Opinion
Civil No. 07cv2215 J(POR).
September 24, 2009
Richard Earl George, Imperial, CA, pro se.
U. S. Attorney CV, U. S. Attorneys Office Southern District Of California, San Diego, CA, for Respondent.
Before the Court is Magistrate Judge Louisa S. Porter's Report and Recommendation ("R R") recommending that the Court deny the Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, of Petitioner Richard Earl George. [Doc. No. 15.] This Court has considered the Petition, Respondent's Answer, Petitioner's Traverse, Petitioner's Objections to the R R, and all the supporting documents the parties have submitted. Having considered the documents, this Court ADOPTS the R R, DENIES the Petition, and DENIES Petitioner's request for the appointment of counsel for the reasons stated below.
Factual Background
Because the facts as found by the state appellate court are set out in detail in the R R, the Court will only provide a brief summary here. ( See R R at 1179-83.)
Petitioner was Bertha Ledesma's boyfriend and pimp. Ledesma was afraid of Petitioner, and at one point wrote a letter stating that if she were found dead, to investigate Petitioner because he had tried to kill her by strangulation. Petitioner sold drugs and was also a driver for Amvets in El Cajon. On Saturday night, January 3, 2004, Petitioner drove Ledesma to one of her usual prostitution locations by the Adult Emporium on Main Street in Chula Vista.
At about 2:15 a.m., Petitioner agreed to give Fred Killpack oral sex. While Ledesma and Killpack were parked in his vehicle, Killpack saw Petitioner walking towards his car from the corner. Killpack started the car's engine and Ledesma began punching, scratching, and biting his face. Petitioner told Ledesma to throw the car keys out of the car, which she did. Petitioner reached into the car and choked Killpack into unconsciousness. Petitioner took Killpack's wallet, which Killpack had taken out during the struggle and offered to him. Petitioner and Ledesma left Killpack unconscious in his car.
When Petitioner and Ledesma were arrested on January 14, 2004, Petitioner had receipts in his car for gas station purchases made with Killpack's credit card, one of which was from a gas station near the Amvets where Petitioner worked. Records for the credit card indicated it had been used on the morning of January 4 at a gas station near the motel where Ledesma and Petitioner were staying.
On the same morning of the Killpack incident, Ledesma and Petitioner returned to an area on 32nd Street in San Diego, arriving about 5:00 am. There Ledesma saw Tom Duray. The two drove around the corner and Duray paid her $30. He reclined his seat, and while she was putting a condom on him, she stole his cell phone and put it in her pocket. Shortly after Ledesma began performing oral sex on Duray, Petitioner reached into the car, tried to grab Duray's throat, and told Ledesma to throw the car keys out the window, which she did. At one point, Ledesma heard a female voice coming from Duray's cell phone, yelling for her father and asking what was wrong. Eventually Petitioner got into the back seat of Duray's car and strangled him until he stopped fighting.
Petitioner took Duray's wallet and instructed Ledesma to remove the valuable contents. He asked her about the condition of the wallet, and she told him it looked brand new. Petitioner then transferred the contents of his wallet to Duray's and threw away his old wallet. Duray's son testified that his father had recently purchased a new wallet that looked similar to a wallet recovered from Petitioner during his arrest.
Duray died due to manual strangulation. From Duray's car, police recovered a used condom and collected smudges on the right rear window for DNA analysis. A statistical analysis of the DNA evidence recovered was later presented at trial.
Killpack was initially shown a photo lineup by police, where Ledesma's photograph was not included; Killpack did not identify any of the women in that lineup. Subsequently, Killpack was shown a lineup with Ledesma's photograph, where he identified Ledesma after two or three seconds. In another photo lineup provided by police, Killpack "instantaneously" identified Petitioner as his assailant. He was 100 percent positive in his identification. Killpack also identified Petitioner at trial.
Procedural History
On November 22, 2005, a jury found Petitioner guilty of first degree murder committed during the course of a robbery, two counts of robbery, and one count of assault by means of force likely to produce great bodily injury. On January 4, 2006, the trial court sentenced Petitioner to serve life without parole plus seven years.
Petitioner filed an appeal to the California Court of Appeal, Fourth Appellate District, Division One ("Appeal"), raising claims similar to those in his Petition. (Lodgment No. 8; Petition at 2.) On May 25, 2007, the California Court of Appeal affirmed the judgment. (Appeal at 2, 24.) On July 2, 2007, Petitioner filed a petition for review in the California Supreme Court on same issues raised in his Appeal. (Lodgment No. 9.) The California Supreme Court denied the petition on August 22, 2007. (Lodgment No. 10.)
On November 19, 2007, Petitioner filed a federal petition for writ of habeas corpus. [Doc. No. 1.] On March 26, 2008, Respondent filed an Answer. [Doc. No. 8.] Petitioner filed his Traverse on May 14, 2008. [Doc. No. 14]. On November 7, 2008, Judge Porter issued her R R recommending the Petition be denied. [Doc. No. 15.] Petitioner filed timely Objections to the R R on January 8, 2009. [Doc. No. 21.] Petitioner filed a Motion to Appoint Counsel on February 4, 2009, filed nunc pro tunc to January 30, 2009. [Doc. No. 23.]
Legal Standard
I. State Habeas Prisoner Standard
A federal court must grant habeas relief to a petitioner in state prison if the petitioner is in custody "in violation of the Constitution or other laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court's duty in examining a state prisoner's habeas petition is governed by 28 U.S.C. § 2254 as amended by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to § 2254, a federal court may grant habeas corpus relief from a state-court judgment only if the adjudication was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States," or (2) "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(d).
The phrase "clearly established Federal law, as determined by the Supreme Court of the United States" refers to the holdings, as opposed to dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Holdings by the Courts of Appeals and dicta in Supreme Court opinions are not governing law for purposes of habeas review. See Carey v. Musladin, 549 U.S. 70, 76-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). However, Ninth Circuit case law may be persuasive authority for purposes of determining whether a particular state-court decision is an "unreasonable application" of Supreme Court law. Duhaime v. Ducharme, 200 F.3d 597, 600 (2000). Such precedent may also help determine what law is "clearly established." Id.
A state-court decision is "contrary to clearly established federal law" if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. See Williams, 529 U.S. at 405, 120 S.Ct. 1495. The inquiry into whether a state court's interpretation of federal law is "contrary to" clearly established federal law is itself a question of federal law as to which federal courts owe no deference to the state courts. See Cordova v. Baca, 346 F.3d 924 (9th Cir. 2003). Mixed questions of fact and law are reviewed under the "contrary to" and "unreasonable application" clauses in 28 U.S.C. § 2254(d)(1). Lambert v. Blodgett, 393 F.3d 943, 976 (9th Cir. 2004). A state court's factual findings underlying its conclusions on mixed issues are accorded a presumption of correctness. Id.
A state court decision is an "unreasonable application of Supreme Court precedent if the court correctly identifies the governing legal rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-408, 120 S.Ct. 1495; Luna v. Cambra, 306 F.3d 954, 960 as amended 311 F.3d 928 (9th Cir. 2002). This is a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and "demands that state court decision be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). Under section 2254(d)(1)'s "unreasonable application" clause, a writ of habeas corpus may not issue simply because the reviewing district court concludes in its independent judgment that the relevant state court decision applied clearly established federal law "erroneously" or "incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Rather, that application also must be objectively unreasonable. Id. at 76, 123 S.Ct. 1166. Though this standard is not self-explanatory, it is a higher standard than clear error, the old standard applied by the Ninth Circuit. Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003).
A state court renders a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" if the decision "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) ( overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).
Under section 2254(e)(1), federal courts must "give great deference to the state court's factual findings." Id. at 1499-1500. Petitioner may only rebut the presumption of correctness given to a state court's determination of a factual issue under § 2254(e)(1) by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003). However, "[f]or claims for which no adjudication on the merits in state court was possible . . . AEDPA's standard of review [and deference to factual findings] does not apply." Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002); see Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (holding that 2254(e)(1) only applies to challenges based on "evidence presented for the first time in federal court," whereas 2254(d)(2) applies to "intrinsic review of a state court's findings based entirely on the state record."); see also McKinney v. Rees, 993 F.2d 1378, 1382 n. 4 (9th Cir. 1993) ("[L]egal conclusions regarding the admissibility of evidence . . . are not findings of fact, and are not binding on this court.").
When the highest state court issues a decision in a case but does not articulate the rationale for its determination, such as issuing a silent denial, the silence is deemed to be consent to the lower court's decision, and the reviewing court should "look through" to the "last reasoned opinion" to determine the legal basis for the denial. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).
II. Reviewing Magistrate Judge's R R
The duties of a district court in connection with a magistrate judge's R R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). A district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3) (2007); see also United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ("[I]n providing for a `de novo' determination . . . Congress intended to permit whatever reliance a district judge, in exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.").
III. Pro Se Litigant
A pro se litigant's pleadings should be liberally construed, and the litigant should be given leave to amend with instructions as to curing the deficiency unless the defects cannot be cured by amendment. See McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992).
Petitioner's Objections
Because Petitioner has filed objections to the R R, this Court must conduct a de novo review of the portions of the R R to which objections were made. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3) (2007); see also Raddatz, 447 U.S. at 676, 100 S.Ct. 2406. Petitioner objects to the R R, raising the same general arguments offered in his Petition. (Objections at 6-20.)
Analysis
The Petition raises the following five grounds for relief: (1) the trial court improperly admitted evidence of a prior choking incident; (2) the trial court improperly admitted evidence of an unduly suggestive photo line-up; (3) the trial court improperly admitted unreliable DNA evidence; (4) insufficient evidence corroborated Petitioner's accomplice's testimony; and (5) the cumulative effect of the errors at Petitioner's trial deprived him of due process. (Petition at 6-37.) Petitioner asks that his convictions be reversed. ( Id. at 10, 26.)
