Opinion
No. C 01-03601 CRB
May 17, 2002
MEMORANDUM AND ORDER
Joseph Ryan Hayes was convicted of murder and other offenses in Santa Clara Superior Court. Now before the Court is his petition for writ of habeas corpus. Hayes alleges that his Sixth and Fourteenth Amendment rights to confrontation as set forth in Bruton v. United States, 391 U.S. 123 (1968) and Gray v. Maryland, 523 U.S. 185 (1998) were violated by the admission of his non-testifying co-defendant's confession. After carefully considering the papers filed by the parties and the trial court record, Hayes's petition is DENIED.
BACKGROUND
This case arises out of the July 29, 1995 murder of college student Joshua Hernandez. Early on the morning of July 29, at approximately 1:30 am., Hernandez and his friend David Browne were walking to Browne's apartment in San Jose. As they entered the foot of the stairs at the back of Browne's apartment building they were approached by two Hispanic males who pointed guns at them. The gunmen demanded money and a scuffle ensued in which Hernandez was fatally shot. The gunmen ran away and were not immediately apprehended.
In August 1996, Hayes was charged along with co-defendants Edgardo Ruiz and Angel Sierra in a 15-count information filed in Santa Clara Superior Court. The information charged one count of murder, three counts of attempted murder, seven counts of robbery, one count of carjacking, and various other offenses. Most of the counts, including the counts related to the murder of Joshua Hernandez, were dismissed in December 1996 upon Hayes's motion.
The next month co-defendant Sierra pled guilty to second degree murder and various other charges and agreed to testify against Hayes. As part of the plea, the government agreed to a sentence of 15-years-to-life for Sierra and promised its best efforts to incarcerate him out-of-state and in federal housing. The grand jury indicted Hayes for all the offenses previously dismissed, including the offenses related to the July 29, 1995 murder, immediately after Sierra testified before the grand jury. The case was subsequently consolidated with the case against Ruiz. Count 1 charged Hayes and Ruiz ("defendants") with the murder of Joshua Hernandez; count 2 charged defendants with robbery of Hernandez; and count 3 charged defendants with attempted robbery of David Browne. Hayes was also charged with other crimes not at issue in his habeas petition.
At trial Sierra testified that Hayes was the leader of a gang and that he had directed Sierra and Ruiz to rob Hernandez and Browne with guns provided by Hayes and that he had driven the get-away car. Sierra also testified as to Hayes's involvement in numerous other crimes. In addition, the trial court, over Hayes's objection, admitted the tape-recorded confession of Ruiz, who did not testify. The judge admonished the jury that the confession could not be used against Hayes and the tape recording and transcript were redacted to eliminate all references to Hayes by name.
The jury convicted Hayes and Ruiz of all counts related to the July 1995 murder. Hayes argued on appeal that his Sixth and Fourteenth Amendment rights under Bruton and Gray were violated by the admission of Ruiz's confession. The California Court of Appeal affirmed in an unpublished decision that addressed the merits of the issue and the California Supreme Court denied review. Hayes subsequently filed this timely habeas petition.
STANDARD FOR HABEAS CORPUS RELIEF
A district court may grant a petition challenging a state conviction on the basis of a claim that was reviewed on the merits in state court only if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d). In addition, habeas relief is warranted only if the constitutional error is structural error or had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782.795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
Hayes argues that the California courts' affirmance of his conviction for robbery, murder and attempted robbery arising from the July 29 murder is contrary to, or involved an unreasonable application of, clearly established Federal law, and that such error was not harmless.
A. Clearly established federal law
"Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir. 2001) ("[T]he question . . . is not whether [state law] violates due process as that concept might be extrapolated from the decisions of the Supreme Court. Rather, it is whether [state law] violates due process under `clearly established' federal law."). While a state court decision may no longer be overturned on habeas review simply because of a conflict with circuit-based law, see, e.g., Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.), cert. denied, 531 U.S. 944 (2000), circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established" See id.
While the "contrary to" and "unreasonable application" clauses have independent meaning, see Williams, 529 U.S. at 404-05, they often overlap, which may necessitate examining a petitioner's allegations against both standards, see Van Tran, 212 F.3d at 1149-50.
B. "Contrary to"
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. An example of the former type of state court decision would be one rejecting a prisoner's ineffective assistance of counsel claim on the ground that the prisoner had not established by a preponderance of evidence that the result of his state criminal proceeding would have been different. Such a decision would be contrary to the Supreme Court's clearly established precedent inStrickland v. Washington, 466 U.S. 668, 694 (1984), that a prisoner need only demonstrate a reasonable probability that the result of the proceeding would have been different. See Williams, 529 U.S. at 404-06.
