Opinion
No. C 01-3722 MMC (PR)
November 19, 2003
Edward Karl Schroeder, Coalinga
John H. Deist Deputy Attorney General
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted on the basis of petitioner's three cognizable claims. Respondent has filed an answer, along with a memorandum and exhibits, denying the petition. Petitioner has filed a traverse.
FACTUAL AND PROCEDURAL BACKGROUND
This background is derived from the factual background in the opinion of the California Court of Appeal, lodged herewith as Respondent's Exhibit C, which is not disputed by the parties. See also 28 U.S.C. § 2254(e)(1) (requiring district court to presume correct state court's factual findings unless the petitioner rebuts the presumption of correctness by clear and convincing evidence).
Petitioner was charged in the Santa Clara County Superior Court with residential burglary, possession of stolen goods, indecent exposure, and misdemeanor sexual battery, as well as having suffered a prior felony conviction. Shortly thereafter, in a second case arising out of a separate incident, petitioner was charged in the same court with residential burglary and possession of stolen goods, and with two prior felony convictions. The trial court granted the prosecutor's motion to consolidate the two cases for trial.
At the trial, Le Tran ("Tran") testified that on March 30, 1996, she went to bed in her Sunnyvale apartment at around 10:00 p.m. At some point that night, she awoke briefly and saw a man, whom she assumed was her husband, Thang Nguyen ("Nguyen"), bending over her clothes hamper. Shortly thereafter, she felt a hand on her breast, and, when she heard Nguyen snoring, opened her eyes. She saw a man with one hand on her breast and the other holding his exposed penis. She pushed the man's hand from her breast and asked what he was doing. He covered his face and ran out of the apartment. Nguyen testified that Tran woke him and that they looked around the apartment and discovered his wallet, containing about $200, was missing. Additionally, they found on their bed a bottle of hand lotion from their bathroom and a rag from their garage. There was a screen missing from the kitchen window, which they had left unlocked, and there was a chair placed below the window on the outside of the building.
Police Officer Scott Simpson testified that he saw the outline of a shoeprint, facing toward the apartment, on the seat cover of the chair below the window, and a wet spot next to the shoeprint. Officers took the chair to the crime lab for analysis, where the shoeprint was determined to be consistent with a Nike shoe-boot with a "waffle pattern" sole. Criminalist Cynthia Hall testified that the wet spot was saliva. DNA testing demonstrated that it was consistent with that of petitioner and 2 out of 10,000 Caucasians, but not consistent with the DNA of Tran, Nguyen or their children. The prosecution also introduced evidence of a number of prior uncharged sexual assaults committed by petitioner.
Lisa Hawkins ("Hawkins") testified that she and her husband lived in a ground-floor apartment in Sunnyvale. During hot weather, they generally left open a sliding glass door, which opened onto a courtyard accessible to the public. On the night of August 15, 1994, they went to bed after midnight. When they woke up the next morning, they found that items were missing from their apartment, specifically, her purse, a mountain bike, an envelope with approximately $250, some CDs, several packages of cigarettes, and some canisters of undeveloped film.
Detective Terry Schillinger testified that on April 9, 1996, he searched the Sunnyvale apartment where petitioner lived with his mother. He found in petitioner's bedroom: (1) a wallet that Nguyen identified as the one missing from his apartment; (2) a Nike shoe-boot with a waffle-pattern sole matching the print found on the chair outside Tran and Nguyen's window; (3) several hooded sweatshirts and jackets; (4) a number of jars of hand lotion and petroleum jelly; and (5) some film canisters containing undeveloped film. The police developed the film, after which Hawkins' husband testified that he had taken the photographs at a friend's barbeque.
The parties stipulated at trial that this search was lawful.
Petitioner's mother, Lenore Schroeder ("Schroeder"), testified on petitioner's behalf that petitioner was at home on the night of March 30, 1996, the night of the Tran-Nguyen burglary. He came home at about 12:30 a.m. and talked with her for a while before she went to bed, but she did not know whether he remained home the rest of the night. She acknowledged writing in her diary that petitioner gave her some money the next day, and that she "might have" told Detective Schillinger that petitioner had given her $200.
