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noting the court may consider arguments raised for the first time in a reply brief if the appellee raised the issue in its brief
Summary of this case from Daniel v. Comm'r of Soc. Sec.Opinion
Submitted September 20, 1996.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Nevada, No. CV-93-1215-PMP; Philip M. Pro, District Judge, Presiding.
D.Nev.
AFFIRMED.
Before: CANBY and FERNANDEZ, Circuit Judges, and JONES, District Judge .
This disposition is not appropriate for publication and may not be cited or used by the courts except as provided by Ninth Circuit Rule 36-3.
Petitioner appeals the order of the district court for the District of Nevada denying his petition for writ of habeas corpus. This appeal presents five issues:
1. Did the district court properly dismiss petitioner's grounds two, four, five, six, seven, eight, ten, eleven, fifteen, seventeen, nineteen and twenty as state law grounds improperly before the federal court?
2. Did the district court properly dismiss petitioner's grounds one and two, claiming insufficient evidence of kidnaping?
3. Did the district court properly dismiss petitioner's ground three, the Batson challenge?
Batson v. Kentucky, 476 U.S. 79 (1986).
4. Did the district court properly dismiss petitioner's grounds alleging due process violations in the nature of prosecutorial misconduct and incorrect jury instructions regarding proof beyond a reasonable doubt?
5. Did the district court properly dismiss petitioner's grounds alleging ineffective assistance of both trial and appellate counsel?
STANDARD OF REVIEW
The district court's denial of habeas corpus relief is reviewed de novo. Cocio v. Bramlett, 872 F.2d 889, 890 (9th Cir.1989).
PROCEDURAL BACKGROUND AND FACTS
In August 1986, petitioner Gerald Bridgewater was convicted of first degree kidnaping, extortion, and mayhem, all with the use of a deadly weapon. A Nevada court sentenced petitioner to life in prison with the possibility of parole for kidnaping, plus ten years for extortion and ten years for mayhem, as well as equal and consecutive terms for committing the crimes with a deadly weapon. Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988).
Petitioner appealed his conviction to the Nevada Supreme Court, which affirmed the conviction and dismissed his appeal in August 1988. Id. That court also summarized the events leading to petitioner's conviction:
Katherine Sexton lived in Las Vegas with her five-year-old daughter, Erica, and her cousin, appellant Joseph Clem. Clem's friends from Los Angeles, appellants Gerald and Kenneth Bridgewater, Player and Cook, had been staying at Sexton's apartment and using it to cook cocaine into rock form, or crack. Appellants had also been selling cocaine from the apartment.
Sexton did not like the influence of drugs on Erica so she threw a baggie containing $1,500 of appellants' cocaine out the window. Two days later, at 4:00 a.m. on January 30, 1986, the Bridgewaters, Player and Cook entered Sexton's apartment and demanded to know what had happened to their cocaine. Clem joined the men, while Gerald Bridgewater closed the door to the bedroom where Erica slept. Appellants heated a table fork on the apartment's electric stove and placed it on Sexton's hand, arm, forehead and stomach. They held a shirt over Sexton's mouth to muffle her screams.
The men repeatedly demanded $1,500. They made Sexton call several people, including her friend, Sonja Smith, to obtain the money. Because Sexton was crying, Smith asked if she needed the police. When Sexton said yes, Smith called the police.
Thereafter, Clem heated an electric iron while the others held Sexton on the sofa. Clem pressed it against her thigh for three or four seconds, until Sexton could hear her skin sizzle. Clem then stated he would next burn her face.
The police arrived moments later. Three officers testified that they noticed a haze in the living room and smelled burnt flesh. The officers found a fork wedged into the electric coils on the stove and a hot iron. Sexton had second degree burns on her thighs, forehead and buttocks, some of which showed the shape of the fork's tines, and a four by twenty inch burn in her thigh from the iron.
Clem v. State, 104 Nev. at 353, 760 P.2d at 104.
Petitioner then filed a petition for writ of habeas corpus pursuant to Chapter 34 of the Nevada Revised Statutes. The state court denied the petition in 1992, and the Nevada Supreme Court dismissed petitioner's appeal in July 1993.
In January 1994, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Nevada, alleging twenty grounds for relief. In July 1994, a United States Magistrate Judge filed his report recommending the dismissal of all claims. After conducting de novo review of the record, the district court entered an order adopting the magistrate's report. Petitioner then filed this appeal.
Petitioner's twenty grounds are:
DISCUSSION
A. Claims Four, Five, Six, Seven, Eight, Ten, Fifteen, Nineteen, and Twenty
Both the United States Supreme Court and the Ninth Circuit have held that " 'federal habeas corpus relief does not lie for errors of state law.' " Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Hunt v. Vasquez, 899 F.2d 878, 880 (9th Cir.1990).
