Opinion
No. 2:12-cv-0171 CKD P
2013-09-26
LAWRENCE PEPE CARDOZA, Petitioner, v. CONNIE GIPSON, Warden, CSP-Corcoran, Respondent.
ORDER AND
FINDINGS & RECOMMENDATIONS
Petitioner is a California prisoner represented by counsel who filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. He is serving a sentence of 18-years-and-4-months imprisonment following convictions in Sacramento County for various charges arising from a high-speed police chase including: assault with a deadly weapon on a peace officer, operating a motor vehicle with intent to evade a pursuing peace officer, and flight from a pursuing peace officer by driving in the opposite direction of traffic. Petitioner challenges his conviction and sentence arguing his defense lawyer failed to call or consult an expert in bullet trajectory analysis at trial in violation of his constitutional right to effective assistance of counsel. Petitioner also claims his trial was fundamentally unfair because the trial court erroneously admitted evidence of his two prior convictions for similar high-speed car chases. For the reasons that follow, the undersigned will recommend that petitioner's application for federal habeas relief be denied. I. Background
The following background is drawn from the Court of Appeal's unpublished opinion in People v. Cardoza, No. C061213, WL 2010 WL 1367602 (Cal. Ct. App. Apr. 7, 2010) (unpublished) unless otherwise noted.
Petitioner is apparently no stranger to high-speed car chases. He has been convicted for three separate incidents of evading law enforcement at high speeds. The first such incident occurred in Vallejo in January 2002. A Vallejo police officer spotted petitioner driving a Dodge Caravan without a front license plate, and attempted to pull him over. After seeing the police lights of the marked patrol car, petitioner veered into a parking lot, exited the lot, and accelerated down the street at speeds exceeding 60 miles per hour, in a 35 zone. After an extensive chase, the police officer pulled next to the Caravan and turned into it, forcing the car into a curb thereby breaking its axle. Petitioner took off on foot, and was soon apprehended hiding underneath a parked truck nearby.
The second incident occurred in Sacramento in September 2004. A police officer in a marked patrol car attempted to pull petitioner over in a Ford Mustang. Instead, petitioner sped away at speeds exceeding 50 miles per hour in a 25 zone until he crashed into a guywire of a telephone pole. The Mustang ended up leaning against the metal wire, which anchored the pole to the ground, the front of the car facing upward at a 35-to-40 degree angle. Petitioner again fled on foot until he was apprehended by police.
Petitioner is currently serving a sentence arising from his third high-speed car chase, and it is this conviction and sentence that he challenges in his pending petition for habeas relief. California Highway Patrol ("CHP") officers Sarabia and Hawkinson were driving together in a patrol car in Sacramento County, when they spotted petitioner weaving through several lanes of traffic during the early morning of December 8, 2007. Suspecting that he was driving intoxicated, they pulled him over. When Officer Sarabia walked toward petitioner's car, petitioner drove off. The CHP officers pursued petitioner driving at high speeds through a residential neighborhood. During the ensuing chase, petitioner took a turn too quickly and ended up on the driveway of a residence. The CHP officers caught up with him there.
Shots were fired in the driveway that morning, and the specific facts of what precisely occurred in that driveway were hotly contested at trial; this issue concerns petitioner's pending application for habeas relief. The details of the trial testimony on this issue will be discussed further below, but the following facts were essentially uncontested. Officer Sarabia drove the CHP patrol car onto the driveway and pushed his car's bumper up against petitioner's car, thinking he could keep petitioner from getting out and running away. Meanwhile, Officer Hawkinson got out of the patrol car and approached the vehicle with his gun drawn.
Before Officer Sarabia could exit his vehicle as well, petitioner started driving forward and backward in an apparent attempt to escape. He hit the patrol car at least twice while both officers called out for him to stop the car. At this point, Officer Hawkinson, already outside the car, had walked across the right side of the driveway into a dark area. When Hawkinson made eye contact with petitioner, petitioner immediately drove his car towards the street and in the general direction of Officer Hawkinson. Hawkinson then made a move toward his patrol car, crossing the path of petitioner's car.
Importantly for the ineffective-assistance-of-counsel claim discussed below, Officer Hawkinson then fired two shots into petitioner's car. One bullet went through the passenger window just above the side-view mirror and exited the car near the left-rear wheel well. The other bullet struck petitioner in the buttocks. Officer Hawkinson testified at trial that he fired the shot because he believed his life was in danger. The dispute at trial focused on whether Officer Hawkinson was standing in the path of petitioner's car when he fired the shots such that he fired lawfully, as will be discussed supra at subpart I.A.
