Opinion
Case No. 2:03-CV-534 DB.
December 16, 2004
ORDER
Petitioner, Anthony Allen Diaz, petitions for habeas corpus relief. See 28 U.S.C.A. § 2254 (West 1994 Supp. 2004). The Court denies him.
BACKGROUND
Petitioner approached the victim, an eight-year-old girl, in front of a Wal-Mart store where she was giving away kittens. Petitioner requested a kitten and, though he had nothing in his hands, asked the victim to carry the kitten to his car. He then led the victim away from the storefront, where her mother had left her, and around the side of the building to the lot where his car was. Seizing the kitten, Petitioner tossed it into his car. He grabbed the victim's arm with enough pressure to bruise it and yanked her toward him. He then pushed down his shorts to expose his genitals and told her to look at them.
The victim cried out, pulled away, and fled back to the front of the store, where her mother found her, quivering and terrified. The victim told her mother what had occurred and described the perpetrator. When a police officer arrived, the victim reported the episode, with a general description of the perpetrator and his car.
Shortly, police identified Petitioner as a suspect. They then produced a photo lineup of eight men, including Petitioner, who were generally similar to the victim's description of her assailant. Before showing the photos to the victim, police asked her if she remembered the episode and her assailant. She said she did. Upon seeing the lineup, she swiftly picked out Petitioner's photo as the only one resembling her assailant.
Investigators then interviewed Petitioner about the episode. Though Petitioner made some mildly incriminating comments, he consistently disclaimed being at Wal-Mart on the day of the crime and committing the crime. Still, Petitioner was arrested and charged with one count of aggravated sexual abuse of a child and one count of aggravated kidnaping, or, alternatively, one count of child kidnaping.
After a jury trial, Petitioner was convicted of all three counts. The jury instructions had not shown the alternative nature of the two kidnaping charges, allowing the jury to entertain both. However, as the trial court considered sentencing, it recognized the kidnaping charges were in the alternative. Applying a merger analysis found in Utah case law,see State v. Finlayson, 956 P.2d 283 (Utah Ct.App. 1998), the court merged Petitioner's aggravated kidnaping conviction into his conviction for aggravated sexual abuse of a child. The court then gave the State the choice between sentencing Petitioner for aggravated sexual abuse of a child or child kidnaping. After the State chose child kidnaping, the court sentenced Petitioner to fifteen years to life.
Petitioner appealed to the Utah Court of Appeals, raising these issues: (1) The trial court should have merged child kidnaping into aggravated sexual abuse of a child. (2) The trial court should not have let the State choose the crime for which Petitioner was sentenced. (3) The trial court should have made statutorily required findings justifying its departure from the middle minimum mandatory sentence under the child kidnaping statute. (4) Insufficient evidence supported Petitioner's conviction for both child kidnaping and aggravated sexual abuse. (5) His trial counsel was ineffective. (6) Even if these separate grounds for error do not warrant reversal on their own, their cumulative effect justifies overturning his conviction and sentencing. The court of appeals upheld Petitioner's conviction. Petitioner then unsuccessfully petitioned the Utah Supreme Court for a writ of certiorari.
Petitioner now requests federal habeas corpus relief, asserting: (1) The trial court should have merged child kidnaping into aggravated sexual abuse of a child. (2) The trial court should not have let the State choose the crime for sentencing because this shift of power from the judiciary to the executive branch violated the separation-of-powers doctrine. (3) The trial court should have made statutorily required findings explaining its departure from the middle minimum mandatory sentence under the child kidnaping statute. (4) Petitioner was denied due process as insufficient evidence supported his conviction for either child kidnaping or aggravated sexual abuse. (5) His trial counsel was ineffective for failing to (a) object to the child kidnaping conviction; (b) object to the upper term sentence; (c) move to suppress the photo lineup; (d) obtain a proper cautionary jury instruction about eyewitness testimony; (e) educate the jury on eyewitness identification reliability factors after the victim's mother pointed at Petitioner and said he did the crime; (f) move for suppression of the police interrogation's contents; and (g) object to the prosecutor's statements in which he lied, appealed to the jury's passions and parental status, and made racially prejudicial remarks. (6) Jury instruction eighteen regarding an element of kidnaping was also given to the jury as lewdness. (7) The trial court read that Petitioner was guilty on all counts but the trial transcript left out kidnaping and lewdness. (8) Petitioner's due process rights were violated when the trial court misconstrued the legal significance of merger, then imposed a clearly excessive sentence on Petitioner for a crime he did not commit as a matter of law. (9) Even if these separate grounds for error do not warrant reversal on their own, their cumulative effect justifies overturning his conviction and sentencing.