Although a state court's application of state law may, on rare occasion, rise to the level of a federal due process violation, such a violation occurs only if the alleged errors rendered the judicial process fundamentally unfair, Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir.1985); Suniga v. Bunnell, 998 F.2d 664, 666-67 (9th Cir.1993), or resulted in a trial that was "repugnant to an enlightened system of justice." Vandergrift v. United States, 313 F.2d 93, 96 (9th Cir.1963). Petitioner has failed to demonstrate that the Nevada court's application of state law rises to the level of a constitutional violation. Accordingly, petitioner's claims four, five, six, seven, eight, ten, fifteen, nineteen, and twenty, which raise matters strictly of state law, may not be reviewed in federal habeas proceedings.
B. Insufficient Evidence
Petitioner alleges that there was insufficient evidence to establish beyond a reasonable doubt that he committed the crime of first degree kidnaping (claims one and two). He argues that because the asportation of the victim was incidental to the commission of the underlying crime of extortion, the prosecution should have been required, under Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978), to show asportation as an additional element of first degree kidnaping in order to convict him of that crime. Petitioner fails to understand the full scope of Wright.
The applicable Nevada statute does not require asportation as an element of first degree kidnaping:
A person who willfully seizes, confines, * * * abducts, conceals, kidnaps or carries away a person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person * * * for the purpose of * * * extortion of robbery upon or from the person, or for the purpose of * * * inflicting substantial bodily harm upon him * * * is guilty of kidnaping in the first degree * * *.
Nev.Rev.Stat. 200.310(1).
However, the Nevada Supreme Court has held that "where kidnaping is incidental to another crime, the evidence of kidnaping must include an element of asportation, physical restraint, or restraint which either increases the risk of harm to the victim or has an independent purpose and significance." Davis v. State, 110 Nev. 1107, 1114, 881 P.2d 657, 662 (Nev.1994) (emphasis added). Therefore, if the movement or restraint placed the victim in danger over and above that normally present in the underlying crime, asportation is not an additional required element under Nevada law of first degree kidnaping.
In this case, the risk of harm to the victim by being restrained was significantly greater than the danger usually present in the crime of extortion, because the restraint allowed petitioner and others to burn the victim repeatedly with a heated fork and hot iron. Because the petitioner restrained the victim, and because that restraint increased the risk of harm to the victim, asportation is not a required element of first degree kidnaping. Therefore, petitioner's claim of insufficient evidence was properly dismissed.
C. The Batson Challenge
Petitioner alleges that the prosecution's use of peremptory challenges to exclude black veniremen from the petit jury violated petitioner's equal protection rights. The Supreme Court has held that it is "impermissible for a prosecutor to use his challenges to exclude blacks from the jury 'for reasons wholly unrelated to the outcome of the particular case on trial' or to deny blacks 'the same right and opportunity to participate in the administration of justice enjoyed by the white population.' " Batson v. Kentucky, 476 U.S. 79, 91 (1986) (quoting Swain v. Alabama, 380 U.S. 202, 224 (1965)).
To make out a prima facie case of purposeful discrimination, a defendant must show three elements:
(1) He is a member of a cognizable racial group, Castaneda v. Partida, 430 U.S. 482, 494 (1977), and * * * the prosecutor has exercised peremptory challenges to remove from the venire members [based on race];
(2) Defendant may rely on the fact * * * that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, 346 U.S. 559, 562 (1953);
(3) Finally, defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
Batson, 476 U.S. at 96, as modified by Powers v. Ohio, 499 U.S. 400, 412-13 (1991) (holding that the excluded veniremen do not have to be of the defendant's race in order for a Batson challenge to be viable).
If the defendant makes a prima facie showing, the burden then shifts to the prosecutor to "come forward with a neutral explanation for challenging black jurors." Id. at 97. Finally, the defendant must carry the ultimate burden of proving purposeful discrimination. Purkett v. Elem, 115 S.Ct. 1769, 1771 (1995).
Petitioner made out a prima facie case of purposeful discrimination. In response, the prosecutor gave racially neutral explanations for his use of peremptory challenges to exclude black veniremen, and the record supports these explanations. Petitioner has failed to show that these explanations were pretextual and thus has failed to carry his final burden of proof. Therefore, petitioner's third claim was properly dismissed.
The prosecutor used three of his eight peremptory challenges to remove black veniremen. REPORTER'S TRANSCRIPT OF JURY TRIAL, Vol. II, at 142. He explained that he wished to remove all young, single men and individuals who had relatives who had been convicted of crimes from the jury. Id. at 145. In line with his explanations, the prosecutor removed one white, single, male juror and one black, single, male juror. The prosecutor also removed one white individual and two black individuals who had relatives who had been convicted of crimes. The prosecutor further explained that he would have used a ninth peremptory challenge, if he had had one, to remove a final white juror whose sons had been convicted of a crime. Id.