I. Ground One — Admission of Evidence of Prior Choking Incident
Petitioner claims that the trial court improperly admitted evidence of a prior choking incident, thereby violating his right to due process. (Petition at 6-7.) The trial court admitted a letter in which Ledesma wrote Petitioner tried killing her in the past by choking her, concluding that the choking evidence was not so prejudicial as to overcome the probative value. (1 Reporter's Transcript at 117.) The court noted inter alia that the choking evidence was "very probative" as to why Ledesma initially lied to the police. Id. Petitioner contends this similar prior act evidence is highly prejudicial, of limited probative value, and was admitted as propensity evidence in violation of California Evidence Code § 352 and § 1101(a). (Objections at 6-9; Petition at 6-7.)
A. Legal Standard and Court of Appeal Decision
Federal Standard. A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief when no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) ("We are not a state supreme court of errors; we do not review questions of state evidence law."). However, a violation of federal due process rights may give rise to a claim for federal habeas corpus relief, notwithstanding that the alleged violation coincides with a determination of state law. See Estelle, 502 U.S. at 67, 112 S.Ct. 475; McKinney v. Rees, 993 F.2d 1378, 1378 (9th Cir. 1993). The issue in such cases is "whether the state proceedings satisfied [federal] due process; the presence or absence of a state law violation is largely beside the point." Jammal, 926 F.2d at 919-20 (citations omitted).
To demonstrate that a state court's admission of evidence violated his federal due process rights, a petitioner must show that the trial court committed an error in admitting the evidence that rendered the trial fundamentally unfair. Estelle, 502 U.S. at 67, 112 S.Ct. 475; see Jammal, 926 F.2d 918 ("[T]he admission of evidence must have so fatally infected the proceedings as to render them fundamentally unfair.").
The Ninth Circuit has held that admission of prior bad acts only violates due process "if there are no permissible inferences the jury may draw from the evidence. . . . Even then, the evidence must be of such quality as necessarily prevents a fair trial." Jammal, 926 F.2d at 920 (emphasis in original) (internal quotations and citations omitted). Further, the Ninth Circuit has stated that propensity evidence "will only sometimes violate the constitutional right to a fair trial, if it is of no relevance, or if its potential for prejudice far outweighs what little relevance it might have." United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001). Additionally, the Ninth Circuit has stated that federal due process violations can arise from arbitrary rulings of state law. See Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993); see also Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (a state court's decision to admit prior acts evidence violates due process when it is "arbitrary or so prejudicial that it rendered the trial fundamentally unfair") (citations omitted).
In all federal habeas proceedings, a state court must apply the "substantial and injurious effect" analysis set forth in Brecht regardless of whether the state appellate court applied the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also McKinney, 993 F.2d at 1385.
California Evidence Code. California Evidence Code § 352 grants courts discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will: (1) necessitate undue consumption of time, or (2) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
California Evidence Code § 1101(a) generally prohibits introducing evidence a defendant committed acts, other than those charged, to prove he or she is a person of bad character or has a criminal disposition. Evidence Code § 1101(b), however, allows introduction of such evidence to prove issues such as identity, intent, motive, and lack of mistake or accident. People v. Kipp, 18 Cal.4th 349, 369, 75 Cal.Rptr.2d 716, 956 P.2d 1169 (1998). Nevertheless, "evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." Id. Also, uncharged misconduct is subject to exclusion if its probative value is substantially outweighed by a danger of undue prejudice, confusion of the issues, or of misleading the jury. Id. at 371, 75 Cal. Rptr.2d 716, 956 P.2d 1169.
California Court of Appeal Decision.
In the last reasoned state court decision, the California Court of Appeal ("CCA") held that the trial court did not abuse its discretion in admitting evidence of a prior choking incident, basing its decision on interpretation of state law. (Lodgment No. 8 at 9-12 (approaching its analysis through the interpretation of CAL. EVID. CODE §§ 352, 1101, and California case law).) Noting that Ledesma's testimony was "sharply disputed" by the defense, the CCA found the choking evidence relevant under CAL. EVID. CODE § 1101 to show Ledesma may have initially lied to the police out of fear of Petitioner. ( Id.)
Further, the court found the choking evidence to be especially probative because Ledesma's letter was written before the crimes occurred and was recovered during a search of her belongings before she was arrested. ( Id. at 11.) The CCA additionally determined the choking evidence was not unduly prejudicial as it would not likely inflame the jury against Petitioner in light of the violent nature of the facts relating to the crimes charged. ( Id. at 11-12 (noting Killpack testified that he had internal bleeding, difficulty breathing, pain when he talked, and his injuries took four to six weeks to heal completely).
B. Legal Analysis
Erroneous Interpretation of State Law. Petitioner points specifically to the state courts' alleged erroneous application of CAL. EVID. CODE §§ 352 and 1101 as grounds for federal habeas relief. (Petition at 6.) Because the Supreme Court has held that an erroneous interpretation of state law provides no basis for federal habeas relief, this Court is barred from granting federal habeas corpus relief on such grounds. Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; see also Jammal, 926 F.2d at 919. However, Petitioner also argues the admission of this "irrelevant `other acts' evidence" violated his due process rights to a fair trial, and thereafter cites inter alia McKinney, 993 F.2d at 1378 (holding that the state's admission of prior acts evidence violated the petitioner's federal constitutional rights). (Objections at 7; Traverse at 10; Petition at 7.) Therefore, this Court must look to whether the admission of the choking evidence and the CCA's decision satisfied Petitioner's federal due process rights. Jammal, 926 F.2d at 919-20.
Relevance and Permissible Inference.
Petitioner fails to show the choking evidence was irrelevant, i.e. that no permissible inferences could be drawn from it. See Estelle, 502 U.S. at 68-69, 112 S.Ct. 475; McKinney, 993 F.2d at 1381; Jammal, 926 F.2d at 920.
Petitioner argues that, under McKinney, the choking evidence was irrelevant because the prosecution did not offer it to prove "some material element of the charged crimes." (Objections at 9.) As reasoned below, the choking evidence supported the credibility of Ledesma's eyewitness testimony, which was itself direct evidence of Petitioner's identity in the crimes charged. See McKinney, 993 F.2d at 1384 ("Because the evidence . . . makes a fact of consequence, his identity as the murderer, more probable, its admission was not in violation of the historically grounded rule against the use of `other acts' evidence to prove character.") While it is recognized that the choking evidence was offered as credibility evidence and thus not "direct" evidence of an element of the crime, Petitioner cites no authority to show that such evidence is per se irrelevant, and McKinney certainly offers no such proposition. See generally, McKinney, 993 F.2d at 1383 (finding that it was the absence of any logical inference unrelated to the defendant's character that made the credibility evidence irrelevant, not the sole fact that said evidence was offered solely to support the witness's credibility).
As the CCA correctly noted, Ledesma's credibility was at issue, and the inconsistencies in her statements to police raised doubt about the credibility of her testimony. ( See, e.g., 1 RT 113 (prior to Ledesma taking the stand and the admission of the choking evidence, defense counsel informed the court that she intended to impeach Ledesma based on her initial statements to the police); see also 5 RT 760-98 (during cross-examination, defense counsel repeatedly questioned Ledesma about the inconsistencies between her original statements to the police and her in-court testimony).) Ledesma testified she was scared of what Petitioner might do to her if she told police the truth about his involvement in the crimes. (4 RT 748.) Her letter corroborated this testimony. ( See id. at 747) This evidence could reasonably have the purpose and effect of bolstering the credibility of Ledesma's in-court testimony, as jurors could infer from the evidence that Ledesma initially lied to the police because she was afraid of Petitioner; moreover, jurors could reasonably infer that, because Petitioner was no longer a threat to her, Ledesma would be more inclined to tell the truth in court. ( See 4 RT 753.) Thus, the record supports the CCA's conclusion that the choking evidence was relevant to show Ledesma's motive to initially lie to the police. LeMay, 260 F.3d at 1029. As noted by the CCA, this was a purpose distinct from showing Petitioner had a propensity to choke people or commit the charged crimes. (Lodgment No. 8 at 11.) Thus, the choking evidence supported at least one permissible inference unrelated to Petitioner's bad character or propensity to commit the charged crimes. Jammal, 926 F.2d at 920. Petitioner offers no authority supporting the proposition that, in order to be relevant, evidence offered to prove a material element of the crime must be direct evidence. Prejudice and Probative Value. Petitioner fails to show that potential prejudice from the choking evidence so outweighed its probative value as to constitute a violation of his federal due process rights. LeMay, 260 F.3d at 1027; see also McKinney, 993 F.2d at 1385. As the CCA correctly noted, the choking evidence was probative of Ledesma's motive to lie. Further, it was reasonable to conclude the choking evidence would not have a highly inflammatory effect in light of the violent nature of the charged crimes. ( See, e.g., 3 RT 437 (Killpack testified that, following the incident, every time he coughed he would spit up blood).) Thus Petitioner fails to show that his federal due process rights were violated by the admission of evidence with an overly prejudicial effect. LeMay, 260 F.3d at 1027.
Additionally, during pretrial proceedings, the trial court afforded defense counsel the opportunity to reduce any danger of undue prejudice by offering to give a limiting instruction to the jury as to how the choking evidence could be used. (1 RT 117-18.) Petitioner does not show such an instruction would have been insufficient to limit the danger of undue prejudice. See Maass, 45 F.3d at 1357-58.
Arbitrary Determination. Both the trial court and the CCA found that the choking evidence did not violate CAL. EVID. CODE § 352 as being overly prejudicial. As noted by the Magistrate Judge, this conclusion is supported by the record. ( See R R at 1186-87; Lodgment No. 8 at 9-12.) Thus, neither the trial court nor the CCA's decision can be considered so arbitrary as to have violated Petitioner's right to due process. Walters, 45 F.3d at 1357.
Harmless Error. Even if the choking evidence had some unduly prejudicial effect, "[t]he admission of even highly prejudicial evidence" does not "necessarily trespass on a defendant's constitutional rights." LeMay, 260 F.3d at 1027. Assuming arguendo the choking evidence was admitted erroneously, Petitioner fails to show that said evidence had or reasonably may be taken to have had a substantial and injurious effect on the jury's verdict. McKinney, 993 F.2d at 1386. The record reflects that Petitioner's choking of Ledesma was mentioned relatively briefly during the prosecution's direct examination of said witness; the relevant dialogue spanned approximately one-half a transcript page. ( See 4 RT 746; see also Brecht, 507 U.S. at 639, 113 S.Ct. 1710; Correll v. Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998) (distinguishing that case from McKinney, where the prosecution engaged in extensive questioning, occupying over sixty transcript pages, regarding the defendant's uncharged prior acts).) Later, during cross-examination, defense counsel asked whether Petitioner had choked her, to which the witness replied "yes." (Lodgment No. 2, Vol. 5 at 797.) The prosecutor once more briefly brought up the prior choking incident on redirect. (5 RT 805.)
