Opinion
CASE NO. 05CV1827 BEN (PCL).
January 27, 2006
REPORT RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge Roger T. Benitez, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
I. FEDERAL PROCEEDINGS
On September 21, 2005, Wendell Davis ("Petitioner"), a state prisoner currently incarcerated at Sierra Conservation Center, proceeding pro se and in forma pauperis ("IFP"), filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1) M.C. Kramer ("Respondent") filed an Answer to the Petition along with a Memorandum of Points and Authorities in support thereof ("Ans. Mem."), and lodged portions of the state court record. (Doc. Nos. 5-7.) Petitioner did not file a traverse.
II. STATE PROCEEDINGS
On May 7, 2003, in the Superior Court of San Diego County, Petitioner was sentenced to a term of 11 years for robbery (Cal. Penal Code § 211), one prior strike conviction (Cal. Penal Code §§ 667(b)-(I); 1170.12(a)-(d), one prior serious felony conviction (Cal. Penal Code §§ 667(a)(a); 1192.7(c)), and one prison term prior conviction (Cal. Penal Code §§ 667.5; 668). (Lodgment No. 3 at 487-489; See also Lodgment No. 1 at 4-6)Petitioner filed a direct appeal of his conviction and sentence with the California Court of Appeal, Fourth Appellate District, Division One, in case number D042297. (Lodgment No. 7) On May 3, 2004, in an unpublished opinion, the Court of Appeal affirmed Petitioner's conviction and sentence. (Id.) Thereafter, Petitioner filed a Petition for Review in the California Supreme Court. The Petition was denied on July 14, 2004. (Lodgment No. 9)
III. UNDERLYING FACTS
The following statement of facts is taken from the state Court of Appeal opinion affirming Petitioner's conviction on direct review. This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004); see alsoSumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to factual findings of both state trial and appellate courts).
A. [Prosecution's] Case
B. [Defense's] Case
On December 5, 2002, a man later identified as appellant entered an arts and crafts store in El Cajon. Kaylena H., a clerk at the store, watched the man. He appeared suspicious and Kaylena was concerned because thefts had occurred at the store in the past. The man was carrying an empty 99 Cent Store bag and was wearing a dark-brown flannel jacket, long, dark-denim jean shorts, dirty tennis or running shoes and had a dark-blue and white bandana wrapped around his head.
Kaylena looked away from the man to clean the cash register. When she looked up, the man was standing in the checkout area. The man told Kaylena he had a gun, displayed what appeared to be a black-barreled revolver and ordered her to open the register and give him the money. When Kaylena explained the register would not open unless an item was passed over the scanner, appellant grabbed a bag of "Wizzers" from a shelf and tossed the package to her. The man told her to hurry up or he would shoot her. Kaylena opened the register. Appellant grabbed the $10 and $20 bills and then asked her to give him the money under the drawer. As Kaylena did so, Sara J., another clerk at the store, walked up to the counter. The man looked at Sara and then walked out the door.
The women called the police. As officer Carl Bloemendaal was taking statements from Sara and Kaylena, another woman told the officer about suspicious activity at a Marshall's department store located several hundred yards from the arts and craft store. Another officer went to Marshall's to investigate. Brian Herd, the security officer at the store, told the officer that within the last half hour he observed two men he suspected of shoplifting. The men where looking at cash registers and had an empty bag. One of the men fit the description given by Kaylena of the man who robbed her. Herd videotaped the men.
Officer Bloemendaal and Kaylena went to Marshall's and viewed the videotape. Within seconds Kaylena identified one of the men on the tape as the man who robbed her.
The police were able to determine the identity of one of the men in the videotape. They contacted him and learned that the man with him in the videotape was the appellant. They determined the appellant lived seven-tenths of a mile from the scene of the robbery. Three days after the robbery, officers executed a search warrant at appellant's home. A search revealed several 99 Cent Store bags and a long sleeve, greenish-brown and black button-down flannel shirt. Also found were a pair of blue denim shorts, a pair of athletic shoes, a black plastic replica revolver with a six-inch barrel and a blue and white bandana.
