioner suffered from mental or emotional disturbance or illness. (See, e.g., 21 R.T. 4703). The fact that the prosecutor's argument focused on one set statutory factors did not preclude the jury from considering the mitigating evidence presented. See Turner v. Calderon , 970 F.Supp. 781, 801 (E.D. Cal. 1997) (rejecting challenge to jury instructions similar to the argument made here), aff'd., 281 F.3d 851 (9th Cir. 2002).
Claim B(2)(b) is without merit.
H. Claim B(2)(c)
In claim B(2)(c), petitioner argues that the prosecutor committed misconduct by misstating the law concerning the penalty phase jury's discretion in deciding sentence. (Crctd. Pet., at 10-11; Crctd. Ps&As., at 74-78).
1. Background
Prior to penalty phase closing argument, the trial judge gave then CALJIC 8.84.1, which stated in part:
In determining which penalty [death or life without parole] is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case.... You shall consider, take into account and be guided by the following factors, if applicable...."
(2 C.T. 380). The trial judge then read the aggravating and mitigating factors listed in Cal. Pen. Code § 190.3(a)-(k). (2 C.T. 380-81). Later, the trial judge gave a modified version of CALJIC 8.84.2, which stated in part:
It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on the defendant.
After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.
If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.
(2 C.T. 396-97).
In People v. Brown , 40 Cal.3d. 512 (1985), rev'd. on other grounds sub nom. California v. Brown , 479 U.S. 538 (1987), the California Supreme Court described the federal constitutional requirements applicable to the jury's capital sentencing responsibilities:
[W]ith respect to the process of selecting from among that class those defendants who will actually be sentenced to death, [w]hat is important... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.' It is not simply a finding of facts which resolves the penalty decision, "but... the jury's moral assessment of those facts as they reflect on whether defendant should be put to death"' The jury must be free to reject death if it decides on the basis of any constitutionally relevant evidence or observation that it is not the appropriate penalty.... We agree with defendant, therefore, that a statute would be invalid if interpreted to preclude juror consideration of any factors constitutionally relevant to imposition of the death penalty. Nor would a statute pass muster if it required jurors to render a death verdict on the basis of some arithmetical formula, or if it forced them to impose death on any basis other than their own judgment that such a verdict was appropriate under all the facts and circumstances of the individual case. We agree with the People, however, that the 1978 death penalty law need not, and should not, be so interpreted.
Id., at 540. The California Supreme Court then stated that the 1978 law, though it changed the prior law to require the jury to "weigh, " rather than to "consider, take into account and be guided by, " the listed factors, "does not rob the jury of its constitutional responsibility to decide what penalty is appropriate under all the relevant circumstances." Id., at 544.
California trial courts have since incorporated the holding of Brown in the concluding penalty phase jury instruction. See CALJIC 8.88 (6th ed. 1996).
In penalty phase closing argument in petitioner's state court trial, the prosecutor said:
I - I built a little scale. That's something I had in my garage. It's not very professional, as you can see, but the idea is to give you a concept, I'm giving you an idea. [¶] I'm sure Mr. Bencangey will have some comments about my amateur job here. But you have two things, and I am trying to get across two points. [¶] You've got the first job, to take the evidence and decide which side does it go on? Is it aggravating or is it mitigating? After you decide that, then you have the next job, to decide how much weight am I going to give to it? Now, that one, I think - listen to the defense on that, because I would anticipate that they are going to say that this is - this isn't fair, this isn't a fair representation, because I'm overweighting it.
I don't mean to do that. I'm trying to take a synopsis of each one of those factors His Honor read. I think there were twelve factors. So I put them there. They weren't weighted properly. That is your job. You have got to give the weight to them. A little weight, a lot of weight. That's your decision. So schematically I couldn't do it without giving it equal weight.
(21 R.T. 4674). The prosecutor later stated:
When all these [factors] are added up, and His Honor has already read to you, you weigh them. If the aggravating factors outweigh the mitigating factors, the sentence is death. There's no - there's no alternative for you. If they outweiqh, it is automatically death.
On the other hand, if mitigation outweighs aggravation, it is automatically life imprisonment without possibility of parole. [¶] So there is no option, once you do your calculations. (21 R.T. 4678 (emphasis added); see also 21 R.T. 4688 ("The law says if the aggravating factors, those are the factors, outweigh the mitigating, the sentence is death.")).
In his rebuttal, the prosecutor stated: You didn't hear his Honor saying anything about when it is appropriate. His Honor said your job is a weighing process. It's not for you to think this an appropriate - type case: no, this is not an appropriate - type case.' That is not for you to decide. Not really.
(21 R.T. 4747). After classifying various factors as aggravating or mitigating, the prosecutor then turned to the weight to be assigned to each factor:
Mr. Bencangey does not like my scales, so let me try again.
Okay. I will try one more time. I'm trying to get across an idea. I don't care what you call it. Afterwards, when I did this, I realized that I guess those of you who are in accounting, and some of you are, I guess it wouldn't be called a balance sheet. Maybe it's really called a financial statement, but my accounting background isn't too good.