On August 19, 1997, the jury convicted petitioner of all charges. He subsequently admitted to having prior convictions for burglary and for false imprisonment. After denying petitioner's motion for a new trial, the trial court sentenced petitioner to 22 years in state prison. The California Court of Appeal affirmed. The Supreme Court of California summarily denied both the petition for direct review and a subsequent petition for a writ of habeas corpus.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a `"substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson. 507 U.S. 619, 638 (1993)). Where, as here, the Supreme Court of California issued a summary opinion, this Court reviews the decision of the California Court of Appeal, as that is the last state court to address petitioner's claims in a reasoned decision. See LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000).
B. Legal Claims
1. Extrinsic Evidence
Petitioner claims that the jury's receipt of extrinsic information about petitioner's prior convictions, at a time before they delivered their verdict, violated his Sixth Amendment right to a trial by jury. The California Court of Appeals' summary of the events surrounding this claim is not disputed:
On August 18, 1997, the jury began deliberating at 4:55 p.m. and continued for about 15 minutes. Deliberations resumed at 10:10 a.m. the next day. At 11:10 a.m., the jurors sent out a note asking the court if they needed to reach a unanimous verdict as to all six counts and whether they would be considered a "hung jury" if they had a verdict on five counts but were divided on the sixth. The trial court answered no to each question. The jury continued to deliberate from 11:35 a.m. to 12:30 p.m.; it then took a lunch break and resumed deliberating at 1:42 p.m.; At 2: 10 p.m., the jury notified the court that it had reached a verdict on all counts except count one (the Hawkins burglary). Asked if they believed further deliberations would be helpful, the first seven jurors answered no, but the eighth said yes. At that point, the court ordered the jury to resume deliberations. The jury deliberated for another eleven minutes and then reported a guilt verdict on all counts.
After the jury was discharged, but before its members had left the courthouse, the parties discovered, the jury inadvertently had been given a copy of the complete information filed in the case. That information included the allegations of defendant's prior felony convictions (i.e., burglary and false imprisonment), which were supposed to have been redacted.
The jury foreperson reported that the unredacted information was not noticed until the jury had reached verdicts on counts two through six. The following dialogue ensued between the foreperson and the trial court:
JUROR NO. 9 (foreperson): We had pretty much . . . discussed everything and we had voted on everything. This was right before the first time we came out. As I was filling out the verdict forms, another juror asked: `Can you just read the charges one more time so that we are clear on what that is and we all still agree and everything?' So we read through those. And then I turned the pages and said, `Oh, well here's more information I don't think we were read.' And so then I read it out loud. And we were all kind of like, well, is that prior stuff or is that this stuff? And we had a question about what it was. And the only thing that really kind of showed us it was something different was the false imprisonment issue, because that wasn't brought up. So we figured that . . . those were all prior incidents. But then we all kind of talked about, like, well, we are not supposed to be — we all agreed we weren't supposed to consider that. And that didn't change anyone's mind on what we had already decided. And then we came out and had the one unresolved issue that we went back in on.
THE COURT: So at that particular time when this came to light, when you first saw this, you had already at that particular time reached verdicts on five counts?
JUROR NO. 9: Yes, most definitely. And we had reached verdicts and filled out the forms and put it aside and we just had the first issue still.
THE COURT: So you had five verdict forms filled out, and those would have been counts two through six?
JUROR NO. 9: Correct
THE COURT: And they were guilty, as read previously by the clerk of the court. And the one verdict you had not been unanimous on at that time was Count One?
JUROR NO. 9: Correct.
THE COURT: And it was at that time that this information came to light?
JUROR NO. 9: Right. That information came to light. And then we actually kind 01 talked about Count One, a little bit more, and we still didn't come to a unanimous decision, and then we decided that we probably wouldn't and we came out.
THE COURT: And that s when we had the discussion and then you went back in?
JUROR NO. 9: Right.
THE COURT: At that particular time, was it eleven to one?
JUROR NO. 9: It was . . . eleven to one. We started out guilty, not guilty and undecided. It was eleven to one, but two of the eleven were still (indicating).
THE COURT: At that particular time you went back at least one, and perhaps two, were very definitive as to that count that it was guilty?
JUROR NO. 9: Correct.
THE COURT: So that made it unanimous?
JUROR NO. 9: Correct.
