Opinion
No. C 00-4661 SI (pr)
June 21, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Vernon James' pro se petition for writ of habeas corpus concerning his 1997 conviction in the Alameda County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
A. Trial Evidence Concerning The Crimes
On February 27, 1996, at about 8:00 p.m., a man was shouting in the street outside Steven Halpren's second floor apartment in Berkeley. The incoherent shouting continued for several minutes and Halpren figured out that the man (later identified as James) was yelling about a former female resident of the apartment building. Halpren went outside and exchanged words with James. James "then stuck Halpren twice on the left side of his head and told Haipren, "I'm not afraid to kill people, I know how to kill people, I have been in Folsom."' Cal. Ct. App. opinion, p. 3. Halpren kicked at James twice as James walked away while still yelling. Halpren went home, called the police, and went back outside to look for James. He walked down the street and heard James' voice and two female voices. "According to Halpren, although appellant was still shouting angrily, he did hear one of the female voices say, "Don't do it, Vernon.' Soon thereafter, Halpren noticed appellant, now between 100 and 150 feet away, walking towards him. Haipren testified that he was slowly walking back to his apartment when he saw a bright orange flash and heard a loud boom come from appellant's direction. Although Halpren did not see appellant with any weapons, Halpren believed appellant was shooting a gun at him." Id. at 4. Haipren returned to his apartment and while in the apartment heard another loud boom that shook his apartment and caused plaster dust to fall.
A police officer observed holes and marks on the exterior and interior of Halpren' s apartment consistent with someone having fired a load of buckshot from a shotgun. A buckshot projectile was found on the living room floor. Unused shotgun rounds were found in the street.
While the police were talking to Halpren at his apartment later, they heard James's voice coming from somewhere outside. Shortly thereafter, police arrested James. Halpren identified him as the assailant. Several other witnesses were unable definitely to identify James as the shooter.
A forensic scientist named Michelle Fox testified that she collected and analyzed gunshot residue from the gloves and jacket James was wearing at the time of his arrest. She found particles unique to gunshot residue on two of the articles of clothing and particles indicative of gunshot residue on all three articles of clothing. She testified that the presence of the particles unique to gunshot residue indicated that the person wearing the clothes had fired the gun, or the person had been within a few feet when someone else fired a gun, or the clothes had come into contact with an object, such as a gun, contaminated with gunshot residue.
B. Procedural History
James was convicted in a jury trial in Alameda County Superior Court of shooting at an inhabited dwelling house, discharging a firearm in a grossly negligent manner, and possession of a firearm by a convicted felon. See Cal. Penal Code §§ 246, 246.3, 12021(a)(1). He also was found to have personally used a firearm in the commission of the offenses and to have suffered four prior convictions. On February 6, 1998, James was sentenced to a total term of 35 years to life in prison. James appealed his conviction and filed a petition for writ of habeas corpus. The California Court of Appeal affirmed his conviction and denied his petition for writ of habeas corpus. The California Supreme Court denied his petition for review.
James then filed his federal petition for writ of habeas corpus. His federal petition raised four claims, each of which will be addressed in this order. First, he contended that his right to effective assistance of counsel under the Sixth and Fourteenth Amendments was violated when counsel failed to prevent the prosecution from having access to and use of an expert witness he chose not to call as a defense witness. Second, he contended that his rights under the Sixth and Fourteenth Amendments were violated by the prosecutor's use of peremptory challenges to strike two African-American women from the jury panel. Third, he claimed that his guilty plea leading to the prior conviction used to enhance his sentence in 1998 was not knowing, voluntary and intelligent. Fourth, he argued that his rights under the Sixth and Fourteenth Amendments were violated by the jury instruction given on the topic of willfulness.
The court issued an order to show cause on February 14, 2001, directing respondent to show cause why the petition should not be granted. Respondent filed an answer and petitioner filed a traverse. The matter is now ready for a consideration of the merits of the petition.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Alameda County, California, which is located within this judicial district. 28 U.S.C. § 2241 (d).
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless 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).
"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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
"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] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 11. at 413. "[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 clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." 1st at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the petition.