ANALYSIS I. Exhaustion and Procedural Default
The Court first analyzes the issues to determine if they are unexhausted or procedurally defaulted. Generally, before Petitioner may seek review of a Utah conviction in federal court, he must exhaust all available remedies in the Utah courts. See 28 U.S.C.A. § 2254(b) (c) (West 1994 Supp. 2004); Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512 (1971); Knapp v. Henderson, No. 97-1188, 1998 U.S. App. LEXIS 28231, at *5 (10th Cir. Nov. 9, 1998) (unpublished); see also Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) ("[F]ederal habeas oversight is not a freewheeling construct. It is dependent, among other things, upon all of the claims asserted in the petition having been exhausted in the state courts."). To exhaust his remedies, Petitioner must "fairly present" to the highest available Utah court his federal constitutional issues. See Picard, 92 S. Ct. at 512-13; Knapp, 1998 U.S. App. LEXIS 28231, at *5-8.
The Court now addresses whether Petitioner's issues were exhausted in state court, starting with whether the trial court violated Utah law by merging child kidnaping with sexual abuse of a child, by allowing the State to choose the sentenced-upon crime, and by failing to enter statutorily required findings before departing upward from the middle minimum mandatory sentence. As to these issues, because Petitioner questions the validity of the state courts' application of Utah statutory and constitutional law, this Court declines to act. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
However, Petitioner also contends the trial court's merger analysis and failure to enter the statutorily required findings violated his due process rights. He further argues that his due process rights were breached by the insufficiency of the evidence and his attorney's failure to move for suppression of the photo lineup and evidence from the police interrogation. He also maintains the separation-of-powers doctrine was contravened when the trial court allowed the State to choose the charge for which Petitioner would be sentenced. These federal constitutional issues are unexhausted.
A thorough review of the state court record shows Petitioner did not at all discuss the Due Process Clause or separation-of-powers doctrine. Perhaps Petitioner may contend that his state appellate arguments implied these grounds. This Court sees no such implication. And, even assuming an implication, "[i]t is not sufficient that all the facts necessary to support a federal claim were before the state court or that a similar state-law claim was made." Knapp, 1998 U.S. App. LEXIS 28231, at *5;see also Picard, 92 S. Ct. at 513 (holding no exhaustion when "all the facts" were presented "[y]et the constitutional claim . . . inherent in those facts was never brought to the attention of the state courts"); Martens, 836 F.2d at 717 ("[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record. . . . Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick."). State courts must be given the chance to cure alleged breaches of federal rights by being "`alerted to the fact that the prisoners are asserting claims under the United States Constitution.'"Knapp, 1998 U.S. App. LEXIS, at *6 (quoting Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 888 (1995) (per curiam)). The critical question "is whether the `substance' of the petitioner's claim has been presented to the state courts in a manner sufficient to put the courts on notice of the federal constitutional claim." See id. (quoting Picard, 92 S. Ct. at 513); see also Martens, 836 F.2d at 717 ("The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined.").
Nothing in Petitioner's state appellate arguments as to these issues even subtly hinted at due process or separation-of-powers underpinnings, let alone explicitly stated federal constitutional claims as required. Though Petitioner retrospectively casts some of his state-law arguments in due process terms, "`errors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.'" Carson v. Director of Iowa Dep't of Corr. Servs., 150 F.3d 973, 975 (8th Cir. 1998) (citation omitted). In this context, the Court cannot say that Petitioner "fairly presented and gave notice of his due process [and separation-of-powers] claim[s]" to the Utah courts. See Knapp, 1998 U.S. App. LEXIS 28232, at *8. Thus, no federal constitutional grounds for relief exist as to the issues of insufficient evidence, the State's choice of the sentencing charge, improper application of state merger analysis, and failure to make written findings regarding sentencing.