Petitioner does not cite to anywhere in the record where the choking evidence was used in such a way where it reasonably may be taken to have had a substantial and injurious effect on the jury's verdict. McKinney, 993 F.2d at 1386. Here, like in Brecht and Correll, the prosecutor's references to the alleged improper evidence were relatively infrequent. See Brecht, 507 U.S. at 639, 113 S.Ct. 1710; Correll, 137 F.3d at 1417. Moreover, the testimony elicited was relatively "sterile." See Correll, 137 F.3d at 1417. Furthermore, the evidence unrelated to Ledesma's choking incident was substantial. Thus, it is "highly improbable that the error, if any, had a substantial and injurious effect or influence in determining the jury's verdict." Id. (internal citations and quotations omitted).
See, e.g., discussion of Ground Four infra.
Petitioner fails to show that the CCA's decision that the trial court did not abuse its discretion in admitting evidence of a prior choking incident was contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Additionally, Petitioner has not established that his trial was rendered fundamentally unfair. See Estelle, 502 U.S. at 67, 112 S.Ct. 475; McKinney, 993 F.2d at 1378. Based on the record and for the reasons discussed above, this Court ADOPTS the R R and DENIES the Petition with respect to this claim.
II. Ground Two-Photo Lineup
Petitioner claims that the trial court improperly admitted evidence of an unduly suggestive photo lineup, thereby violating his right to due process. (Petition at 11-17.) Petitioner argues his photograph had a green background while the other photographs had a blue background, and therefore the photo line-up was unduly suggestive. ( Id. at 11.) Respondent argues the photo line-up was not unduly suggestive and the CCA's rejection of this claim was neither an unreasonable application of United States Supreme Court precedent nor an unreasonable determination of the facts. (Answer at 23.)
A. Legal Standard and Court of Appeal Decision
Eyewitness Identification. "[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384, 88 S.Ct. 967. The likelihood of misidentification implicates a defendant's due process rights. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). An identification procedure is suggestive when it "emphasize[s] the focus upon a single individual" thereby increasing the likelihood of misidentification. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985).
Even when a pretrial identification procedure is found to be unduly suggestive, an in-court identification is not automatically excluded. Manson v. Brathwaite, 432 U.S. 98, 113-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). An in-court identification after an unduly suggestive pretrial identification is proper where it is reliable under the totality of the circumstances. Id. at 113, 97 S.Ct. 2243. To determine reliability, a court considers: (1) the witness's opportunity to view the perpetrator at the scene; (2) the witness's degree of attention; (3) the witness's certainty at the time of pretrial identification; (4) the accuracy of the witness's prior description of the perpetrator; and (5) the amount of time between the crime and the pretrial identification. Id. at 114, 97 S.Ct. 2243; Bagley, 772 F.2d at 492. A witness's identification is sufficiently reliable when there is no "substantial likelihood of misidentification." Neil, 409 U.S. at 201, 93 S.Ct. 375.
The CCA found that the trial court did not err by admitting an eyewitness identification that was tainted by an unduly suggestive photo lineup. (Lodgment No. 8 at 12 (citing People v. Johnson, 3 Cal.4th 1183, 1217, 14 Cal.Rptr.2d 702, 842 P.2d 1 (1992); People v. Holt, 28 Cal.App.3d 343, 349-350, 104 Cal.Rptr. 572 (1972).) California Court of Appeal Decision. In finding that the photographic line-up was not unduly suggestive, the appellate court noted the following: (1) Killpack's identification of Petitioner in the photo lineup was instantaneous; (2) Petitioner's eyewitness expert testified identifications with extremely short scan durations, like that of Killpack's, tend to be the most accurate identification; (3) the expert testified that identifications tend to be more reliable when the witness has been earlier shown a photo array not containing the defendant and had selected no one as the suspect; and (4) Killpack had been shown a photographic array containing a prostitute who the police suspected might have been involved in the robbery, and he did not identify any of the photographs as showing a person involved in the offense. (Lodgment No. 8 at 12-13.)
Johnson cites Brathwaite, 432 U.S. at 104-07, 97 S.Ct. 2243, for the proposition that constitutional reliability depends on whether the identification procedure is unduly suggestive and unnecessary. Johnson, 3 Cal.4th 1183 at 1216, 14 Cal.Rptr.2d 702, 842 P.2d 1. Holt applies the standard announced in Simmons, 390 U.S. at 384, 88 S.Ct. 967, that a line-up will only be unduly suggestive where it gives rise to a substantial likelihood of misidentification. Holt, 28 Cal.App.3d at 349, 104 Cal.Rptr. 572.
B. Legal Analysis
Suggestive Effect. Petitioner fails to show that the CCA's decision that the photograph photographic lineup was not unduly suggestive was contrary to, or an unreasonable application of, clearly established federal law. First, Petitioner does not show that the hue differences in the photo lineup had any undue or substantial suggestive effect. See United States v. Burdeau, 168 F.3d 352, 357 (9th Cir. 1999) ("We do not agree that the dark hue, facial expression, or placement of the photograph suggested that the witnesses should choose Burdeau's photograph."). While the variant background hues arguably amount to an identifiable difference in appearance, these "[i]nsubstantial differences . . . do not in themselves create an impermissible suggestion that the defendant is the offender." Burdeau, 168 F.3d at 357. Furthermore, on direct examination, defense expert Dr. Scott Fraser was asked whether differences in background color in a photo lineup, similar to those present here, would create a "suggestive" line-up. (Lodgment No. 2, Vol. 6 at 1125.) Fraser declined to state that such conditions amounted to a "suggestive" photo lineup and only testified that such conditions "could influence the person looking at them." ( Id. (emphasis added).) Here, Petitioner fails to show that the differences between Petitioner's photograph and the other five in the array implied that the witness should identify him as the perpetrator. Burdeau, 168 F.3d at 357.
Fraser testified, "I don't know about the word `suggestive.' The research shows that it could influence the person looking at them to make a choice, to focus on it initially, and focus on it more."
Likelihood of Misidentification. Additionally, assuming arguendo the photo lineup was suggestive, Petitioner fails to show that the there was a substantial likelihood of misidentification. Neil, 409 U.S. at 201, 93 S.Ct. 375; Bagley, 772 F.2d at 492. Killpack witnessed Petitioner walk through an area well-lit by overhead lighting on the street corner and security lighting from the building across the street. (5 RT 429.) Further, Killpack testified that, while Petitioner strangled him, he saw Petitioner at arms length, placed himself in the mindset to remember Petitioner's face, and would "remember it forever." (5 RT 439.)
Conclusion. Thus, the CCA's decision that the photographic lineup was not unduly suggestive was not contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Accordingly, the Court ADOPTS the R R and DENIES the Petition as to this ground for relief.
III. Ground Three — Unreliable DNA Evidence
Petitioner contends the trial court erred in admitting unreliable DNA evidence because the statistical calculations used by the criminalist did not take into account a genetic combination excluding him. (Petition at 18-26.)
A. Legal Standard
A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief when no federal constitutional question arises. Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; see Jammal, 926 F.2d at 919. However, a violation of federal due process rights may give rise to claim for federal habeas corpus relief, notwithstanding that the alleged violation coincides with a determination of state law. See Estelle, 502 U.S. at 67, 112 S.Ct. 475; McKinney v. Rees, 993 F.2d 1378, 1378 (9th Cir. 1993). The issue in such cases is "whether the state proceedings satisfied [federal] due process; the presence or absence of a state law violation is largely beside the point." Jammal, 926 F.2d at 919-20 (citations omitted).
To demonstrate that a state court's admission of evidence violated his federal due process rights, a petitioner must show that the trial court committed an error in admitting the evidence that rendered the trial fundamentally unfair. Estelle, 502 U.S. at 67, 112 S.Ct. 475; see Maass, 45 F.3d at 1357 ("A state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates 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."); Jammal, 926 F.2d 918. The Ninth Circuit has stated that federal due process violations can arise from arbitrary rulings of state law. See Fetterly, 997 F.2d at 1300 ("[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state, [and] Ninth Circuit precedent generally supports this proposition.") (citing Ballard v. Estelle, 937 F.2d 453 (9th Cir. 1991)).
In all federal habeas proceedings, a state court must apply the "substantial and injurious effect" analysis set forth in Brecht regardless of whether the state appellate court applied the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Pliler, 127 S.Ct. at 2328 ("We hold that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set for in Brecht. . . .") (citing Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also McKinney, 993 F.2d at 1385.
B. Legal Analysis
Erroneous Interpretation of State Law. Petitioner fails to state a claim for federal habeas corpus relief. First, Petitioner contends that he is entitled to federal habeas relief on the grounds that the trial court admitted a statistical probability portion of the DNA evidence that did not meet the requirements of People v. Kelly, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976). As the trial court and CCA's interpretation of its evidence laws provides no basis for federal habeas corpus relief, Estelle, 502 U.S. at 67-68, 112 S.Ct. 475; see Jammal, 926 F.2d at 919, the Court is barred from granting federal habeas corpus relief on such grounds.
Within his discussion of the state's alleged failure to properly apply state evidentiary laws with regard to the probability portion of the DNA evidence, Petitioner alleges his conviction was obtained as the result of evidence that is insufficient to persuade a properly instructed, reasonable jury of his guilt. (Petition at 19 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560).) For the purpose of discussion herein, this allegation is considered part of Petitioner's Fourth ground for relief and is therefore addressed in Ground Four discussion infra.