A "run-of-the-mill state-court decision" that correctly identifies the controlling Supreme Court framework and applies it to the facts of a prisoner's case "would not fit comfortably within § 2254(d)(1)'s `contrary to' clause." Williams, 529 U.S. at 406. A state court'sStrickland analysis, for example, generally does not fall within the "contrary to" clause. See id. Such a case should be analyzed under the "unreasonable application" prong of § 2254(d). See Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000).
C. "Unreasonable application"
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 412-13. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied dearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. The reasonableness inquiry is objective; the federal court should not "transform the inquiry into a subjective one by resting its determination . . . on the simple fact that at least one of the Nation's jurists has applied the federal law in the same manner" as the state court. Id. at 409.
The Ninth Circuit has further defined what constitutes an "unreasonable application" of federal law by applying the "clear error" doctrine used to evaluate federal mandamus petitions. See Van Tran, 212 F.3d at 1152-53. Under this test the federal court must reverse a state court decision as an unreasonable application of clearly established federal law when, after independent review of the legal question, the court is left with a "definite and firm conviction" that an error was committed; in other words, "that clear error occurred." Id. at 1152-54.
When analyzing a claim of an unreasonable application of federal law, a district court should review the state court decision for error de novo and then determine whether the error constituted an unreasonable application of federal law. See Van Tran, 212 F.3d at 1155, 1159 (holding that a state court decision that would be erroneous under de novo review is not an unreasonable application of clearly established federal law where the issue is "simply too close").
DISCUSSION
A. Supreme Court Law Re: Admission of Non-testifying Co-Defendant Confession
The "clearly established federal law" with respect to the admission of statements made by non-testifying co-defendants is set forth in the Supreme Court's decisions in Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998).
Bruton, like this case, "involved two defendants accused of participating in the same crime and tried jointly before the same jury."Gray, 523 U.S. at 188. Prior to trial one of the defendants confessed, naming and incriminating the other defendant. Although the confessing defendant did not testify, his confession was admitted at trial with a limiting instruction admonishing the jury that the confession could only be considered against the confessing defendant. The Supreme Court held that the admission of the confession violated the non-confessing defendant's Sixth Amendment right to confrontation and, significantly, that the limiting instruction was not sufficient to protect the defendant:
[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect . . . The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.391 U.S. at 135-36. The Court went on to hold that Bruton's co-defendant's confession was such evidence, and therefore Bruton's Sixth Amendment rights had been violated.
In Richardson, nearly twenty years later, the Court considered the admission of a co-defendant's confession that had been redacted to omit all reference to the co-defendant, "`indeed, to omit all indication that anyone other than [the confessing co-defendant] and a third person had `participated in the crime.'" Gray, 523 U.S. at 191 (quoting Richardson, 481 U.S. at 203) (emphasis in original). The confession became incriminating, however, when linked with evidence introduced later at trial, namely, the defendant's own testimony. Richardson, 481 U.S. at 208. The Supreme Court held that in such a situation, "[w]here the necessity of such linkage is involved" in order to make the statement incriminating, the trial court's admonition to the jury not to consider the statement against the defendant is sufficient to protect the defendant's rights. Id. The Court reasoned:
Specific testimony that "the defendant helped me commit the crime" is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant's guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton's exception to the general rule.Id. In sum, Richardson held that where the confession is redacted so as not to be facially incriminating, the assumption that jurors follow their instructions applies.
In Gray the Court again considered a redacted confession. The redacted confession, unlike the statement in Richardson, referred directly to the "existence" of the non-confessing defendant For example, in the confession transcript the questioner asks: "Who was in the group that beat Stacey?" The transcript reflects the following response: "Me, , and a few other guys." Id. at 1158 (Appendix). The Court held that "[t]he inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that the jury ordinarily could make immediately, even were the confession the very first item introduced at trial." Id. at 196. "Moreover, the redacted confession with the blank prominent on its face, in Richardson's words, `facially incriminat[es]' the codefendant" Id. Accordingly, "the accusation that the redacted confession makes `is more vivid than inferential incrimination, and hence more difficult to thrust out of mind.'" Id. (quoting Richardson, 481 U.S. at 208). The majority held that the admission of the confession violated Gray's Sixth Amendment rights.
B. Whether Hayes's Bruton Rights Were Violated
Hayes argues that under Bruton and Gray admission of Ruiz's redacted confession violated Hayes's Sixth Amendment rights. Ruiz's redacted confession, unlike the confession in Gray, did not identify the redaction by leaving a blank in the transcript, indeed, the transcript does not identify where words or phrases were redacted. Thus, it is not obvious from the transcript, as it was in Gray, that portions of the confession were redacted.