But, anyway, let me give you the thrust of it. You have got one column for aggravation; you have got another column for mitigation and let's say you - you are doing your job as a juror. You are trying to decide where they fit and how much weight to give to them.
As Mr. Bencangey says, Well, this overweights it on the scales. This isn't fair.' Let's do it this way.... Let's say you can give a number of 1 to 10, 1 to 10 for each one of those. 1 to 10.
How about the killing? The nature of the crime? What are we going to consider that?
I mean, that was cold. That was planned. You know, Mr. Bencangey can say it was not aggravating, but that was aggravating. On a scale of 1 to 10, that would be, let's say, a No. 9.
Couldn't get much more aggravating than that, the manner in which it was done.
Next, prior violence.
As I have indicated, a conviction for great bodily injury...
* * *
I mean, that does show that a person is a violent person and has had violent criminal activity. Now, on a scale of 1 to 10, maybe that would be a 5.... Okay. Now, we have no evidence of mental disturbance.
Let's give that a 1. No victim participation.
Give it a 1.
No moral justification.
Now, Mr. Bencangey wants to argue that one and say,
Well, there might be some extenuating circumstances, ' but until he gives you some hard evidence of that, let's give that a 1.
There is no distress. Give that a 1.
There is no evidence of intoxication. Give that a 1.
The defendant is not of tender age, certainly doesn't fit on mitigation, it fits on aggravation.
Give it a 1.
All of these are the benefit of the doubt. I'm giving them the lowest possible.
The defendant was a principal in this. He was not the accessory.
Let's give that a 1.
Now, this one [apparently referring to factor (k)], we are still waiting on and maybe Mr. Bencangey can change all of this by indicating that that should be on this side, but there was no extenuating circumstances. We will give that a 1.
And then we have, yeah, on the mitigation side, we have got prior felony. There is no prior felony.
Let's say give that a 3.
Okay, now, Mr. Bencangey is going to say afterward,
Wait just a minute. How did Mr. Bowers [the prosecutor] arrive at these?'
I'm giving you an example. I'm not telling you that these are numerical, that this is the way you're going to do it.
I'm just trying to get across concepts and the only way I know how to do it is to give illustrations.
Your numbers may be entirely different. You may approach it differently, but you have got to think of it in a logical, and I know that you will think of it in a logical manner, of what is aggravating and what is mitigating.
When you total it up -
* * *
22 versus 3.
You change the numbers however you want to change them and you figure out how you can get it to come out so that the mitigation is greater than the aggravation. You will not. You will not.
I submit to you, you will not.
(21 R.T. 4764-67).
The California Supreme Court applied Brown in petitioner's case and rejected petitioner's arguments on direct appeal that, by using a scale and assigning arithmetic values to each factor, the prosecutor suggested the weighing process was mechanical, and that the prosecutor's argument the penalty process was automatic and that the jury was not to decide if death was appropriate misled the jury. People v. Gonzalez , 51 Cal.3d at 1227-31.
2. Discussion
In Jurek v. Texas , 428 U.S. 262 (1976), the United States Supreme Court upheld a statute requiring the imposition of a death sentence if the jury made certain findings against the defendant beyond a first degree murder conviction. See id., at 278 (White, J., concurring in judgment). A majority of the Court believed the Texas sentencing scheme at issue in Jurek cured the constitutional defect identified in Furman-that juries were imposing the death penalty inconsistently and randomly. See Furman, supra , 408 U.S. at 309-310 (Stewart, J., concurring). By limiting a sentencing jury's discretion "so as to minimize the risk of wholly arbitrary and capricious action, " Gregg v. Georgia , 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), the Texas scheme passed constitutional muster. See Jurek , 428 U.S. at 276.
The Jurek plurality thought it significant that the Texas sentencing scheme allowed the jury to consider relevant mitigating evidence. "A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed." Id., at 271 (opinion of Stewart, Powell, and Stevens, JJ.). The same day the Court decided Jurek, it struck down two capital sentencing schemes because they automatically imposed a death sentence on a defendant convicted of certain murders, without allowing "particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Woodson v. North Carolina , 428 U.S. 280, 303 (1976) (plurality opinion); Roberts v. Louisiana , 428 U.S. 325, 333-334 (1976) (plurality opinion); see also Lockett v. Ohio , 438 U.S. 586, 604 (1978) (plurality opinion) ("The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of relevant facets of the character and record of the individual offender or the circumstances of the particular offense") (quotation omitted).
In Lockett, the Court explained that a sentencer must be allowed to consider, "as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604 (footnote omitted). In Penry v. Lynaugh , 492 U.S. 302 (1989), the Court held that "the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime." Id., at 328.
In Blystone v. Pennsylvania , 494 U.S. 299 (1990), the Court addressed a Pennsylvania sentencing provision which provided that "[t]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance... and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances." Id., at 302 (internal quotes and cite omitted)). The Court stated:
We think that the Pennsylvania death penalty statute satisfies the requirement that a capital sentencing jury be allowed to consider and give effect to all relevant mitigating evidence. Section 9711 does not limit the types of mitigating evidence which may be considered, and subsection (e) provides a jury with a nonexclusive list of mitigating factors which may be taken into account-including a catchall' category providing for the consideration of [a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.' Nor is the statute impermissibly mandatory' as that term was understood in Woodson or Roberts. Death is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. Id., at 305 (internal citations omitted).