Petitioner eventually maneuvered his car past the patrol car and out of the driveway. The CHP officers pursued him in their patrol car and notified the dispatcher that shots had been fired. Petitioner drove through the residential neighborhood driving erratically at high speeds. He hit a Ford pickup truck, damaging a tree and landing on the lawn in front of a residence. He then accelerated onto the main street. He proceeded east driving the wrong direction in the westbound traffic lane, and then got onto to State Route 99 by driving up the wrong direction of an off-ramp. (Rep.'s Tr. on Appeal ("R.T.") 231-32, ECF No. 26.) He drove the wrong way on the highway until he made a U-turn. (R.T. 232.)
The CHP officers caught up to petitioner when his car was stopped facing the wrong direction on State Route 99 after a traffic collision with another car. (R.T. 236.) Officer Sarabia drove his patrol car in nose-to-nose position with petitioner's car. (R.T. 237.) Although petitioner's car was stopped, apparently disabled, the engine continued to rev "up and down" as if petitioner "was trying to accelerate." (R.T. 237:19-238:11.) Petitioner was taken into custody at this point, and a blood test revealed alcohol in his system below the legal limit, as well as the presence of cocaine and morphine.
A. The Trial
The Sacramento County District Attorney charged petitioner with assault of a police officer with a deadly weapon, Cal. Penal Code § 245(c); operating a motor vehicle with the intent to evade a pursuing police officer, Cal. Veh. Code § 2800.2(a); flight from pursuing peace officer by driving in the wrong direction, Cal. Veh. Code § 2800.4; misdemeanor hit and run, Cal. Veh. Code § 20002; and driving under the influence of an alcoholic beverage or drug, Cal. Veh. Code § 23152(a). Petitioner pled "not guilty" to all counts, and the jury found him guilty on all charges. He was sentenced to imprisonment for 18 years and 4 months. Petitioner's conviction on count one—assault with a deadly weapon on a police officer—resulted in 17 years of his 18-years-4-months prison sentence due to a prior "strike" offense, doubling the 5-year sentence, and an enhancement of seven years.
Petitioner's initial trial resulted in a mistrial.
In light of the of the potential length of the imprisonment penalty associated with a conviction on count one, petitioner's defense lawyer focused her defense on this count. Thus, the critical issue for the defense's case was where Officer Hawkinson stood when he fired the two gunshots: if he was not close to or in the path of petitioner's car, then he was not in danger and thus fired unlawfully, so petitioner would avoid conviction on count one. Both sides brought in experts to testify about Officer Hawkinson's location when he fired the two gunshots, extrapolated from the physical evidence. In his habeas petition, petitioner contends his counsel at trial was ineffective in this regard, as elaborated below.
One essential element in the jury's charge on count one was that the government must prove that "when the defendant acted, the person assaulted was lawfully performing his duties as a peace officer." (R.T. 842:2-17.) The judge instructed: "A peace officer is not lawfully performing his or her duties if he or she is . . . using unreasonable or excessive force in his or her duties." (R.T. 843:17-22.)
1. Expert Testimony Regarding CHP Officer Hawkinson's Location
Petitioner contends his attorney rendered deficient performance by failing to hire a "ballistics" expert to consult with in investigating petitioner's case, and to testify in petitioner's defense at trial. Specifically, petitioner argues a ballistics expert's consultation was essential to the effectiveness of the defense attorney's cross-examination of the government's ballistics expert; further, petitioner contends the defense needed its own ballistic expert's testimony to rebut the government's expert.
In the prosecution's case in chief, the government called Sergeant Robert Snook, who was qualified as an expert in "trajectory analysis," "accident reconstruction," and "the investigation of officer-involved shootings"—including "[w]here [a particular] bullet originated [from, and] what path it took to arrive at its destination," (R.T. 336-37), an issue petitioner contends was vital to his defense. Perhaps in light of Snook's extensive experience in these fields, defense counsel declined to object to his qualification as an expert in these fields or to take him on voir dire. (R.T. 337.)
Sergeant Snook testified on direct examination about what happened in the driveway December 8, 2007, and offered his expert opinion about the position from which the shots were fired. Snook testified that he and his team of analysts examined the physical evidence, and opined that this evidence showed that petitioner's car indeed moved back and forth, striking the patrol car. He testified that after several strikes of the patrol car, petitioner's car was perpendicular to the driveway and the patrol car, and was facing the right side of the driveway. (R.T. 373.) The petitioner's car then turned sharply to the right to drive out of the driveway. Moreover, the car accelerated so fast it caused "the wheels to slip and . . . the skid marks that [were admitted] as evidence items number 26 and 28." (R.T. 373:22-26.) Based on this physical evidence as well as the location of the bullet shell casings, Snook "concluded" that "the statements" of Officers Sarabia and Hawkinson—that Hawkinson fired from the line of danger of petitioner's car—"match" the physical evidence "a hundred percent." (R.T. 476:9-17.) Ultimately, in response to the prosecutor's question, "based on all the evidence that you have reviewed in this case . . . , does the evidence . . . support Officer Hawkinson's testimony that he in fact was in the line of danger from the fleeing vehicle at the time he shot his duty weapon," Sergeant Snook answered, "Absolutely, yes." (R.T. 401:8-17.)