The court then informally inquired of each juror whether he or she had been influenced by the information about defendant's prior convictions. All of the jurors responded that they had not been influenced by the information about defendant's prior convictions. Nonetheless, defendant moved for a new trial on the ground that the jury had considered extrinsic evidence.
The trial court then swore the jurors and asked each one whether he or she had had knowledge of the improperly received information in reaching verdicts on counts two through six. The jurors all responded that they had not. The court also asked the jurors if the information about defendant's prior convictions had affected their judgment or verdict as to Count One. Each juror responded that it had not. Thereafter, the trial court denied defendant's motion for a new trial. In so doing, the court found that no jury misconduct occurred and that the `legal error' that did occur was `not of the type that would cause a motion for a new trial to be granted, because evidence in this case, in the court's view, is overwhelming and it would support a conviction on count one.'See People v. Schroeder. No. H018162, slip op. at 21-23 (Cal.Ct.App. Aug. 30, 2000) (hereinafter "Slip Op.") (Respt. Exh. C).
The Sixth Amendment guarantee of a trial by jury requires that the jury verdict be based on the evidence presented at trial. See Turner v. Louisiana. 379 U.S. 466, 472-73 (1965); Jeffries v. Wood. 114 F.3d 1484, 1490 (9th Cir. 1997) (en banc). Jury exposure to extrinsic evidence, i.e., evidence not presented at trial, deprives a defendant of his Sixth Amendment rights to confrontation, cross-examination and assistance of counsel. See Lawson v. Borg. 60 F.3d 608, 612 (9th Cir. 1995). A petitioner is entitled to habeas relief, however, only if it can be established that the exposure to extrinsic evidence had `"substantial and injurious effect or influence in determining the jury's verdict.'"Sassounian v. Roe. 230 F.3d 1097, 1108 (9th Cir. 2000) (quoting Brecht v. Abrahamson. 507 U.S. 619, 623 (1993)). In other words, a petitioner must establish that the error resulted in "actual prejudice." See Brecht. 507 U.S. at 637.
Prejudice is presumed when the extrinsic evidence was by its nature "intrinsically prejudicial." See Jeffries. 114 F.3d at 1489-92. The extrinsic evidence in this case, of petitioner's prior convictions for burglary and false imprisonment, is intrinsically prejudicial because the jurors could draw an inference that since petitioner had committed such crimes in the past, it is more likely that he committed the charged offenses. See id. (finding extrinsic evidence of defendant's excluded prior robbery conviction intrinsically prejudicial); Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (presuming prejudice from extrinsic evidence of prior offenses). Consequently, a presumption of prejudice exists in the instant case, based on the extrinsic evidence jurors received regarding petitioner's past crimes. Nevertheless, various factors may suggest that the potential prejudice of the extrinsic information was diminished in a particular case and thus that the jury's receipt thereof did not substantially and injuriously affect the verdict. See Jeffries, 114 F.3d at 1491. These factors include: (1) whether the prejudicial statement was ambiguously phrased; (2) whether the extraneous evidence was otherwise admissible or merely cumulative of other evidence adduced at trial; (3) whether a curative instruction was given or some other step taken to ameliorate the prejudice; (4) the trial context; and (5) whether the evidence was insufficiently prejudicial given the issues and evidence in the case. See id. at 1491-92.
Here, the first three factors do not assist in overcoming the presumption of prejudice. There is no dispute that jurors understood the statements in the Information indicated that petitioner had suffered prior convictions for burglary and false imprisonment. Second, the evidence of these prior convictions had been excluded and there was no other evidence of them presented at trial. Third, the trial court did not give a curative instruction or take any other type of ameliorative action, nor could it have, because the extrinsic evidence was not discovered until after the jury had already reached a verdict.