DISCUSSION
A. Ineffective Assistance of Counsel Claim
1. State Court Proceedings
James contended that his defense counsel rendered ineffective assistance when he withdrew his objection and acquiesced in the court's decision to compel disclosure of a criminalist's report and allow the prosecution to call that criminalist as a witness. Attorney Garry Sherrer was appointed and substituted in as counsel for James on August 12, 1997, three weeks before trial began, when the deputy public defender originally assigned to represent James withdrew. On August 28, 1997, Sherrer informed the trial court he wanted to have the clothes James was wearing when arrested tested for gunshot residue. Because the sheriffs crime laboratory indicated it would take two weeks to complete the test, and defendant had found a private laboratory that could do the test in about a week, and defendant was unwilling to waive the speedy trial time, the court ordered the sheriffs department to release the clothing to the private laboratory for a gunshot residue test ("GSR test"). Attorney Sherrer informed the court and counsel that day that he probably would call Michelle Fox, the forensic scientist performing the GSR test, and would provide the prosecutor with a copy of her report. The court asked about the status of the GSR test on September 2, and was told by defense counsel that he expected to have the results by September 5; the court stated it was imperative that both counsel have the test results before opening statements.
On September 7, 1997, Fox faxed her report to attorney Sherrer, who read it and informed the court the next day that he no longer intended to offer the GSR test or to present an identity defense. He made these statements in connection with a motion to exclude James' statement to Halpren that he had been in Folsom State Prison. Based on that representation, the court excluded James' statement about having been to Folsom under California Evidence Code § 352.
On September 10, 1997, the trial court noted that most of the questions defense counsel had asked Halpren on cross-examination went to the issue of identity, despite the fact that defense counsel continued to insist that he was not presenting an identity defense. The court reconsidered its earlier ruling and decided to admit James' statement to Halpren that he had been in Folsom. The prosecutor stated that he had not conducted a GSR test because he had been assured by the defense that identity would not be a disputed issue. Now that identity was in dispute, he intended to call Fox as a prosecution witness and asked the court to order defense counsel to turn over a copy of Fox's report. A discussion ensued then and the next morning about whether Fox's report and even Fox's prospective testimony was protected from disclosure under the attorney work product doctrine. The trial court understood that the GSR test was destructive, i.e., that the test involved transferring any gunshot residue particles from the clothing articles on to a disk with a sticky surface and that the disk was examined under a microscope for gunshot residue particles. Once the GSR test was done, the particles were on the disk rather than the clothing articles. Defense counsel pointed out that, although the clothing articles could not be tested again, the disks remained intact and could be re-examined under a microscope. Defense counsel ultimately agreed with the court's indicated ruling that the prosecution was entitled to a copy of Fox's report and to call Fox as a witness. Fox testified that gunshot residue was found on James' clothing.
The California Court of Appeal denied relief on James' habeas claim that his counsel rendered ineffective assistance by withdrawing his objection to the disclosure of Fox's report and allowing Fox to testify for the prosecution. The court found "no basis for the present claim that the conduct of defense counsel fell below the standard of care, and was therefore ineffective. Certainly, appellant has not suggested how a further, more vocal objection would have changed the mind of the trialjudge." Cal. Ct. App. opinion, p. 22. The appellate court also determined that Fox's report and her prospective testimony were not privileged under the California attorney work product doctrine, and that the trial court had erred in finding them privileged. Since the report and prospective testimony were not covered by the work product doctrine applicable in criminal cases under California law, they were not protected from disclosure and James' position that they were protected was meritless. Cal. Ct. App. opinion, pp. 23-24.
2. Analysis of Federal Claim
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judgeing any claim of ineffectiveness is "whether counsel's conduct so underminded the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See id. at 691-94. The relvant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998, cert. denied, 525 U.S. 1159 (1999).
A lawyer need not file a motion or make an objection that he knows to be meritless on the facts and the law. See Wilson v. Henery, 185 F.3d 986, 990 (9th Cir. 1999) (to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance), cert. denied, 519 U.S. 1142 (1997).
It has been decided as a matter of state law that Fox's report and testimony were not protected from disclosure by the California attorney work product doctrine. revisit that determination of state law by the state appellate court. Ste Hkkxi.Eciock. 485 U.S. 624, 629 (1988) (court is not free to review state court's determination of state law); cf. id. at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940) (determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise'")). Because the evidence and testimony was not protected, the prosecution was entitled to have access to the report and testimony. Defense counsel's objection to the disclosure of the evidence and testimony was meritless as a matter of state law. His withdrawal of the meritless objection was not deficient performance.