Defense counsel elected to cross-examine Sergeant Snook. Petitioner contends defense counsel's cross-examination suffered for lack of the defense's own ballistics expert. Specifically, petitioner points out that defense counsel never mentioned the significance of the location of the bullet shell casings, which the record reflects. (See R.T. 421-48.)
However, respondent contends defense counsel's cross-examination reflected an understanding of the ballistics evidence, and that defense counsel focused her cross-examination on pointing out inconsistencies and weaknesses in the evidence. Specifically, defense counsel cross-examined Sergeant Snook on the bullet trajectories: "[A]ssuming a bullet travels in a straight line, what . . . can we assume about the first shot that Officer Hawkinson fired?" (R.T. 442:17-19.) Moreover, defense counsel was able to get Sergeant Snook to admit that, based on the physical evidence alone without considering the CHP officers' statements, Snook could not know the exact spot where Officer Hawkinson was standing:
Q . . . [Y]ou don't know exactly where he was standing, do you?(R.T. 429:20-24.)
A The exact spot, I do not.
In turn, Snook was forced to admit on cross his conclusion was based in part on the CHP officers' statements:
Q . . . [I]n your report, part of your assessment was that Officer Sarabia's vehicle . . . backed . . . out of the driveway and continued after [petitioner].
A Yes.
Q . . . [T]here is no physical evidence for that, correct?
A Correct.(R.T. 428:21-428:8.) Further, defense counsel's common-sense approach was reflected in her closing jury argument:
Q So you relied on his statement.
A His statement in conjunction with the absence of physical evidence, yes.
We don't need a bunch of experts up her to tell us a bullet travels in a straight line. . . .(R.T. 913:24-914:12.)
The line of that first shot cannot put Officer Hawkinson where he places himself. It can't. A bullet travels in a straight line. He could not be where he places himself and nobody reaches way over to the side to shoot. Common sense.
The defense did not call a ballistics expert to testify, but defense counsel did consult with an accident-reconstruction expert, Laurence Neuman. As petitioner points out, the defense's expert relied on the CHP's information; however, he did so, as defense counsel explained to the trial court, "because . . . to do [an accident reconstruction] from scratch [wa]s not going to be nearly as accurate as the [information gathered] right after the accident happened." (Rep.'s Augmented Trs. on Appeal 4:27-5:3.)
Moreover, the defense called Laurence Neuman to testify as an accident-reconstruction expert witness, and he was qualified to testify as an expert in this capacity. (R.T. 710:11-21, 713:24-26, 715:8-9.) Neuman is a civil engineer who works in the field of accident reconstruction, and he possessed at the time a bachelor's degree in civil engineering and a master's degree in civil engineering with an emphasis in traffic engineering. (R.T. 710:28-711:22.)
The trial court admitted—over the government's objection—Neuman's expert opinion on direct examination from defense counsel that Officer Hawkinson was not standing in the line of danger when he fired his gun:
Q . . . Mr. Neuman, do you have an opinion as to whether or not Officer Hawkinson was standing in front of the vehicle when that first shot was fired?
A Yes, I have an opinion.(R.T. 723:28-728:25 (emphasis added).)
Q And what would that opinion be?
A The opinion is that he could not have been.
. . . .
Q Now, in your opinion, based on the physical evidence, was Officer Hawkinson at any point in front of the vehicle when he fired either shot?
A No. The shots, I would agree, based on the angles [in a diagram of the scene used as a demonstrative exhibit], are something like this. And if that's where Officer Hawkinson is located, then he's not in front of the vehicle obviously.
Q Now, in your opinion, if that vehicle continues on a straight path consistent with the skid marks that both you and Sergeant Snook agree are [petitioner's] exiting, is [Hawkinson] ever at a point where he's going to be hit by that vehicle?
A From the point kind of where I've drawn forward, no.
On cross-examination, however, Neuman was forced to admit that he was not qualified to perform bullet trajectory analysis:
Q . . . . [Y]ou stated you didn't do a bullet trajectory [analysis] here; is that correct?(R.T. 743:5-25 (emphasis added).)
A Right.
. . . .
Q [W]hen I asked you out in the hallway whether or not there was any new information with respect to your report and you told me no, did that also include the fact that you had just performed a trajectory analysis with respect to where the officer was positioned?
A No. What you asked me in the hallway was what was my opinion, and I said basically I agree with Officer Snook's. I'm not really qualified to do much trajectory analysis. I'm willing to say a bullet's going to go in a straight line and thus has to have an angle. But in terms of how close someone was standing to the car, that's not really my expertise.