Based on Blystone, the Court in Boyde v. California rejected a claim that the "shall impose" language of CALJIC 8.84.2 unconstitutionally interfered with the jury's sentencing discretion:
Although Blystone, unlike Boyde, did not present any mitigating evidence at the penalty phase of his capital trial, the legal principle we expounded in Blystone clearly requires rejection of Boyde's claim as well, because the mandatory language of CALJIC 8.84.2 is not alleged to have interfered with the consideration of mitigating evidence. Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances outweigh' the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty.'
Boyde , 494 U.S. at 377 (internal cite omitted). See also Bonin v. Calderon , 59 F.3d 815, 849 (9th Cir. 1995) (rejecting the same argument in light of Boyde), cert. denied, 516 U.S. 1051 (1996).
In Turner v. Calderon , 281 F.3d 851 (9th Cir. 2002), the Ninth Circuit confronted a prosecutor's argument very similar to what the prosecutor said here. In Turner, the prosecutor stated: "And in one of your instructions there, it's listed, those factor[s] are listed one by one. You're to weigh them, and if one, if the aggravating outweighs the mitigating, then the decision's obvious. Otherwise it's obvious the other direction[]." Id., at 868. The Ninth Circuit ruled this argument did not make the jury's choice of a death sentence a "foregone conclusion" because, in jury instructions and other arguments, the trial court, the prosecutor, and defense counsel all properly informed the jury of its duties. Id., at 868-69. The defense also "emphasized the importance of conducting the weighing process and the seriousness of the impending life or death decision, " when it asked the jury if "the evidence [is] so clear in this case of aggravating factors that the aggravating factors outweigh the mitigating factors that we-I'm part of this procedure as much as you-that we should presume the power of ending another person's life." Id . Finally, the trial court's jury instructions "clarif[ied] the jury's role one last time after the closing arguments." Id . The Ninth Circuit concluded that "the jury was informed of its responsibility to weigh the aggravating and mitigating circumstances, of its duty to determine the weight each factor received, and of the difficulty of making the determination." Id.
The trial court instructed the jury that:
In light of these cases, the mandatory language of the "weighing" instruction and argument does not constitute error warranting the issuance of the writ. See Turner , 281 F.3d at 886-887. To the extent California law gives the jury more discretion than the statutory language, jury instructions and counsel's argument suggest, this is a state law issue and does not raise a federal claim unless the state has arbitrarily denied a state created right. Estelle v. McGuire , 502 U.S. 62(1991); Hicks v. Oklahoma , 447 U.S. 343, 346 (1980) ("arbitrary disregard of the petitioner's right to liberty is a denial of due process of law"); Ross v. Oklahoma , 487 U.S. 81, 91 (1988).
In Hicks, the Court held:
In Murtishaw v. Woodford , 255 F.3d 926, 969-70 (9th Cir. 2001), cert. denied, 535 U.S. 935 (2002), the California Supreme Court had ruled that the trial court's sentencing of a capital defendant under the 1978 death penalty law, which requires that the jury "shall" impose death if aggravating circumstances outweighed mitigating circumstances, instead of the 1977 statute, which did not contain the "shall" language, was error but that the error was harmless because the jury would have understood that the standard under both statutes was the same. Applying Hicks under a pre-AEDPA review standard, the Ninth Circuit ruled that the error violated due process:
In concluding that this conceded error was harmless, the California court seemed to solely rely on the attorneys' arguments at trial discussing the weighing of factors as having clarified any potential confusion. Aside from the attorneys' statements, none of which included any clarification that the shall' in the 1978 statute really meant may', the jury received only the bare, seemingly mandatory language of the statute. In light of the plain language of the statute, the judicial presumption that jurors follow the instructions of the court rather than the attorneys, and the fact that neither attorney made any clarification with regard to the plain and apparent mandatory language, under Hicks, this error... will deprive petitioner of his life by the jury's potential confusion over the exercise of its statutory discretion. Such an arbitrary deprivation of life violates due process.
Murtishaw rests on the fact that the assessment of aggravating and mitigating factors under the 1977 death penalty statute was different from the weighing process under the 1978 law applicable here. By contrast, in the present case, the California Supreme Court found no error, determining that the trial court properly applied the rule of People v. Brown, supra , to petitioner's case. The Court found that there was no potential jury confusion, and that petitioner received the jury sentencing discretion to which the 1978 law, as Brown interpreted it, entitled him. 51 Cal.3d at 1229-31. Again, by contrast, here the prosecutor and defense counsel explained the "shall" language in the 1978 law did not limit the jury's discretion in weighing the aggravating and mitigating factors, as state law, under Brown, requires.
As the California Supreme Court explained in Brown:
The prosecutor specifically stated at the beginning of his closing argument that deciding how much weight to attach to each factor was "your job. You have got to give the weight to them. A little weight, a lot of weight. That's your decision." (21 R.T. 4674). It was only after the jury did its discretionary calculations and weighed the factors that, according to the prosecutor, the sentence would "automatically" be death or life imprisonment without parole. (21 R.T. 4678-79).
