Opinion
Case No. 04cv1796-LAB(WMc).
March 28, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION
Mac David Cochran ("Petitioner"), a state prisoner proceeding pro per, brings this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254 challenging his San Diego Superior Court conviction in case number SCD136784 ("Petition"). Petitioner raises the following claims in support of his Petition: (1) violation of his right to confrontation when the prosecutor failed to call the victim as a witness (Claim Three); (2) insufficient evidence to support his convictions in counts 1 through 38 (Claim Four); (3) he was entitled to an acquittal because he was not accused by any person of committing any crime (Claim Five); (4) prosecutorial misconduct in failing to call the victim as a witness (Claim Six); and (5) he was denied due process and a fair trial because the prosecutor introduced perjured testimony and improper evidence (Claim Ten). (Petition at 8-10.)
Although the Petition originally contained ten grounds for relief, United States District Judge Burns subsequently dismissed Claims One, Two, Seven, Eight, and Nine as procedurally defaulted on September 28, 2005. (09/28/05 Order [Doc. No. 23] at 21.) Accordingly, this Court will not consider these dismissed claims, and will limit its discussion to Claims Three, Four, Five, Six, and Ten.
After reviewing the Petition, Respondent's Return and supporting Memorandum of Points and Authorities ("Return"), Petitioner's Traverse ("Traverse"), and all supporting documents submitted by the parties, IT IS RECOMMENDED that the Petition be DENIED for the reasons set forth below.
II. STATE COURT PROCEEDINGS
On August 11, 1999, the San Diego County District Attorney's Office filed a thirty-nine count Amended Information against Petitioner in San Diego County Superior Court. (Lodgment No. 1 at 176-85.) The Amended Information consisted of twenty-eight counts of Aggravated Sexual Assault of a Child (Cal. Penal Code § 269), ten counts of Forcible Lewd Acts Upon a Child (Cal. Penal Code § 288(b)(1)), and one count of Employing a Minor to Perform Prohibited Acts (Cal. Penal Code § 311.4(b)). ( Id.) In a jury-waived bench trial, Judge William H. Kennedy found Petitioner guilty of all counts alleged in the Amended Information. ( Id. at 205-08.) On January 7, 2000, the trial court sentenced Petitioner to 143 years-to-life in state prison. ( Id. at 261, 289-93.)
On January 12, 2000, Petitioner filed a Notice of Appeal ( id. at 265), and on June 22, 2000, filed his Opening Brief in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3.) On May 17, 2001, the state appellate court affirmed all of Petitioner's convictions except his conviction under Penal Code section 311.4(b) (Count 39), which was reversed. (Lodgment No. 4.)
The California Supreme Court granted Respondent's Petition for Review, and on July 11, 2002, reversed the state appellate court's decision as to Count 39. (Lodgment No. 5.) On remand, the appellate court affirmed the trial court's judgment on all counts. (Lodgment No. 6.)
On September 13, 2002, Petitioner filed a Petition for Writ of Habeas Corpus in the San Diego County Superior Court. (Lodgment No. 7.) That court subsequently denied the petition on October 10, 2002. (Lodgment No. 8.)
Petitioner then filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, Fourth Appellate District, Division One on January 14, 2003. (Lodgment No. 9.) The state appellate court denied his petition on March 14, 2003. (Lodgment No. 10.)
On August 7, 2003, Petitioner filed a Petitioner for Writ of Habeas Corpus in the California Supreme Court. (Lodgment No. 11.) The petition was denied without discussion on April 28, 2004. (Lodgment No. 12.)
III. FEDERAL COURT PROCEEDINGS
Petitioner filed the instant Petition in this Court on September 7, 2004. (Doc. No. 1.) On October 21, 2004, Respondent filed a Motion to Dismiss the Petition as a "mixed petition" containing unexhausted and procedurally defaulted claims. (Doc. No. 7.) On July 18, 2005, Magistrate Judge McCurine issued a Report and Recommendation recommending that Respondent's Motion to Dismiss be granted in part, and denied in part. (Doc. No. 19.) On September 29, 2005, District Judge Burns adopted the Report and Recommendation and denied Respondent's Motion to Dismiss as a "mixed petition," but granted Respondent's Motion, in part, by dismissing Claims One, Two, Seven, Eight, and Nine as procedurally defaulted. (Doc. No. 23.)
On November 2, 2005, Petitioner filed a Notice of Appeal challenging the Court's partial dismissal of his Petition. (Doc. No. 27.) However, on January 30, 2006, the Ninth Circuit dismissed Petitioner's appeal for lack of jurisdiction because the order being challenged is not final or appealable. (Doc. No. 38.) Accordingly, this Court will not consider Claims One, Two, Seven, Eight, and Nine of the Petition, which have been dismissed.
Respondent filed its Return on November 9, 2005. (Doc. No. 26.) Petitioner filed a Traverse on January 24, 2006. (Doc. No. 35.)
IV. STATEMENT OF FACTS
Title 28, United States Code, section 2254, subsection (e)(1) provides: "[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc) overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (stating that federal courts are required to "give great deference to the state court's factual findings.") The following facts are taken from the California Court of Appeal's opinion in Petitioner's direct appeal:
The FBI, after receiving information that someone had posted child pornography on an Internet newsgroup, obtained the e-mail address of the individual who posted the pornography and traced the e-mail address to Cochran. A search of Cochran's home was conducted. In the home police found a videotape Cochran had made of his daughter and himself, and from which the photographs on the Internet were taken. The videotape shows Cochran directing his daughter to engage in various sexual acts such as displaying her vaginal area to the camera, digitally penetrating herself, and penetrating herself with a dildo and a vibrator. The videotape also shows Cochran engaging in various sexual acts with his daughter, including penetrating her vagina with his finger, a dildo, a vibrator, his penis, and sodomizing her. This videotape constituted the primary evidence against Cochran.
After he was arrested, Cochran said something to the effect of "when you're caught, you're caught." Cochran admitted posting the photographs, stating he had made the stills in the past two months prior to the search in early February 1998 and had posted the photographs on the Internet one time. He also admitted having had a sexual relationship with his daughter for the past four months.
The daughter testified the sexual relationship with her father began in the summer before the search, when she started the fourth grade. He filmed her with the video camera only one time. She was not afraid of him. Sometimes he would hurt her "[j]ust a little bit, but not that much," and when she told him it hurt, he would stop. Afterwards, Cochran would give her money, things for school or candy. He told her not to tell anybody because he would get into trouble and would go to jail. She was sometimes sad and sometimes mad about the things Cochran was doing to her.
(Lodgment No. 4 at 2-3.)