2. Admission of Petitioner's Prior Evasion Convictions
Petitioner contends the trial court erred by admitting testimony about his prior convictions for similar high-speed car chases, and that the admission of this testimony rendered his trial fundamentally unfair.
In the prosecution's case in chief, they called Sergeant John Miller of the Vallejo Police Department. Sergeant Miller testified in great detail about petitioner's first high-speed car chase in Vallejo in 2002. (R.T. 542:4- 552:10.) The prosecution also called Officer Ret Townsend, retired, formerly of Sacramento Police Department, and, at the time of the trial, a reserve officer for the Sacramento Police Department and the Sacramento County Sheriff's Department. (R.T. 583:8-584:12.) Officer Townsend testified in great detail about petitioner's second high-speed car chase in Sacramento in 2004. (R.T. 584:22-589:12.) The defense objected to the introduction of this evidence by motion in limine and at trial through a continuing objection, the motion in limine being denied, the objection being overruled, and a continuing objection noted. (See R.T. 536:25-537:6.)
The trial court addressed the admissibility of these prior crimes before trial during motions in limine. Petitioner moved to exclude these prior crimes, countering the prosecution's argument that due to the similarity of the prior car-chase-related crimes with the conduct at issue in the trial, this evidence was admissible to show a motive to evade law enforcement. Petitioner argued:
[T]he intent to evade the officer here [is] conceded. No problem. It is not a disputed fact. We concede, that, yes, Mr. Cardoza, on December 8th, was evading officers. He drove too fast. He did all the things that an evading is. He did all the things that an evading always has. . . .(R.T. 29:16-30:23.) The trial court disagreed and overruled the objection.
Just like 2002, 200[4] he evaded the officers. . . .
[T]he fact that [petitioner] has two prior[s] . . . shows nothing to a jury other that he's a bad guy when we're conceding the [evasion] charge here.
The trial court reasoned that these prior crimes were relevant and admissible to prove petitioner's motive to harm law enforcement. The court reasoned the prior crimes—in which, in evading police, petitioner slammed his car into the law enforcement car—make it "more likely that the driving events that occurred in that driveway in fact occurred the way the officer testified that they did and less likely that they didn't," i.e., that Officer Hawkinson was in the line of danger of petitioner's car and therefore lawfully fired at petitioner. (R.T. 33:13-28.) The trial court applied California Evidence Code § 1101 which prohibits the admission of "evidence of a person's character . . . when offered to prove his or her conduct on a specific occasion," unless "relevant to prove . . . motive, opportunity, intent, preparation, [or] plan."
The court held "with respect to motive, [and] with respect to planned scheme and intent, this evidence appears to the court properly admitted." R.T 36:13-22. In reaching this ruling, the trial court relied extensively on the California Supreme Court's opinion in People v. Ewoldt, 7 Cal. 4th 380 (1994), in which the court held that a defendant stepfather's prior molestation of the victim's older sister in the family home was admissible in the trial of the stepfather for molestation of the younger sister victim under the "common design or plan" exception. Id. at 403. The trial court also admitted evidence of petitioner's parolee status to show motive to evade arrest. (R.T. 682-85.) The testimony concerning petitioner's prior crimes and parolee status was accompanied by appropriate limiting instructions from the trial court to the jury designed to cure the risk of unfair prejudice.
B. Court of Appeal's Opinion
On direct appeal of petitioner's conviction, the California Court of Appeal for the Third District affirmed petitioner's conviction in an unpublished opinion, holding inter alia the trial court did not abuse its discretion in admitting petitioner's prior high-speed car chase convictions. People v. Cardoza, No. C061213, 2010 WL 1367602 (Cal. Ct. App. Apr. 7, 2010) (unpublished). However, because "as even the People concede, there was no nexus or direct link between the prior acts and the current crimes," the court held the "commission of the prior flight offenses did not provide incentive for defendant to commit the current crimes." Id.at *14. Accordingly, the court held the trial court erred by admitting the prior acts under the motive exce ption to the rule prohibiting propensity evidence. Id.
Nonetheless the court affirmed, finding this particular error to be harmless, because "the evidence of the prior acts was admissible" under the common scheme or plan exception to the rule prohibiting propensity evidence. Id. This particular portion of the Court of Appeal's decision is important to decision on the pending petition for habeas relief, since it represents the last reasoned decision and is the asserted basis for petitioner's due process claim for habeas relief.
The appellate court held that "there was no abuse of discretion in admitting the prior acts to show common scheme or plan for assault with a deadly weapon and intent and common scheme or plan for evading a police officer and driving against the proper direction of traffic . . . ." Id. at *8. The court reasoned that the "two prior acts were extremely similar to the current acts and they were not unduly prejudicial," because the charged acts and the prior acts all "involved defendant violating the law (weaving in and out of lanes of traffic), speeding away from police officers who were lawfully trying to detain him . . . , driving 50 to 60 miles per hour through a 25 . . . zone, . . . using his car offensively to try to hit one of the officers, . . . and refusing to submit to officers when caught." Id. at *8-9.