An evaluation of the fourth factor, the trial context, involves consideration of:
(1) whether the extrinsic material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on the issue.Jeffries, 114 F.3d at 1491 n. 10 (citing Bayramoglu v. Estelle. 806 F.2d 880, 887 (9th Cir. 1986)). In this case, the jury actually received the unredacted Information setting forth the prior convictions as part of what they initially understood to be the admissible evidence. The material apparently was available to them for the duration of their deliberations, approximately one day. The jury discussed and considered the extrinsic evidence for a relatively brief period of time, however, as they did not notice it until relatively late in their deliberations, and when they did become aware of it, they understood that they were not to consider it. As the foreperson reported to the trial court, "we figured that . . . those were all prior incidents. But then we all kind of talked about, like, well, we are not supposed to be — we all agreed we weren't supposed to consider that." Most significantly, with respect to counts two through six, the jurors did not even see the extrinsic evidence until they had already reached guilty verdicts and filled out verdict forms on those counts. Consequently, as to counts two through six, the presumption of prejudice is overcome. With respect to the first count, however, the jury had not yet reached a verdict at the time they learned of the prior convictions. Consequently, at this stage of the analysis, the possibility of prejudice remains.
A federal court reviewing a habeas claim of juror misconduct may consider juror testimony concerning whether the improper evidence was considered by the jurors, although the court may not consider me jurors' testimony about the subjective impact of the improperly admitted evidence. Sassounian. 230 F.3a at 1108-09. While the Court has considered the foreperson's testimony as to when and how the jury considered the extrinsic evidence, the Court has not considered the jurors' subjective testimony that the evidence had no impact on their decisions.
Accordingly, the Court next turns to the fifth factor. Under this factor, the Court considers whether the evidence of petitioner's prior convictions for burglary and false imprisonment was sufficiently prejudicial given the issues and evidence in the case. At the outset, the Court notes that the jury did not learn any of the details surrounding the prior convictions. More importantly, at the time they learned of the prior convictions, the jury had heard the evidence concerning the Tran-Nguyen burglary and had in fact already decided that petitioner had committed that burglary. The jury had also heard evidence that petitioner had committed five other sex crimes. Consequently, this was not a case in which the extrinsic evidence informed the jury for the first time that petitioner had committed other crimes. Additionally, the trial court, after hearing the jurors' statements regarding their discovery of extrinsic evidence, found their exposure to such evidence was not sufficiently prejudicial to warrant a new trial. This finding weighs against a finding to the contrary by this Court. See Plunk, 153 F.3d at 1024 (holding "special deference" must be afforded trial court's determination regarding impact of extrinsic evidence); see, e.g., Mancuso v. Olivarez, 292 F.3d 939, 953 (9th Cir. 2002) (finding presumption that extrinsic evidence of prior convictions was prejudicial was overcome based, in part, on fact that trial court, after listening to evidence of juror misconduct, did not believe new trial was warranted).
On balance, the Court finds the presumption of prejudice with respect to Count One is overcome. On the one hand, the Information describing the prior convictions was not ambiguous and was understood by the jury to indicate that petitioner had sustained prior convictions; no curative measures were available; and the jury received the evidence before they had reached a verdict. On the other hand, however, the jury had already heard evidence that petitioner had committed other serious crimes; the jury understood that it could not properly consider the evidence of the prior convictions; the jury did not learn any of the details surrounding the prior convictions; and the trial court found the extrinsic evidence was not sufficiently prejudicial to warrant a new trial. See, e.g.,Mancuso. 292 F.3d at 953 (finding jury's consideration of extrinsic evidence of defendant's prior convictions not unduly prejudicial where jury never learned details of defendant's criminal history and trial judge, after listening to evidence of juror misconduct, determined new trial was not warranted). Accordingly, petitioner is not entitled to habeas relief on his claim of juror misconduct.
2. Jury Instructions
Petitioner argues that the trial court's use of two pattern jury instructions, CALJIC Nos. 2.50.01 and 2.50.1, violated his right to due process because by instructing the jury so the court lowered the prosecution's burden of proving guilt beyond a reasonable doubt. The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970).
Here, the trial court instructed the jury pursuant to CALJIC No. 2.50.01 as follows:
If you find the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of sexual offenses. If you find that me defendant had this disposition, you may, but are not required to, infer that he was likely to commit ana did commit the crime or crimes of which he is accused.
Reporter's Transcript ("RT") at 573-74 (attached as Respt. Exh. B). The trial court then instructed the jury that the prosecution had the burden of proving the prior sexual offenses "by a preponderance of the evidence," and gave a standard definition of that term pursuant to CALJIC 2.50.1. RT at 575. Petitioner argues that these instructions, when read together, allowed the jury to find him guilty by a preponderance of the evidence rather than beyond a reasonable doubt. Specifically, petitioner contends that CALJIC 2.50.01 allowed the jury to find guilt based solely on the prior sexual offenses and without regard to the other evidence pertaining to the crimes charged. Petitioner concludes that because the state only had to prove the prior sexual offenses by a preponderance of the evidence, the jury could have understood that it was entitled to convict petitioner of the charged crimes without being convinced, after considering all of the evidence, that he was guilty beyond a reasonable doubt.