V. ARGUMENTS
A. Petitioner's Arguments1. Insufficient Evidence to Support Convictions
In Claim Four, Petitioner contends there was insufficient evidence of force or duress to support his convictions in Counts 1 through 38. (Petition at 47; Traverse at 4, 11-12.) Petitioner notes that the prosecutor acknowledged the absence of force in this case (Petition at 47-48; Traverse at 24), and argues that the State's failure to call the victim as a witness foreclosed any possibility of proving duress. (Petition at 49-50 ["[N]o conviction could be had without [the victim's] testimony."]; Traverse at 23-24 ["There can not be any duress implied, without the victim testifying as to that element."]). Petitioner further argues that there was insufficient evidence of duress because the victim affirmatively testified that she was not pressured into committing any of the sexual acts. (Traverse at 18.) He claims that the trial court simply transmogrified coaching and coaxing into duress based on the prosecutor's subjective interpretations. ( Id. at 19.)
Also in Claim Four, Petitioner argues that there was insufficient evidence to convict him because the Amended Information was inadequate. ( See Petition at 46, 50.) Specifically, he claims that: (1) the elements of counts 1, 14-15, 17-25 were not alleged or charged; (2) counts 5-10 did not allege or charge the element of "duress;" (3) counts 26, 27 and 35-36 failed to charge the elements of rape; and (4) a victim was not named or identified in counts 1, 5-10, 14-31, 33 and 35-36. ( Id. at 50.)
2. Violation of Right to Confrontation
Petitioner argues in Claims Three and Five that his Sixth Amendment right to confrontation was violated when the state prosecutor failed to call the victim as a witness at trial. ( Id. at 42, 52.) He claims that he was deprived his fundamental right to confront and cross-examine his accuser. ( Id.) Although the victim ultimately testified at trial, Petitioner maintains that the requirements of the Confrontation Clause were not satisfied because the victim was called as a defense witness, not by the prosecution. (Traverse at 36.) "A witness who gives testimony for the State is not in the same position as a witness who testifies in favor of the accused." ( Id. at 25.)
Furthermore, Petitioner claims that he was convicted on the uncorroborated, hearsay testimony of FBI Agents Loven, Gormley, and Robinson regarding statements they received from the victim. (Petition at 39-40, 51-52.)
3. Prosecutorial Misconduct
Petitioner contends in Claim Six that the prosecutor committed misconduct by offering his personal interpretation of the evidence, by testifying to facts not in evidence, and by refusing to call the victim to testify. (Petition at 57, 62-63; Traverse at 39-42.) He claims that "the prosecutor expressed his unqualified opinion concerning [the victim's] state-of-mind gleaned not from her testimony but rather from his own assessment." (Petition at 59.) Additionally, Petitioner maintains that the prosecutor "embarked into a prosecution vindictively and for personal reasons." ( Id. at 64.)
Additionally, in Claim Ten, Petitioner argues that the prosecutor engaged in misconduct by introducing perjured testimony and improper evidence. ( See id. at 93.) Specifically, Petitioner claims: the videotape was not credible because the trial court never saw the original, only an unprofessionally reproduced copy of it that was never compared to the original ( id. at 95, 101); the transcript of the videotape was inaccurate and was "manufactured" by the prosecutor ( id. at 106); and the prosecutor proffered perjured testimony of FBI Agent Gormley who allegedly mischaracterized a package of naked pictures as child pornography ( id. at 102-06).
B. Respondent's Arguments
1. Sufficient Evidence to Support Finding of "Force" or "Duress"
Respondent argues that Petitioner's conviction should stand because the evidence at trial was sufficient to support a finding of force or duress. (Return at 7.) Respondent contends that a finding of force was warranted because Petitioner physically lifted the victim's buttocks and pulled her closer to the edge of the couch, and because Petitioner twice moved the victim's legs up and open. ( Id. at 11.)
Respondent argues that duress was present as well. Respondent claims that the disparity in age and size between Petitioner and the victim, coupled with the existence of a father-child relationship, support a finding of duress. ( Id. at 11-13.) Moreover, Respondent maintains that the video itself shows the existence of duress; Petitioner gave "certain orders" to his daughter and she reluctantly complied. ( Id. at 12-13.)
2. Petitioner's Right to Confrontation Was Not Violated
Respondent argues that the government has no obligation to produce all available witnesses. ( Id. at 15.) Thus, the prosecutor in this case was not required to call victim to testify, and the fact that he didn't does not warrant habeas relief. ( Id. at 16.) Moreover, Respondent contends that Petitioner is not entitled to habeas relief because he did have an opportunity to confront his accuser when she was called as a witness for the defense. ( Id.)
3. The Prosecutor Did Not Commit Misconduct
Respondent maintains that the prosecutor did not commit misconduct by presenting his personal interpretation of the case, but was merely drawing reasonable inferences from the evidence presented. ( Id. at 17.) Respondent argues that the prosecutor's statements were supported by substantial evidence in the record. ( Id. at 18.) Respondent also notes that Petitioner was tried in a bench trial, and that even if the prosecutor's comments were improper, the court was not likely influenced by them. Accordingly, Respondent claims, "the prosecutor's comments did not infect the trial with unfairness as to make the resulting conviction a denial of due process." ( Id. at 19.)
Next, Respondent construed Petitioner's argument regarding the videotape, the transcript of the videotape, and the still photographs as an argument based on violation of the best evidence rule, not an argument related to prosecutorial misconduct. ( Id. at 20.) Respondent initially argues that habeas corpus relief does not lie for a violation of the best evidence rule. ( Id.) Nonetheless, Respondent points out that Petitioner never contested the accuracy of the videotape, the still photographs, or the transcript of the videotape, and that those items were authenticated by witness testimony. ( Id. at 21.) Since there was nothing to indicate that the items were inaccurate, or that the best evidence rule was violated, Respondent concludes that Petitioner's due process rights were not violated. ( Id. at 21-22.)
Last, Respondent maintains that Agent Gormley did not perjure himself, nor did the prosecutor knowingly proffer perjured testimony. ( Id. at 22.) Respondent urges that Agent Gormley simply described the photographs and books that he saw, and that those items were admitted into evidence so that the court could decide for itself what they contained. ( Id.)
VI. STANDARDS
Title 28, United States Code, § 2254, sets forth the following scope of review for federal habeas corpus claims:The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on 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 laws or treaties of the United States.
[. . .]
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(a), (d)(1)-(2).
When determining what "clearly established federal law" is under section 2254(d)(1), federal courts look to United States Supreme Court holdings at the time of the state court's decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). Ninth Circuit law may also be considered for "its persuasive authority in applying Supreme Court law." Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000), overruled on other grounds, Lockyer, 538 U.S. 63; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), cert. denied, 540 U.S. 968 (2003).
A state court's decision is "contrary to" clearly established United States Supreme Court precedent if (1) the state court applies a rule different from the governing law set forth in Supreme Court cases, or (2) the state court confronts a set of facts that are materially indistinguishable from a Supreme Court case, but still reaches a different result. Williams, 529 U.S. at 405-06, 412; Bell v. Cone, 535 U.S. 685, 694 (2002); Lockyer, 538 U.S. at 73; Clark, 331 F.3d at 1067. A state court decision does not have to cite to or even demonstrate an awareness of clearly established Supreme Court precedent, so long as neither the reasoning nor the result of the state court decision contradicts such precedent. Early v. Packer, 537 U.S. 3, 8 (2002).
