Opinion
Hector A. Jimenez, Petitioner, Pro se, Susanville, CA.
For F. Foulk, Warden, Respondent: Kamala D. Harris, LEAD ATTORNEY, Attn: Chief, Criminal Division, San Diego, CA; Kenneth C Byrne, LEAD ATTORNEY, CAAG - Office of Attorney General, California Department of Justice - Supervising Deputy AG, Los Angeles, CA; Lance E Winters, LEAD ATTORNEY, Kathy S Pomerantz, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ARTHUR NAKAZATO, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons reported below, the Magistrate Judge recommends that the Court deny the petition for writ of habeas corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (" Petition"), and dismiss this action with prejudice.
1. BACKGROUND
1.1 State Court Proceedings
On May 31, 2011, Hector A. Jimenez (" Petitioner") was convicted of one count of first degree burglary (Cal. Penal Code § 459) and eight counts of receiving stolen property (Cal. Penal Code § 496(a)) following a jury trial in the California Superior Court for Los Angeles County (case no. BA366782), in which Petitioner was tried with two codefendants, Oscar Escobar and Angie Martinez. (Reporters' Transcript on Appeal (" RT") (Lodged Document (" LD") 2) at 1616-19; Clerk's Transcript (" CT") (LD 1) at 197-205.) Petitioner admitted he had suffered two prior serious felony convictions (Cal. Penal Code § 667(a)(1)), which qualified as " strikes" under California's Three Strikes law (Cal. Penal Code § § 667(b)-(i), 1170.12(a)-(d)), and that he had served two prison sentences within the meaning of Cal. Penal Code § 667.5(b). After striking one of Petitioner's prior convictions, the trial court sentenced him as a second strike offender to a term of thirty-one years and four months in state prison. (RT at 1802-04, 2104-08; CT at 215, 243-51.)
Petitioner appealed the judgment of conviction to the California Court of Appeal, raising his pending Sixth Amendment Confrontation Clause claim. (LD 3.) On November 21, 2012, in an unpublished opinion, the state court of appeal found Petitioner had forfeited his claim by failing to object in the trial court, found alternatively that his claim was without merit because any error was harmless, and affirmed the judgment (case no. B234991). (LD 6.) The California Supreme Court denied review of the court of appeal's decision without comment or citation (case no. S207736). (LD 7 & 8.)
1.2 Pending Proceedings
On April 29, 2014, Petitioner, proceeding pro se, filed the pending Petition raising three claims. (Pet. at 5-6; Memorandum of Points and Authorities in Support of the Petition for Writ of Habeas Corpus (" Mem.") [2] at 1-7.) Pursuant to his pre-service screening, the Magistrate Judge found grounds one and three were subject to dismissal with prejudice because they raised state-law issues and were not cognizable in a federal habeas petition. Petitioner was given the options of filing objections, voluntarily dismissing grounds one and three, or filing an amended petition deleting those claims. (5/7/14 Order (AN) [5].) On May 27, 2014, Petitioner elected to voluntarily dismiss grounds one and three and proceed on his remaining Sixth Amendment Confrontation Clause claim (ground two) [6].
On September 11, 2014, Respondent filed and served an Answer [11] arguing that ground two is procedurally barred and without merit. (Answer at 4-23.)
Pursuant to paragraph four of the Court's Order Requiring a Response/Answer issued in this case on June 3, 2014 [7], Petitioner's reply was due thirty days after service of Respondent's Answer. Petitioner has failed to file a timely reply. The matter now stands submitted for decision.
2. DISCUSSION
2.1 Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), 110 Stat. 1214, a federal court may not grant a state prisoner's application for habeas relief for any claim adjudicated on the merits in state court proceedings unless the adjudication of the claim resulted in a decision that 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) " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85 (2011); see also Burt v. Titlow, __ U.S. __, __, 134 S.Ct. 10, 15 (2013). The above standard " recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Titlow, 134 S.Ct. at 15.
Therefore, although AEDPA " stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings, " it nevertheless " reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786 (citation and internal quotation marks omitted). Consequently, § 2254(d) " preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. Put another way, in order to obtain federal habeas relief, " a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87; Titlow, 134 S.Ct. at 16.