This Court's review of state court records shows Petitioner also never argued to the Utah appellate courts that (1) an element of kidnaping was also given to the jury as instruction eighteen about lewdness; (2) the trial court read all counts as guilty but the trial transcript left out kidnaping and lewdness; and (3) he was ineffectively assisted when his attorney (a) gave his photograph to a witness, the police, and the judge concerned but nothing was done, (b) failed to argue that identification testimony resulted from impermissibly suggestive procedures; (c) failed to educate the jury on eyewitness identification reliability factors after the victim's mother pointed at Petitioner and said he did the crime; (d) did not object to the fact that Petitioner never signed a dated, witnessed statement showing his submission to the police interrogation was voluntary; (e) did not object to the prosecutor's alleged racially prejudicial remarks; and (f) failed to demand a live lineup. These claims are therefore also technically unexhausted.
Even so, the United States Supreme Court has declared that when a petitioner has "`failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred' the claims are considered exhausted and procedurally defaulted for purposes of federal habeas relief." Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S. Ct. 2546, 2557 n. 1 (1991)). Utah's Post-Conviction Remedies Act states, "A person is not eligible for relief under this chapter upon any ground that . . . could have been but was not raised at trial or on appeal. . . ." Utah Code Ann. § 78-35a-106(1)(c) (2002); see Myers v. State, 94 P. 3d 211, 214-15 (Utah 2004);Thomas v. State, 63 P.3d 672, 674 (Utah 2002); Lucero v. Kennard, 89 P.3d 175, 178-79 (Utah Ct.App. 2004), cert. granted, 2004 Utah LEXIS 168 (Utah Aug. 23, 2004)); cf. Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000) ("Oklahoma bars collateral review of claims . . . that could have been raised on direct appeal but were not. Accordingly, [petitioner] has defaulted his claim. . . .") (citations omitted). Under Utah law, then, Petitioner may not raise his current arguments — that the trial court violated the Federal Due Process and Separation of Powers Clauses and erred regarding jury instruction eighteen; the trial transcript omission; and that counsel was ineffective in certain ways — in future state habeas petitions, and the state courts would determine them to be procedurally barred.
"This court may not consider issues raised in a habeas petition `that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.'"Thomas, 218 F.3d at 1221 (alteration omitted) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998)). Petitioner has argued neither cause and prejudice nor a fundamental miscarriage of justice to excuse his procedural default. This Court therefore denies federal habeas relief as to Petitioner's claims discussed in this section.
II. Sufficiency of the Evidence and Remaining Ineffective-Assistance-of-Counsel Claims A. Standard of Review
Section 2254, under which this habeas petition was filed, states in pertinent part:
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. 2004).
Under § 2254(d)(1), this Court may grant habeas relief only when the state court has formed "a conclusion opposite to that reached by the Supreme Court on a question of law, decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal principle to the facts of the petitioner's case." Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000)). This deferential standard does not allow a federal habeas court to issue a writ merely because it determines in its own view that the state decision erroneously applied clearly established federal law. See id. "`Rather that application must also be unreasonable.'" Id. (quotingWilliams, 120 S. Ct. at 1522). Moreover, federal courts must presume state court factual findings are correct. Id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004)). Petitioner bears the burden of rebutting that presumption with clear and convincing evidence.See id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004)).
Finally, "[i]t is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas."Williams, 120 S. Ct. at 1503. This Court must "give effect to state convictions to the extent possible under law." Id. at 1509. Still, "errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Id. at 1503.
B. Application of Standard of Review 1. Sufficiency of the Evidence
Petitioner's arguments do not observe the standard of review. He first asserts that his child kidnaping conviction is unsupported by the evidence, specifically because he never meant "to keep or conceal" the victim. He further urges that no sexual touching occurred, that the victim did not notice his lewdness until she was told to look, that the victim never stated she was pulled toward Petitioner's genitals as the prosecutor suggested, and that he had his shorts down only to expose himself but did not do the other things the State indicated.
Section 2254 states that the federal courts will not overturn a state court verdict for insufficient evidence unless the decision "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. 2004). This court must presume the correctness of the jury's factual findings.See Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000) (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004)). And, Petitioner has the duty to rebut that presumption with clear and convincing evidence. See id. (citing 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004)).
Petitioner has not met that burden. He has suggested nothing whatsoever in the evidence to put in question the jury's reasoned consideration of the testimony it heard. He has merely invited this Court to take an impermissible fresh look at the evidence. His first challenge to the sufficiency of the evidence is simply his bald assertion that he never meant "to keep or conceal" the victim. The jury heard circumstantial evidence of Petitioner's intent — i.e., that he lured the victim away from the storefront around the corner to his car. Obviously, the jury inferred from that evidence that Petitioner indeed intended "to keep or conceal" the victim. His second challenge addresses facts about sexual assault, not child kidnaping, the elements of which are not sexually related, and is therefore irrelevant to his conviction. Lacking due regard for the jury's findings, Petitioner has failed to show this Court that the evidence at trial was insufficient to support the verdict.