A state court decision may involve an "unreasonable application" of Supreme Court precedent, "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407. Alternatively, an unreasonable application may be found, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.; Wiggins v. Smith, 539 U.S. 510, 520 (2003); Clark, 331 F.3d at 1067. An unreasonable application of federal law requires the state court decision to be more than incorrect or erroneous. Lockyer, 538 U.S. at 76. Instead, the state court's application must be "objectively unreasonable." Id.
When there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state-court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). If the dispositive state court order does not "furnish a basis for its reasoning," however, federal habeas courts must conduct an independent review of the record to determine whether the state court unreasonably applied controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
VII. DISCUSSION
A. Sufficiency of the Evidence1. Insufficient evidence to Support Convictions (Claim Four)
Petitioner alleges there was insufficient evidence of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to support his convictions in Counts 1 through 38. (Petition at 45.) Respondent argues that the trial court's decision was not contrary to, nor an unreasonable application of the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). (Return at 10.) In other words, that there was sufficient evidence of both force and duress to support Petitioner's convictions. ( Id. at 11, 13.)
Clearly established federal law provides that the Due Process Clause is violated, and an applicant is entitled to habeas corpus relief, "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt" of every element of the offense. Jackson, 443 U.S. at 324; In re Winship, 397 U.S. 358, 364 (1970) (holding that the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the crime being charged). Federal habeas courts must respect the province of the trier of fact to determine the credibility of witnesses and resolve conflicts in the evidence; the Court assumes all conflicts were resolved in a manner which supports the verdict. Jackson, 443 U.S. at 319. "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
When reviewing a claim of insufficient evidence, federal habeas courts must analyze Jackson claims "with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n. 16 ( emphasis added). The Ninth Circuit has recently stated, "[a]fter AEDPA, we apply the standards of Jackson with an additional layer of deference." Juan H., 408 F.3d at 1274.
Since there is no reasoned decision from the California Supreme Court on this ground, this Court must "look through" to the last reasoned state court opinion as a basis for the analysis. Ylst, 501 U.S. at 806. In the instant case, the California Court of Appeal addressed the sufficiency of the evidence in Petitioner's direct appeal, and found that there was sufficient evidence to support a finding of duress. (Lodgment No. 4 at 3-9, People v. Cochran, 103 Cal.App.4th 8, 12-16 (2002).) This Court must therefore determine whether the state appellate court opinion "reflected an `unreasonable application of' Jackson and Winship to the facts of this case." Allen, 408 F.3d at 1275.
Given its finding of duress, the state appellate court declined to discuss whether the element of "force" was also present. (Lodgment No. 4 at 9, People v. Cochran, 103 Cal.App.4th 8, 16 (2002).)
In California, the offenses of Aggravated Sexual Assault of a Child and Forcible Lewd Acts Upon a Child require proof that the acts were committed by means of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." Cal. Penal Code §§ 269(a)(4); 288(b). "Force," within the meaning of California Penal Code section 288(b), means "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." People v. Cicero, 157 Cal.App.3d 465, 474 (1984); see also People v. Quinones, 202 Cal.App.3d 1154, 1157-58 (1988). "Duress" is defined as "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." People v. Pitmon, 170 Cal.App.3d 38, 50 (1985). "The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress." Id. at 51.
Contrary to Petitioner's assertion, the appellate court found the fact that the victim testified Petitioner did not use force or threats does not necessarily require a finding that duress was absent. (Lodgment No. 4 at 5, People v. Cochran, 103 Cal.App.4th 8, 14 (2002).) Rather, "the victim's testimony must be considered in light of her age and her relationship to the defendant." ( Id.) Upon review of the evidence, the state appellate court concluded that the victim's age and size, her relationship to Petitioner, and the implied threat that her noncompliance would break up the family, all supported a finding of duress. (Lodgment No. 4 at 9, People v. Cochran, 103 Cal.App.4th 8, 16 (2002).) Specifically, the state appellate court noted,
In his Traverse, Petitioner suggests that "[t]here can not be any duress implied, without the victim testifying as to that element." (Traverse at 23-24.)
This record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent.
(Lodgment No. 4 at 8-9, People v. Cochran, 103 Cal.App.4th 8, 15-16 (2002).)
In his Traverse Petitioner cites People v. Hecker, 219 Cal.App.3d 1238 (1990), for the proposition that psychological coercion, without more, does not establish duress. (Traverse at 23.) Thus, he argues, there was insufficient evidence as a matter of law to support his convictions. ( Id.) However, in Petitioner's direct appeal, the court of appeal expressly rejected this language in Hecker as "overly broad." (Lodgment No. 4 at 7, People v. Cochran, 103 Cal.App.4th 8, 15 (2002).) It held that the "very nature of duress is psychological coercion." ( Id.) The Court agrees with the appellate court's reasoning, and Petitioner's present reliance on Hecker is unavailing.
Petitioner has not demonstrated that the state appellate court's decision was an objectively unreasonable application of Jackson. Although he claims there was insufficient evidence of duress, even going as far as to obtain his daughter's declaration that she was a "passive participant" in the molestation, the record suggests otherwise. Petitioner was the victim's father. The victim was only nine years old and 4'3" tall, while Petitioner was 5'10" and about 100 pounds heavier. ( Id.) The victim testified that she was "mad or sad about what [Petitioner] was doing to her, that he gave her money or gifts when they were alone together, and that he told her not to tell anyone because he would get in trouble and could go to jail." (Lodgment No. 4 at 8, People v. Cochran, 103 Cal.App.4th 8, 15 (2002).) Furthermore, the trial court was presented with videotape evidence from which it could sufficiently conclude that Petitioner committed the acts charged in Counts 1 through 38 by means of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person," as required by California Penal Code sections 269 and 288(b).
The state appellate court's determination that there was sufficient evidence to support a finding of duress was not contrary to, nor an unreasonable application of, the standard enunciated in Jackson. The evidence presented at trial could rationally support a finding that Petitioner was guilty, beyond a reasonable doubt, of Aggravated Sexual Assault of a Child and Forcible Lewd Acts Upon a Child. Accordingly, this Court recommends DENYING habeas relief as to Petitioner's claim based on insufficient evidence.
2. Adequacy of the Amended Information (Claim Four)
In addition to an insufficient evidence claim, this Court reads Petitioner's fourth claim as a Sixth Amendment challenge to the sufficiency of the Amended Information. Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir. 1989) ("The Sixth Amendment guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense.").