The court noted and distinguished a case with analogous facts:
In Scheer, the defendant stood trial for felony hit and run and vehicular manslaughter, and the prosecutor introduced evidence of the defendant' s prior acts of fleeing from police. The Second District Court of Appeal found the prior flight evidence inadmissible to prove a common scheme or plan, explaining as follows: "Although the prior flight offense and charged crime were committed in a similar manner, i.e., appellant drove through residential areas recklessly with flagrant disregard for the safety of others, and shared the same general purpose of avoiding capture and accountability for his misdeeds, such characteristics are insufficiently probative to constitute evidence of a common plan or design. Instead, the only reasonable inference is that the prior flight and the charged crime were spontaneous events . . . . Neither flight was a planned event. Instead, each was a spur-of-the-moment response to an unexpected event . . . ."Id. at *9-10 (emphasis added) (citations omitted) (quoting People v. Scheer, 68 Cal. App. 4th 1009, 1014, 1021 (2009)). However, the court distinguished Scheer: "Regardless of the merits of Scheer, it was a reasonable inference in this case that the prior acts and the charged crimes were not a series of spontaneous acts but ones committed in a 'markedly similar manner,' evidencing a common scheme or plan." Id. at *10 (emphasis in original) (quoting Ewoldt, 7 Cal. 4th at 394 n.2). The court explained:
One or both prior acts shared the following with the current crimes: defendant fled from police when they were lawfully trying to detain him, he led them on a high-speed chase through residential or business neighborhoods, he disregarded road signs and signals, used his car offensively against police when they used their patrol cars to try to pin in defendant's car, crashed into inanimate objects, and refused to submit to the police when caught.Id. at *10. Thus, even though the trial court erred by admitting the prior acts to show motive, the court held that there was "no prejudicial error or constitutional violation," id. at *14-15, since the prior acts were admissible under the common scheme or plan exception.
Moreover, the appeals court rejected petitioner's argument that the trial court erred by admitting testimony on petitioner's parolee status to show motive to evade the police, id. at *13, and petitioner's asserted grounds for ineffective assistance of counsel at trial, id. at *15-18.
Since petitioner's asserted grounds for ineffective assistance of counsel on direct appeal are different from his asserted grounds for habeas relief here, the Court of Appeal's decision on this issue need not be recounted here.
II. Standard for Habeas Corpus Relief
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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; or28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)." It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
(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.
Title 28 U.S.C. § 2254(d) establishes a precondition to federal habeas relief, not grounds for entitlement to habeas relief. Fry v. Pliler, 551 U.S. 112, 119 (2007).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams[ v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
When a state court rejects a federal claim without addressing the claim, a federal court presumes the claim was adjudicated on the merits, in which case § 2254(d) deference is applicable. Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). This presumption can be rebutted. Id.
It is appropriate to look to lower federal court decisions to determine what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. "Clearly established" federal law is that which has been determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court precedent is misplaced).
Both of the claims presented in this action were presented on direct appeal. The California Court of Appeal issued a reasoned decision with respect to both of petitioner's claims. The claims were presented to the California Supreme Court via a "petition for review." Both claims were denied without comment.
III. Arguments and Analysis
A. Petitioner's Due Process Claim
As discussed above, the trial court admitted testimony concerning petitioner's prior convictions for high-speed car chases under circumstances similar to the charged offense for which he was ultimately convicted. Petitioner contends the admission of this prejudicial propensity evidence of nominal probative value constituted "an unreasonable application of [] clearly established Federal law," 28 U.S.C. § 2254(d)(1), and resulted in a fundamentally unfair trial in violation of constitutional due process.
The Fourteenth Amendment prescribes: "No state shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend XIV, § 1. As such, no person can be imprisoned as a result of a trial that was fundamentally unfair due to the admission of prejudicial evidence. United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (en banc) (reversing and remanding for retrial because the defendant did not "receive[] the due process and fair trial to which he is entitled under our Constitution" (citing Bollenbach v. United States 326 U.S. 607, 612 (1946))). In a federal habeas proceeding, a federal court's "review of evidentiary rulings [in state court] is confined to 'determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process.'" Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008) (quoting Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998)).
Here, in the last reasoned decision, the Court of Appeal held the trial court abused its discretion by admitting petitioner's prior convictions under the "motive" exception; however, the court nonetheless affirmed, finding this error harmless because the evidence was admissible under the "common scheme or plan" exception. Thus, the crux of petitioner's claim for habeas relief is that the admission of his prior convictions under the "common scheme or plan" exception was clear error resulting in a fundamentally unfair trial.