2. Ineffective Assistance
Petitioner next argues he received constitutionally ineffective assistance of counsel at trial because his counsel failed to (1) object to his child kidnaping conviction; (2) object to the imposition of the upper term sentence without statutorily required findings; (3) move for the photo lineup's suppression; (4) submit an adequate cautionary jury instruction on eyewitness testimony; (5) move to suppress evidence from the police interrogation; and (6) object to the prosecutor's statements in closing arguments in which the prosecutor allegedly lied and appealed to the jury's passions and parental status. This Court again views the state court's decision through the lens of the standard of review set forth above.
Regarding this issue, the Utah Court of Appeals stated:
To show that his trial counsel was ineffective, Diaz must show "`"first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant."'" State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d 546 (quoting Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994) (citation omitted)). Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective. See State v. Price, 909 P.2d 256, 264 (Utah Ct.App. 1995).
In examining trial counsel's performance, "[w]e `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action "might be considered sound trial strategy."'" State v. Mecham, 2000 UT App 247, ¶ 22, 9 P.3d 777 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984) (citation omitted)). "To establish prejudice, defendant must show `"a reasonable probability . . . that except for ineffective counsel, the result would have been different."'" Id. (quoting State v. Verde, 770 P.2d 116, 118 (Utah 1989) (citation omitted)). Finally, we note that trial counsel's "[f]ailure to raise futile objections does not constitute ineffective assistance of counsel." Kelley, 2000 UT 41 at ¶ 26, 1 P.3d 546.State v. Diaz, 55 P.3d 1131, 1141 (Utah Ct.App. 2002).
The court supported its analysis by citing to three of its prior cases, which all use the United States Supreme Court's analysis in Strickland, 466 U.S. at 668. See Mecham, 9 P.3d at 782-83; Kelley, 1 P.3d at 552 ("In considering ineffectiveness claims, we consistently apply the test articulated by the United States Supreme Court inStrickland. . . ."); Price, 909 P.2d at 264 ("The analytical framework for determining whether a defendant was denied the effective assistance of counsel was set forth in the landmark case of Strickland. . . ."). Thus, the state court applied the correct governing Supreme Court precedent. See Johnlouis v. Williams, No. 02-2272, 2003 U.S. App. LEXIS 6902, at *3-4 (10th Cir. Apr. 10, 2003) (unpublished).
Further, Petitioner has neither argued nor shown that the Utah Court of Appeals unreasonably applied Strickland and its progeny and/or made unreasonable factual determinations. And, the court of appeals based its analysis on certain factual determinations, which Petitioner has not contested. With these failures in mind, the Court addresses in turn each of the six allegations of ineffective assistance.
a. Objections to Conviction for Child Kidnaping Upper Term Sentence
Petitioner frames his arguments cursorily: "Diaz was prejudiced by defense counsel by not objection to conviction for child kidnaping, before, during or after trial. Defense counsel never called to the court attention the sentencing of Diaz to the upper term of four minimum mandatory terms for the offense of child kidnaping." [Sic]
Addressing this argument on direct appeal, the Utah Court of Appeals said, "[O]ur conclusion that Diaz was properly convicted for child kidnaping and permissibly sentenced to the maximum possible prison term forecloses Diaz's arguments regarding his trial counsel's performance pertaining to these issues. See [State v. Kelley, 1 P.3d 546, 552 (Utah 2000) (holding "[f]ailure to raise futile objections does not constitute ineffective assistance of counsel")]." State v. Diaz, 55 P.3d 1131, 1141-42 (Utah Ct.App. 2002). The Utah Court of Appeals essentially determined that because Petitioner's conviction for child kidnaping did not violate Utah's merger doctrine and was supported by sufficient evidence and because Petitioner's maximum sentence was sustained by adequate findings, albeit not written, he was not prejudiced by his counsel's failure to raise these issues at trial. In other words, objections to these issues would not have changed the ultimate result.
The court cited to Utah Supreme Court language in Kelley about futile objections as authority for its conclusion. See id. And, Kelley supports that language by citing to a Utah Supreme Court case, Parsons, 871 P.2d at 525, which used as authority a United States Supreme Court case, Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985). Kelley, 1 P.3d at 552;Parsons 871 P.2d at 525. Hill stands for the proposition that a successful ineffective-assistance claim requires that counsel's deficient performance must have "affected the outcome." Id. at 59.