Neither the California Supreme Court, nor the state appellate court issued a reasoned decision as to this portion of Petitioner's claim. However, the trial court addressed it in the context of Petitioner's claims for lack of adequate notice, charging error, and denial of due process with respect to charging instrument, which were raised in his state habeas petition. ( See Lodgment No. 8 at 2-3, 5-6.) This Court may therefore "look through" to the trial court's decision and determine whether it was contrary to, or an unreasonable application of, clearly established federal law. See Ylst, 501 U.S. at 801-06; see also Delgado, 223 F.3d at 983.
An information is sufficient if it states the elements of the offense being charged with enough detail to allow the accused to prepare his defense. United States v. Johnson, 804 F.2d 1078, 1084 (9th Cir. 1986). The trial court concluded that Petitioner was not entitled to habeas corpus relief because the Amended Information "clearly satisf[ied] this threshold pleading burden." (Lodgment No. 8 at 3.) The court found that the videotape evidence was "expressly referenced in the Information." ( Id.) Moreover, it noted that Petitioner had failed to demonstrate that these objections were raised at trial. ( Id.)
This Court cannot say that the trial court's determination of this claim was objectively unreasonable. The Amended Information at issue here unequivocally informed Petitioner that he was being charged with twenty-eight counts of Aggravated Sexual Assault of a Child (Cal. Penal Code § 269), ten counts of Forcible Lewd Acts Upon a Child (Cal. Penal Code § 288(b)(1)), and one count of Employing a Minor to Perform Prohibited Acts (Cal. Penal Code § 311.4(b)). (Lodgment No. 1 at 176-185.) It sufficiently described the factual basis for each offense, identified the applicable Penal Code sections under which Petitioner was being charged, and even made specific reference to portions of the videotape produced by Petitioner. ( See id.) Moreover, the Amended Information mirrors the statutory language of each charged offense. When read on the whole, it is apparent Petitioner was given adequate notice of the charged offenses, and was able to prepare his defense based on the Amended Information. It is therefore recommended that Petitioner's request for habeas relief on this ground be DENIED. B. Right to Confrontation
1. Right to Confront Accuser (Claims Three and Five)
Petitioner claims that he was not afforded his Sixth Amendment right to confront his accuser because the prosecutor failed to call the victim as a witness at trial. (Petition at 42, 52.) Respondent maintains that the prosecutor was not required to call the victim as a witness and, aside from that, Petitioner had an opportunity to confront his accuser when he called her as a defense witness. (Return at 16.)
Petitioner raised his Confrontation Clause claim for the first time in the habeas petition he submitted to the California Supreme Court. ( See Lodgment No. 11 at 101-24.) The Supreme Court denied his petition without discussion, stating only that, "Petition for writ of habeas corpus DENIED. Werdegar, J., was absent and did not participate." (Lodgment No. 12.) When there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state court decision. Ylst, 501 U.S. at 806. In this case, because the California Supreme Court did not issue a reasoned decision, and because the confrontation issue was not presented to any other state court, this Court must conduct an independent review of the record to determine whether the trial court's decision was objectively unreasonable. Delgado, 223 F.3d at 982; Van Lynn, 347 F.3d at 738.
It has long been established that "[t]he Sixth Amendment's Confrontation Clause . . . applies to both federal and state prosecutions." Crawford v. Washington, 541 U.S. 36, 42 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406 (1965)). The fundamental purpose of the Confrontation Clause is to provide a criminal defendant with the opportunity "to be confronted with the witnesses against him." U.S. CONST. amend. VI. It "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 (1988).
Here, the trial court's determination that Petitioner's right to confrontation was not violated was neither contrary to, nor an unreasonable application of, clearly established federal law. Petitioner's claim that he was not confronted by any accuser is belied by the record; Petitioner's accuser was available and did, in fact, testify at trial. Petitioner was given a full and fair opportunity to examine the witness before the trial judge, and the court was able to assess the witness' demeanor. Petitioner was not, as he claims, tried by ex parte affidavit. The record clearly establishes that Petitioner was confronted by his accuser, and that the fundamental purpose of the Confrontation Clause was served.
Although Petitioner argues that calling the victim/accuser as a friendly witness is not the same as having her called by the prosecution, he fails to elaborate on, or offer any legal support for, this assertion. ( See Traverse at 25.) Indeed, this Court was unable to locate any Supreme Court precedent that expressly requires a state prosecutor to call the victim of a sexual assault as a witness in order to satisfy the accused's right to confrontation. In the absence of controlling Supreme Court authority, this Court cannot say that the trial court's decision was objectively unreasonable. Delgado, 223 F.3d at 982. It is therefore recommended that Petitioner's request for habeas relief on this basis be DENIED.
2. Testimony of FBI Agents (Claims Three and Five)
Petitioner argues that "[t]he prosecutor called the FBI Agents who testified concerning matters that [the victim] did not corroborate or repeat." (Petition at 52.) Specifically, he contends that his Sixth Amendment right to confrontation was violated because he was convicted based on the hearsay testimony of FBI Agents Gormley, Loven, and Robinson. ( Id. at 39-40, 51-52.)
As with Petitioner's other confrontation claim, the California Supreme Court did not discuss the admissibility of the FBI Agents' testimony. This Court must therefore conduct an independent review of the record to determine whether the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court authority. See Delgado, 223 F.3d at 983.
The Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), clarified the Sixth Amendment's confrontation requirement with respect to testimonial hearsay:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does [ Ohio v.] Roberts[, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.Crawford, 541 U.S. at 68. Hearsay is defined as "testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness." BLACK'S LAW DICTIONARY 726 (7th ed. 1999). Testimonial statements include, "`extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'" Crawford, 541 U.S. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)).
The Supreme Court has not yet determined whether Crawford applies retroactively. However, the Ninth Circuit has found that it does. Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005), opinion amended on denial of rehearing, 408 F.3d 1127, pet. for cert. filed 74 U.S.L.W. 3308 (Nov. 7, 2005). This Court is therefore bound by that precedent.
This Court has conducted a thorough review of the trial court transcript [Lodgment No. 2]. Based on that review, it is clear that Agents Gormley and Loven both testified during the prosecution's case-in-chief, and that Agent Gormley was recalled by Petitioner as a surrebuttal witness later in the trial. However, neither Agent Gormley's or Loven's testimony pertained to any "extrajudicial statements" purportedly made to them by the victim; at no point did they testify about the contents of any statement they may have received from the victim. Put simply, their testimony did not consist of "testimonial hearsay" within the context of Crawford. In the absence of testimonial hearsay there is nothing upon which Petitioner could predicate a claim for violation of his right to confrontation. Petitioner's confrontation claim must consequently be DENIED with respect to Agents Gormley and Loven.
In general, Agent Gormley's testimony related to his qualifications, the information that led to obtaining a search warrant for Petitioner's home, the execution of the search warrant on Petitioner's home, and the authentication and description of the items that were seized. ( See generally Lodgment No. 2 at 57-87.) He did not testify as to statements the victim may have made to him, if any.