Six days after the robbery, Kaylena was shown a picture lineup and picked out a photograph of appellant as the man who robbed her. Approximately six weeks after the robbery, Kaylena was present at a live line-up. She picked out appellant and was "pretty confident" he was the man who robbed her. At trial Kaylena identified appellant as the robber.
Appellant's defense was mistaken identification. A police fingerprint examiner determined there were 15 usable prints on the Wizzers package the robber tossed to Kaylena and none of them were the appellant's.
Dr. Thomas MacSpeiden, a psychologist and expert on eyewitness identification, gave extensive testimony concerning the fallibility of the eyewitness identification.
(Lodgment 7 at 2-4) (emphasis added)
IV. PETITIONER'S CLAIMS
Two issues are raised in the current habeas petition:
(1) Whether the "[t]rial court erred in limiting [the Defense's] expert testimony to hypothetical and scholastic studies rather than real situations that were far more relevant to the facts of the instant case." (Pet. at 2)
(2) Whether [Petitioner's] "[d]ue process and statutory rights were violated when the trial court failed to hear petitioner's statement at sentencing." (Id. at 7)
V. DISCUSSION
Respondent contends that Petitioner is not entitled to habeas relief on claim one because the state court acted reasonably in precluding the defense eyewitness expert from testifying about actual instances of mistaken identification in unrelated criminal trials. (Ans. Mem. at i) On claim two, Respondent asserts Petitioner does not merit habeas relief because "the state trial court, having imposed sentence, was not required to immediately consider a written statement prepared by Petitioner on his own behalf." (Id.)A. Standard of Review
Title 28, United States Code, § 2254(a), 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 in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C.A. § 2254(a) (West 1994) (emphasis added).
The present Petition was filed after the President signed into law the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(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.A. § 2254(d) (West Supp. 2002).
A state court's decision may be found to be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or, "if the state court either unreasonably extends a legal principle from our 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. at 407.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Locker v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.
Finally, habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2) (West Supp. 2004). In order to satisfy this provision, Petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claim rests are objectively unreasonable, assuming it rests on a factual determination.Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This Court will presume the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004).
B. Petitioner is Not Entitled to Habeas Relief on the Basis of Claim One
1. Scope of Defense Expert's Eyewitness Testimony
Petitioner asserts in claim one that his Fourteenth Amendment right to due process was violated because his expert's testimony of eyewitness identification was limited to hypothetical and scholastic studies. Specifically, the court ruled:
[The expert] will not be allowed to present any evidence regarding any real life actual trial, in courts of law in which misidentifications may have been made at any time recently or in the court of American history. He will be allowed, of course, to talk about real life classroom trials that he may have participated in or read about but no actual court cases in which there has been a misidentification, even if those are actual court cases or something that may have helped form his opinion in this regard. I don't want the jury held hostage by the fact that other juries may have made mistakes in other cases.
(Lodgment 3 at 16-17)
Petitioner argues the scholastic studies that used students in a controlled environment — the studies the expert was allowed to refer to — were too far removed from the real world circumstances of identifying criminals, and the prosecution argued that point convincingly to the jury. (Lodgment 8 at 8-9) Petitioner continues, the studies that focused on mistakes of identification in actual trials — the studies that were excluded — avoided this problem, and were far better evidence. (Id.) Thus, highly relevant evidence was excluded either for an arbitrary reason or for a weak reason violating Petitioner's right to due process. (See Lodgment 8 at 7) (citing Rock v. Arkansas, 483 U.S. 44, 55-56 (1987))
Respondent counters that Petitioner had no Constitutional right to present testimony from an identification expert. (Ans. Mem. at 7) Moreover, even if Petitioner had that right, he was given a meaningful opportunity to present such evidence: "the jury was fully informed of the nature of eyewitness identification and the factors which might affect the credibility of Kaylena, the eyewitness in this case." (Id. at 8) Further, Respondent argues, "because the excluded [evidence] was cumulative and had marginal, if any relevance, the state trial court's ruling did not have a `substantial and injurious effect or influence in determining the jury's verdict.'" (Id.) (quoting Bretch v. Abrahamson, 507 U.S. 619, 638 (1993))
2. Analysis
The list of rules regarding defendant's Constitutional right to present evidence at trial is fairly standard. Respondent provides a succinct version:
The Sixth and Fourteenth Amendments guarantee a criminal defendant "a meaningful opportunity to present a complete defense(citation)." Crane v. Kentucky, 476 U.S. 683, 690 (1986). However, a defendant's right to present evidence is not absolute. Taylor v. Illinois, 484 U.S. 400, 410-11 (1988). The right is subject to reasonable restrictions "to accommodate other legitimate interests in the criminal trial process." United States v. Scheffer, 523 U.S. 284, 295 (1973). A state trial court's ruling excluding defense evidence does not constitute a constitutional violation unless the ruling is arbitrary or disproportionate. Rock v. Arkansas, 484 U.S. 44, 55 (1987). State trial courts retain "wide discretion to exclude evidence which is repetitive, only marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the issues (citation). Crane v. Kentucky, 476 U.S. at 690-691.