Accordingly, the Utah Court of Appeals' decision was not "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C.A. § 2254(d)(1) (West Supp. 2004). The court of appeals used Supreme Court holdings to frame its analyses. See Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984); Hill, 474 U.S. at 59-60. And, once the court of appeals had settled the issues of state law — no violation of the merger doctrine, no prejudice caused by lack of written findings, and sufficient evidence (this Court affirming the latter above) — it reasonably applied relevant Supreme Court precedent in concluding that Petitioner's right to effective assistance of counsel had not been violated by counsel failing to raise these issues before the trial court. After all, under a reasonable reading of Supreme Court precedent, Petitioner could not have been prejudiced by the failure of his counsel to raise issues that would not have changed his resulting conviction.
b. Suppression of Photo Lineup
Petitioner argues that his counsel was ineffective in failing to seek pretrial suppression of a photo lineup. Petitioner contends the lineup's "composition cut in half the number of men sharing Diaz [sic] physical characteristics" and police "reinforced" the victim's selection of his photograph.
In response to this challenge on direct appeal, the Utah Court of Appeals stated:
So long as the photo array process used by the police does not "`give rise to a very substantial likelihood of irreparable misidentification,'" State v. Lopez, 886 P.2d 1105, 1111 (Utah 1994) (quoting State v. Thamer, 777 P.2d 432, 435 (Utah 1989)), the pretrial photo array is proper. We will conclude that this "`very substantial likelihood,'" exists only if we determine that Diaz's photo was emphasized over the others in the array. Id. We make this determination by looking first at the photo array itself, and then at the actions of the police officers during the presentation of the photo array. See id. at 1111-12.
Here, Diaz's photo was one of eight similar photos included within the array. Like each of the other photos, Diaz's photo was small, black and white, and of low quality. Furthermore, each of the photos depicted either an Hispanic or Native American male with no facial hair, no visible tattoos or jewelry, and similar hair cuts. Finally, Diaz's photo was positioned fifth, placing it in the middle of the array, and on the second row. Nothing in the photo array itself supports Diaz's claims that the array was impermissibly suggestive.
We next examine the record concerning the circumstances surrounding the photo array procedure. First, all of the photos included in the array generally comported with [the victim's] description of her attacker. Second, Diaz's photo was neither the first nor the last photo presented in the array, and was of the same size, quality, and type as each of the other photos. Finally, contrary to Diaz's argument on appeal, the officers conducting the photo array did not suggest that a photo of [the victim's] attacker was in the array. Rather, they told [the victim] that if she should see a photo of her attacker in the array, she should point that photo out to them.
Accordingly, the photo array procedure did not "`give rise to a very substantial likelihood of irreparable misidentification.'" Id. at 1111 (citation omitted). We therefore conclude that any attempt by Diaz's trial counsel to suppress the photo array would not have succeeded. Diaz's argument is thus without merit.State v. Diaz, 55 P.3d 1131, 1142 (Utah Ct.App. 2002).
The court of appeals appears to have identified the proper precedent to apply here. As to the law regarding photo lineup identifications, the language and legal principles the court of appeals attributes to Lopez and Thamer can be traced to
United States Supreme Court cases. See Manson v. Brathwaite, 432 U.S. 98, 106-07, 97 S. Ct. 2243, 2249 (1977) (stating out-of-court identifications are tested using following "totality of the circumstances" inquiry: (1) "whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification," and, if so, (2) "whether, under all the circumstances, that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification");Simmons v. United States, 390 U.S. 377, 383-84, 88 S. Ct. 967 (1968) (stating totality of circumstances to be scrutinized when determining whether "photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification"); Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967) (same). And, as to the law regarding ineffective assistance, the court of appeals relies on the same requirement already discussed in the previous section that an attorney is not ineffective when failing to raise a futile objection.
Having identified the correct federal constitutional precedent, the court of appeals based its analysis on factual determinations about the size, nature, quality, and positioning of the photographs and the physical appearance of each subject shown. It made other factual findings about the police officers' demeanor and conduct during the victim's viewing of the lineup. In his petition, Petitioner merely argues different facts, but provides no support whatsoever for his version.