Agent Loven's testimony consisted primarily of him recounting his interview with Petitioner following Petitioner's arrest. ( See generally Lodgment No. 2 at 88-103.) As with Agent Gormley, Agent Loven did not testify as to any statements he may have received from the victim.
The testimony of FBI Agent Robinson, however, is clearly "testimonial" in nature, and thus Crawford applies. See Crawford, 541 U.S. at 68. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69. When a witness is absent from trial, a showing of unavailability and a prior opportunity for cross-examination must be made in order to satisfy the Sixth Amendment's confrontation guarantee. Id. at 59, 68.
Nearly all of Agent Robinson's trial testimony related to an interview she conducted with the victim on the day the search warrant was served. ( See generally Lodgment No. 2 at 135-142.) There are numerous instances in the transcript where Agent Robinson testified as to extrajudicial statements the victim made to her during that interview. ( Id.)
In this case though, the victim was not absent from trial. The Supreme Court has expressly held that, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. at 59 (internal citations omitted).
In reviewing Agent Robinson's testimony, it appears that it was intended primarily to rebut the victim's own testimony. For instance, the victim testified that Petitioner told her not to tell anyone about their sexual relationship because he would get in trouble (Lodgment No. 2 at 128), whereas Agent Robinson testified that the victim told her that she would get in trouble if she told ( id. at 138). Because the victim was not only present at trial, but had already testified at trial, a showing of unavailability and a prior opportunity for cross-examination was unnecessary. The crux of Petitioner's argument, i.e., that the victim could not corroborate the agent's testimony, is not supported by the record. The victim was clearly available to defend or explain her prior testimonial statements. Had Petitioner felt the need to corroborate or discredit any of Agent Robinson's rebuttal testimony, he could have called the victim back to the stand.
This Court finds the testimony of FBI Agent Robinson was properly admitted, and that Petitioner's right to confrontation was satisfied. After an independent review, and for the reasons set forth above, this Court concludes that the trial court's denial of this claim is neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Petitioner is not entitled to relief on this ground, and it is recommended that his claim be DENIED. C. Prosecutorial Misconduct
It should be noted that Petitioner's counsel never objected to the admission of Agent Robinson's testimony at trial.
1. Alleged Prosecutorial Improprieties (Claim Six)
Petitioner next claims that the prosecutor committed misconduct in violation of his Sixth and Fourteenth Amendment rights. ( See Petition at 55-65.) After reviewing Claim Six of the Petition, this Court was able to parse out a number of grounds upon which Petitioner appears to be relying in support of this claim. According to the Petition, Petitioner finds the following conduct by the prosecutor to be objectionable: (a) offering his "personal" interpretation of the case during closing arguments, and arguing facts that were not in evidence ( id. at 56-57, 60, 63); (b) refusing to call the victim as a witness to substantiate a claim of duress ( id. at 60, 62-63); (c) intimating that he had additional evidence but opting not to present it ( id. at 61); and (d) engaging in vindictive prosecution for "personal reasons" ( id. at 64-65).
A habeas petition will be granted for prosecutorial misconduct only when the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The Court considers first whether the statements were improper and, if so, whether it is more probable than not that the prosecutor's conduct "materially affected the fairness of the trial." United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985). The "touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). The reviewing court must look at the trial as a whole and place the prosecutor's remarks in context. See Greer v. Miller, 483 U.S. 756, 765-66 (1987).
a. Prosecutor's Personal Interpretation of the Case
Petitioner argues that "[t]he prosecutor committed misconduct when he infused the trial with his interpretation of the facts and evidence." (Petition at 60.) Petitioner takes particular exception to several of the prosecutor's comments during closing arguments relating to evidence which, Petitioner contends, was not established by the victim's testimony. These include: the prosecutor's statement that a parent is able to convey a "look" or "glare" in order to assert control over a child ( see id. at 56-57, 59-60); and the prosecutor's inference that the victim may not have told anyone that she was being molested because she did not want to get her father in trouble ( id. at 60). Respondent contends that the prosecutor may argue reasonable inferences from the evidence presented, which is what he did here. (Return at 17.)
Petitioner raised this claim to the California Supreme Court, which denied it without a reasoned decision. (Lodgment No. 12.) Because there is no reasoned state court decision to which this Court can "look," this Court must independently review the record and determine whether the state court's decision was objectively reasonable. Ylst, 501 U.S. at 803; Delgado, 223 F.3d at 981-82.
During closing argument the prosecutor has wide latitude, including the freedom to argue reasonable inferences based on the evidence. Menendez v. Terhune, 422 F.3d 1012, 1037 (9th Cir. 2005); United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991). "Counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993) (internal citations omitted).
In the context of this case, the prosecutor's comments during closing arguments regarding a "look" or "glare" were not improper. As a basis for its ruling, the trial court commented that testimony from Petitioner's wife and brother established that Petitioner was the "home disciplinarian." (Lodgment No. 2 at 191.) That fact, coupled with the fact Petitioner was the victim's father, certainly makes it reasonable to infer that Petitioner could assert control over his daughter by way of nonverbal cues.
Notwithstanding that inference, Petitioner has misinterpreted the thrust of the prosecutor's argument. Petitioner alleges that the prosecutor committed misconduct by suggesting that Petitioner gave the victim a "look" or "glare" when the victim never testified to that. ( See Petition at 59.) However, the prosecutor was not suggesting that Petitioner "looked" or "glared" at the victim — in fact, he states "I don't think the videotape reflects that glare" — but rather was noting that the special nature of the parental relationship necessarily involves a greater degree of control than exists between two strangers. Such an inference is reasonable, and goes to the heart of the prosecution's argument that Petitioner exerted psychological control over his daughter. The prosecutor's comments here did not amount to misconduct.
See Lodgment No. 2 at 157-58. The relevant portion of the prosecutor's closing argument is as follows: "A father and a mother are able to convey a look to a child that is unable to be placed onto the record. You can describe it as a look. You can describe it as a glare. But only a child and a parent know what that glare or that look means. I don't think the videotape reflects that glare, but I think the special relationship between a father and a daughter, or any other parental relationship, embodies in it a stronger control than any person walking down the street to a child." Id.
Petitioner's argument that the prosecutor committed misconduct by assuming the victim's motive for remaining silent about the molestation is similarly unavailing. Petitioner contends the prosecutor's statement that "the reason [the victim] didn't tell was she didn't want to get her father in trouble," was an attempt to impeach the victim's testimony and amounts to misconduct. ( Id. at 60.) However, the victim herself testified that Petitioner told her not to tell anyone "because he might get in trouble," and she explained that she did not tell "because [she] didn't want him to get in trouble." (Lodgment No. 2 at 128-29.) Thus, the prosecutor's statement was not merely a reasonable inference from the evidence presented, but was an almost verbatim recitation of the victim's own testimony. The statement accurately reflects testimonial evidence adduced at trial, and falls squarely within the permissible scope of closing arguments.