The federal courts "may not second-guess the California appellate court's construction of its own state law unless it appears that its interpretation is an obvious subterfuge to evade consideration of a federal issue.'" Hubbart v. Knapp , 379 F.3d 773, 780 (9th Cir. 2004) (internal cites omitted), cert. denied, 543 U.S. 1071 (2005). There is "no such subterfuge here, " and "the state court's denial of [petitioner's] habeas petition is not contrary to, or an unreasonable application of, Hicks v. Oklahoma." Id.
Claim B(2)(c) is without merit.
I. Claim B(2)(d)
In claim B(2)(d), petitioner contends the prosecutor committed misconduct by repeatedly arguing that lack of evidence of a mitigating factor was aggravating (Crctd. Pet., at 10-11; Crctd. Ps&As., at 71-74), i.e., Davenport Error. (Am. Pet., at 259-60).
The prosecutor argued at petitioner's second penalty phase trial:
You've got the first job, to take the evidence and decide which side does it go on? Is it aggravating or is it mitigating?
* * *
Let's talk about the different factors. The one, as far as mitigation, the People did not present any evidence of a prior felony conviction against the defendant.
That's a mitigating factor, the absence of a prior felony conviction. We didn't - we didn't sustain our burden. We didn't do our job. So that is in mitigation.
* * *
Extreme emotional disturbance. The judge talked about that. Well, there wasn't evidence of extreme emotional disturbance on the part of the defendant. Our position is that that would be, with the lack of that, is an aggravating factor. You can accept that or reject it.
* * *
Anyway, the last two. Age. That one fits in the aggravating column. The defendant is not of tender years....
(21 R.T. 4674-77).
The California Supreme Court has ruled that certain factors listed in Cal. Pen. Code § 190.3 can only mitigate. Tuilaepa v. California , 512 U.S. 967, 990 (1994) (Blackmun, J., dissenting); Allen v. Woodford , 395 F.3d 979, 1017 (9th Cir. 2005), cert. denied sub nom. Allen v. Brown, 546 U.S. 858 (2005). As the California Supreme Court noted in petitioner's direct appeal, under California law, "[t]he mere absence of extenuating circumstances in the case cannot weigh in favor of death." People v. Gonzalez , 51 Cal.3d at 1234. In People v. Davenport , 41 Cal.3d 247 (1985), the California Supreme Court, in construing the 1978 death penalty law, ruled that a prosecutor's argument that, under Cal. Pen. Code § 190.3, the absence of mitigation was an aggravating factor was improper. The court stated:
"The factors that can serve only as mitigators are:"' (d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
[A]ggravation' is by definition a circumstance above and beyond the essential constituents of a crime which increases its guilt or enormity or adds to its injurious consequences. Mitigating circumstances, on the other hand, are ones which although not constituting an excuse for or justification of the crime, may be considered as extenuating or reducing the degree of moral culpability. Thus, the absence of mitigation would not automatically render the crime more offensive than any other murder of the same general character. [¶] Several of the statutory mitigating factors are particularly unlikely to be present in a given case. To permit consideration of the absence of these factors as aggravating circumstances would make these aggravating circumstances automatically applicable to most murders. [¶] We conclude that the form of the prosecutor's argument is likely to confuse the jury as to the meaning of aggravation' and mitigation' under the statute and is therefore improper under section 190.3.
Id., at 289-90 (citations omitted). Thus, "[t]he prosecutor properly could have argued that there was no evidence of mental impairment or intoxication and the jury could consider this lack of evidence, " but "[t]he prosecutor could not argue... that under California law this lack of evidence constituted a positive aggravating factor." McDowell v. Calderon , 107 F.3d 1351, 1364-65 (9th Cir.) (citations omitted), amended on other grounds, 116 F.3d 364 (9th Cir.), vacated on other grounds, 130 F.3d 833 (9th Cir. 1997) (en banc), cert. denied, 523 U.S. 1103 (1998).
The prosecutor's comments in petitioner's case constitute clear Davenport error. However, the California Supreme Court found the error harmless. After noting that petitioner's counsel failed to object, the court found:
In any event, a reasonable jury would not have been misled, and there is no reasonable possibility the penalty verdict was affected. The jury was instructed to consider each sentencing factor only if applicable, ' and was not misled about the basic nature of its sentencing task. In his argument, the prosecutor assigned the bulk of his proposed aggravating values to the brutal circumstances of the shooting, and only nominal weights to the absent extenuating factors. He cautioned frequently that his characterizations of aggravation and mitigation, and of relative weights, were mere advocacy which the jurors were free to reject. Defense counsel strongly urged the jury to decide penalty by evaluating the overall circumstances. Given such freedom, a reasonable jury would not assign substantial aggravating weight to the absence of unusual extenuating factors. [Petitioner] fails to persuade us that the prosecutor's misstatements justify reversal.
People v. Gonzalez , 51 Cal.3d at 1234 (citations omitted).