(Ans. Mem. at 8)
In this case, Petitioner was given "a meaningful opportunity to present a complete defense." Crane, 476 U.S. at 690. As the California Court of Appeal highlights:
Dr. MacSpeiden, the defense expert on eyewitness identification, testified at length. He discussed experiments concerning eyewitness identification, including those dealing with the identification of criminals by victims. The expert discussed the nature of memory and the factors that contribute to accurate and inaccurate identifications. The expert discussed the effect on juries of various types of eyewitnesses and their confidence levels. He discussed the danger that jurors have a tendency to abdicate their fact-finding responsibility when witnesses are confident in their identifications. He related studies concerning the effect on accuracy and confidence levels of repeated interviews concerning a witness's identification.
(Lodgment 7 at 5)
Moreover, the trial court's decision to limit the expert's testimony was not arbitrary or disproportionate. Rock, 484 U.S. at 55. Once again, looking to the California Court of Appeal's decision, "the jury did not need to be told by Dr. MacSpeiden that they or other juries are fallible. Nor did they need lessons in the importance of the decisions they were asked to make or the care they should give to that task." (Id. at 6) Finally, the Court notes the similar claims inJordan v. Ducharme, in which the Ninth Circuit Court of Appeals held: "[t]he decision to admit [expert eyewitness testimony] evidence is left to the broad discretion of the trial judge . . . There is no federal authority that such testimony must be allowed." Jordan v. Ducharme, 983 F.2d 933, 938-939 (9th Cir. 2005) (citing United States v. Langford, 802 F.2d 1176, 1179 (9th Cir. 1986), cert. denied, 483 U.S. 1008 (1987)). This Court, too, finds the state trial court's decision to limit the defense expert's testimony was well within its broad authority, and certainly not contrary to clearly established federal law. See 28 U.S.C. § 2254(d). Accordingly, the Court finds that habeas relief is not available with respect to claim one.
C. Petitioner is Not Entitled to Habeas Relief on the Basis of Claim Two
1. Petitioner's Right to Make Statements at Sentencing
Petitioner asserts in claim two that his Fourteenth Amendment right to due process was violated because the state trial court refused to hear a statement from him. The California Court of Appeal describes the relevant events:
Before the sentencing hearing, appellant filed a statement in mitigation and a motion to strike his "strike" prior. A psychological evaluation attached to the motion noted appellant denied he was guilty of the present offense or of any offense for which we was convicted in the past. The evaluation concluded appellant used denial as a defense mechanism but that he was not a violent person and was not a danger to the community. . . .
At the sentencing hearing defense counsel waived formal arraignment for sentencing and stated there was no reason why judgment could not be pronounced.
After hearing argument from counsel, the court reviewed appellant's criminal history and his consistent denial of involvement in his past or present crimes. The court stated it had listened to the evidence and concluded appellant was guilty of the robbery beyond reasonable doubt. The court stated appellant was simply in denial. It concluded that such denial made it likely appellant would reoffend in the future. The court stated the crime was a serious one and it was appropriate to sentence appellant pursuant to the strikes law.
The trial court [imposed an eleven-year term]. . . . The trial court asked appellant if he had any questions. Appellant stated he did not but that he had a statement he wished to read. Appellant stated he was not in denial. He told the court he had a statement he wanted to read but knew it would do no good. Appellant noted he had already been sentenced.