In sum, a review of the record shows that the prosecutor's comments here were within the wide latitude generally given to prosecutors' closing arguments. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995); see also Menendez, 422 F.3d at 1037. The comments were supported by the record, and were not improper expressions of the prosecutor's personal theory of the case. Nonetheless, even assuming the prosecutor's actions did amount to misconduct, there is no showing by Petitioner, nor does the record offer any reason to find, that the prosecutor's comments rose to a level that materially affected the fundamental fairness of the trial. This is particularly true considering that Petitioner was tried in a jury-waived bench trial. It is highly unlikely the trial judge would have been inflamed or adversely affected by the prosecutor's statements. Furthermore, any alleged prosecutorial misconduct was harmless in light of the substantial evidence against Petitioner.
Petitioner has failed to demonstrate that the trial court's determination of this claim was contrary to, or an unreasonable application of, clearly established federal law. Accordingly, this Court recommends that Petitioner's claim for relief based on prosecutorial misconduct be DENIED. b. Refusal to Call the Victim as a Witness
Petitioner claims that the prosecutor committed misconduct in that he "refused to call [the victim], to testify to the facts presented." (Petition at 62.) He maintains that "[t]here is no logical explanation [sic] for failing or refusing to call upon the victim to give her side of the story." (Traverse at 42.) Petitioner concludes that, "[t]he state prosecutor could not show the intangible element, i.e., duress without the victim's testimony." ( Id. at 41.)
Because the California Supreme Court did not issue a reasoned decision with respect to this claim, this Court must conduct an independent review of the record to determine whether the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court authority. See Delgado, 223 F.3d at 983.
To the extent that this claim is a challenge to the sufficiency of evidence supporting a finding of duress, it is repetitious and, should be denied for the reasons stated above. ( See supra VII.A.1.) Although this Court has previously addressed the prosecutor's failure to call the victim as a witness in the context of Petitioner's confrontation claim ( see supra Pt. VII.B.1), it will nonetheless review it in the context of this prosecutorial misconduct claim.
Petitioner has failed to show that the trial court's determination of this issue was objectively unreasonable. Lockyer, 538 U.S. at 76. Indeed, Petitioner cites no authority whatsoever to suggest that a prosecutor is required to call the victim as a witness at trial, nor has he presented any authority that indicates a prosecutor's failure to do so amounts to prosecutorial misconduct. Moreover, contrary to Petitioner's assertion, the victim did testify and was able to offer "her side of the story." Even assuming, arguendo, that the prosecutor's failure to call the victim was somehow improper, it did not affect the fundamental fairness of the trial because the underlying facts overwhelmingly support the verdict. See Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999) (citing Darden, 477 U.S. at 182).
Based on this Court's independent review, the trial court's decision as to this claim was not contrary to, or an unreasonable application of, clearly established federal law. It is recommended that habeas relief on this ground be DENIED. c. Failure to Present Additional Evidence
Petitioner next claims that the prosecutor committed misconduct by suggesting that he had other evidence, but chose not to present it. (Petition at 61.) Petitioner takes issue with the following statement by the prosecutor: "The videotape is an excellent start, because if we had just had this little girl testify as she did here — and granted, we would have gone into more details of the sex — it would have been very difficult to show this was a forced sex crime. . . ." ( Id. at 60.) This Court must conduct an independent review of the record to determine whether the state court's decision was objectively reasonable. Delgado, 223 F.3d at 982.
After an independent review of the record, this Court cannot say that the trial court's determination of this issue was objectively unreasonable. Petitioner has failed to present any authority in support of his position, and his vacuous allegation fails to even identify what evidence the prosecution purportedly withheld. Because the evidence introduced at trial amply supports the verdict in this case, the prosecutor's actions — even if inappropriate — did not render Petitioner's trial fundamentally unfair. Accordingly, this Court recommends DENYING habeas relief on this basis. d. Vindictive Prosecution
Included in his claim of prosecutorial misconduct, Petitioner alleges that the prosecutor engaged in vindictive prosecution for "personal reasons" and claims that "[t]he prosecutor was not satisfied that either petitioner and his minor daughter would admit to sexual misconduct," but does not offer any support for this claim. (Petition at 64.) Neither the California Supreme Court nor the California Court of Appeal issued a reasoned decision as to this portion of Petitioner's claim. However, the trial court addressed it in Petitioner's state habeas petition in the context of a discriminatory prosecution claim. ( See Lodgment No. 8 at 4-5.) Thus, this Court must determine whether the trial court's decision was contrary to, or an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13.
In its denial of Petitioner's habeas petition, the superior court found that "there is no basis in law or the record before the court for this argument." (Lodgment No. 8 at 4.) This Court finds that the trial court's denial of this claim is not contrary to, nor an unreasonable application of, clearly established federal law. In his Petition, Petitioner does not specify what conduct he is referring to, nor does he allege how such conduct constitutes prosecutorial misconduct or vindictive prosecution. As such, it is a conclusory allegation that does not warrant habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (holding that "conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). This Court recommends that Petitioner's request for relief on this ground be DENIED.
2. Improper Evidence/Perjured Testimony (Claim Ten)
As a final basis for relief, Petitioner alleges that the introduction of improper evidence and perjured testimony constitutes prosecutorial misconduct in violation of his due process rights. ( See Petition at 93-107.) Petitioner describes several instances of misconduct: (1) the introduction of videotape evidence against him that was not credible because it was unprofessionally reproduced, and there was no guarantee as to its accuracy ( id. at 95-99, 101); (2) the introduction of a transcript of the videotape that was "manufactured" by the prosecutor ( id. at 106); (3) the use of a packet of computer photographs that "do not actually point to [Petitioner]" ( id. at 106); and (4) the prosecutor proffered the perjured testimony of FBI Agent Gormley who allegedly mischaracterized evidence seized at Petitioner's home ( id. at 102-06).
Petitioner raised this claim in his habeas petition to the state supreme court. However, neither that court, nor any state court, issued a reasoned decision. Because there is no reasoned state court decision on this issue to which to accord deference, this Court must conduct an independent review of the record to determine whether the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court authority. See Delgado, 223 F.3d at 983.
a. The Videotape Evidence
Petitioner maintains his conviction was based on videotape evidence that was unprofessionally reproduced by the FBI and the state prosecutor. (Petition at 95.) Petitioner argues that Agent Gormley, who made copies of the original videotape, was not qualified to reproduce such evidence, and asserts that "[t]he days of rogue agents taking off on their own is over." ( Id. at 97.) In doing so, he implicitly suggests that this reproduced copy was insufficient, and that his trial was rendered fundamentally unfair because no trier of fact ever viewed the original videotape. ( See id. at 95, 97-98.)