Prior crimes "evidence which bears ' a common scheme, plan, system, or design' is admissible." United States v. Brashier, 548 F.2d 1315, 1326 (9th Cir. 1976). However, "[s]uch evidence may not be admitted to show a propensity or proclivity to commit bad acts." Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1335 (9th Cir. 1985). For example, "[a] showing of intent to assault on an earlier occasion proves little, if anything, about an intent to assault at some later time." United States v. Bettencourt, 614 F.2d 214, 217 (9th Cir. 1980) (reasoning "specific intent to assault or impede is not ordinarily transferrable to events two years apart"). As Judge Weinstein observed in his influential treatise:
Mere proof that the defendant previously committed the same type of crime as that with which he or she is now charged is not sufficient to justify the introduction of the other crimes evidence . . . . Defendants cannot be identified as the perpetrators of charged acts simply because they have at other times committed the same commonplace variety of criminal act. Any probative value of such evidence relies on the forbidden inference of propensity.JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE MANUAL § 7.01, ¶ 1-7 (Joseph M. McLaughlin, ed., Matthew Bender 2011) (emphasis added) (collecting sources).
Here, the Court of Appeal erred because the "distinctive" characteristics the trial court and the Court of Appeal found "strikingly similar" are, simply put, present in nearly every high-speed car chase. Specifically, the Court of Appeal identified the following common facts: "[All three incidents] involved defendant violating the law (weaving in and out of lanes of traffic), speeding away from police officers who were lawfully trying to detain him . . . , driving 50 to 60 miles per hour through a 25 . . . zone, . . . using his car offensively to try to hit one of the officers, . . . and refusing to submit to officers when caught." Cardoza, 2010 WL 1367602, at *8-9. The facts underlying petitioner's prior convictions arising from high-speed car chases are not only similar to the charged offense for which he was ultimately convicted, they are "similar to numerous other crimes committed by persons other than the defendant," United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978), if not the majority of cases in which a defendant stands accused of using a motor vehicle with the intent to evade a pursuing police officer under Cal. Veh. Code § 2800.2. Compare United States v. Cooks, 589 F.3d 173, 182-83 (5th Cir. 2009) (holding evidence that defendant engineered five fraudulent real estate deals that were substantially similar to those charged in indictment was admissible to show intent, knowledge, motive and plan by "demonstrating] how [an] operation work[s]"), with United States v. Kravchuk, 335 F.3d 1147, 1156 (10th Cir. 2003) (reasoning that when both prior acts and charged crimes involved burglary of ATM machines committed by same participants and prior acts occurred only seven months before charged acts, evidence of prior acts was properly admitted under Rule 404(b) to show defendant had developed plan and stable team of participants to burglarize ATM machines).
Moreover, the Court of Appeal in this case did not identify and the record reveals no overarching plan linking all three incidents, other than the general motive to escape arrest. See Cardoza, 2010 WL 1367602, at *6 ("Here, as even the People concede, there was no nexus or direct link between the prior acts and the current crimes. The commission of the prior flight offenses did not provide incentive for defendant to commit the current crimes." (emphasis added)). As Judge Weinstein observed, in this case the court admitted testimony concerning petitioner's prior acts under the "common scheme or plan" exception essentially because petitioner "at other times committed the same commonplace variety of criminal act. Any probative value of such evidence relies on the forbidden inference of propensity." WEINSTEIN, supra § 7.01.
Respondent does not address petitioner's due process argument, but instead argues the court is without the power to grant petitioner the relief he seeks under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d)(1) (providing for relief only for violations of "clearly established Federal law, as determined by the Supreme Court of the United States"). Specifically, respondent argues the U.S. Supreme Court has expressly declined to reach, let alone decide, the question of whether a state court's admission of prejudicial propensity evidence would constitute a violation of a criminal defendant's due process right to a fair trial. Accordingly, respondent points out that the Ninth Circuit has held that the Supreme Court has not clearly established the law, such that claims such as petitioner's are cognizable in a habeas corpus proceeding.
Petitioner concedes the Ninth Circuit has so held, but counters the Ninth Circuit has misinterpreted the Supreme Court's habeas corpus jurisprudence in this regard. Specifically, petitioner argues the fundamental right to a fair trial under the Fourteenth Amendment is clearly established, and the law prohibiting propensity evidence is historically grounded, such that propensity due process claims, such as petitioner's, are necessarily implied by the general principles articulated by the Supreme Court. In short, petitioner contends he "'need not produce a "spotted calf on the precise issue at hand to warrant habeas relief.'" (Pet. for Writ of Habeas Corpus & Mem. P. & A. by a Person in State Custody ("Habeas Pet.") 20:21-21:15, ECF No. 1 (quoting Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002)).)