D. Due Process Violations
1. Prosecutorial Misconduct
Petitioner alleges prosecutorial misconduct based on the prosecutor's presentation of allegedly inadmissible evidence to the jury. In Darden v. Wainwright, 477 U.S. 168 (1986), the Supreme Court explained that the "relevant question is whether the prosecutor's [actions] 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. at 181 (quoting Donnelley v. DeChristoforo, 416 U.S. 637, 642 (1974)); see also United States v. Weizenhoff, 35 F.3d 1275 (9th Cir.1993), cert. denied sub nom Mariani v. United States, 115 S.Ct. 939 (1995) (quoting United States v. Simtob, 901 F.2d 799, 806 (9th Cir.1990), for the rule that "prosecutorial misconduct invites reversal if it appears more probable than not that the alleged misconduct affected the jury's verdict.").
In this case, the court gave a lengthy and detailed curative instruction about the inadmissible evidence and struck certain testimony from the record. This court has stated that "a prompt and effective admonishment of counsel or curative instruction from the trial judge may effectively 'neutralize the damage.' " Weizenhoff, 35 F.3d at 1291 (quoting Simtob, 901 F.2d at 806). Furthermore, the victim and police officers later testified to the substance of the stricken testimony; therefore, it is unlikely that "the alleged misconduct affected the jury's verdict." Id. The prompt action of the trial court in striking the testimony and in giving a detailed curative instruction ensured that petitioner's trial was not so "infected with unfairness as to make [the] resulting conviction a denial of due process." Darden, 477 U.S. at 181.
Petitioner also alleges prosecutorial misconduct based on Sonja Smith's testimony. Petitioner alleges that he was prejudiced by the fact that Smith's real name is Lasandra Dee Macklin and that the use of her pseudonym affected her credibility. Even if Smith's pseudonym did affect her credibility, no due process violation occurred. Petitioner's attorney, Momot, explored Smith's use of the pseudonym on cross-examination, as well as her personal history. The use of a pseudonym, especially when it is discovered and explored during trial in the presence of the jury, does not so infect the trial with unfairness as to result in a due process violation. Defense counsel was aggressive and effective in cross-examining Smith, allowing the jury to determine the proper weight to be given to her testimony.
The panel unanimously found this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4.
In essence, Sonja Smith testified that the victim called her several times during the course of the burnings and asked Smith for money and to call the police. REPORTER'S TRANSCRIPT OF TRIAL, Vol. IV, at 115-33. Smith testified that the victim seemed like she was in pain and that she was screaming. Id. at 115-17. She further testified that the victim told her that it was "those guys from L.A."--certain of the defendants--who were hurting the victim. Id. At 117-18.
The Honorable Robert E. Jones, United States District Judge for the District of Oregon, sitting by designation.
Although there are no cases specifically addressing this issue, United States ex rel Mayfield v. Pate, 451 F.2d 1381 (7th Cir.1971), offers some guidance. In that case, petitioner's apartment was searched and drugs were seized. The warrant for the searches were obtained "on the basis of two affidavits signed by 'Albert Jones.' " Id. at 1382. The name "Albert Jones" was a pseudonym of a paid informant. The petitioner alleged that if the jury had known that the officers drafting the warrants had lied about the informant's name, they "might have resolved the factual dispute against the discredited police." Id. at 1384. However, the Seventh Circuit held that "[g]iven the common use of aliases to protect informers, it is highly speculative that such a relatively inconsequential misrepresentation would have affected the jury's decision on credibility." Id.
Petitioner has failed to allege prosecutorial errors in his trial rising to the level of due process violations. Therefore, petitioner's claims of prosecutorial misconduct were properly dismissed.
2. Impermissible Shift of the Burden of Proof
Petitioner claims that jury instruction No. 33 improperly shifted the burden of proof to him as defendant, violating his due process rights. In Cage v. Louisiana, 498 U.S. 39 (1990), the Supreme Court held that a jury instruction on reasonable doubt may violate the Due Process Clause. The instruction in this case, however, is not as restrictive as the instruction at issue in Cage, and instead is more similar to the instruction that the Supreme Court upheld in Victor v. Nebraska, 114 S.Ct. 1239 (1994). Those instructions, like the one given in Bridgewater's trial, stated that a reasonable doubt must be "actual and substantial" and "not a mere possible doubt" and that the jury must be left with "an abiding conviction" of guilt. Cage, 498 U.S. at 48; Victor, 114 S.Ct. at 1249. Moreover, the Ninth Circuit has previously upheld a jury instruction on reasonable doubt substantially similar to the one at issue here on the grounds that "[t]he instruction's one reference to substantial doubt did not so infect the entire trial as to deprive [defendant] of due process." Darnell v. Swinney, 823 F.2d 299, 302 & n. 4 (9th Cir.1987), cert. denied 484 U.S. 1059 (1988). Finally, the instructions given in Bridgewater's case closely followed the language that Nevada statutes require. In addition, the Nevada Supreme Court has determined that an instruction nearly identical to the one at issue here is constitutional under federal law. Lord, 107 Nev. at 38, 806 P.2d at 554.