Respondent addressed Petitioner's claim as though it was based on a violation of the best evidence rule. (Return at 20.) Respondent argues that the best evidence rule was not applicable in this case because there was never an issue about the content or accuracy of the videotape. ( Id. at 21.) Even as a prosecutorial misconduct claim, Respondent asserts that the prosecutor's actions with respect to the videotape did not render Petitioner's trial fundamentally unfair. ( Id. at 22.)
Although raised as a prosecutorial misconduct claim, it is unclear whether Petitioner's claim is based on a purported violation of the best evidence rule. To the extent Petitioner alleges the introduction of the videotape evidence violated state evidentiary rules, this Court finds habeas relief to be inappropriate. "[F]ailure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief." Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). A state court's evidentiary ruling may be addressed in a federal habeas action only if it violated federal law, "either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process." Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)). Petitioner has failed to make any showing that the state trial court infringed on a statutory right, much less that it committed a federal constitutional violation. Consequently, habeas relief on this basis should be DENIED.
Even when independently reviewed in terms of a prosecutorial misconduct claim, Petitioner has failed to show that the introduction of a copy of the videotape "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. At trial, Agent Gormley testified that one of the items seized at Petitioner's home was a small format videotape found in the computer room. (Lodgment No. 2 at 63.) Agent Gormley stated that he "briefly" viewed the small format videotape by playing it in the video camera at the scene, and that it contained images of Petitioner and his daughter of the type that were posted on the Internet. ( Id. at 62-63.) The small format videotape that Agent Gormley seized was introduced into evidence as People's Exhibit 3 without objection from Petitioner's counsel. ( Id. at 63; see also Lodgment No. 1 at 194.)
The prosecutor then showed Agent Gormely what had been previously introduced as People's Exhibit 1, which was described as a "larger format videotape." (Lodgment No. 2 at 63.) Agent Gormely testified that he had viewed the larger format videotape, and that it contained images of Petitioner and his daughter "performing various sex acts." ( Id. at 64.) He further testified that he had made a number of copies of the original videotape (People's Exhibit 3), and that the larger format videotape (People's Exhibit 1) was "an accurate copy of what [was] seized at the house." ( Id.) Agent Gormley reiterated that "[t]here's no difference" between People's Exhibit 1 and People's Exhibit 3. ( Id.)
Petitioner takes issue with the fact that the trial court never saw the original tape, "whether it be at the Preliminary Hearing, 995/1538.5 Hearing, or at Trial." (Petition at 95.) However, the original, small format videotape seized from Petitioner's home was introduced into evidence during Petitioner's trial as People's Exhibit 3. (Lodgment No. 2 at 63.) The trial judge certainly had an opportunity to view the original videotape and, indeed, may have done so in making his ruling. Petitioner's contention that the trial court did not see the original videotape is speculative.
Furthermore, Petitioner fails to cite to any discrepancies between the original videotape (People's Exhibit 3) and the reproduced copy (People's Exhibit 1) that rendered his trial fundamentally unfair. Nor are there any such discrepancies reflected in the record. To the contrary, Agent Gormley testified under oath that there were no differences between People's Exhibits 1 and 3. ( Id. at 64.) Moreover, as stated above, the trial court could have viewed the two tapes itself to determine if any discrepancies existed.
Based on the foregoing, this Court finds that Petitioner has failed to show that the prosecutor's introduction of the videotape evidence constituted misconduct. Because the prosecutor's actions did not materially affect the fairness of Petitioner's trial, it is recommended that habeas relief on this ground be DENIED. b. The Transcript of the Videotape
During Petitioner's trial, the prosecution introduced as People's Exhibit 6 a ten-page transcript of the audio portion of the videotape. (Lodgment No. 2 at 77; Lodgment No. 1 at 195-204.) Petitioner contends that the transcript of the videotape was "manufactured" by the prosecutor, demonstrating that the prosecutor "will go to any means to obtain a conviction." (Petition at 106.) Petitioner argues that the transcript did not include a sworn statement, and that he was not able to obtain an expert to attest to the transcript's accuracy. ( Id.)
Respondent maintains that Petitioner's counsel was given an opportunity to review the transcript for accuracy, yet never objected to its admission. (Return at 21.) Further, Respondent notes that the trial court could have viewed the tape and determined for itself whether the transcript was accurate. ( Id.)
To the extent this claim is a challenge to an evidentiary ruling of the trial court, this Court declines to address it. See Jammal, 926 F.2d at 919. As a prosecutorial misconduct claim, Petitioner has failed to meet his burden of showing that the introduction of the videotape transcript rendered his trial fundamentally unfair. Aside from his conclusory allegations, Petitioner does not identify any specific portion of the transcript that is claimed to be inaccurate, nor how any alleged inaccuracy had a reasonable likelihood of affecting the outcome of the trial.
An independent review of the record amply supports the trial court's decision. Agent Gormely testified under oath that the transcript was an accurate representation of the audio track of People's Exhibit 1 (Lodgment No. 2 at 77) and, after reviewing the transcript, the trial judge did not raise any concerns as to its accuracy ( Id. at 156). Perhaps most telling, Petitioner's own counsel affirmed, "I have reviewed [the transcript] — for accuracy. It appears to be accurate to what the conversation is in People's 1 and 3." ( Id. at 155.)
It should also be noted that Petitioner never objected to the admission of the transcript, or to the prosecutor's conduct in allegedly "manufacturing" it.
There is no indication that, by introducing the transcript, the prosecutor materially affected the outcome of Petitioner's trial in violation of his due process rights. Because the trial court's determination of this issue was not objectively unreasonable, this Court recommends DENYING Petitioner's request for habeas relief.
c. The Packets of Computer Images
Petitioner claims the prosecutor committed misconduct by introducing evidence that "does not actually point to [Petitioner]," and suggests that the evidence "could have been modified, manipulated or manufactured by the FBI agent or one of the Peoples [sic] representatives." (Petition at 106.) Respondent maintains that this evidence was an accurate depiction of what was contained on the Internet. (Return at 21.)
At trial, the prosecution introduced two separate packages of photographs. The package marked as Exhibit 2 contained images that were posted on the Internet depicting Petitioner engaged in sex acts with his daughter. (Lodgment No. 2 at 59-60, 92-94.) The second package, Exhibit 5, was described as "computer photos" of "child pornography," which were apparently copied from Petitioner's computer during the FBI's search of his home. ( Id. at 73-74.) Although unclear, this Court reads Petitioner's prosecutorial misconduct claim as involving both Exhibits 2 and 5, and will address it accordingly. ( See Petition at 106.)
Once again, to the extent that this claim is premised upon a violation of state evidentiary rules, this Court finds it to be an insufficient basis for habeas relief, and declines to address it. See Jammal, 926 F.2d at 919. To the extent that Petitioner states a claim for prosecutorial misconduct, it too must fail because Petitioner has not shown how the introduction of Exhibits 2 and 5 infected his trial with such unfairness so as to deny him due process.