Prejudicial Effect. Petitioner fails to show that the admission of the statistical DNA evidence was "so prejudicial that it rendered the trial fundamentally unfair." Maass, 45 F.3d at 1357. In holding the trial court did not err when ruling the jury could hear the DNA evidence, the CCA correctly noted inter alia the following: (1) the police department used a conservative approach and sets a higher threshold than some other laboratories (lodgment no. 8 at 14); (2) had the police used a lower threshold, it might have been more damaging to the defense than the expert opinion offered ( Id. at 20); (3) the statistical analysis was relevant to show the percentage of the population that could be excluded for not possessing a 14 allele ( id. at 18-19); and (4) the prejudicial effect was minimized because (a) "it was clearly presented to the jury that this was a limited DNA analysis, complicated by the low levels of DNA and the multiple contributors;" and (b) "the jury was fully apprised that it was not possible to determine whether the 14 allele had been contributed by a homozygote and that it was possible the DNA had been contributed by heterozygotes with 13, 14 and 14, 15 alleles, a situation that would exclude George as a donor ( id. at 19)." Based thereon, and absent Petitioner offering any additional support establishing otherwise, Petitioner fails to show that the admission of the DNA statistical evidence was "so prejudicial that it rendered the trial fundamentally unfair." Maass, 45 F.3d at 1357.
Arbitrary Application of State Law. Petitioner also fails to show that either the trial court's decision to admit the statistical evidence or the CCA's decision finding no abuse of discretion was an arbitrary application of state law. (Lodgment No. 8 at 20.) As noted by the Magistrate Judge, the record shows that the Court of Appeal applied state law carefully and thoroughly when finding no abuse of discretion in the trial court's determination that the jury could hear the DNA evidence and determine what weight to give it. (R R at 1190-91.) Relying inter alia on People v. Kelly, 17 Cal.3d 24, 30, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976), the CCA noted the DNA and statistical analysis in question was generally accepted in the scientific community. (Lodgment No. 8 at 17-18.) Further, the CCA noted that Petitioner's argument, that under a given scenario he could have been excluded as a contributor, went to the weight of the evidence, not its admissibility. (Lodgment No. 8 at 19.) Additionally, the CCA found no abuse of discretion by the trial court under a Cal. Evid. Code § 352 analysis. (Lodgment No. 8 at 17-20.) This conclusion was supported by the record. Thus, neither the trial court's decision to admit the statistical evidence nor the CCA's decision thereon could be considered arbitrary.
A more complete recitation of the CCA's analysis and application of state law is set out in the R R. (R R at 1189-90.)
Conclusion. Petitioner fails to show that the CCA's decision that the trial court did not abuse its discretion in admitting the statistical DNA evidence was contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts. 28 U.S.C. 2254(d). Further, Petitioner does not show either that the admission of the statistical DNA evidence rendered his trial fundamentally unfair or that the state-court decisions on the admissibility of said evidence was arbitrary. Maass, 45 F.3d at 1357; Fetterly, 997 F.2d at 1300.
Accordingly, for the reasons stated above, the Court ADOPTS the R R and DENIES the Petition as to this ground for relief.
IV. Ground Four — Insufficient Evidence Corroborated Accomplice's Testimony
Petitioner claims that the testimony of his accomplice, Ledesma, was insufficiently corroborated and therefore could not be used to support the verdicts. (Petition at 27-37.) He further contends that Ledesma's testimony was unreliable. (Objections at 14.) Additionally, Petitioner argues that without Ledesma's testimony, there was insufficient evidence to support a guilty verdict beyond a reasonable doubt. (Petition at 27-37.) Respondent argues that Petitioner fails to state a federal question and moreover that, even assuming error, Petitioner has not demonstrated the testimony had a substantial and injurious effect on the jury's verdict. (Answer at 20.)
A. Legal Standard and Court of Appeal Decision
Proof Beyond Reasonable Doubt. The federal constitutional right to due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). When a habeas petitioner claims there was insufficient evidence produced at trial to support a conviction, a federal court determines whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Deference is provided to the trier of facts' weighing of the evidence by reviewing "all of the evidence . . . in the light most favorable to the prosecution." Id. (emphasis in the original). With the additional layer of deference established by the AEDPA, Petitioner must demonstrate the California Court of Appeal contradicted clearly established Supreme Court precedent by rejecting Petitioner's claim because no rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. Cf. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005).
Accomplice Testimony. In considering the requirements of procedural due process, use of accomplice testimony is not catalogued with constitutional restrictions. United States v. Augenblick, 393 U.S. 348, 352, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). Accordingly, any failure to satisfy California's requirement of corroboration for accomplice testimony does not present a federal question unless the accomplice testimony is facially incredible or insubstantial, United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993), or unless the alleged violation rendered the petitioner's trial fundamentally unfair. Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (citing Estelle v. McGuire, 502 U.S. at 72-73, 112 S.Ct. 475).
A state violates a criminal defendant's due process right to fundamental fairness if it arbitrarily deprives the defendant of a state law entitlement. Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).
CAL.PENAL CODE § 1111 states:
A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
In all federal habeas proceedings, a state court must apply the "substantial and injurious effect" analysis set forth in Brecht regardless of whether the state appellate court applied the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993).
California Court of Appeal Decision. The CCA began its analysis of this claim by reiterating that the photographic lineup was not unduly suggestive and Killpack's identification was reliable. (Lodgment No. 8 at 21.) The court thereafter found sufficient evidence to corroborate Ledesma's testimony with regard to both the Killpack robbery and assault as well as the Duray robbery and murder. Moreover, the CCA determined that, even absent Ledesma's testimony or the DNA evidence, there was sufficient evidence to establish Petitioner's identity as the robber and assailant. ( Id. at 23-34.) The court noted Killpack's identification of Petitioner as his attacker, Ledesma's presence at both incidents, Ledesma's relationship to Petitioner, the timing and location of the incidents, and the strong similarities of how the robberies and assaults occurred. ( Id.) Petitioner fails to show he is entitled to federal habeas corpus relief on this claim.
A. Legal Analysis
Witness Credibility. Petitioner's contention that the CCA erred when finding Ledesma's testimony not unreliable is not persuasive. As noted by the CCA, evidence corroborated Ledesma's testimony pertaining to both the Killpack and Duray incidents. With regard to the Killpack robbery, the credibility of Ledesma's testimony is supported inter alia by the following: (1) Ledesma testified that Petitioner robbed and assaulted Killpack, and Killpack identified Petitioner in court as the person who robbed and strangled him (3 RT 438, 4 RT 449, 451-52, 601, 603-04); (2) Ledesma testified that she threw the car keys out of the window, and the police located Killpack's keys in the dirt near where his car was parked during the robbery (4 RT 585-86); (3) Ledesma testified that she took everything of value out of Killpack's wallet including the Shell gas card, and Shell gas receipts were located in Petitioner's car (4 RT 610-12); and (4) the transactions from after the robbery and before the card was canceled occurred at gas stations near the Bay Cities Motel, the Motel 6, and Petitioner's work (4 RT 646-51, 655-56, 673).
Further, with regard to the Duray robbery and murder, Ledesma's testimony was supported inter alia by the following: (1) Ledesma testified that she threw Duray's keys out the window, and Duray's car keys were located near where his car was parked (4 RT 722); Ledesma testified she heard someone on Duray's cell phone during the attack (4 RT 731-732), and this was corroborated both by phone records and the testimony of Duray's daughter (4 RT 729-30); Ledesma testified that Petitioner kept Duray's wallet after the incident, which was supported in that Petitioner had a new wallet on him when arrested (3 RT 537-38) and Duray's son testified that Duray had recently purchased a new wallet (3 RT 556-57).
Thus, Petitioner fails to show that the state court erred by admitting testimony that was facially incredible or insubstantial. Necoechea, 986 F.2d at 1282.
Arbitrary Determination. Additionally, Petitioner fails to show the trial court or the CCA decision to allow Ledesma's testimony amounted to an arbitrary deprivation of a state law entitlement. See Hicks, 447 U.S. at 346, 100 S.Ct. 2227; see also CAL.PENAL CODE § 1111. As noted by the CCA, Ledesma's testimony pertaining to the Killpack robbery was corroborated by Killpack's eyewitness testimony and by the receipts found in Petitioner's car. (Lodgment No. 8 at 22.) Further, with regard to Duray's murder, the CCA noted Ledesma's testimony was corroborated by the similarities between the Killpack and Duray robberies. (Lodgment No. 8 at 23.) Thus, neither the trial court nor the CCA determination regarding the admissibility of Ledesma's testimony could be said to be so arbitrary as to violate due process.
Harmless Error. Even if the trial court erred in admitting Ledesma's testimony, any error was likely harmless. As noted by the CCA, Petitioner could reasonably be connected to the Duray robbery and murder absent Ledesma's testimony based on the similarities to the Killpack robbery and assault. Killpack solicited a prostitute before the robbery and had reclined his seat while Ledesma was in his car (3 RT 419-22, 426); Duray's body was found in the reclined driver's seat of his vehicle (3 RT 504); both victims were strangled to the point of unconsciousness with enough force to cause internal bleeding (3 RT 433-34, 437, 6 RT 986-87); both victims' wallets were stolen (3 RT 441, 512-13); DNA evidence connected Ledesma to the condom found on Duray's body (3 RT 511, 5 RT 864-66); and Petitioner was Ledesma's pimp or boyfriend (4 RT 686-88). Based thereon, Petitioner fails to show that Ledesma's testimony had or reasonably may be taken to have had a substantial and injurious effect on the jury's verdict. McKinney, 993 F.2d at 1386.
Evidence Beyond a Reasonable Doubt. Petitioner fails to show that there was insufficient evidence to support a guilty verdict beyond a reasonable doubt. As reiterated by the CCA, the photographic lineup was not unduly suggestive and Killpack's identification was reliable. (Lodgment No. 8 at 21.) Additionally, as discussed above, Ledesma's testimony was amply corroborated by other evidence. Based on the record, Petitioner cannot establish that, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781.
Petitioner asks the court to "really look at the ten fingerprints" taken from Killpack's vehicle that do not match his own. (Objections at 16.) The fingerprints taken from Killpack's car by police did not match Petitioner's ( id. at 552), and the only prints taken from the Duray vehicle were Duray's ( id. at 553). However, fingerprints recovered from Killpack's vehicle did not come back to any particular person, including Killpack himself. ( Id. at 554.) Further, the jury heard testimony from homicide detective John Young that this type of absence of traceable fingerprints was not unusual, and that because there are so many variables to obtaining a fingerprint, one is "lucky" to find one. ( Id.) Thus, the jury could reasonably infer from the evidence that, even if Petitioner did touch the area Killpack pointed out to police, said touching was unlikely to yield any traceable fingerprints. As such, the fingerprint evidence to which Petitioner points would have little effect on Killpack's credibility or overall exculpatory value, especially in light of the considerable amount of evidence weighing against Petitioner.