As noted above, this Court must presume the state court's factual findings are correct. See 28 U.S.C.A. § 2254(e)(1) (West Supp. 2004). Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence."Id. Petitioner has not even tried to meet that burden. He has offered no evidence at all to challenge the state court's deliberative evaluation of the trial court record. Instead, he bids this Court to review the state court record de novo. The standard of review distinctly prevents this Court from doing so.
The Utah Court of Appeals found facts and applied correct Supreme Court precedent in deciding that under the totality of the circumstances this photo lineup was not "impermissibly suggestive." With that in mind, the court concluded Petitioner was not prejudiced by his counsel's failure to object to the photo lineup. Accordingly, there is nothing unreasonable about how the Utah Court of Appeals applied correct United States Supreme Court precedent in analyzing counsel's failure to object to the lineup. This Court therefore denies habeas relief on this issue as well.
c. Jury Instruction about Eyewitness Testimony
Here, Petitioner attacks his counsel's "failure to obtain appropriate cautionary jury instruction" as to eyewitness identifications. Specifically, he asserts "defense counsel did not educate the jury with respects to the reliability factors set forth in Long that affect eyewitness identification." See State v. Long, 721 P.2d 483, 492-94 (Utah 1986).
On direct appeal, the Utah Court of Appeals stated that Utah law generally requires defense counsel to "`request a cautionary eyewitness instruction'" covering certain factors when faced with eyewitness identification of a defendant. State v. Diaz, 55 P.3d 1131, 1142 (Utah Ct.App. 2002) (quoting State v. Maestas, 1999 UT 32, ¶ 28, 984 P.2d 376). The court then discussed the model jury instructions offered, but not absolutely required, byLong. Id. at 1143. The court noted that defense counsel instead proposed, and the trial court presented, a different cautionary eyewitness instruction that was "not a model of clarity," but, when "coupled with trial counsel's consistent effort to challenge [the victim's] identification of Diaz, satisfied "the concerns highlighted by the [Utah] supreme court in Long." Id. The court of appeals therefore concluded that "Diaz was not prejudiced by trial counsel's choice of jury instruction." Id.
This Court may not disturb the state court's analysis of its own constitutional law as to the need for a particular cautionary eyewitness jury instruction. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991). Nor will this Court displace the state court's factual finding that Petitioner's trial counsel consistently attacked the victim's identification of Petitioner. The only question left for this Court then is whether counsel was ineffective in submitting the particular jury instruction she submitted. And, because counsel satisfied the demands of the state constitution while adequately challenging the victim's identification of Petitioner, this Court has no reason to say Petitioner was prejudiced by counsel's actions. Accordingly, this claim of ineffective assistance fails as well.
d. Police Interrogation
Petitioner assails his trial counsel's "failure to seek pretrial suppression of police interrogation." He urges that the coercive "techniques that police used to elicit statements from Diaz violated his [constitutional] rights" to due process and "not to give evidence against himself." He states he was fearful of police and he "never signed voluntary statement." He further complains the statement was "not dated or witnessed by anyone."
The Utah Court of Appeals approached this issue as follows:
Diaz next argues he was prejudiced by trial counsel's failure to attempt to suppress remarks Diaz made during a police interrogation. The thrust of his argument is that any statement he may have made to the police was the product of coercion. We disagree.
First, "we have [long] recognized that there is a strong presumption that counsel acted competently," State v. Snyder, 860 P.2d 351, 359 (Utah Ct.App. 1993), and absent a showing that there was "no conceivable legitimate tactical basis for counsel's" actions, id., we will not find that counsel performed ineffectively. Here, the record shows that trial counsel ably used the content of the interview/interrogation to undermine the State's argument, to impeach the testimony of the investigating officers, and to challenge the prosecutor's arguments made during his opening and closing statements. See, e.g., Mecham, 2000 UT App 247 at ¶ 23, 9 P.3d 777. Counsel's lack of success is insufficient to support Diaz's contention. See State v. Pursifell, 746 P.2d 270, 275 (Utah Ct. App. 1987) (stating "`an unfavorable result does not compel a conclusion of ineffective assistance of counsel'" (citation omitted)).
Second, Diaz alleges that he was misled and tricked into making statements as a result of police misconduct.
[W]e have recognized that "`[a] defendant's will is not overborne simply because he is led to believe that the government's knowledge of his guilt is greater than it actually is.'" State v. Galli, 967 P.2d 930, 936 (Utah 1998) (quoting Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994)). However, in certain cases, police misrepresentations may be sufficiently egregious to overcome a defendant's will so as to render a confession involuntary.