Standing alone, the challenged instructions arguably could present the problem petitioner asserts. A faulty jury instruction, however, will justify habeas relief only if the instruction "by itself so infected the entire trial that the resulting conviction violates due process." See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation and citation omitted). "It is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Id. (citations omitted). The instructions must be more than just erroneous; petitioner must show that there was a reasonable likelihood that in light of the instructions as a whole, the jury applied the challenged instructions in such a way that his constitutional rights were violated. See Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en bane); see also McGuire. 502 U.S. at 72. Here, the trial court instructed the jury under CALJIC No. 1.01 to consider all of the instructions as a whole. The trial court further instructed the jury pursuant to CALJIC No. 2.90 that the prosecution had "the burden of proving [petitioner] guilty beyond a reasonable doubt," and pursuant to CALJIC No. 2.01 that
each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt must be proven beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.
RT at 565-66, 559-60. The trial court also instructed the jurors, pursuant to CALJIC Nos. 2.60 and 2.61, that petitioner could rely on the state of the evidence and any failure by the prosecution "to prove beyond a reasonable doubt every essential element of the crime against him." RT at 563. Thus, the jury was repeatedly instructed by the trial court that the prosecution's burden of proof was to prove every element of the offense beyond a reasonable doubt. This cured any potential misunderstanding CALJIC Nos. 2.50.01 and 2.50.1 might have created as to the prosecution's burden of proof. As a result, the use of CALJIC Nos. 2.50.01 and 2.50.1 did not render the trial so unfair as to violate due process because, under the instructions as a whole, the state was not relieved of its obligation to prove every necessary fact beyond a reasonable doubt.
Moreover, any due process violation attributable to the jury instructions was not sufficiently prejudicial to warrant habeas relief. A habeas petitioner is not entitled to relief unless the record demonstrates that the instructional error "had substantial and injurious effect or influence in determining the jury's verdict" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The jury is presumed to have followed the trial court's instruction to limit the use of the prior offense evidence to the two sex crimes charged, to wit: indecent exposure and misdemeanor sexual battery upon Tran. See RT at 573-74; see also Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997) (holding juries are presumed to follow court's limiting instructions with respect to purposes for which evidence is admitted). The evidence as to those two charges was very strong. Petitioner's shoeprint and DNA were found on and near the chair used to enter the Tran-Nguyen house, and Tran's testimony was uncontradicted and unequivocal that the burglar touched her breast while exposing his penis. Based on this evidence, it is highly probable that the jury would have convicted petitioner of the charged sex crimes irrespective of any error in the instructions regarding prior sexual offenses. Accordingly, any instructional error did not have a substantial and injurious effect on the jury's verdict, and habeas relief is not warranted on this claim.