" 'Clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166 (2003). More specifically, clearly established Federal law " 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." Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649 (2006) ( quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495 (2000)). Additionally, clearly established Federal law is only determined by the Supreme Court, not by the circuit courts. Lopez v. Smith, 574 U.S. __, __, __ S.Ct. __, No. 13-946, 2014 WL 4956764, at *3 (U.S. Oct. 6, 2014) (per curiam); 28 U.S.C. § 2254(d)(1). Circuit precedent also cannot " refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced." Id. ( quoting Marshall v. Rodgers, 569 U.S. __, __, 133 S.Ct. 1446, 1450 (2013)). Instead, where no decision of the Supreme Court " squarely addresses" an issue or provides a " categorical answer" to the question before the state court, § 2254 (d)(1) bars relief because the state court's adjudication of the issue cannot be contrary to, or an unreasonable application of, Supreme Court law. Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743 (2008) (per curiam); see also Moses v. Payne, 555 F.3d 742, 754, 758-60 (9th Cir. 2009).
A state court decision is " contrary to" governing Supreme Court law if it either applies a rule that contradicts the governing Supreme Court law or " confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432 (2005). Citation to Supreme Court cases is not required so long as " neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362 (2002); see also Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847 (2005) (" Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Richter, 131 S.Ct. at 784 (" [A]s this Court has observed, a state court need not cite or even be aware of our cases under § 2254(d)."). What matters is whether the last reasoned decision by the state court was contrary to Supreme Court law, not the intricacies of the analysis. Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002).
A state court's decision involves an " unreasonable application" of Supreme Court precedent " 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 413. More specifically, " a habeas court must determine what arguments or theories supported or, . . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Richter, 131 S.Ct. at 786. Federal habeas relief may only be granted if the state court's application was " objectively unreasonable, " not merely incorrect or erroneous. Andrade, 538 U.S. at 75-76; Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527 (2003).
Moreover, " [f]actual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . ." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029 (2003) ( citing § 2254(e)(1)). In fact, under § 2254(d)(2), a state-court factual determination is not unreasonable merely because a federal habeas court would have reached a different conclusion. Titlow, 134 S.Ct. at 15. Instead, a state court makes " an unreasonable determination of the facts in light of the evidence presented" only where the federal habeas court is " convinced that an appellate panel . . . could not reasonably conclude that the finding is supported by the record . . . [or] that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate." Ocampo v. Vail, 649 F.3d 1098, 1106 (9th Cir. 2011) ( quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). " This is a daunting standard - one that will be satisfied in relatively few cases." Taylor, 366 F.3d at 1000.
Additionally, " review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398 (2011).
AEDPA's deferential standard applies to Petitioner's pending Sixth Amendment Confrontation Clause claim. Petitioner raised that claim in both the state court of appeal and the California Supreme Court on direct appeal. (LD 3 & 7.) The court of appeal found Petitioner had forfeited his claim, however, that court nevertheless went on to reject the claim on the merits in a reasoned opinion, and the state high court denied it without comment. (LD 6 & 8.) Under the " look through" doctrine, Petitioner's claim is deemed to have been rejected for the reasons given in the last reasoned decision on the merits, which was the court of appeal's opinion. Ylst v. Nunnemaker, 501 U.S. 797, 802-06, 111 S.Ct. 2590 (1991).
2.2 Facts Established at Trial
The Court has conducted an independent review of the record, and finds the state court of appeal's decision affirming Petitioner's judgment of conviction on direct review contains a statement of facts that is based upon a reasonable determination of the facts in light of the evidence presented. Ocampo, 649 F.3d at 1106; Taylor, 366 F.3d at 1000. Further, the state court's factual determinations are presumed correct where, as here, Petitioner has not proffered clear and convincing evidence to the contrary. § 2254(e)(1); Miller-El, 537 U.S. at 340; see also Moses, 555 F.3d at 746 n.1. Consequently, the Court adopts verbatim the court of appeal's summary of the trial evidence as follows:
Prosecution Evidence
On December 18, 2009, Paige Reilley was living with three other people at 4420 Prospect Avenue in Los Angeles.[FN3] Reilley left the house around 1:00 or 2:00 p.m. that day and locked the door. When she returned in less than an hour, she could not enter because the chain was on the door. She was able to open the door about six inches, and she saw two men inside. The men were " Latino" and they seemed to be " under middle age." One of the men had a shaved head.
[FN3] Because the sole issue on appeal pertains to defendant's burglary conviction, we recite only the facts that are relevant to that conviction.
After Reilley called out " hello, " she realized what was happening. She closed the door and started screaming, " Help, my house is being robbed." She called 911. She heard the two men leave through a sliding glass door and jump over a wall. She heard them running. Reilley was unable to identify either suspect at trial. She later saw that the screen from her bedroom window was on her bed. The inside of the house was in a state of upheaval. Reilley saw that her laptop computer and a PlayStation 3 were missing. A broken cellular phone was found outside Reilly's window, and it was identified as belonging to codefendant Oscar Escobar.