Conclusion. Petitioner fails to show that Ledesma's testimony was facially incredible or insubstantial, or that its admission rendered his trial fundamentally unfair. Laboa, 224 F.3d at 979; Necoechea, 986 F.2d at 1282. Further, Petitioner does not show the CCA decision was contrary to, or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Furthermore, assuming arguendo the admission of the accomplice testimony was erroneous, Petitioner does not show that Ledesma's testimony had a substantial and injurious effect on the jury's verdict. Brecht, 507 U.S. at 638, 113 S.Ct. 1710. Accordingly, the Court ADOPTS the R R and DENIES the Petition with respect to these grounds for relief.
V. Ground Five — Cumulative Error
Petitioner asserts the cumulative effect of the evidentiary errors warrants reversal. (Objections at 19.) In cases where there are a number of trial errors, the court may look at "the overall effect of all the errors in the context of the evidence introduced at trial against the defendant." United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (quoting United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988)). "In other words, `errors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair.'" Alcala v. Woodford, 334 F.3d 862, 883 (9th Cir. 2003) (quoting Thomas v. Hubbard, 273 F.3d 1164, 1180 (9th Cir. 2001)).
The Ninth Circuit has explained "[c]umulative error applies where, `although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.'" Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (quoting Frederick, 78 F.3d at 1381). Therefore, in conducting a cumulative error analysis, a court must look at the combined effect of each error that occurred during a petitioner's trial. Because there are no errors to accumulate which amount to a denial of due process, Petitioner's cumulative error claim fails. See Fuller v. Roe, 182 F.3d 699, 704 (9th Cir. 1999). Accordingly, this Court FINDS that the overall effect of all the errors in the context of the evidence introduced at trial against Petitioner did not result in a fundamentally unfair trial. See Frederick, 78 F.3d at 1381. Therefore, this Court DENIES relief based on Petitioner's claim that the cumulative effect of the errors amounted to a fundamentally unfair trial.
VI. Motion for Appointment of Counsel
A. Legal Standard
18 U.S.C.A. § 3006A Id. Id.)Sixth AmendmentMcCleskey v. Zant, 499 U.S. 467495111 S.Ct. 1454113 L.Ed.2d 517Chaney v. Lewis,801 F.2d 11911196Knaubert v. Goldsmith,791 F.2d 722728Chaney,801 F.2d at 1196 Knaubert,791 F.2d at 728-29Hawkins v. Bennett,423 F.2d 948950
Financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the court "determines that the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).
The interests of justice require appointment of counsel when the court conducts an evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah, 18 F.3d at 573.
B. Legal Analysis
Based on a review of Petitioner's filings in this case, and absent Petitioner offering additional support showing otherwise, Petitioner cannot establish that the appointment of counsel is necessary to prevent a due process violation. Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. Petitioner argues that he "does not have a good grasp of the legal procedures and issues in this case," but nowhere does he contend he lacks the requisite education or capacity to present his claims. Hawkins, 423 F.2d at 950. Nor does he argue that the issues involved are too complex for him to comprehend; the record suggests otherwise. ( See, e.g., Traverse at 10 (in response to Respondent's contention that his First ground for relief is based on an interpretation of state law, Petitioner aptly points out his argument relies on Ninth Circuit precedent of McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993)). Here, the mere absence of "a good grasp of the legal procedures and issues in this case" alone is insufficient to show the denial of counsel is necessary to prevent due process violations. Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29.
Furthermore, despite Petitioner's contention otherwise, no record was discovered of Petitioner's request for an evidentiary hearing prior to this motion. Assuming Petitioner had made such a request, for the reasons discussed above Petitioners' claims are without merit and thus an evidentiary hearing is unwarranted. See Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) ("[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.") Therefore, Petitioner fails to establish that the interests of justice require appointment of counsel. 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).
Accordingly, for the above-stated reasons, the Court DENIES Petitioner's request for an appointment of counsel.
Conclusion
For the reasons above, the Court ADOPTS the R R, DENIES Petitioner's Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in its entirety, and DENIES Petitioner's request for appointment of counsel.
IT IS SO ORDERED.
PROPOSED FINDINGS OF FACT AND RECOMMENDATION THAT PETITION FOR WRIT OF HABEAS CORPUS BE DENIED
I. INTRODUCTION
II. PROCEDURAL BACKGROUND
pro se,28 U.S.C. § 2254DENIED.
Petitioner filed an appeal to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgement No. 8). On May 25, 2007, the California Court of Appeal affirmed the judgment. (Lodgement No. 8).
On July 2, 2007, Petitioner filed a petition for review in the California Supreme Court. (Lodgement No. 9). The California Supreme Court denied the petition on August 22, 2007. (Lodgement No. 10).
On November 19, 2007, Petitioner filed a federal petition for writ of habeas corpus. (Doc. No. 1). On March 26, 2008, Respondent filed an Answer. (Doc. No. 8). Petitioner filed his Traverse on May 14, 2008. (Doc. No. 14).
III. STATEMENT OF FACTS
The following facts are taken from the California Court of Appeal opinion in People v. George, No. SCD179831, 2007 WL 1519399 (Cal.Ct.App. May 25, 2007). (Lodgement No. 8). The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1).
Assault and Robbery of Killpack
George was Bertha Ledesma's boyfriend and pimp. She had been a prostitute since she was 15-years-old and was a crack addict. George drove Ledesma to locations where she worked as a prostitute and he parked nearby. After each "date," Ledesma would go to his car and give him the money she had earned. Ledesma was afraid of George, and at one point, she wrote a letter stating that if she were found dead, to investigate George because he had tried to kill her by strangling her. From August 2003 to January 2004, George and Ledesma stayed at motels, with George paying in cash. George sold drugs and he was also a driver for Amvets in El Cajon.
On Saturday night, January 3, 2004, George drove Ledesma to one of her usual prostitution locations by the Adult Emporium on Main Street in Chula Vista. At about 2:15 a.m., her third "date" that night was Fred Killpack. Killpack had spent the evening at a cowboy western bar in Mission Valley where he had two or three light beers. He was on his way home and he pulled off the freeway in Chula Vista, intending to get something to eat. He changed his mind when he saw Ledesma standing in front of the Adult Emporium, and he decided to "pick her up." She agreed to give him oral sex for $20 and directed him to a street behind the Adult Emporium. Because Ledesma complained about being warm, Killpack rolled down his window about four inches.
Once they were parked, Killpack paid Ledesma and reclined his seat as she undid his pants. She put a condom on him and started to give him oral sex. Killpack became nervous when a vehicle with its lights on pulled up behind them. Ledesma told him to relax, that there were a lot of cars that came into the area, but he was uncomfortable and asked her to leave. Ledesma continued to try to reassure him while he continued to ask her to leave. The vehicle left in less than a minute.
Shortly thereafter, Killpack saw George walking towards his car from the corner. Ledesma refused to leave and Killpack thought he was being "set up." He started the car's engine and Ledesma began punching, scratching, and biting his face. The next thing Killpack noticed was George standing at the driver's side window. George told Ledesma to throw the car keys out of the car, which she did. George reached into the car and choked Killpack into unconsciousness. George took Killpack's wallet, which Killpack had taken out during the struggle and offered to George. They left Killpack unconscious in his car.
While George and Ledesma were driving away, George told Ledesma to take everything of value out of the wallet. She removed a gas credit card and threw the wallet out the window. She later gave the credit card to George.
Killpack regained consciousness about an hour or so later and noticed his wallet was missing. He looked for his car keys, but did not find them. He used his cell phone to get a ride home from his ex-wife. He did not immediately report what had happened because he was embarrassed. But, on Monday, January 5, after learning about a murder occurring in the same general area, Killpack went to the police and provided a description of his assailants. He was shown a photographic line-up that did not include Ledesma's photograph but did include the photograph of another prostitute the police believed might be involved. He did not make a positive identification. Killpack took police to the crime scene where he found his car keys in the dirt near a fence.
On January 13, the police showed him two photographic line-ups, one containing Ledesma's photograph, the other George's photograph. Killpack spent two to three minutes looking at Ledesma's line-up and tentatively identified her based on her acne and hair. In contrast, Killpack "instantaneously" identified George as the assailant, stating "that's the guy." He was 100 percent positive in his identification. Killpack also identified George at trial.
When George and Ledesma were arrested on January 14, George had receipts in his car for gas station purchases made with Killpack's credit card. One of the receipts was from a gas station near the Amvets store in El Cajon where George worked. Records for Killpack's credit cards indicated the credit card had been used on the morning of January 4 at a gas station near the motel where Ledesma and George were staying. In addition, Ledesma testified she was with George on January 6 when she used Killpack's card to buy gas.
Robbery and Murder of Thomas Duray
After robbing Killpack, George and Ledesma returned to the motel room. George told Ledesma to get ready to go back out and refused to let her go alone. Ledesma changed her clothes and they drove to an area on 32nd Street, in San Diego, arriving about 5:00 a.m. Ledesma went to the corner where she was picked up by one of her "regulars," Tom Duray; she had met with him twice before. They drove around the corner and he paid her $30. He reclined his seat and while she was putting a condom on him, she stole his cell phone and put it in her pocket. She began orally copulating him. Less than 10 minutes later, George reached into the car, tried to grab Duray's throat and told Ledesma to throw the car keys out the window. She threw the keys out the window. She bit Duray on the thigh. Duray pleaded with George not to kill him, telling him he had three children and offered to take him to his bank and give him money, but his pleas had no impact on George. At one point, Ledesma heard a female voice coming from Duray's cell phone, yelling for her father and asking what was wrong. Ledesma turned off the phone.