Instruction No. 33 states:
Nevada's statutory definition of reasonable doubt for jury instructions states:
Taking instruction No. 33 as a whole, as Cage requires, a juror could not have "interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. Cage, 498 U.S. at 41. Therefore, instruction No. 33 did not violate the Due Process Clause by shifting the burden of proof to petitioner.
E. Ineffective Assistance of Trial and Appellate Counsel
Petitioner has alleged ineffective assistance of both his trial and his appellate counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a cause and prejudice test to determine whether counsel was ineffective. Under Strickland, a petitioner must show that counsel's assistance was so deficient as to require a reversal of the conviction. Id. at 687. To make this showing, petitioner must first prove that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Petitioner then must prove that "the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
In Strickland, petitioner's counsel failed to seek out character witnesses other than defendant's mother and sister, did not request a psychiatric examination, decided not to present much evidence of defendant's character or emotional state, and generally cut short his pretrial motions and discovery. Strickland, 466 U.S. at 672. The Supreme Court held that "even without application of the presumption of adequate performance * * * trial counsel's defense, though unsuccessful, was the result of reasonable professional judgment." Id. at 699.
The Supreme Court has defined the proper measure of attorney performance as "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. The correct inquiry to determine reasonableness is "whether counsel's assistance was reasonable considering all the circumstances." Id.
After reviewing the record, it is clear that petitioner was effectively represented by counsel in all phases of his trial and appeal. Petitioner did not show that his trial and appellate attorneys' acts or omissions were outside "the wide range of professionally competent assistance." Id. at 690. Nor did he demonstrate a reasonable probability that, but for counsel's errors--if any--the result of the proceeding would have been different. See id. at 695. Therefore, the district court properly dismissed these claims.
AFFIRMED.
1. There was insufficient evidence to convict petitioner of kidnaping because the "element" of asportation was not proved.
2. The trial court failed to properly instruct the jury with regards to the elements of the crime of first degree kidnaping with the intent to commit extortion.
3. The state violated Batson v. Kentucky, 476 U.S. 79 (9186) and thereby violated petitioner's equal protection rights by purposefully excluding black jurors from the panel.
4. The district court erred in denying the petitioner's motion to strike the interpreter's statements.
5. The district court erred by admitting prejudicial evidence over the objection of counsel.
6. The instruments that petitioner used were not deadly weapons as contemplated by the statute.
7. The trial court erred in denying the writ of habeas corpus. The count for extortion merges into the count for robbery.
8. The trial court erred in denying the motion for a new trial.
9. The state's presentation of inadmissible evidence violated petitioner's due process rights.
10. The petitioner has been deprived of his Fifth Amendment right to due process and the right to be indicted by a fair and impartial grand jury as a result of the prosecution's actions in this case.
11. The trial court erred in failing to make a specific ruling on whether petitioner received ineffective aid of counsel for failing to raise issues on direct appeal.
12. Petitioner received ineffective assistance of appellate counsel.
13. Petitioner received ineffective assistance of appellate counsel [sic].
14. Petitioner received ineffective assistance of trial counsel.
15. The trial court erred by determining in post-conviction proceedings that trial counsel had been effective. The cumulative errors of trial counsel deprived petitioner of a fair trial and due process of law.
16. Petitioner received ineffective assistance of trial counsel [sic].
17. The district court erred by not taking testimony from appellate counsel at the state evidentiary hearing.
18. The state's reasonable doubt instruction improperly shifted the burden of proof to the petitioner.
19. Jury instruction number 25 is an incorrect statement of law, the application of Nev.Rev.Statute 193.165 should not be considered the law of the case, and Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), should be given retroactive application.
20. The petitioner was denied due process of law when the state district court, on petitioner for writ of habeas corpus, summarily dismissed the petition.
The defendant is presumed to be innocent until the contrary is proved. This presumption places upon the State the burden of proving beyond a reasonable doubt every material element of the crime charged and that the defendant is the person who committed the offense.
A reasonable doubt is one based on reason. It is not a mere possible doubt but is such a doubt as would govern or control a person in the weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and substantial, not mere possibility or speculation.
If you have a reasonable doubt as to the guilt of the defendant, he is entitled to a verdict of not guilty.
A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual, not mere possibility or speculation.
Nev.Rev.Stat. 175.211.