3. Ineffective Assistance of Counsel
a. Failure to move for severance
Plaintiff claims that he received ineffective assistance of counsel, in violation of his Sixth Amendment right to counsel, because his trial counsel failed to move for severance of the charges. The charges relating to the Hawkins incident and the charges related to the Tran incident were filed initially in separate cases. Thereafter, in the Tran case, the prosecutor moved to consolidate the two cases. The public defender, who was appointed to represent petitioner in the Tran case, filed an opposition. The trial court nonetheless granted the motion and consolidated the cases. Thereafter, the public defender declared a conflict, and William McBay ("McBay"), who had been appointed to represent petitioner in the Hawkins case, was appointed to represent petitioner in the consolidated case. Petitioner contends that McBay should have filed a motion to sever the Hawkins charges from the Tran charges.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim based on ineffectiveness of counsel, petitioner must establish two distinct elements. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See id. at 688. The relevant inquiry is not what defense counsel could have presented, but rather whether the choices made by defense counsel were reasonable.See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. See id. at 697. Accordingly, the Court turns first to the question of prejudice. To establish prejudice based on counsel's failure to file a motion to sever the Hawkins charges from the Tran charges, petitioner must demonstrate that a reasonable probability exists that such motion would have been successful and, had the motion succeeded and the charges severed, a reasonable probability that the verdict would have been different on those charges.See Wilson v. Henry. 185 F.3d 986, 990 (9th Cir. 1999) (holding prejudice from counsel's failure to file a motion requires petitioner to show that (1) had counsel filed the motion, it is reasonably probable the trial court would have granted the motion as meritorious and (2) had the motion been granted, it is reasonably probable that there would have been an outcome more favorable to petitioner). As to the first point, the fact that the trial court granted the motion to consolidate the charges, over the objection of the public defender, suggests that the trial court would not have granted a subsequent motion to sever the charges. Petitioner argues, however, that the potential for prejudice from consolidation was not fully apparent to the trial court at the time the consolidation motion was heard because the prosecutor had not yet indicated that the prosecution planned to offer evidence of petitioner's prior sexual offenses to prove the sexual offense charges in the Tran case. Once the prosecutor made known such intent, petitioner argues, trial counsel should have filed a motion to sever the Hawkins charges based on the potential for prejudice resulting from the admission of evidence of prior sexual offenses. The Court thus turns to the question of whether there is a reasonable probability that the trial court, in light of such additional considerations, would have granted the motion.
A number of factors bear on a trial court's determination of the issues of consolidation and severance. The risk of prejudice from joinder of separate crimes increases when, for example, the evidence as to one crime is substantially weaker than the evidence as to the other crime. See Bean v. Calderon. 163 F.3d 1073, 1084-85 (9th Cir. 1998). Here, the evidence as to the Tran burglary was very strong, including the DNA and shoeprint comparisons, whereas the only evidence as to the Hawkins burglary was petitioner's possession of the Hawkins' film. The risk of prejudice from joinder of charges decreases, however, where the evidence on the joined charges is cross-admissible. See United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir. 1986). Here, the burglaries occurred within 3 miles of each other and, in each instance, the burglar entered through an unlocked door or window at the ground-floor level. Most significantly, the goods stolen in both burglaries, including Nguyen's wallet and the Hawkins' film, were found together in petitioner's bedroom. Given these facts, the California Court of Appeal ruled that, under California Evidence Code § 1101(b), the evidence that petitioner had committed the Tran burglary would have been admissible in a separate trial on the Hawkins charges, to show petitioner's knowledge that the film was stolen, one of the elements of the charge of possession of stolen property. The state court's determination as to the admissibility of the evidence under California law is binding on this Court. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). Consequently, the risk of prejudice from the joinder is significantly diminished because the evidence of the Tran burglary was admissible to prove the Hawkins charges.
Unlike the evidence of the Tran burglary, however, the evidence of petitioner's prior sexual offenses, does not appear to have been similarly admissible with respect to the Hawkins charges. The risk of prejudice is decreased, however, where the evidence on each crime is simple and distinct, and the trial court properly instructs the jury to compartmentalize the evidence. See Bean, 163 F.3d at 1085-86. Here, the evidence as to the two charged burglaries was reasonably straightforward, and, in the Tran burglary, the sexual offenses were based on acts that were clearly distinct from the acts constituting the theft and possession of stolen goods. Moreover, the trial court instructed the jury that each charge was distinct and must be decided separately. Additionally, the trial court specifically instructed the jury that the evidence of prior sex offenses was limited to the charged sex offenses involving Tran. See RT at 573-74. The jury is presumed to have followed such instructions on compartmentalizing the evidence. See United States v. Cihak, 137 F.3d 252, 259 (5th Cir. 1998). Indeed, the jury in this case was deadlocked on the Hawkins burglary count despite their having reached verdicts on the other charges. These circumstances indicate the jurors were able to compartmentalize the evidence and thus that the joinder of the charges, despite the admission of evidence concerning the prior sexual offenses, was not prejudicial. Cf. Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000) (finding no prejudice from joinder where jury does not convict on all counts, because jury presumably able to compartmentalize evidence).
Neither the state court nor respondent addresses the admissibility of the prior sexual offenses to prove the Hawkins charges, and the Court cannot discern any basis for such admission.
The trial court instructed the jury: "Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the crimes charged in Counts 1-6. Your finding as to each count must be stated in a separate verdict." CT at 485.