In this case, although petitioner's argument is not without persuasive force, in light of the binding authority identified by respondent, this court is without the power to grant petitioner the relief he seeks. Indeed, AEDPA requires a constitutional claim be "clearly established . . . by the Supreme Court of the United States" to be cognizable in a federal habeas proceeding. 28 U.S.C. § 2254(d)(1). In Estelle v. McGuire, the Supreme Court declined to reach the issue and "express[ed] no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime." 502 U.S. 62, 75 n.5 (1991). Accordingly, the Ninth Circuit has held that the Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).
The court notes the Ninth Circuit has not always held this view. As petitioner points out, in a pre-AEDPA case, McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993), the Ninth Circuit surveyed the laws of the fifty states and historical sources of the common law to conclude: "The rule against using character evidence to show behavior in conformity therewith, or propensity, is [a rule] historically grounded" by the "long experience in the common-law tradition, to some extent embodied in the Constitution, [that] has crystallized into rules of evidence consistent" with it. Id. at 1381 (quoting Brinegar v. United States, 338 U.S. 160, 174 (1949)). The court reasoned that the rule against propensity evidence "has persisted since at least 1684 to the present, and is now established not only in the California and federal evidence rules, but in the evidence rules of the thirty-seven other states and in the common-law precedents of the remaining twelve states and the District of Columbia." Id. at 1381 & n.2 (collecting sources). The court affirmed the district court's grant of habeas relief based on the admission of prejudicial propensity evidence in violation of due process. Id. at 1379, 1386. However, McKinney was decided before AEDPA curtailed the scope of federal habeas review.
In light of the binding authority on point cited by respondent, this court is "therefore without power to issue the writ on the basis" of petitioner's due process claim. Holley, 568 F.3d at 1101. Therefore, the undersigned recommends that this portion of petitioner's application for habeas relief be denied.
Petitioner also briefly argues the trial court erred by admitting evidence that he was on parole to show motive. (See Habeas Pet. 22:22-23:20.) However, since for the reasons discussed above, the court lacks the authority to issue habeas relief for due process claims arising from the admission of prejudicial evidence, this claim does not warrant habeas relief either.
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B. Petitioner's Ineffective Assistance of Counsel Claim
Petitioner claims his defense lawyer failed to hire a ballistics expert essential to his defense in violation of his right to effective assistance of counsel. The Sixth Amendment guarantees criminal defendants the right to the effective "assistance of counsel." U.S. Const. amend. VI; see also Strickland v. Washington, 466 U.S. 668, 686 (1984) ("[T]he right to counsel is the right to the effective assistance of counsel."). Under Strickland, an ineffective assistance of counsel claim has two components: "First, the defendant must show that counsel's performance was [constitutionally] deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. Thus, the "touchstone" of Strickland is reasonableness: (1) counsel's performance fell below the standard for "reasonable representation" under "prevailing professional norms" and (2) there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Roe v. Flores-Ortega, 528 U.S. 470, 482, 489 (2000) (quoting Strickland, 466 U.S. at 694).
In the habeas corpus context, "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citations omitted). Moreover, because the "Strickland standard is a general one," "the range of reasonable applications is substantial." Id. In short, ineffective assistance habeas claims are subject to two layers of deference, and state courts are granted substantial "leeway" because the Strickland standard is "general." See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Petitioner contends his defense counsel's failure to hire a ballistics expert was unreasonable in light of prevailing professional norms. Respondent counters that petitioner was not prejudiced, since his own accident-reconstruction expert testified that in his expert opinion Officer Hawkinson was not in harm's way when he fired his gun. Even so, respondent argues petitioner's counsel's decision to rely on the consultation and testimony of an accident-reconstruction expert rather than a ballistics expert was a tactical decision to which the court should defer.
The most forceful portion of petitioner's argument relies on the Ninth Circuit's decision in Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008). In Duncan, in an opinion by Judge Reinhardt, the Ninth Circuit reversed a district court's denial of a habeas petition, and remanded for issuance of the writ, in a case where the habeas petitioner also claimed counsel was deficient for failing to hire a particular type of expert. The petitioner in Duncan was convicted of murder, and his defense lawyer decided not to hire a blood expert to analyze blood found at the murder scene. Id. at 1232. The defense lawyer explained that the petitioner's fingerprints were found at the scene and that petitioner admitted to him that petitioner was at the murder scene. Thus, the defense lawyer elected to forgo a blood expert because he was afraid that a blood test would further implicate petitioner. Id. A post-conviction blood test revealed strong exculpatory evidence that the blood found at the murder scene did not belong to petitioner nor to the victim, implying the blood belonged to the true killer. Id. at 1231. The district court, after an evidentiary hearing, denied habeas relief, and the Ninth Circuit reversed reasoning: "[Petitioner's defense counsel] had [a] duty to consult an expert who could assist him in preparing his cross-examination and serve as an expert witness on [petitioner's] behalf, or [to at least] make an[] effort to establish that the blood that came from someone other than the victim did not belong to [petitioner]. [Defense counsel's] inaction was unreasonable, especially given that the blood samples were the only potentially exculpatory evidence in the case." Id. at 1236.