Hayes nonetheless argues that the redacted confession is facially incriminating because there are portions of the transcript that refer to more than two people being involved, that is, to more than just Sierra and Ruiz. In Richardson, in contrast, the confession was redacted "to omit all indication that anyone other than [the confessing co-defendant] and a third person had `participated in the crime.'" For example, on page 2729 of the transcript, the interrogating detective (Moore) asks Ruiz about the July 29, 1995 robbery:
Moore: Did Angel say for you to go do it with him?
Ruiz: (Inaudible).
Moore: That's when who told you?
Ruiz: That, that, you know, that's when (inaudible), "Let's go, let's go," (inaudible).
Hayes argues that Moore would have had no reason to ask "[t]hat's when who told you?" if only Ruiz and Sierra had been involved in the robbery; in other words, the inference from the question is that someone else — namely the other defendant at the defense table (Hayes) — was with Ruiz and Sierra.
This statement falls somewhere between Gray and Richardson. UnlikeRichardson, it does indirectly refer to the involvement of another person, most likely Hayes. Unlike Gray, however, it does not directly refer to the involvement of Hayes. For example, the transcript did not read "That, that, you know, that's when, "Let's go, let's go." Such a redaction is obviously omitting someone's name, most likely Hayes. The manner in which the transcript is redacted here, however, does not make it immediately obvious that someone's name was redacted. Indeed, the inference that a third person was involved is not drawn from the manner of the redaction, but rather from the discussion that was not redacted; namely, the question "that's when who told you?" That inference, however, is not sufficiently direct such "that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." Gray, 523 U.S. at 196. For example, the jury might reasonably infer that Ruiz had said something that Moore had not understood, and that is why Moore responded, "That's when who told you?"
At other places in the transcript the conversation more directly refers to Ruiz being with at least two others. For example, at pages 2726-2727 of the transcript Moore and Ruiz are discussing a murder on Scott Avenue in Santa Clara (not the July 29, 1995 murder):
Moore: Were you with them when they, when they shot this guy?
Ruiz: Me, no.
Moore: Then how did you know bout it?
Ruiz: They told me.
Moore: What did they tell you?
Ruiz: (Inaudible).
Moore: Did they tell you what kind of car that these guys were driving?
Ruiz: (Inaudible).
Moore: Okay. You were there . . .
Ruiz: (Inaudible).
Moore: Um hmm.
Moore: Was Angel Sierra in the car?
Ruiz: Yeah. He's the one who's shooting. . . . .
Moore: These guys just wanted to get themselves in trouble, didn't they? Those guys, your, your, these two homeboys (inaudible).
Transcript at 2726-2727. Hayes is correct that this portion of the transcript refers to more than just Sierra and Ruiz however, it does not refer to the July 29, 1995 murder. It refers to a Santa Clara incident of which Hayes was acquitted. Thus, it does not facially incriminate Hayes in the July 29, 1995 murder.
Hayes argues that even though this portion of the transcript refers to a different incident, it still facially incriminates him in the July 29 murder because later in the transcript it is apparent that the same people involved in the Santa Clara shooting were also involved in the July 29 murder. In the following portion of the transcript Moore is discussing the July 29 murder:
Moore: Were you mad at Angel because he shot, he shot the white guy?
Ruiz: We don't want, we don't, we don't want nobody shot. Just like confusing, you know. We don't know (inaudible) what do to do, you know.
Moore: So you weren't mad at Angel because he shot that white guy?
Ruiz: We got mad, you know, because it was stupid, you know.
Moore: How many times have you been with these guys when they do, doing things?
Ruiz: (Inaudible) that's it.
Moore: Well, there, there was the time up in Santa Clara you were with them?
Ruiz: Oh, (inaudible).
Moore: Is that what you were gonna tell me earlier today but you were afraid do?
Ruiz: (Inaudible).
Moore: What gun did they use up there?
Ruiz: A .380.
Moore: The same one that you guys shot Josh with?
Ruiz: I guess (inaudible) same one (inaudible).
Moore: It's the same gun?
Ruiz: No, no (inaudible) Josh. (Inaudible) that's the one I think the white guy got shot with, .380.
Moore: Oh, okay. But is it the same .380. So they haven't thrown it away yet?
Transcript at 2740-41.
Ruiz's statement — "We got mad" — could lead the jury to infer that there was a third person with Sierra and Ruiz when they shot Hernandez on July 29; the "we" must refer to someone other than Ruiz and Sierra because Sierra is the one who did the shooting. The follow-up question as to how many times Ruiz has been with "these guys" when they do things, and the connection with the Santa Clara incident, suggest that Hayes was involved with the July 29, 1995 murder as well as the Santa Clara incident Also, "they haven't thrown it away," referring to the gun used in the July 29 murder, suggests that Sierra and someone else, most likely the other defendant sitting at the defense table, are the "they" who have not yet thrown away the gun.