In addition to not violating state law, the court's decision to require production of the test and expert testimony did not offend the basic guarantee of a fair trial. The defense expert had access to the clothing only because the court ordered the sheriff's department to turn over the clothing for testing. The clothing was not evidence the defense uncovered on its own. The court ordered the turn-over of the clothing for testing on the assumpting that both sides would have access to the test results. Had the prosecutor and the court anticipated that defense counsel would not call the tester and would attempt to prevent disclosure of the test results, the trial court doubtless never would have released the clothing for the test. The test performed was destructive in that part of it — i.e., the collection and transfer of the residue to the sticky disk — could not be repeated by the prosecutor's own expert once it was done by the defense expert. Had the prosecution been required to obtain its own expert, that expert would have had to rely on the accuracy of Fox's residue-gathering methods, which probably would have meant those methods could not have been subjected to cross-examination. The entire test result problem existed because defense counsel had represented that the defense did not intend to dispute James' identity as the person who shot the gun. Counsel apparently later decided to challenge identity, at least until he saw the results of the GSR test. Defendant cannot get the windfall advantage of leading the court and prosecutor to believe that test results will be shared, performing the destructive test, and then preventing the disclosure of those test results and independent testing of the evidence while pressing a defense that makes the test results highly relevant.
Additionally, no prejudice resulted from counsel's actions. If counsel had not withdrawn the objection, it would have been overruled and the evidence admitted. James also argues that he was prejudiced on appeal because the withdrawal of the objection precluded appeal on the issue. This argument is unpersuasive because the California Court of Appeal decided that the objection was meritless. The objection thought meritless as the basis of the ineffectiveness claim would not somehow gain life and be considered meritorious when raised independently. Finally, even if James' counsel had been successful in preventing disclosure of Fox's report and preventing her from testifying, the prosecution could have had the GSR test performed on the disks by another criminologist who presumably would have come to the same conclusion as Fox, i.e., that there was gunshot residue on the articles of clothing. Under either scenario, prejudice did not result from counsel's conduct. James is not entitled to the writ on this claim.
B. Batson Claim
At James' trial, the prosecutor exercised peremptory challenges to two female African-American prospective jurors, Leda Joseph and Ruth Smith. The defense made a Wheeler motion after the prosecution struck these two prospective jurors. The trial court had "serious doubts" but, acting out of "an abundance of caution," found that a rima facie case that the challenges were on the basis of race had been shown. RT 664. The prosecutor then attempted to provide race-neutral reasons for the exclusion of the jurors. The trial court agreed that the reasons were race-neutral and denied the Wheeler motion. The California Court of Appeal rejected James' contention that the trial court had committed a Batson/Wheeler error.
In California, a party who believes his opponent is using his peremptory challenges to strike jurors on grounds of group bias alone may raise the point by way of a timely motion. See People v. Wheeler, 22 Cal.3d 258, 280 (1978). Wheeler is the state analogue to Batson v. Kentucky, 476 U.S. 79, 89 (1986).
Defense counsel also argued to the trial court that women in general were being improperly challenged, but James did not pursue that claim on appeal or in his federal habeas petition.
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution forbids peremptorily challenging potential jurors solely on account of their race. See Batson v. Kentuck , 476 U.S. 79, 89 (1986). Batson permits prompt rulings on objections to peremptory challenges under a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. See Batson, 476 U.S. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97; see Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000). Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. See Batson, 476 U.S. at 98. In evaluating the race-neutral explanation, the court must keep in mind that proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. See Hernandez v. Nexv York, 500 U.S. 352, 355-62 (1991) (no discriminatory intent where Latino jurors dismissed because of possible difficulty in accepting translator's rendition of Spanish language testimony); Purkett v. Elem, 514 U.S. 765, 768 (1995) (ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike).
This court will not dwell on the first step of the Batson analysis because the trial court found (albeit reluctantly) that a prima facie showing had been made and proceeded to the second and third step at James' trial. "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hemandez, 500 U.S. at 359.
The fact that California used an incorrect standard for determining whether the first step of the Batson analysis had been satisfied, see Wade, 202 F.3d at 1197, does not matter in James's case because the state court determined — even using the more stringent state standard — that James had shown a prima facie case and satisfied the first step of the a son analysis, thus requiring the court to move on to the second and third steps of the Batson analysis. Had the state court decided that James did not satisfy the first step of the Batson analysis, this court would not have deferred to that finding under 28 U.S.C. § 2254(d), and instead would have done de novo review. See id. at 1195-96. Because the analysis proceeded past the infirm first step and on to the second and third step — as to which California's courts' interpretation is in step with federal law — the court can defer to the state court findings under 28 U.S.C. § 2254(d).