The court stated it was unaware appellant wished to speak, that the sentence had been imposed and that it was unlikely anything appellant had to say would change the sentence imposed. Appellant asked if he could read his statement. The court told him to do so. Appellant stated it appeared the court was angry. Appellant stated he did not agree that the evidence presented at trial proved his guilt. When the court noted the statement appeared to be several pages of single-spaced handwriting, appellant stated that it was and that would be willing to give it to the court. The court stated that if appellant wanted to give the pages to the court it would read them. The court stated if appellant wanted to send it to the court from prison he could do so. The court noted it had 120 days in which it could change appellant's sentence. The court stated if there was anything in the statement that would persuade the court to do so, it would change the sentence. The court stated it did not want to read the statement at that time but would do so in the next three hours. When the court asked if appellant want[sic] to give him the statement, he said he did. . . . .
The trial court wrote on the document that it had reviewed and considered appellant's written statement.
(Lodgment 7 at 5-9)
Petitioner contends, he had "an absolute right to address the court before sentencing, as well as to bring a motion for a new trial if [he] chose to do so." (Pet. at 7) Petitioner notes both the U.S. Supreme Court and Ninth Circuit Court of Appeals have "affirmed the importance of a federal defendant's personal right to speak before sentencing." (Lodgment 8 at 18) (citing Boardman v. Estelle, 957 F.2d 1523 (9th Cir. 1992) (quoting United States v. Behrens, 375 U.S. 162, 165 (1963)) As such, Petitioner was denied due process when he was not allowed to speak. (Lodgment 8 at 20)
Respondent counters that the United States Supreme Court has ruled the failure of the trial court to ask Petitioner if he had anything to say is not an error a writ of habeas corpus should be granted on. Further, that the Ninth Circuit has held in only very specific circumstances — circumstances not found in this case — that "a state trial court's refusal to allow a criminal defendant to speak on his or her behalf at sentencing may constitute a violation of due process." (Ans. Mem. at 11-12) (citingBoardman, 957 F.2d at 1526-30) Finally, Respondent argues Petitioner was allowed to address the court; thus, he was not denied due process. (Ans. Mem. at 12)
2. Analysis
The United States Supreme Court ("Supreme Court") has spoken very highly of the "right of allocution," the criminal defendant's right to address the court at sentencing. As the Supreme Court — with some eloquence of its own — stated, "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green v. United States, 365 U.S. 301, 304 (1961). The Supreme Court has described the right of allocution as "ancient in the law" and of "immemorial origin." United States v. Behrens, 375 U.S. 162, 165 (1963); McGautha v. California, 402 U.S. 183, 217 (1971). In Behrens the Supreme Court "affirmed the importance of a federal defendant's right to speak before sentencing, holding that the district court erred in modifying the defendant's sentence in his absence." Boardman v. Estelle, 957 F.2d 1523, 1527 (9th Cir. 1992) (summarizing the Supreme Court's decision in United States v. Behrens)
Allocution 1. A trial judge's formal address to a convicted defendant, asking him to speak in mitigation of the sentence to be imposed. 2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or to say anything else in an effort to lessen the impending sentence. Black's Law Dictionary 83 (8th ed. 2004).
The origins of the right of allocution were in judicial circumstances substantially different from the modern ones: "When the right of allocution matured under English common law . . . a criminal defendant was not permitted counsel and could not testify on his own behalf." Boardman, 957 F.2d at 1526 (citing State v. Carr, 374 A.2d 1107, 1115 (Conn. 1977). Notwithstanding the subsequent improvements, the Ninth Circuit Court of Appeals insists that no modern legal innovations "lessens the need of the defendant, personally, to have the opportunity to present to the court his plea in mitigation." Id. at 1526.
Nonetheless, the Supreme Court has also held that:
The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a right of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.Hill v. United States, 368 U.S. 424, 428 (1962) (emphasis added). It should be noted, the Supreme Court in Hill did not decide the matter of a defendant affirmatively denied an opportunity to speak. The Supreme Court has also declared: "This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so."McGautha, 402 U.S. at 218 n. 22.