Petitioner's claim that Exhibit 2 does not actually point to him and, therefore, its introduction constitutes prosecutorial misconduct is not supported by the record. FBI Agent Gormley testified at Petitioner's trial that the San Francisco FBI field office had discovered child pornography on the Internet, and had established a link between the pornography and Petitioner's e-mail address. (Lodgment No. 2 at 57-58.) Agent Gormley further testified that the San Francisco field office sent copies of the information contained on the Internet to him. ( Id. at 58.) That packet of information was then compiled by Agent Gormely and distributed to other agents assigned to the case. ( Id. at 59.) The prosecutor introduced this packet of photographs as People's Exhibit 2. ( Id.) Agent Gormley's testimony sufficiently established that the evidence contained Exhibit 2 was attributable to Petitioner.
Furthermore, at trial FBI Agent Loven testified that he interviewed Petitioner on the day of Petitioner's arrest. ( Id. at 89.) After waiving his Miranda rights, Petitioner told Agent Loven that the photographs contained in Exhibit 2 were of him and his daughter engaged in various sex acts, and that he had posted the photographs on the Internet. ( Id. at 92-94.) Petitioner even initialed and dated the photographs at the FBI Agents' request. ( Id. at 94.) Thus, by Petitioner's own admission, the evidence contained in Exhibit 2 points to him.
Turning to Exhibit 5, Petitioner argues that Agent Gormley never testified that these photographs had Petitioner's e-mail address on them. (Petition at 106.) He further contends that Agent Gormely was not qualified to testify about the electronic source of the photographs. ( Id. at 105.) These allegations alone, even if true, do not amount to prosecutorial misconduct because they did not materially affect the fairness of the trial. This is particularly true given the relative insignificant value of Exhibit 5, and the weight of additional evidence against Petitioner. The only tenable basis for a prosecutorial misconduct claim is Petitioner's allegation that the prosecutor "modified, manipulated or manufactured" the evidence contained in Exhibit 5. ( Id. at 106.) However, Petitioner has not identified any evidence whatsoever that would support this belief.
Upon an independent review of the record, this Court finds that the introduction of Exhibits 2 and 5, even if improper, did not render Petitioner's trial fundamentally unfair. Accordingly, the trial court's decision as to this claim was not contrary to, or an unreasonable application of, clearly established federal law. See Delgado, 223 F.3d at 983. Thus, it is recommended that habeas relief be DENIED. d. Perjured Testimony
Petitioner alleges that Agent Gormley perjured himself by mischaracterizing evidence introduced at trial. Further, the prosecutor allegedly committed misconduct by proffering this perjured testimony. ( See Petition at 102-06.) This Court was able to parse out what appear to be two distinct instances where Petitioner claims perjured testimony was used. The first, Petitioner contends, occurred when Agent Gormley misstated the number of photos contained in a packet of still pictures. ( Id. at 102.) The second allegedly occurred when Agent Gormley characterized cutouts of magazine articles and a book as "pornography." ( Id. at 102-04.)
"[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976); see also Donnelly v. DeChristoforo, 416 U.S. 637 (1974); see also Napue v. Illinois, 360 U.S. 264 (1959). The prosecution must have knowingly used the perjured testimony in order to constitute a due process violation. Morales v. Woodford, 336 F.3d 1136, 1152 (9th Cir. 2003) ("The essence of the due process violation is misconduct by the government, not merely perjury by a witness."). "Although the use of perjured testimony to obtain a conviction is improper, the burden on the defendant is heavy to establish that perjured testimony was used." United States v. Henson, 123 F.3d 1226, 1240 (9th Cir. 1997) (internal citation omitted).
Here, Petitioner has failed to meet this heavy burden. This Court fails to see how the number of still photographs contained in the packet — even if misstated — could "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. Accordingly, it is recommended that Petitioner's claim based on the first instance of perjury be DENIED.
Likewise, Petitioner has failed to meet his burden of showing perjured testimony was used when Agent Gormley characterized several evidentiary items as "pornography." Petitioner's perjury allegation rests on the following exchange between the prosecutor and Agent Gormley concerning two bags of evidence seized from Petitioner's home:
Q. Directing your attention to the smaller bag in People's Exhibit 4, if you could describe what just generally it is.
A. Basically, cutouts of magazine articles, and one book of child pornography primarily.
Q. And cutouts include articles or pictures?
A. They seem to be all photos, and there's a book with articles in another language.
Q. And the photographs are generally of what?
A. Of young girls naked.
Q. Now, the larger bag that's in 4, would you tell us what that contains?
A. These are a variety of books that seems to have to do with pornography and family pornography. A lot of the titles have to do with family pornography.
Q. And could you count the number of books for us?
A. Sure. There are 16 books.
Q. Do they all appear about the same sort of format, a small paperback variety?
A. Yes.
Q. Could you give us just those last two titles.
A. "Hot, Wild Daughter." The other title is "The Family Comes On."
Q. And on the covers of those are what?
A. Pictures of naked women.
(Lodgment No. 2 at 72-73.)
Perjury is defined as, "[t]he act or instance of a person's deliberately making material false or misleading statements while under oath." BLACK'S LAW DICTIONARY 1160 (7th ed. 1999) ( emphasis added). This Court's independent review of the record reveals no indication that Agent Gormley's characterization of the evidence was deliberately misleading. Despite his claims, Petitioner has not made any showing that Agent Gormley's statements were false, or that they were intended to "inflame the moral beliefs of the Court." (Petition at 104.) It appears from the record that Agent Gormley was simply describing the items seized, and was not, as Petitioner infers, offering his expert opinion as to the contents of the evidence. Even if the statements did amount to perjury, Petitioner has not made out a claim for violation of due process because he has wholly failed to demonstrate that the prosecutor knowingly used such perjured testimony. See Morales, 336 F.3d at 1152.
Additionally, Petitioner submits no evidence, nor is there any such evidence contained in the record presented to this Court, to suggest that the trial judge's decision was influenced by this testimony. The trial court was certainly aware of the legal distinction between "pornography" and "nude photographs," and was given ample opportunity to view the evidence itself and weigh it accordingly. Thus, there is no reasonable likelihood that Agent Gormley's testimony could have affected the decision in this case, especially considering the substantial other evidence against Petitioner.
This Court finds, therefore, that Petitioner's vague, unsubstantiated statements fail to show that the prosecutor knowingly introduced perjured testimony at Petitioner's trial. Accordingly, this Court recommends that Petitioner's claim for prosecutorial misconduct be DENIED.
VIII. CONCLUSION AND RECOMMENDATION
For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered denying the Petition.IT IS ORDERED that no later than April 19, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than May 10, 2006. The parties are hereby advised that failure to file objections within the specified time period may result in a waiver of those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Ylst, 951 F.2d at 1156.