It is not clearly established if Davenport error is only state law error or of federal constitutional dimension. The federal constitution imposes no freestanding requirement that California's death-penalty scheme define which factors listed in Cal. Pen. Code § 190.3 are aggravating or mitigating. Tuilaepa v. California , 512 U.S. at 978-79 ("A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision."); id., 512 U.S. at 983-84 (Stevens, J., concurring) ("[R]efusing to characterize ambiguous evidence as mitigating or aggravating is... constitutionally permissible"); Zant v. Stephens, supra , 462 U.S. at 875 (upholding a scheme granting the jury "unbridled discretion" to decide whether to impose the death penalty after finding defendant death eligible). Although the California Supreme Court has so-defined the statutory factors in Davenport, neither the United States Supreme Court nor the Ninth Circuit has ever definitively held that Davenport error is federal constitutional error. Compare McDowell, supra, 107 F.2d at 1365 n.7 (assuming but not deciding "that it could be an error of federal constitutional dimension" for the prosecutor to argue that absence of a mitigating factor is aggravating) with Allen, supra , 395 F.3d at 1017-18 and Turner v. Calderon, supra , 281 F.3d at 869-70 (assuming Davenport error is of constitutional magnitude but finding the error harmless). Given this state of the law, it cannot be said that the California Supreme Court's refusal to grant relief on petitioner's claim of Davenport error is contrary to or an un reasonable application of clearly established federal law as determined by the United States Supreme Court.
In Tuilaepa, Justice Blackmun noted in dissent that "a process creating the risk that the absence of mitigation will count as aggravation artificially inflates the number of aggravating factors the jury weighs, creat[ing] the possibility not only of randomness but also of bias in favor of... death.'" 512 U.S. at 991 (quoting Stringer v. Black , 503 U.S. 222, 236 (1992)). However, the Court has never held that Davenport error violates the federal constitution.
Further, the error was harmless. Here, the prosecutor relied primarily on the facts of the crime to justify the death penalty, and the prosecutor's arguments treating the absence of aggravating factors as mitigating were a small part of his total closing argument. There was no reasonable possibility that the Davenport error affected the penalty verdict. Turner v. Calderon , 281 F.3d at 869-70 (finding Davenport error harmless); Williams v. Vasquez , 817 F.Supp. 1443, 1488 (E.D. Cal. 1993) (same), aff'd. sub nom. Williams v. Calderon , 52 F.3d 1465 (9th Cir. 1995), cert. denied, 516 U.S. 1124 (1996); Hamilton v. Ayers , 458 F.Supp.2d 1075, 1150 (E.D. Cal. 2006) (same).
Claim B(2)(d) is without merit.
J. Claim B(2)(e)
In his penalty phase closing argument, after arguing that the jury should not believe defense witness Martin Ybarra (21 R.T. 4740-46), the prosecutor stated:
You are the ones who are going to decide how much weight you are going to give to Mr. Ybarra. [¶] The people submit not a great deal, but let's turn it, let's look at the bright side of it for the defense. [¶] Let's say that Mr. Ybarra is telling the truth. [¶] Where are you going to put this as far as if he is the leader of Puente, the most powerful person of a very, very violent gang where there's shootings, stabbings, back and forth. [¶] Wouldn't you put that as an aggravating factor? Wouldn't you make that as to the violent criminal activity? [¶] So it cuts both ways [¶] If you want to believe him. then it becomes an extremely aggravating factor.
(21 R.T. 4746). Petitioner alleges in claim B(2)(e) that "the prosecutor was guilty of prejudicial misconduct in his argument to the jury that petitioner's affiliation with gangs could be considered as an aggravating factor in its determination of penalty." (Crctd. Pet., at 10-12).
The California Supreme Court rejected the claim: The prosecutor suggested that if credible, this evidence [cut] both ways, ' since defendant's leadership of a very, very violent' street gang should be deemed aggravating. [¶] Defendant's failure to object and request an admonition waived any direct claim of misconduct. Nor is reversal warranted on any other theory. We held in [People v.] Boyd, []38 Cal.3d 762 [(1985)], that a reputation for violence is not a statutory sentencing factor, and thus may not be considered as aggravating. [cite] Here, however, the prosecutor ultimately discounted the credibility of Ybarra's testimony, and he advised the jury to give it no substantial weight. Hence, his argument could not have caused substantial harm.
People v. Gonzales , 51 Cal.3d at 1232.
Under California law, evidence the prosecution offers to support the Cal. Pen. Code § 190.3(b) violent criminal activity aggravating circumstance must be of an actual crime, and the prosecution must prove the commission of the crime beyond a reasonable doubt. See People v. Phillips , 41 Cal.3d 29, 64 (1985). In addition, a prosecutor in a capital case may not introduce non-statutory factors in aggravation. Sanders v. Woodford , 373 F.3d 1054, 1061 (9th Cir. 2004) ("The California Supreme Court has expressly interpreted § 109.3 as precluding the jury from considering aggravating factors other than those statutorily defined."), rev'd. on other grounds sub nom. Brown v. Sanders , 546 U.S. 212 (2006); People v. Boyd , 38 Cal.3d 762, 775-76 (1985) ("[T]he prosecution's case for aggravation is limited to evidence relevant to the listed factors exclusive of factor (k) - since that factor encompasses only extenuating circumstances and circumstances offered as a basis for a sentence less than death - while the defense may present evidence relevant to any listed factor including (k);" but once the defense has presented mitigating evidence, "prosecution rebuttal evidence is admissible to disprove any disputed fact that is of consequence to the determination of the action.'").