Eventually, George got into the back seat of Duray's car and strangled Duray until he stopped fighting. George took Duray's wallet from the glove compartment. He and Ledesma left the scene and as they were driving away, George told Ledesma to take everything of value out of the wallet. He asked her about the condition of the wallet, and she told him it looked brand new. He told her he needed a new wallet, transferred the contents of his wallet to Duray's wallet, and threw away his old wallet.
Not long after they returned to the motel room, George received a phone call, spoke briefly and hung up. Ledesma, suspecting the call was from one of George's girlfriends, grabbed the phone and accidentally hit George in the head with the phone. He was upset and hit her in the jaw, breaking it. Phone records showed a three minute call was made to George's cell phone at 6:43 a.m. on January 4th.
When the police investigated the crime scene, they found the driver's seat fully reclined. A gallon bucket of water in the back seat had been knocked over and Duray's body had been dragged between the front seat and the console and halfway into the right rear passenger seat. There were signs of a struggle, including pieces of the ignition on the floorboard, damage to the underside of the steering wheel, the presence of Duray's shoe outside the vehicle, and bruises on his left shin and foot.
Duray died due to manual strangulation. His hyoid bone was broken, an injury that usually does not occur except in traffic accidents or manual strangulation. There was evidence that he had struggled; typically a person takes about 15 minutes to die from strangulation. Even if Duray had been only strangled into unconsciousness and then the strangulation had stopped, he still could have died due to a fractured bone and deep neck hemorrhaging, "injuries that you can't fix quickly." The medical examiner testified Duray's injuries were consistent with Ledesma's testimony of what had occurred.
From Duray's car, the police recovered a used condom and collected samples from smudges on the right rear window for DNA analysis. An expert testified the outside of the condom contained a mixture of DNA and the statistical analysis indicated an extremely high statistical probability the DNA belonged to Duray and Ledesma.
The samples from the rear window of Duray's car contained lower levels of DNA, with only some DNA markers having sufficient quantity for typing. The expert testified that in one of the samples, a DNA marker with sufficient quantity for typing indicated it was a mixture of DNA from at least two people. Duray and Ledesma were excluded as contributors of the DNA. The expert testified the statistical analysis indicated one out of two African-Americans, Caucasians, and Hispanics had the same DNA marker as found in the sample. As to the other sample from the rear window of Duray's car, there was also a mixture of DNA from at least two persons. Duray and Ledesma were excluded as contributors. Killpack could not be excluded or included as a contributor. George could have been a contributor. The statistical analysis indicated that one out of nine African-Americans could have been a contributor. George is African-American. In other words, 11 percent of African-Americans could have contributed to the DNA sample.
Duray's son testified Duray had recently purchased a new wallet, which looked similar to the wallet recovered from George.
Duray's daughter testified that on January 4, 2004, at about 6:12 a.m., her phone rang. When she answered the phone, she heard only a rustling sound. She said, "Hello, hello?" She then clearly heard a "very deep, very strong" man's voice say, "Where's your wallet? Where's your keys?" She thought "something was going down." She heard more rustling sounds and then hung up the phone. Because "something didn't seem right," she wrote down the time of the phone call and then called her father because she was worried. His cell phone was turned off and she left a message.
Defense
George presented evidence that Ledesma was a habitual drug user and liar and was high on the day of the crimes. She had not told her friends that George was her pimp, rather, she told them he was her boyfriend.
George's mother testified that between August 2003 and January 14, 2004, George lived off and on in her house. She remembered he came by her house on Saturday, January 3 to check her car, as he did every Saturday morning. She also specifically remembered him coming to her house about 6:00 a.m. on January 4 because she had to make a phone call at 6:00 a.m. to La Jolla about a bread pick-up, and while she was on the phone, George entered the house.
An expert on eyewitness identification testified factors that reduce the rates of correct identification include high levels of stress when a person is frightened, alcohol use, divided attention, and cross-racial identification. The expert testified that when a photo line-up contains "personal irrelevant cues" such as jewelry or clothing or is in some way significantly different from the other photographs, a witness may focus more on that photograph and be influenced in their selection. A victim's or witness's certainty of their identification is not necessarily a reliable predictor of whether an identification is correct. During cross-examination, the expert stated one of the best predictors of whether an identification is accurate is "scan duration." When an individual "pops out immediately" with an identification, "[t]hat tends to have the highest rate of accuracy."
Rebuttal
A police detective testified that he interviewed George's mother on January 20, 2004. She told him she had no idea where George was on the weekend of the robbery and murder and that he had been gone the entire weekend.
IV. 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 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 treaties of the United States.28 U.S.C. § 2254(a). As amended, the AEDPA now reads:
(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 State court proceeding.28 U.S.C.A. § 2254(d) (emphasis added).
To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The threshold question is whether the rule of law was clearly established at the time petitioner's state court conviction became final. Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Clearly established federal law, as determined by the Supreme Court of the United States "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Id. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). However, Ninth Circuit case law may be "persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law, and also may help us determine what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000). Only after the clearly established Federal law is identified can the court determine whether the state court's application of that law "resulted in a decision that was contrary to, or involved an unreasonable application of" that clearly established Federal law. See Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166.
A state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. "A state-court decision involves an unreasonable application of this Court's precedent 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, 120 S.Ct. 1495. Under Williams, an application of federal law is unreasonable only if it is "objectively unreasonable." Id. at 409, 120 S.Ct. 1495.
Further, a state court's decision results in a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceeding" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997) (citations omitted).
A federal habeas corpus petition must allege a deprivation of one or more federal rights to present a cognizable claim pursuant to § 2254. A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief when no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (stating that federal habeas corpus relief does not lie for errors of state law, and federal courts may not reexamine state court determinations on state law issues). Habeas corpus proceedings under § 2254 measure state convictions against federal constitutional requirements applicable to the states. A federal district court does "not sit as a `super' state supreme court" with general supervisory authority over the proper application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); see Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (federal habeas courts must respect state court's application of state law); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (federal courts have no authority to review state's application of state law). Instead, federal courts may only intervene in state judicial proceedings to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989) (stating that federal courts are not concerned with errors of state law unless they rise to level of constitutional violation).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). A state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law. If a state court fails to provide a reasoning for its decision, habeas review is not de novo, but requires an independent review of the record to assess whether the state court erred in its application of controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
V. DISCUSSION
The instant petition raises five grounds for relief: 1) the trial court improperly admitted evidence of a prior choking incident; 2) the trial court improperly admitted evidence of an unduly suggestive photo line-up; 3) the trial court improperly admitted unreliable DNA evidence; 4) insufficient evidence corroborated Petitioner's accomplice's testimony; and 5) the cumulative effect of the errors at Petitioner's trial deprived him of due process. (Doc. No. 1).
A. Ground One: Trial Court's Improper Admission of Evidence of Prior Choking Incident
Petitioner's first ground of relief is a claim the trial court improperly admitted evidence of a prior choking incident, thereby violating his right to due process. (Doc. No. 1 at 6-7). The trial court admitted a letter in which Petitioner's accomplice wrote Petitioner tried killing her in the past by choking her. In light of the allegation Petitioner choked Duray to death, Petitioner contends this similar prior act evidence is highly prejudicial, of limited probative value, and admitted as propensity evidence in violation of Evidence Code § 352 and § 1101(a).
Respondent contends Petitioner's claim does not state a federal claim because Petitioner challenges a state evidentiary ruling and Petitioner fails to demonstrate the alleged error was so prejudicial as to violate his right to a fair trial. (Doc. No. 8 at 19). Even if Petitioner states a federal claim, Respondent further asserts Petitioner cannot demonstrate the Court of Appeal's determination of the matter was unreasonable.
A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief when no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Nevertheless, the Ninth Circuit has indicated state laws can give rise to liberty interests cognizable on federal habeas, and that a federal due process violation can arise from arbitrary rulings. See Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) ("[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state, [and] Ninth Circuit precedent generally supports this proposition."), citing Ballard v. Estelle, 937 F.2d 453 (9th Cir. 1991).
Specifically with regard to evidentiary rulings, "a state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates 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). Therefore, a federal court may not disturb on due process grounds a state court's decision to admit uncharged bad acts evidence unless admission of that evidence "was arbitrary or so prejudicial that it rendered the trial fundamentally unfair." Walters, 45 F.3d at 1357; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
California Evidence Code § 352 grants courts discretion to exclude evidence if its probative value is substantially outweighed by the probability its admission will necessitate undue consumption of time, create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
California Evidence Code § 1101(a) generally prohibits introducing evidence a defendant committed acts, other than those charged, to prove he or she is a person of bad character or has a criminal disposition. Evidence Code § 1101(b), however, allows introduction of such evidence to prove issues such as identity, intent, motive, and lack of mistake or accident. People v. Kipp, 18 Cal.4th 349, 369, 75 Cal.Rptr.2d 716, 956 P.2d 1169 (1998). Nevertheless, "evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent." Id. Also, uncharged misconduct is subject to exclusion if its probative value is substantially outweighed by a danger of undue prejudice, confusion of the issues, or of misleading the jury. Id. at 371, 75 Cal. Rptr.2d 716, 956 P.2d 1169.
In the last reasoned state court decision, the Court of Appeal held the trial court did not abuse it discretion in admitting evidence of a prior choking incident. (Lodgement No. 8 at 9-12). The Court of Appeal held the trial court properly admitted the choking evidence because it was relevant to show Ledesma may have initially lied to the police out of fear of Petitioner and the probative value of the choking evidence outweighed any prejudicial effect. (Lodgment No. 8 at 11). Specifically, the Court of Appeal held:
Below, [Petitioner's] counsel conceded Ledesma's fear of [Petitioner] was relevant to explain why she initially lied to the police but argued instead of admitting Ledesma's letter stating that if she were found dead, the police should investigate [Petitioner] because he had tried to kill her by choking her in the past, the court should allow Ledesma to testify she was afraid of [Petitioner] and even that he tried to kill her "without getting into . . . the choking issue." On appeal, [Petitioner] stresses Ledesma's fear of [Petitioner] "was not an ultimate fact in the case and was not in dispute." (Italics omitted). This argument, however, overlooks the fact that Ledesma was a key witness and her credibility was sharply disputed. Since [Petitioner] did not testify, attacking Ledesma's credibility was key to his defense and, among other things, he pointed out that initially Ledesma had not told the police about [Petitioner's] involvement. The fact that Ledesma's letter was written before the crimes occurred, and was recovered during a search of her belongings before she was arrested, made it especially probative of her fear of [Petitioner] and to explain why she lied to the police prior to George's incarceration. Evidence of Ledesma's mental state, that is, her fear of [Petitioner], was a distinct purpose from showing [Petitioner] had a propensity to commit the charged crimes.