In light of the trial court's determination that a prima facie case had been shown, this court begins its consideration of the claim at the second step of the test, i.e., whether the prosecution offered a race-neutral explanation for striking the two jurors. He did.
The prosecutor identified several race-neutral reasons for his peremptory challenge of prospective juror Leda Joseph. He thought Joseph was evasive in responding to the inquiry about whether she or any of her relatives or close friends ever had been arrested for or charged with any type of criminal offense. Although other jurors also had relatives and acquaintances who had faced criminal charges, those other jurors hadn't been evasive in responding to the questions about the circumstances. The prosecutor also was bothered by Joseph's claimed lack of knowledge about the employment of the father of her three year old child. Joseph's responses on this topic suggested to the prosecutor "[e]ither an evasiveness or lack of truthfulness or somebody who didn't show much responsibility in terms of knowing the work habits of the father of a three year old child. It was clear from what she answered in terms of being an order selector for Lucky that it would be important to have the information about the father of the child in case there was any sort of family support-going on." RT 668. Another important factor in his analysis of Joseph was that she had been inexcusably and unapologetically late for court on the secofid day of jury selection.
The prosecutor also identified two race-neutral reasons why he peremptorily challenged prospective juror Ruth Simon. First, he was concerned about her statements about her daughter's boyfriend who was in federal prison serving a sentence on a drug trafficking charge. That conviction apparently had occurred in St. Louis, even though the man had lived in Oakland. The location of the conviction, together with the ten-year prison sentence imposed, led the prosecutor to believe that the man was a significant drug dealer. "The red lights were flashing and sirens were going off in my head because that clearly was an indication to me that they were talking about somebody who was a big time drug dealer who is connected to her family." RT 670. Ms. Smith apparently was unconcerned with her 21-year old daughter's continued relationship with this criminal. The prosecutor also perceived Ms. Smith as biased against police officers based on her description of her advice to her son about problems with the police. She stated that her 19-year old unemployed son, living in her household, often had been harassed by police for no reason and she had told him to get the badge number of the particular officer so they could file a police misconduct claim. The prosecutor thought Ms. Smith's attitude about her son getting harassed seemed evasive and possibly reflected an inability to be fair at trial to police officers.
The final step in the Batson analysis is the determination whether the defendant carried his burden of proving purposeful discrimination. The trial court found that there were race-neutral and appropriate reasons for the prosecutor to excuse the jurors. As to Leda Joseph, the trial court believed that it was appropriate to consider her unexplained tardiness as a factor in determining whether she would be an appropriate juror. The court also agreed with the prosecutor concerning the number of Joseph's acquaintances who had been arrested for serious offenses. And the trial court also thought Joseph's answers about the criminal activities of her acquaintances were evasive and non-responsive. "All of these have nothing to do with her race, but they have everything to do and appropriately so with whether or not she would be an appropriate juror to sit." RT 677. As to Ruth Smith, the trial court agreed with the prosecutor's assessment of Smith's daughter's boyfriend and his criminal problems and with the prosecutor's assessment that Smith demonstrated a substantial animosity toward police. The court determined that the prosecutor's reasons for the challenge were not race-based. The trial court denied the Wheeler motion. The California Court of Appeal found "no reason to question the trial court's conclusion that bona fide race-neutral explanations were offered by the prosecutor for the challenges that were indeed both plausible and fully supported by the record." Cal. Ct. App. opinion, p. 13.
The state court's finding that discriminatory intent had not been shown in the striking of the jurors at James' trial are findings of fact entitled to the presumption of correctness in federal habeas review. See Purkett, 514 U.S. at 769. Although this court would not be bound by any state court fact finding that was unsupported in the record or refuted by it, there are no such unsupported findings here. See Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993) (reversing and remanding denial of writ because there was insufficient support in record that black juror was removed for other than racial reasons), cert. denied, 511 U.S. 1085 (1994); see e.g., e.g., McClain v. Prunty, 217 F.3d 1209, 1221-23 (9th Cir. 2000) (trial court's decision that defendant did not meet his burden of proving intentional discrimination was based on an unreasonable determination of the facts in light of evidence at trial that showed prosecutor's stated reasons for striking jurors were factually wrong, pretextual or nonsensical).