Cal. Pen. Code § 190.3(b), reads "The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence." This provision was read to the jury during the second penalty phase as Jury Instruction CALJIC 8.84.1. (2 C.T. 380).
Under clearly established federal law, a prosecutor's comments violate due process if they "inject irrelevant and prejudicial evidence into the sentencing equation when there is a significant likelihood that this evidence will seriously infect the balancing process crafted by the state statute." McLain v. Calderon , 1995 WL 769176, at *49 (C.D. Cal. Aug. 22, 1995) (discussing erroneous admission of evidence; citing Barclay v. Florida , 463 U.S. 939 (1983), and Wainwright v. Goode , 464 U.S. 78 (1983)), aff'd., 134 F.3d 1383 (9th Cir.), cert. denied, 525 U.S. 942 (1998).
Noting that gang membership is not a crime, petitioner argues the prosecutor did not present any proof that petitioner committed any violent crime while affiliated with a gang. Instead, in contravention of state law, the prosecutor simply told the jury petitioner was "the most powerful person of a very, very violent gang where there's shootings, stabbings, back and forth, " and was engaged in "violent criminal activity, " which the jury could consider as an "aggravating factor" at the penalty phase. (21 R.T. 4746; see Ptr's. Opp. to Rsp's. Suppl. Br., at 37-38).
However, a central issue in petitioner's trial was gang membership and activities. Petitioner argued a rival gang was trying to kill him because he was the leader of the Puente Gang, that he thought the officers who entered his house were gang members, and that he only killed Deputy Williams because he thought he was being attacked by the Bassett gang. Petitioner based this contention in part on the testimony of defense witness Ybarra that petitioner, as a reputed leader of the Puente gang, was a high-priority target of the Bassett gang. The prosecutor's invitation to the jury to treat this as an "aggravating factor, " though erroneous under state law, "could not have cause substantial harm, " People v. Gonzales , 51 Cal.3d at 1232, because, as the California Supreme Court noted, "the prosecutor ultimately discounted the credibility of Ybarra's testimony, and he advised the jury to give it no substantial weight, " id., eliminating any "likelihood that this evidence will seriously infect the balancing process crafted by the state statute." McLain v. Calderon , 1995 WL 769176, at *49. The California Supreme Court's holding is neither contrary to, nor an unreasonable application of, United States Supreme Court law.
The prosecution's argument, that the jury should not believe Ybarra, but if it did, then his testimony "becomes an extremely aggravating factor" (21 R.T. 4746), could also be treated as an inartfully articulated argument that the jury should treat Ybarra's testimony as "prosecution rebuttal evidence... admissible as evidence tending to disprove any disputed fact that is of consequence to the determination of the action, '" Boyd , 38 Cal.3d at 775-76, in this case petitioner's claim that he was a peace-loving individual who shot at the officers only because he thought he was being attacked. Because the defense did place much emphasis on petitioner's alleged peaceful nature and the California Supreme Court did not treat the prosecutor's argument as rebuttal, the Court need not address the issue.
Respondent asserts the "procedural bar" of the contemporaneous objection rule. (Rsp's. Suppl. Br., at 35). The Court need not address procedural bar. Assuming the contemporaneous objection rule was not adequate to bar federal review, or that petitioner has shown cause for his failure to object at trial, petitioner's failure to establish entitlement to relief on the merits precludes a finding of prejudice. Coleman v. Thompson , 501 U.S. 722, 749-50 (1991).
Claim B(2)(e) is without merit.
K. Claim B(3)(b)
In claim B3(b), petitioner contends the trial judge violated due process when he "erroneously instructed the jury that only extreme emotional disturbance' could be considered as a mitigating factor in its penalty determination." (Crctd. Pet., at 12).
Pursuant to Cal. Pen. Code § 190.3(d), the trial judge instructed petitioner's second penalty phase jury that, in deciding penalty, it was to consider "[w]hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance." (2 C.T. 380 (former CALJIC 8.84.1)). The California Supreme Court stated, however, that "the catch-all provision, factor (k), by drawing the sentencer's attention to [a]ny other circumstance which extenuates the gravity of the crime, ' allows consideration of nonextreme' mental or emotional conditions." People v. Gonzalez , 51 Cal.3d at 1227. (2 C.T. 381 (former CALJIC 8.84.1)). Relying on Blystone v. Pennsylvania, supra , the Ninth Circuit has concurred:
In Blystone, petitioner argued that an instruction that permitted the jury to consider "extreme" mental or emotional disturbance' impermissibly precluded the jury's consideration of less degrees of disturbance, impairment, or duress. The Court rejected the claim because the jury was not prevented from considering relevant mitigating evidence. Blystone cannot be distinguished here.