In sum, given the trial court's prior decision to consolidate the two cases, the admissibility of the Tran burglary evidence on the Hawkins charges, the distinct nature of the evidence as to the various charges, and the trial court's ability to clearly instruct the jury with respect to compartmentalizing the evidence, there does not exist a reasonable probability that the trial court would have granted a motion to sever the Hawkins charges had such motion been made. Moreover, even if the trial judge would have granted a motion to sever, no prejudice resulted from any failure to file such motion, because, for all the reasons discussed above, there is no reasonable probability that the outcome of a separate trial on the Hawkins charges would have been different. Accordingly, as no prejudice resulted therefrom, petitioner is not entitled to habeas relief based on counsel's failure to file a motion to sever.
b. Additional ineffetive assistance claims
The Court next addresses petitioner's additional claims based on ineffective assistance of counsel. Petitioner alleges these claims were exhausted in a state petition for a writ of habeas corpus, filed in 1999, which petitioner has attached to his traverse. That petition, however, was filed in the California Court of Appeal. In order to properly exhaust a claim, petitioner must present that claim to the Supreme Court of California. See 28 U.S.C. § 2254(b), (c). Consequently, habeas relief may not be granted on the basis of petitioner's remaining ineffective assistance claims because they are not exhausted. See Rose v. Lundy. 455 U.S. 509, 515-16 (1982). In any event, even if such claims were exhausted, petitioner would not be entitled to relief. See 28 U.S.C. § 2254(b)(2) (allowing federal court to deny petition on the merits, even if unexhausted).
Petitioner claims that McBay failed to adequately prepare the defense because he did not adequately investigate two witnesses who allegedly possessed exculpatory information. According to petitioner, he told McBay that his girlfriend, Linda Sears ("Sears"), could have testified that she left property belonging to her ex-husband, Mike Hoffman ("Hoffman"), at petitioner's house, specifically Hoffman's empty wallet, identification, and a key. Petitioner states that Hoffman could have corroborated that this property belonged to Hoffman. Even assuming Sears and Hoffman would have so testified, it is unlikely that such testimony would have made a difference at trial. Nguyen testified that the wallet found in petitioner's bedroom belonged to him, testimony that would have directly contradicted and undermined the credibility of Sears' and Hoffman's testimony. Sears' testimony was subject to further question because, as petitioner's girlfriend, she would be considered a biased witness. Additionally, the testimony of Sears and Hoffman would have done nothing to counter the strongest evidence against petitioner, specifically, that his shoeprint and DNA were found on and near the chair used to enter the Tran-Nguyen residence, and that the Hawkins' film was found in petitioner's bedroom. Accordingly, even assuming that McBay knew about these witnesses, and that they would have cooperated with him, and testified in the manner described by petitioner, and further assuming the jury would have believed them, any failure to present their testimony was not prejudicial because there is no reasonable probability that there would have been a different outcome at trial.
Petitioner states that he gave a document to McBay that was signed by Hoffman, stating that the property belonged to Hoffman.
Petitioner also claims that McBay failed to adequately consult with him at trial because he spent a total of only three hours with him on two different occasions. Petitioner, however, does not specify the information or advantages McBay would have obtained from further consultation, or how more time would have improved the preparation of the defense. Consequently, there is no indication that petitioner was prejudiced in any manner by reason of the length of consultation, or that there is a reasonable probability of a different outcome had there been additional consultation. Similarly, while petitioner claims that McBay failed to forward to petitioner information obtained through discovery, petitioner has not established that he was prejudiced thereby, in that petitioner does not specify the nature of the discovery or how petitioner's having reviewed such discovery would have made a difference at trial. Finally, petitioner claims that McBay failed to obtain corroborating evidence, failed to present exculpatory documents, and failed to use an investigator. Petitioner has not indicated what information, beyond the testimony of Sears and Hoffman discussed above, could have been obtained, or would have been shown by the documents, or discovered by an investigator. As a consequence, there is no indication that these alleged deficiencies prejudiced petitioner. Accordingly, even had these additional claims been exhausted, petitioner would not be entitled to relief thereon.
For all of the above reasons, petitioner's claim that he received ineffective assistance of counsel fails.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated.
The Clerk shall close the file.
IT IS SO ORDERED.