The California Court of Appeal refused to engage in a comparative analysis, i.e., comparing the stricken jurors with other jurors who remained on the panel despite having some of the same characteristics. Comparative analysis was improper under state law. Also, comparative analysis undermined the trial court's credibility determinations and discounted the variety of subjective factors and considerations such as body language or manner of answering questions that legitimately informed a trial lawyer's decision to exercise peremptory challenges. See Cal. Ct. App. opinion, p. 13-14. Federal courts consider comparative analysis a useful tool for analyzing peremptory strikes under federal law. See Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th Cir. 1997), cert. denied, 532 U.S. 1153 (1998). It is not mandatory, however, and the failure of a state court to use comparative analysis is not an unreasonable application of or contrary to clearly established federal law under 28 U.S.C. § 2254 (d). Cf. Burks v. Borg, 27 F.3d 1424, 1427 (9th Cir. 1994) ("The U.S. Supreme Court has not yet ruled on the role of comparative analysis on appellate review, so no one is quite sure whether our circuit or the California Supreme Court is right"), cert. denied, 513 U.S. 1160 (1995).
James argues that comparative analysis shows that the prosecutor's reasons were pretextual. But his argument fails because he does not make good comparisons. First, he claims that juror RL had a negative experience with a San Leandro police officer using foul language in front of minors and had resolved it amicably after writing a letter of complaint to the San Leandro police chief Hearing foul language uttered by a police officer mouth is a far cry from being deliberately harassed by a police officer, and the latter is likely to generate far greater animosity toward the police Also, unlike Leda Joseph, juror RL thought the situation had been resolved amicably whereas Joseph indicated she expected her son's problems with the police to arise again. Second, James claims that juror MS's husband was convicted of possession of drugs for sale and was put on probation. MS's husband's drug offense presumably was considerably less serious than that of Ruth Smith's daughter's boyfriend: one received probation, the other received a ten-year prison sentence. And MS did not provide information that would lead to a supposition comparable to the prosecution's hunch that the boyfriend was a big-time drug dealer in light of the fact that he was imprisoned based on a case out of St. Louis, even though he had lived in Oakland. Third, juror EM had a nephew who was imprisoned for armed robbery and she had spoken on his behalf at sentencing. This was closer to Smith's situation, but was not comparable in that a big part of the prosecutor's problem with Smith was her apparent lack of concern about her daughter voluntarily continuing to associate with a big-time drug dealer. Fourth, James contends juror LJ had brothers who had criminal offenses, which was worse that juror Joseph's acquaintances with criminal offenses. But this misses the point, as it was the perceived evasiveness of Joseph's responses — the prosecutor made that very point when he acknowledged that Joseph was not the only one to respond that acquaintances had criminal histories, but that she was evasive about the details. Unlike juror Joseph, none of James' allegedly comparable jurors were inexcusably arid unapologetically late for court, let alone late for court and evasive about acquaintances' criminal prosecutions and evasive about their child's father's employment. And unlike juror Smith, none of James' allegedly comparable jurors were unconcerned about a daughter's continued relationship with a significant drug dealer and evinced an animosity toward police. James has not made persuasive comparisons and has not proven purposeful discrimination in the peremptory challenges.
One of the prosecutor's reasons for excluding juror Ruth Smith was weak on its face. The prosecutor claimed that he thought she harbored animosity toward the police based on her advice to her son about filing a citizen's complaint if the police harassed him. The intent to file a citizen's complaint if one is subjected to harassment by the police does not reflect animosity toward the police. It may well be that the prosecutor was suspicious that the mother gullibly believed her son's story and thought that the police stops were always harassment and could not be legitimate police business. Such an attitude would demonstrate animosity and would be a race-neutral reason for the exercise of a peremptory challenge against her. However, neither the prosecutor nor the trial court explained that was the problem with Smith. Even setting aside this weakreason, an additional race-neutral reason to strike juror Smith existed: her casual attitude about her daughter's continued relationship with a drug dealer. James has not met his burden of proving purposeful discrimination in the striking of juror Smith or juror Joseph.
James has not shown that the state court's rejection of his Batson claim was contrary to or an unreasonable application of clearly established federal law. He is not entitled to the writ on this claim.
C. Use of Prior Convictions For Sentence Enhancement
James contended that his current sentence was enhanced based on prior convictions that were unconstitutionally obtained. Specifically, he claimed that his 1981 guilty plea that led to his convictions for various offenses was involuntary and unintelligent because the elements of the crimes were not adequately explained to him and he was not advised of the penal consequences of the plea. James was represented by counsel at the 1981 guilty plea proceedings and had completed his sentence on those convictions well before the current offense. No federal habeas remedy is available to James under these facts.