Nor do we find the evidence unduly prejudicial. The act of choking Ledesma was not likely to inflame the jury against [Petitioner], especially in light of the facts relating to the charged crimes, which involved the application of a vicious degree of violence, causing serious injury to one victim and death to the other. There is no reasonable probability the jury's verdict was the result of being inflamed against George by Ledesma's letter or based on reliance on propensity evidence rather than based on evidence presented to support the charges.
(Lodgment No. 8 at 11-12).
In ruling the trial court did not commit error in admitting evidence of a prior choking incident, the Court of Appeal relied on its conclusion the evidence was properly admitted pursuant to California law. (Lodgement No. 8 at 11-12). That finding is supported by the record. Specifically, the Court of Appeal applied an Evidence Code § 352 analysis and found the letter was probative of Ledesma's fear of Petitioner and explained why she initially lied to the police. The Court also found the evidence was not unduly prejudicial in light of other evidence presented to support the charges against Petitioner. In light of these considerations, Petitioner is unable to demonstrate either the trial judge arbitrarily admitted the choking evidence or the appellate court arbitrarily rejected his claim. Based thereon, Petitioner has failed to demonstrate a due process violation. Fetterly, 997 F.2d at 1300.
Moreover, the Court of Appeal's decision the trial court did not abuse its discretion in admitting evidence of a prior choking incident was not contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Therefore, Petitioner has failed to show admission of a prior choking incident rendered his trial fundamentally unfair. Estelle v. McGuire, 502 U.S. at 62, 112 S.Ct. 475. Accordingly, the Court RECOMMENDS the Petition be denied as to this ground for relief.
B. Ground Two: The Trial Court Improperly Admitted Evidence of Unduly Suggestive Photo Line-Up
Petitioner's second ground of relief is a claim the trial court improperly admitted evidence of an unduly suggestive photo line-up, thereby violating his right to due process. (Doc. No. 1 at 11-17). Petitioner contends his photograph had a green background while the other photographs had a blue background, thereby rendering the photo line-up unduly suggestive. (Doc. No. 1 at 11). Respondent contends the photo line-up was not unduly suggestive and the Court of Appeal's rejection of this claim was neither an unreasonable application of United States Supreme Court precedent nor an unreasonable determination of the facts. (Doc. No. 8 at 23).
"[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). An identification procedure is suggestive when it "emphasize[s] the focus upon a single individual" thereby increasing the likelihood of misidentification. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985). "It is the likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Even when a pretrial identification procedure is found to be unduly suggestive, an in-court identification is not automatically excluded. Manson v. Brathwaite, 432 U.S. 98, 113-114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). An in-court identification after an unduly suggestive pretrial identification is proper where it is reliable under the totality of the circumstances. Id. at 113, 97 S.Ct. 2243. To determine reliability, a court considers: (1) the witness's opportunity to view the perpetrator at the scene; (2) the witness's degree of attention; (3) the witness's certainty at the time of pretrial identification; (4) the accuracy of the witness's prior description of the perpetrator; and (5) the amount of time between the crime and the pretrial identification. Id. at 114, 97 S.Ct. 2243; Bagley, 772 F.2d at 492. A witness's identification is sufficiently reliable when there is no "substantial likelihood of misidentification." Neil, 409 U.S. at 201, 93 S.Ct. 375.
Here, the Court of Appeal held the photo array was not unduly suggestive. (Lodgement No. 8 at 12). The Court of Appeal relied on California Supreme Court case law, which indicates differences in the background colors of photographs in a lineup do not, in and of themselves, render a lineup suggestive. Further, the Court of Appeal noted:
Killpack's identification of [Petitioner] in the photo line-up was "instantaneous"; as soon as the detective placed the lineup before Killpack, he immediately identified [Petitioner] as his assailant. [Petitioner's] eyewitness expert testified such immediate identifications, that is, identifications with extremely short scan durations, tend to be the most accurate identifications. The expert also testified that identifications tend to be more reliable if the witness has been earlier shown a photo array not containing the defendant and had selected no one as the suspect. In this case, Killpack had been shown a photographic array containing a prostitute who the police suspected might have been involved in the robbery and he did not identify any of the photographs as showing a person involved in the offense.
(Lodgement No. 8 at 12-13). Based thereon, the Court of Appeal held the photographic line-up was not unduly suggestive.
The Court of Appeal's decision the photographic line-up was not unduly suggestive is not contrary to established federal law. In concluding the difference in background color of Petitioner's photograph was not impermissibly suggestive, the Court of Appeal properly determined the photo line-up was not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384, 88 S.Ct. 967. Further, the Court of Appeal's consideration Killpack instantaneously made a positive identification of Petitioner indicates the photo line-up identification was reliable. Because the Court of Appeal reasonably concluded there was no likelihood of misidentification and the pretrial identification was reliable, Petitioner's due process rights were not violated. Neil, 409 U.S. at 198, 93 S.Ct. 375. Accordingly, the Court RECOMMENDS the Petition be denied as to this ground for relief.
C. Ground Three: The Trial Court Improperly Admitted Unreliable DNA Evidence
Petitioner contends the trial court erred in admitting unreliable DNA evidence because the statistical calculations used by the criminalist did not take into account a genetic combination excluding him. (Doc. No. 1 at 18-26). Respondent contends Petitioner has failed to present a federal claim. (Doc. No. 8 at 27). In the alternative, Respondent asserts Petitioner cannot demonstrate the Court of Appeal's rejection of this claim was unreasonable. Id.
A federal habeas corpus petition must allege a deprivation of one or more federal rights to present a cognizable claim pursuant to § 2254. A state's interpretation of its law or rules provides no basis for federal habeas corpus relief when no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (stating federal habeas relief does not lie for errors of state law). Nevertheless, the Ninth Circuit has indicated state laws can give rise to liberty interests cognizable on federal habeas, and that a federal due process violation can arise from arbitrary rulings. See Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) ("[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protected by the Fourteenth Amendment against arbitrary deprivation by a state, [and] Ninth Circuit precedent generally supports this proposition."), citing Ballard v. Estelle, 937 F.2d 453 (9th Cir. 1991).
Specifically with regard to evidentiary rulings, "a state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates 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).
The Court of Appeal held the trial court did not abuse its discretion in determining the jury could hear the DNA evidence and determine what weight to give the evidence. (Lodgement No. 8 at 20). Relying on People v. Kelly, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976), the Court of Appeal noted scientific evidence is only admissible if it meets certain requirements of acceptance within the scientific community, the correct scientific procedures are utilized, and the proffered expert is qualified to give an opinion. Id. at 16. Further, the Court of Appeal noted the fact different experts may disagree about the conclusions to be drawn from certain evidence does not render the scientific methodology unreliable or inadmissible. Id. The Court also concluded it is the province of the jury to decide whether an expert's opinion is reasonable and determine the weight to be given to expert testimony. Id. At 16-17. Ultimately, the court indicated DNA evidence, like other evidence, is subject to exclusion under Evidence Code section 352 if the probative value of the evidence is outweighed by a danger of undue prejudice or by a danger of misleading the jury. Id. at 17.
In reaching its conclusion, the Court of Appeal specifically held:
Here, DNA analysis used in this case — the STR method — has been held to be generally accepted within the scientific community. [Citations omitted]. It has also been held that the statistical analysis used in this case, that is, the comparison of a DNA profile to the relevant ethnic population has received general acceptance within the scientific community. [Citation omitted]. The comparison has been held necessary to give meaning to the value of the DNA evidence to the jury.
. . .
[Petitioner's] contention that the statistical analysis was "unreliable" does not attack the basic methodology or the scientific underpinnings of the DNA analysis or the calculation of the statistical probability. Rather, [Petitioner] argues the statistical analysis was unreliable since the samples contained a mixture of DNA from multiple persons and it could not be definitively stated whether [Petitioner] had contributed or not contributed to the DNA mixture. As he points out, in the samples, the 13, 14, and 15 alleles were detected and he would have been excluded as a contributor if the DNA had been contributed by two heterozygote persons, for example, by one person with the 13 and 14 alleles and another person with the 14 and 15 alleles. He contends this scenario — where [Petitioner] would be excluded as a contributor because he was a homozygote with only 14 alleles — "was not taken into consideration in the statistical calculation . . . [that] instead assumed one of the contributors was a homozygote 14, thereby resulting in statistical frequency . . . for [Petitioner] being a contributor."
This argument goes to the weight of the evidence, not its admissibility. As [an expert] explained at the Evidence Code section 402 hearing, the statistical analysis "simply [addresses] . . . the percent of the population that doesn't have a 14 allele, and, therefore, can absolutely be excluded as a contributor to the sample." The statistical analysis showing the percentage of the population of African Americans who could have contributed to the samples was proper evidence for the jury to consider; it was relevant information. It was not unduly prejudicial, that is, it was not unduly inflammatory nor was it likely to mislead the jury. It was clearly presented to the jury that this was a limited DNA analysis, complicated by the low levels of DNA and the multiple contributors. The jury was fully apprised that it was not possible to determine whether the 14 allele has been contributed by a homozygote and that it was possible the DNA had been contributed by heterozygotes with 13, 14, and 14, 15 alleles, a situation that would exclude [Petitioner] as a donor.
[Petitioner] also contends that the evidence was unreliable because O'Donnell admitted that experts from different laboratories could reach different opinions about the statistical probability that an individual had contributed DNA to a sample. This argument does not further [Petitioner's] argument that the evidence should have been excluded. The experts disagreed only because they used differing thresholds for determining when an allele should be factored into a statistical analysis. The fact that experts may differ does not render testimony inadmissible. If that were so, then we would never have trials with competing experts. Juries are allowed to hear and to weigh competing expert testimony. [Petitioner] was free to bring in his own expert to dispute the analysis for the prosecution's witness or, as he did both at the evidentiary hearing and at trial, use cross-examination to expose differing expert views. Further, the evidence indicated that the San Diego laboratory was conservative in setting thresholds and other laboratories, using lower thresholds, would have computed a higher statistical probability that [Petitioner] contributed to the DNA found on Duray's car. In other words, other expert opinions might have been more damaging to the defense than the expert opinion offered here.