State v. Rettenberger, 1999 UT 80, ¶ 20, 984 P.2d 1009. In the present case, there is no question that during the interview process the police overstated the strength of the evidence against Diaz. However, unlike the defendant in Rettenberger, Diaz was not new to the criminal justice system and Diaz did not confess to a crime. See id. at ¶¶ 2-3. Nor does Diaz suffer from the variety of mental illnesses or the reduced intellectual capacity of the Rettenberger defendant. See id. at ¶¶ 6, 37-39. Moreover, in this case, the misrepresentations made by police officers to Diaz are best described as half-truths, rather than the "complete fabrications" at issue in Rettenberger. Id. at ¶ 21. Diaz has failed to demonstrate that the officer exploited his "disabilities and deficiencies in such a way that his `will was overborne.'" Id. at ¶ 19 (citation omitted). We therefore conclude that Diaz's trial counsel was not required to engage in a futile attempt to suppress his statement.State v. Diaz, 55 P.2d 1131, 1143 (Utah Ct.App. 2002) (alterations emphasis in original).
Petitioner has not protested the court of appeals' factual findings about his trial counsel's "abl[e] use" of the interrogation's content to weaken the State's presentation of its case or challenge police testimony. Nor has Petitioner objected to the court's subsidiary findings in concluding Petitioner's will was not overborne. Thus, again, Petitioner has not shown he was prejudiced by counsel's omission. The result here would have been no different had counsel objected to the admission of the interrogation's substance. This Court is therefore unpersuaded that counsel performed ineffectively in this instance.
e. Prosecutor Statements in Closing Argument
Finally, Petitioner challenges his counsel's failure to "object to prosecutor's statements," when the prosecutor "lied over and over again to the jurors and appealed to jury as parents." Petitioner casts the prosecutor's remarks as a "flagrant appeal to the passions of the jury."
About these arguments, the Utah Court of Appeals declared:
[W]e must determine whether "(1) the argument [or comment was] directed toward matters the jury would not be justified in considering, and (2) . . . the error [was] substantial and prejudicial such that in its absence there is a reasonable likelihood of a more favorable result for the defendant. . . ." State v. Baker, 963 P.2d 801, 804 (Utah Ct.App. 1998). We view the questioned statements in the context of the entire trial. See id. Finally, we note that.
"[i]n summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it. Counsel may appeal to the jury with all the power and persuasiveness his learning, skill and experience enable him to use."
State v. Zamora, 274 Kan. 684, 803 P.2d 568, 571 (1990) (citation omitted).State v. Diaz, 55 P.3d 1131, 1144 (Utah Ct.App. 2002) (alteration in original). This recitation of the law may be traced back to relevant United States Supreme Court precedent.See Rose v. Clark, 478 U.S. 570, 583-84, 106 S. Ct. 3101, 3109 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 1436 (1986); United States v. Hasting, 461 U.S. 499, 510, 103 S. Ct. 1974 (1983) (plurality opinion); Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 827-28 (1967). Thus, even if Petitioner had argued otherwise, the Utah Court of Appeals applied law that was in keeping with "clearly established Federal law, as determined by the Supreme Court of the United States."See 28 U.S.C.A. § 2254 (d) (1) (West Supp. 2004).
After recounting the law, the court of appeals quoted the prosecutor's statements contested by Petitioner. The court then said it had "examined the statements in context and conclude[d] that there is no `reasonable likelihood' that the statements altered the outcome of Diaz's trial." Diaz, 55 P.3d at 1144 (citation omitted). The court went on to say that while parts of the closing argument were possibly "dramatic, we do not agree . . . [they] were a `flagrant appeal to the passions and prejudices of the jury.' Rather, we conclude that the prosecutor was simply using his argument to impress upon the jury the gravity of the circumstances and the importance of their duty." Id.
Reviewing the prosecutor's remarks together with the court of appeals' analysis of those remarks vis-a-vis relevant Supreme Court precedent, this Court cannot say the court of appeals "unreasonabl[y] appli[ed] . . . clearly established Federal law." 28 U.S.C.A. § 2254(d)(1) (West Supp. 2004). Again, because Petitioner undoubtedly would have been convicted even had his counsel objected to the prosecutor's closing argument, Petitioner has failed to show the prejudice required to prevail on his ineffective-assistance-of-counsel claim.