"[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid.... If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04 (2001). The only exception to the rule barring challenges to prior convictions used to enhance current sentences is that a petitioner may challenge a prior conviction on the ground that there was a failure to appoint counsel in that case in violation of the Sixth Amendment. Id. at 404.
James' claim concerning the prior conviction does not assert that he was completely denied counsel, but rather that he was not properly advised by the court or counsel about the plea. He does not fit within the narrow exception to non-reviewability established by Lackawanna. Lackawanna therefore precludes consideration of his claim in a federal habeas proceeding.
Despite James' argument to the contrary, the Teague rule does not help him avoid the effect of Lackawanna. In Teague v. Lane, 489 U.S. 288, 310-316 (1989), the Supreme Court held that a federal court may not grant habeas corpus relief to a prisoner based on a constitutional rule of criminal procedure announced after his conviction and sentence became final unless the rule fits within one of two narrow exceptions. Teague operates only against petitioners. Teague never has been construed to facilitate the granting of the writ by requiring the habeas court to ignore a new rule of law.
D. "Willfulness" Jury Instruction
James contended that his right to due process was violated by the trial court's instruction on the element of willfulness for the crimes of discharging a firearm at an inhabited dwelling house and flegligent discharge of a firearm, violations of California Penal Code §§ 246 and 246.3. California Penal Code § 246 makes it a felony to "maliciously and willfully discharge a firearm at an inhabited dwelling house." California Penal Code § 246.3 makes it unlawful for a person to "willfully discharge a firearm in a grossly negligent manner which could result in injury or death to a person." At James' trial, the jury was given the following jury instruction concerning willful conduct: "The word `willfully' when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or make the omission in question. The word `willfully' does not require any intent to violate the law or to injure another or to acquire any advantage." RT 1204; CALJIC No. 1.20.
James argued on appeal that the instruction incorrectly described the element of willfulness, contending that for purposes of California Penal Code §§ 246 and 246.3, "willfully" required the defendant to act with the knowledge of the natural and probable consequences of the act as well as with the intent to commit the act itself Instructing otherwise, he contended, violated his right to due process.
The California Court of Appeal rejected James' claim. The court determined that California Penal Code §§ 246 and 246.3 were general intent crimes. The terms "maliciously" and "willfully" in § 246 "mean only that the act be committed with general criminal intent." Cal. Ct. App. opinion, p. 17. The term "willfully" in § 246.3 "requires only that the jury find appellant intentionally discharged a firearm, that he did so in a grossly negligent manner and tat the discharge of the firearm could have resulted in injury or death to a person." Id. The court explaitied that for all general intent crimes, the question is whether the defendant intended to do the proscribed act, i.e., that the prohibited act occur intentionally; there is no requirement that the defendant have knowledge of the consequences of his act. As a matter of state law, the appellate court rejected James' interpretation of the statutes' willfulness requirement and determined that the jury had been accurately instructed on the applicable mental state.
The federal habeas analysis begins with a recognition that a challenge to ajury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, the petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See id. at 72. The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See id.
The Due Process Clause of the Fourteenth Amendment 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. See In re Winship, 397 U.S. 358, 364 (1970). This right is violated if the jury is given instructions that permit it to convict the defendant without finding that every element of every charged offense has been proven beyond a reasonable doubt. Cf. California v. Roy 519 U.S. 2, 5 (1996) (omission of "intent" element from aiding and abetting instruction subject to harmless error analysis where jury could have found intent based on evidence it considered).
James' right to due process was not violated by the willfulness instruction given to the jury at his trial. The instruction correctly described the intent element of the crimes. It has been decided as a matter of state law that California Penal Code §§ 246 and 246.3 are general intent crimes and that the jury instruction that the CALJIC 1.20 jury instruction accurately describes the general intent element of such a crime. This court will not revisit that determination of state law by the state appellate court. See Hicks v. Feiock, 485 U.S. at 629. There was no federal constitutional error in the jury instruction. See Estelle v. McGuire, 502 U.S. at 72 (federal habeas relief is warranted only if there is instructional error that "so infected the entire trial that the resulting conviction violates due process"). The California Court of Appeal's rejection of James' due process claim was not an unreasonable application or contrary to clearly established federal law. James is not entitled to the writ on this claim.
CONCLUSION
For the forgoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.