Dyer v. Calderon , 122 F.3d 720, 741 (9th Cir. 1997) (internal citations omitted), vacated on other grounds, 151 F.3d 970 (9th Cir. 1998) (en banc), cert. denied, 525 U.S. 1033 (1998). In accordance with Blystone, as the Ninth Circuit has interpreted it, the Court must conclude that claim B(3)(b) is without merit.
L. Claim B(3)(c)
In claim B(3)(c), petitioner alleges the trial court violated due process when it "erroneously admitted irrelevant and inflammatory autopsy photographs of the victim." (Crctd. Pet., at 12). In his memorandum of points and authorities, petitioner does not discuss this claim.
During the penalty phase of the trial, the prosecution offered People's Exhibit 10, which the trial judge stated "depicts the chest area of the victim at the time that the victim was examined by the Coroner's Office and purports to be a coroner's photograph." (21 R.T. 4652). Petitioner's trial attorney objected that the photograph was inadmissible because "the prejudicial effect of this photograph outweighs the probative value." (21 R.T. 4652). After hearing from both sides, the trial judge ruled the photograph admissible (21 R.T. 4654-55). On direct appeal, the California Supreme Court found that allowing the photo into evidence violated Cal. Evid. Code § 352 but that the error was harmless because it "was not unduly grisly or inflammatory." People v. Gonzalez , 51 Cal.3d at 1236-37.
As an initial matter, petitioner did not present his federal due process claim in state court, and the state court claim he did present is not cognizable in this court. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1981) (federal habeas relief does not lie for alleged state law errors).
Furthermore, the federal claim is without merit. See 28 U.S.C. § 2254(b)(2). To violate Due Process, admission of evidence must have "so fatally infected the proceedings as to render them fundamentally unfair." Jammal v. Van de Kamp , 926 F.2d 918, 919 (9th Cir.1991); see also Villafuerte v. Stewart , 111 F.3d 616, 627 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process[, and e]ven then, the evidence must be of such quality as necessarily prevents a fair trial.'" Jammal , 926 F.2d at 920 (quoting Kealohapauole v. Shimoda , 800 F.2d 1463, 1465 (9th Cir.1986)). Here, as the trial judge explained, the photo helped explain "[t]he circumstances of the crime of which the defendant was convicted in the present proceeding, " Cal. Pen. Code § 190.3(a), by showing how Officer Williams was shot and his injuries. (21 R.T. 4654). Allowing the photograph into evidence did not violate due process.
Claim B(3)(c) is without merit.
M. Cumulative Error
The Ninth Circuit recognizes the cumulative error doctrine in habeas cases. Alcala v. Woodford , 334 F.3d 862, 893 (9th Cir. 2003) ("Even if no single error were sufficiently prejudicial, where there are several substantial errors, their cumulative effect may nevertheless be so prejudicial as to require reversal.") (citations, internal quotations and brackets omitted); Harris v. Wood , 64 F.3d 1432, 1438 9th Cir. 1995) ("prejudice may result from the cumulative impact of multiple deficiencies") (quoting Cooper v. Fitzharris , 586 F.2d 1325, 1333 (9th Cir. 1978) (en banc)); see also Benn v Lambert , 283 F.3d 1040, 1058 (9th Cir. 2002) (As with Brady claims, the court determines ineffective assistance of counsel prejudice based on the totality of the evidence and the entire record); McNulty v. Olim , 488 F.Supp. 1384 (D. Hawaii 1980) (where petitioner asserts multiple errors by defense counsel, the court must examine counsel's entire performance). Whether viewed individually or cumulatively, the errors in this case do not require reversal. ORDER
For all of the reasons set forth above, the remaining claims of the operative Corrected Petition for Writ of Habeas Corpus are DENIED on the merits, and the action is DISMISSED with prejudice.
IT IS SO ORDERED.
The critical issue for Massiah/Henry purposes is the government's knowing exploitation' of an opportunity to coax information from a formally charged suspect in the absence of his lawyer. The accused's rights are not infringed by the government's mere acceptance of information gathered by an inmate on his own initiative, even if the authorities have a general policy of encouraging inmates to listen and report. Acker insisted on the stand that he elicited information from defendant entirely on his own initiative, and without official knowledge, promises, or encouragement. Neither the trial record nor the results of appellate counsel's exhaustive habeas corpus investigation undermines this claim. There are, to be sure, ample indications that in the months and years after Acker's July 1979 conversations with defendant, Acker frequently informed and testified for the authorities, and that he received substantial benefits for his cooperation. However, neither the record at trial nor counsel's investigation discloses evidence that Acker's history of cooperation began before July 1979. [fn.] Absent evidence of direct motivation by the police in this case, or of a prior working relationship' between Acker and the authorities from which such encouragement might be inferred, there is no basis to hold the police accountable for Acker's decision to question defendant. Thus, defendant has failed to state a prima facie case that evidence of a potentially meritorious Massiah/Henry claim was overlooked or withheld.[fn.]...
51 Cal.3d at 1240-41 & n.37.
If petitioner intends claim A(2)(b) to include elements in addition to those outlined above, it is impossible to derive them from the pleadings or record, and, as to any such additional elements, the claim is denied as vague and conclusory. James v. Borg, supra , 24 F.3d at 26.