As such, the circuit courts are in disagreement if the "right of allocution" is constitutionally guaranteed. The Ninth Circuit Court of Appeal, for its part, has held in favor of the right:
Recognizing the personal nature of the Sixth Amendment's guarantee of the right to make a defense, the unique ability of a defendant to plead on his own behalf, and the Supreme Court's acknowledgment of the continuing vitality of the practice of permitting a defendant to allocute before sentencing, we hold that allocution is a right guaranteed by the due process clause of the Constitution. Our holding is limited to circumstances in which a defendant . . . makes a request he be permitted to speak to the trial court before sentencing. If the trial court denies that request, the defendant has not received due process.Boardman, 957 F.2d at 1530 (emphasis added).
Here, Petitioner did not seek to address the trial court until after the sentence was imposed. Applying the Supreme Court'sHill, the trial court's failure to ask Petitioner if he had anything to say before sentencing was not a due process violation. Hill, 368 U.S. at 428. Furthermore, a due process violation did not occur by the Ninth Circuit Court of Appeal's Boardman standards either: Boardman, too, focuses on the time before sentencing. Boardman, 957 F.2d at 1530. Once again, Petitioner only asked to speak after the sentence was imposed, the trial court did not affirmatively deny a request that he be allowed to speak "before sentencing." Id.
Although the trial court did not ask Petitioner directly, the Court notes the trial court did ask Petitioner's attorney if the matter was submitted. Petitioner's lawyer's response: simply, yes. (Lodgment 3 at 484)
More importantly, Petitioner was never affirmatively denied; the trial court allowed Petitioner to speak when he spoke up. The Court agrees with the California Court of Appeal:
It was [Petitioner] who suggested he give the written statement to the court for it to read. [Petitioner] did not object when the court stated it would read the document within the next three hours. Since [Petitioner] suggested the court read the statement and did not object when the court stated it would not immediately do so, [Petitioner] cannot now be heard to argue the procedure was inadequate. The trial court heard [Petitioner's] statement at the hearing and then, as it promised, read and considered the submitted document.
(Lodgment 7 at 10) In short, the right of allocution permits the criminal defendant an opportunity to address the court in his own voice, Petitioner had his opportunity.
3. Motion for a New Trial
Finally, Petitioner argues briefly, not only was his speech intended for allocution, but it was also a motion for a new trial. His lawyer suggested as much to the state trial court. (Pet. at 7) Thus, concludes Petitioner, when the state trial court failed to rule on his motion he was denied due process. (Id.)
In court the following exchange took place:
PETITIONER'S ATTORNEY: Judge, I believe in glancing at it, which is the first time I've seen it, it appears to be more in the line of a motion for a new trial based on inadequate evidence.
THE COURT: Okay. May I assume, though, that that motion is not — it hasn't been made, and we've already had sentencing, so there's no — there's no jurisdiction to make it at this point in any event.
PETITIONER'S ATTORNEY: Understood
(Lodgment 3 at 492-493)
Regardless, the Court adopts the California Court of Appeal assessment of Petitioner's statement:
It is difficult to characterize appellant's statement. It appears to have come as a surprise not only to the trial court but to defense counsel as well. When defense counsel looked at the document, he stated it read like a motion for new trial. The motion did speak of legal issues, some of which might have been raised in a motion for new trial. On the other hand, the statement notes appellant's intent to file a notice of appeal. Except insofar as appellant asserts his innocence, the document does not appear as an argument for probation or leniency. Fairly read, the statement is best characterized as appellant disagreeing with his fate and an expression that everyone had treated him unfairly. It does not appear appellant meant to accomplish any particular result with his statement.
(Lodgment 7 at 9-10) Petitioner's statement was not a motion for a new trial it was exactly what he originally asserts it to be: a statement for allocution. As such, Petitioner was not denied due process when the trial court failed to rule on his statement.
Not to go too far astray, it is worth revisiting the basis on which habeas relief is granted — a state court's decision must be found to be `contrary to' clearly established Supreme Court precedent. 28 U.S.C. § 2254(d) (as amended by AEDPA). Petitioner has failed in this endeavor and the Court finds that habeas relief is not available with respect to claim two.
VI. CONCLUSION
For all of 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 Judgement be entered denying the Petition.
IT IS ORDERED that, no later than fourteen (14) days from the date this order is filed, 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." The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).