Later in the transcript Moore inquires: "When you guys, you said you, if I remember right you told me you dropped off Angel first, right? Is that a yes?" Ruiz responds "Yeah." 2743. Again, this line of questioning assumes there was someone else with Ruiz and Sierra since that is the only way Sierra would get dropped off "first." Moore also asks: "Where do they keep all their, all the stuff they steal and rob?"
The issue, then, is whether the inference to be drawn from Ritz's confession that Hayes was involved in the July 29, 1995 murder is so "powerfully incriminating" and therefore prejudicial that a limiting instruction could not work. See Gray, 523 U.S. at 196. Again, this case falls somewhere between Gray and Richardson, the confession here does refer to the involvement of a third person by the repeated use of the pronoun "They" and the connection of the Santa Clara incident with the July 29, 1995 murder. Unlike Gray, however, the confession is not directly accusatory; in the transcript Ruiz does not say "me, Sierra and [blank] set out to rob Hernandez;" instead, the jury has to infer that Hayes was involved through the use of the pronoun "they" and other statements that imply a third person was generally involved in the string of crimes. Unlike Richardson however, that inference can be drawn from the transcript itself without resort to other evidence. And like Gray, the transcript could have been further redacted to avoid that inference.
The Ninth Circuit recently addressed a similar issue in United States v. Parks, 285 F.3d 1133 (9th Cir. 2002). In Parks, the non-testifying co-defendant's hand-written confession was admitted into evidence with a cautionary instruction. All references to Parts were deleted by drawing a thick black line through them thus, it was obvious the confession had been redacted. Id. at 1138-39. The court held that
[t]he combination of an obviously redacted statement with the language implying the existence of a third person reasonably could lead the jury to conclude that the unnamed third person must be the codefendant before them. The marking out of an entire phrase, combined with the inference that third party was named in that phrase, may have the same practical effect as blanking out merely the name of the third party.Id. at 1139. The court concluded that Parks' Sixth Amendment rights were violated; nonetheless, the court affirmed his conviction on the ground of harmless error. Id. at 1140. Here, as in Parks, the unredacted statements create an inference implying the existence of a third person. UnlikeParks, however, the written transcript is not obviously redacted.
In sum, whether a Bruton violation occurred is a close question. The issue on this habeas petition, however, is not merely whether there was a constitutional violation; rather, the Court may grant the writ only if the state court's adjudication of the issue was contrary to or an unreasonable application of generally established federal law.
C. Contrary To Or An Unreasonable Application of Federal Law
The California Court of Appeals addressed Hayes' Burton claim on the merits and applied the correct law, namely Bruton, Richardson, and Gray. Thus, the state court's decision is not "contrary" to clearly established federal law. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s `contrary to' clause.").
The question here is whether the state court unreasonably erroneously or incorrectly applied clearly established federal law. See Williams, 529 U. at 411. A state court unreasonably incorrectly applied such law when the federal court's "independent review of the legal question does not merely allow us ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves us with a `firm conviction' that one answer, the one rejected by the court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred."Chia v. Cambra, 281 F.3d 1032, 1036-37 (9th Cir. 2002) (citations and internal quotations omitted).
In affirming Hayes's conviction, the state court held that the confession alluded to the other perpetrators in very general terms ("They" "These guys" "These two homeboys"), and that the fact that there were three people involved in the Hernandez robbery and murder was not at all completely obvious from the redacted tape. Further, much of the redacted tape used the words inaudible for parts of the confession which could not be understood. The redaction here, unlike the redaction in Gray, would not cause a juror to connect the codefendant to an obviously omitted name. The references were not directly accusatory and would not cause a juror to speculate as to what was so conspicuously omitted. Under these circumstances, we conclude that the redaction did not violate Hayes' confrontation rights.People v. Hayes, H019565 at 15 (Oct. 24, 2000).
The Court is not "firmly convinced" that the state court was wrong. While a reading of the entire transcript gives rise to some inference that a third person was involved, it is not a direct inference; indeed, it is nearly impossible to determine from the transcript what role, if any, this third person played in murder of Hernandez. The transcript is more directly accusatory of other crimes; those crimes, however, are not before the Court in this habeas petition. Moreover, the redaction in this case was not as obvious as in Gray and Parks. In sum, the issue is simply too close for this Court to conclude that the state court's ruling was "clearly erroneous." See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (holding that a state court decision is not an unreasonable application of clearly established federal law where the issue is "simply to close"). Accordingly, the petition must be denied.
CONCLUSION
For the foregoing reasons, Hayes's petition for habeas corpus is DENIED.
IT IS SO ORDERED.
JUDGMENT
The Court having denied the petition for writ of habeas corpus by Memorandum and Order filed May 17, 2002, it is hereby ordered that judgment be entered in favor of respondent and against petitioner.
IT IS SO ORDERED.