Q.... [¶] As far as testifying, as Mr. Bencangey asked you, what you were explaining to him, the reasons why you felt that you feel that what you have
A. Well, see, I was asked a question, Why are you doing all this and getting nothing?'
I was asked that by some other informers. They were getting out. We're doing this. How come you're not?'
And I felt so bad, I - I started looking at it, Why not?'
I - I had - I had to ask myself that. That's when I felt I - I - this is when this came out, I knew why I was doing some of the things I was doing, because I already had made out-of-state play, on Gonzalez, I didn't need LaScola, I didn't get nothing for LaScola, even if it would have went [to trial], I wouldn't have gotten nothing.
It just felt nice. It felt good, doing something that I knew was right. I've got - I could have went on Binanca and I could have went on Buono, but I don't feel as though they gave me the real thing.
I feel as though they were leading me on. So I didn't even - I never went to them on it. A lot of times I could have turned on a lot of people, but they were faking me out. Gonzalez was real.
(19 R.T. 4425-26).
Q. And did you ever have any occasion to discuss anything about Bassett Grande with Mr. Acker?
A. Yes. He asked me one time if I belonged to a gang. I told him I belonged to Bassett, so I asked him if he belonged to anything, and he said he belonged to paramount.
Q. Now, do you know anything about Paramount?
A. Yeah. When I was going into the juvenile, I spent a lot of time with the guys from Varrio Paramount 13.
Q. There is such a thing as a Paramount gang?
A. Yes.
(20 R.T. 4511).
Cause "must be something external to the petitioner, something that cannot fairly be attributed to him: [W]e think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Coleman, supra , 501 U.S. at 753 (quoting Murray v. Carrier , 477 U.S. 478, 488 (1986)). "Prejudice" means "actual prejudice as a result of the alleged violation of federal law." Coleman , 501 U.S. at 750. Under the actual innocence gateway of Schlup v. Delo , 513 U.S. 298 (1995), a petitioner's procedurally barred claim may be considered on the merits if his claim of actual innocence is sufficient to implicate a fundamental miscarriage of justice. See Majoy v. Roe , 296 F.3d 770, 775-76 (9th Cir. 2002); Bousley v. United States , 523 U.S. 614, 623 (1998) ("actual innocence" means factual innocence, not mere legal insufficiency). Petitioner does not claim actual innocence.
We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.... [J]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.'
Brown v. Payton , 544 U.S. at 143 (quoting Boyde v. California , 494 U.S. 370, 380-81 (1990)).
The defense case adds up only to one person, the only person who was there.
Now, we didn't hear from Stevie Martinez. We didn't hear from the six year old girl. We didn't hear from the neighbors. We didn't hear from anybody. We only heard - the only person present was [petitioner] that you heard from and, ladies and gentlemen of the jury, look at the defense. It's empty. There is nothing in it. There was no defense.
The facts of the case proved that the defendant, [petitioner], is a cop killer.
(5 R.T. 1180-81).
In this situation, the district court must conduct an independent review of the record; if after such review, it concludes that controlling Supreme Court law, unless applied in an unreasonable manner, would preclude the result reached by the state courts, it must grant relief to the petitioner.
Reynoso v. Giurbino , 462 F.3d 1099, 1119 (9th Cir. Sept. 6, 2006) (No. 05-55695).
"[W]hether the peace officer was actually engaged in the performance of his duties is not an evidentiary question or a question of law to be resolved by the trial judge. Rather, it is a question of fact and an essential part of the corpus delicti itself."
Id. at 86-87. See also People v. Gonzalez, supra , 51 Cal.3d at 1263-64 (Mosk, J., concurring and dissenting) (stating that the Curtis rule was "firmly established" at the time of petitioner's crime).
If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. [¶] However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without possibility of parole.
Where... a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.
Hicks v. Oklahoma , 447 U.S. at 346.
The 1978 California initiative does, of course, represent a change from its 1977 predecessor; the 1978 law tells the jury to decide the appropriate punishment by weighing certain factors, while the 1977 version asked only that the sentencer consider, take into account and be guided by' the factors listed. But this amendment does not rob the jury of its constitutional responsibility to decide what penalty is appropriate under all the relevant circumstances. It simply makes clear that, in resolving the ultimate issue of punishment under the 1978 law, the jurors are to limit their consideration to the specific factors listed in the statute...' Nothing in the amended language limits the jury's power to apply those factors as it chooses in deciding whether, under all the relevant circumstances, defendant deserves the punishment of death or life without parole.
People v. Brown , 40 Cal.3d at 544.
In his rebuttal presentation, defense counsel emphasized that the jury should not engage in a mechanical weighing process: "I don't think that that's what we're talking about, what we should be talking about." (21 R.T. 4771-72 (emphasis added)).
"(e) Whether or not the victim was a participant in the defendant's homicidal act or consented to the homicidal act.
"(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
"(g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
"(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease and defect, or the [e]ffects of intoxication.
"(I) The age of the defendant at the time of the crime.
"(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.'" Tuilaepa , 512 U.S. at 990 n.19 (Blackmun, J., dissenting) (quoting Cal. Pen. Code § 190.3).