(Lodgement No. 8 at 17-20).
In ruling the trial court did not abuse its discretion in admitting the DNA evidence, the Court of Appeal based its decision on the conclusion the evidence was properly admitted pursuant to California law. (Lodgement No. 8 at 16). Relying on People v. Kelly, the Court of Appeal noted the DNA analysis used at trial is generally accepted in the scientific community. (Lodgement No. 8 at 17). The Court of Appeal also concluded Petitioner did not attack the methodology used to analyze the DNA evidence, so that his claim went to the weight of the evidence rather than its admissibility. (Lodgement No. 8 at 19). The Court of Appeal found the DNA evidence was relevant, not unduly prejudicial or inflammatory, and not likely to mislead the jury, especially because the DNA evidence was clearly presented to the jury as limited DNA analysis. (Lodgement No. 8 at 19). Ultimately, the Court of Appeal noted it is the province of juries to hear and weigh competing evidence. In light of these considerations, it is evident the Court of Appeal applied state law carefully and thoroughly. Therefore, Petitioner is unable to demonstrate that either the trial court arbitrarily admitted the DNA evidence or the appellate court arbitrarily rejected his claim. Based thereon, Petitioner has failed to demonstrate a due process violation. Fetterly, 997 F.2d at 1300.
Petitioner has also failed to demonstrate fundamental unfairness arising from the admission of the DNA evidence. The Court of Appeal correctly points out the conservative threshold used by the laboratory in Petitioner's case potentially benefitted him. Another laboratory, using lower thresholds, would have computed a higher statistical probability that [Petitioner] contributed to the DNA found on Duray's car. Therefore, other expert opinions might have been more damaging to the defense than the expert opinion offered in this case. Based thereon, the Court of Appeal's decision the trial court did not abuse its discretion in admitting the DNA evidence was not contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Accordingly, the Court RECOMMENDS the Petition be denied as to this ground for relief.
D. Ground Four: Insufficient Evidence Corroborated Accomplice's Testimony
Petitioner's fourth ground of relief is a claim insufficient evidence corroborated the testimony of his accomplice, Ledesma. (Doc. No. 1 at 27-37). Petitioner contends without her testimony, the evidence was not sufficient to support the verdicts of guilty beyond a reasonable doubt. Respondent contends Petitioner fails to state a federal question. (Doc. No. 8 at 31). Even assuming error, Respondent asserts Petitioner has not demonstrated the testimony had a substantial and injurious effect on the jury's verdict.
The federal constitutional right to due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). When a habeas petitioner claims there was insufficient evidence produced at trial to support a conviction, a federal court determines whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Deference is provided to the trier of facts' weighing of the evidence by reviewing "all of the evidence . . . in the light most favorable to the prosecution." Id. (emphasis in the original). With the additional layer of deference established by the AEDPA, Petitioner must demonstrate the California Court of Appeal contradicted clearly established Supreme Court precedent by rejecting Petitioner's claim because no rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. Cf Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005).
In considering the requirements of procedural due process, use of accomplice testimony is not catalogued with constitutional restrictions. United States v. Augenblick, 393 U.S. 348, 352, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). Accordingly, any failure to satisfy California's requirement of corroboration for accomplice testimony does not present a federal question unless the accomplice testimony is facially incredible or insubstantial, United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993), or unless the alleged violation rendered the petitioner's trial fundamentally unfair. Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (citing Estelle v. McGuire, 502 U.S. at 72-73, 112 S.Ct. 475). A state violates a criminal defendant's due process right to fundamental fairness if it arbitrarily deprives the defendant of a state law entitlement. Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980).
Cal.Penal Code § 1111 states:
A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.
The Court of Appeal held there was sufficient evidence to corroborate Petitioner's accomplice, Ledesma's testimony, with regard to both the Killpack robbery and assault as well as the Duray robbery and murder. Specifically with regard to the Killpack incident, the Court of Appeal held:
The photographic line-up was not unduly suggestive and, moreover, Killpack's instantaneous identification of George and experience of having viewed a photo array where neither of the assailants was present tended to show his identification was likely to be accurate. Killpack's eyewitness testimony [Petitioner] was the robber and assailant amply corroborated Ledesma's testimony. Furthermore, Ledesma's testimony was corroborated by the presence of gas station receipts from the use of Killpack's credit card in [Petitioner's] car and evidence indicating gasoline purchases on the credit card were made at locations close to where [Petitioner] lived and worked. The fact that Ledesma sometimes used [Petitioner's] car did not render this evidence wholly uncorroborative; it was instead a factor for the jury's consideration in determining her credibility.
(Lodgement No. 1 at 21-22).
With respect to the Duray robbery and murder, the Court of Appeal relied on evidence independent of Ledesma's testimony to find there was sufficient evidence to find Petitioner guilty. The Court of Appeal held:
The DNA evidence, admittedly, was not strongly compelling evidence. However, the DNA evidence was not the only physical evidence corroborating Ledesma's testimony. Duray's car keys were located outside where the car had been parked, thus corroborating Ledesma's testimony she had thrown the keys out the window. Duray's daughter testified she received a call from Duray's phone where she heard rustling noises and a man demanding money. Her testimony not only corroborated Ledesma's story that Duray's cell phone received a call from a woman who was calling for her father during the incident but also was independent evidence there was a man involved in the robbery. Additionally, when arrested, [Petitioner] had a new wallet on him that was similar to the wallet stolen from Duray.
Furthermore, [Petitioner] could be connected to the Duray robbery and murder based on the striking similarities to the Killpack robbery and assault. Both incidents occurred on the same night, within a few hours of each other, and within a short distance of each other. Indeed, Killpack testified he was prompted to report the crime because of the location of the murder. Killpack's eyewitness identification established that Ledesma was present during his robbery and assault, that she was a prostitute, had directed him to recline his seat and she used a condom. Duray was found with his seat reclined. A condom was found containing DNA both from Duray and Ledesma, thus corroborating that Ledesma was involved in the Duray robbery and murder. In both incidents the car keys were a short distance away from where the cars were parked, the windows of the car were partially rolled down, the victim was manually strangled, and the victim's wallet was taken. There was also evidence, from Ledesma as well as other witnesses, that [Petitioner] was her boyfriend.
Under these circumstances, given Killpack's identification of [Petitioner] as his attacker, Ledesma's presence at both incidents, her relationship to [Petitioner], the timing and location of the incidents, and the strong similarities of how the robberies and assaults occurred, a jury could reasonably infer that Ledesma's accomplice in both incidents was the same man and that man was [Petitioner]. In other words, even without Ledesma's testimony or the DNA evidence, there was sufficient evidence to establish [Petitioner's] identity as the robbery and assailant.
(Lodgement No. 8 at 22-24).
Here, the Court of Appeal found there was sufficient evidence to corroborate Ledesma's testimony. That finding is supported by the record. Killpack's identification of Petitioner and eyewitness testimony corroborate Ledesma's testimony with respect to the Killpack robbery and assault. Additionally, the presence of gas receipts from the use of Killpack's credit card in Petitioner's car corroborate her testimony. Ledesma's testimony regarding the location of Duray's car keys and the phone call from Duray's daughter were corroborated by evidence independent of her testimony. Ultimately, the similarities between the Killpack and Duray robberies serve to corroborate Ledesma's testimony. In light of this evidence, Petitioner cannot demonstrate the trial court acted in an arbitrary fashion with respect to allowing the testimony of his accomplice, or that the decision of the appellate court rejecting his claim was arbitrary. Therefore, because Ledesma's testimony was neither incredible nor insubstantial on its face, and because Petitioner was not denied his right to a fair trial, Petitioner has failed to demonstrate a violation of his right to due process.
Further, by reaching the conclusion a jury could reasonably infer Ledesma's accomplice was Petitioner, the adjudication of this claim by the appellate court was neither contrary to, nor involved an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781. Although the Court of Appeal found no error, in light of the ample evidence independent of the accomplice testimony, the Court correctly determined Ledesma's testimony did not have a substantial and injurious effect on the jury's verdict. Brecht, 507 U.S. at 638, 113 S.Ct. 1710. Accordingly, the Court RECOMMENDS the Petition be denied as to this ground for relief.
E. Ground Five: Cumulative Effect of Errors at Trial Deprived Petitioner of Due Process
Petitioner's fifth ground of relief is a claim cumulative error warrants relief. (Doc. No. 1 at 37). Respondent contends Petitioner's cumulative error fails because his individual claims do not establish constitutional errors or prejudice. (Doc. No. 8 at 34).
"Although no single alleged error may warrant habeas corpus relief, the cumulative effect of errors may deprive a petitioner of the due process right to a fair trial." Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002). The Ninth Circuit has explained "[c]umulative error applies where, `although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.'" Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (quoting United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)).
The Court of Appeal rejected Petitioner's cumulative error claim because it found no errors were committed by the trial court. (Lodgement No. 8 at 24). Because there are no errors to accumulate which amount to a denial of due process, Petitioner's cumulative error claim fails. See Fuller v. Roe, 182 F.3d 699, 704 (9th Cir. 1999). Accordingly, the Court RECOMMENDS the Petition be denied as to this ground for relief.
VI. CONCLUSION
After thorough review of the record in this matter and based on the foregoing analysis, this Court recommends the Petition for Writ of Habeas Corpus be DENIED. This Proposed Findings of Fact and Recommendation for Disposition of the undersigned Magistrate Judge is submitted to the United States District Court assigned to this case, the Honorable Napoleon A. Jones, Jr., pursuant to the provisions of 28 U.S.C. § 636(b)(1) (2007) and Local Rule 72.1(d).
IT IS HEREBY ORDERED that no later than December 5, 2008, any party may file and serve 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 and served no later than ten days after being served with the objections. 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. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED.
DATED: November 7, 2008.