However, Duncan is inapposite because it was decided under a different standard. Because the petitioner in Duncan was convicted before AEDPA's enactment, the court in Duncan did not apply AEDPA deference and instead evaluated petitioner's claims de novo. Id. at 1232-33. Further, in a subsequent case, the Ninth Circuit extended Duncan's reasoning to an AEDPA-deference case and reversed a district court's denial of habeas relief based on defense counsel's failure to hire an expert, in an opinion also authored by Judge Reinhardt, Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009) (en banc). The Supreme Court reversed. Harrington v. Richter, 131 S. Ct. 770 (2011). Justice Kennedy writing for the Court started the opinion as follows:
The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error.Id. at 780 (emphasis added). Since Richter was decided more recently than Duncan and under the AEDPA deference standard applicable to this case, the undersigned declines petitioner's invitation to follow Duncan as persuasive authority, and decides petitioner's claim under Richter.
In Richter, as in this case, the petitioner claimed counsel was ineffective for failing to hire a particular expert. Specifically, petitioner claimed "his counsel was deficient for failing to present expert testimony on serology, pathology, and blood spatter patterns, testimony that, he argued, would disclose the source of the blood pool" at the murder scene. Id. at 783. The Ninth Circuit, in a divided en banc opinion, held that the California court's decision rejecting petitioner's Strickland claims was unreasonable under AEDPA. The Supreme Court reversed, reasoning: "The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. . . . Strickland, however, permits counsel to 'make a reasonable decision that makes particular investigations unnecessary.' It was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence in the circumstances here." Id. at 788 (citations omitted). The Court explained:
From the perspective of Richter's defense counsel when he was preparing Richter's defense, there were any number of hypothetical experts—specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or numerous other disciplines and subdisciplines—whose insight might possibly have been useful. An attorney can avoid activities that appear "distractive from more important duties." Bobby v. Van Hook, 558 U.S. __, __, 130 S. Ct. 13, 19, 175 L.Ed.2d 255 (2009) (per curiam). Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.Id. at 789 (emphasis added). The Court further explained that federal courts evaluating ineffective assistance habeas claims must take into account "strategic considerations": "[C]ourts may not . . . insist counsel confirm every . . . strategic basis for his or her actions. There is a 'strong presumption' that counsel' s attention to certain issues to the exclusion of others reflects trial tactics rather than 'sheer neglect.'" Id. at 790.
Here, the California Court of Appeal's decision—that petitioner's defense counsel's failure to hire a ballistics expert did not render his performance unconstitutionally deficient—was not unreasonable because "there is a[] reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S. Ct. at 788. In petitioner's criminal trial, petitioner's defense counsel consulted with Laurence Neuman, a civil engineer and accident-reconstruction expert. Neuman was qualified as an expert and gave his expert opinion—admitted over objection—that Officer Hawkinson was not in danger when he fired the gun. (See RT 723:28-728:25 ("Q . . . [I]n your opinion . . . , is [Officer Hawkinson ever at a point where he's going to be hit by [petitioner's] vehicle? A From the point where I've drawn forward, no.").) Moreover, defense counsel's cross examination and jury argument reflect a common-sense strategy for the defense, rather than overreliance on ballistics, accident, or bullet-trajectory experts. (See RT 913:24-914:12 ("We don't need a bunch of experts up her to tell us a bullet travels in a straight line. . . .").) Although this strategy may not have been ideal, or even advisable, "[i]t was at least arguable that a reasonable attorney could decide to forgo" hiring a ballistics expert, and instead rely on an accident-reconstruction expert, "to balance limited resources in accord with effective trial tactics and strategies." Richter, 131 S. Ct. at 788-89. Further, as in Richter, petitioner's defense counsel, in her cross examination, "elicited concessions from the State's expert[] and was able to draw attention to weaknesses in [his] conclusions." Id. at 791.
For all these reasons, it would have been reasonable for the California Court of Appeal to find that petitioner had not shown his attorney was deficient under Strickland. Accordingly petitioner's ineffective assistance of counsel claim does not warrant habeas relief.
IV. Conclusion
Accordingly, IT IS HEREBY ORDERED THAT the Clerk of Court assign a District Judge to this action, and
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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7 The court notes that "the trial court's admission of defendant's prior convictions for evading the police may very well have "resulted in a trial that was fundamentally unfair and would warrant issuance of the writ under [Ninth Circuit] precedent," Holley, 568 F.3d at 1101 n.2; however, the court expresses no opinion on this question.