Elziver Repuyan was driving down Prospect Avenue on December 18, 2009, at approximately 2:15 or 2:30 p.m. when he saw a car double-parked and facing in the opposite direction. The car's trunk was open. It was a black, four-door American car. Repuyan identified a photo of a Chevy Caprice with no license plate as being the one he saw on that afternoon. Repuyan could see someone in the driver's seat but did not know if the person was male or female, and he did not discern the person's race. Repuyan believed the car looked " suspicious." As Repuyan passed the car, he slowed down, and he saw two Hispanic men run out of a driveway and close the trunk.[FN4] At trial, Repuyan identified the man who got in the car behind the driver's seat as defendant. One of the men was wearing a black and gray shirt, which could have been a Raiders jersey. The black car had a dent on the left bumper. Repuyan recalled that defendant had a " big smirk" on his face. Repuyan called 911.
[FN4] Repuyan at first testified that the men threw something in the trunk but later said he did not see them put any items in the trunk.
After the incident, the police showed Repuyan some photographic lineups (" six-packs"). Repuyan testified that he identified someone.[FN5] On December 23, 2009, Detective Michelle Gomez of the Los Angeles Police Department (LAPD) showed Reilley a six-pack, and Reilley identified a photograph of Escobar as one of the men she saw in her house. Detective Gomez conducted a search of Escobar's home at 613 North Kenmore Avenue in Los Angeles. After being advised of his Miranda (footnote omitted) rights, Escobar agreed to speak with Detective Gomez and her partner, Detective Korn. (Footnote omitted.) Escobar took police to a house at 1177 Virgil Avenue, where stolen property was taken and where a black Caprice was parked.
[FN5] It was never revealed at trial who it was that Repuyan selected from the six-pack.
Detective Gomez directed Officer Raquel Trujillo and Officer Chellew of the LAPD to watch the Caprice and stop it when it drove away. About an hour later, the police officers stopped the car in front of the house on Virgil. Defendant was driving, Angie Martinez was in the passenger seat, and a young child was in the backseat. A pink camera was found in a purse sitting on the front seat. The camera belonged to Daniel Kram, who was one of the residents living at 4420 Prospect Avenue on December 18, 2009. Defendant told Detective Gomez he lived at 1177 Virgil Avenue and gave written consent to search the residence. Martinez told police she lived at the residence as well. The house had two bedrooms, but one of them appeared to be used as a storage room. The police found a great deal of merchandise in the house, including electronics, cell phones, jewelry, televisions, cameras, passports, credit cards, stereo speakers, MP3 players, and an iPod dock. Two laptop computers were also found in the house.[FN8]
[FN8] Some of the victims of other burglaries, as well as another victim of the Prospect Avenue burglary, testified as to which items belonged to them.
After defendant and Martinez were arrested and taken to the station, Officer Trujillo put them in neighboring cells. In order to speak to each other they had to shout. Officer Trujillo heard defendant telling Martinez in Spanish to " play dumb." Martinez responded that she would take the blame for everything because she was already in trouble. Defendant said " they didn't know anything about what was going on, " and Martinez responded that " they've seen her driving the car." Defendant told Martinez to " blame it on [the] baby's daddy, " and that she should say that " all the stuff that she got was because she was working at that time." Martinez asked defendant to promise her that he would not " do this again." Defendant said he had a lot of money in the bank and that he would bail her out. He also told Martinez to write everything down so she would not forget what to say. Martinez said that once they were released, they were going to " flee" to Mexico. Defendant said he needed to call " Danny" " to let him know so he can cover up for him."
Detective Susan Carrasco of the LAPD interviewed Martinez after reading Martinez her Miranda rights and obtaining a waiver. (Footnote omitted.)
Defense Evidence
Neither Escobar nor Martinez testified, nor did they present any witnesses on their behalf. Detective Edward Wilson of the LAPD testified on defendant's behalf. On December 23, 2009, Detective Wilson showed two color six-packs to Repuyan as part of the investigation of the Prospect Avenue burglary. Repuyan identified an individual as the one he saw enter the rear door of the car behind the driver. (Footnote omitted.) Detective Wilson identified the six-packs in the defense exhibits as the ones shown to Repuyan. Detective Wilson did not know who, if anyone, in the six-packs was connected with the burglary. In Detective Wilson's opinion, the photo Repuyan selected looked " kind of similar" to both male defendants.
(LD 6 at 3-6.)
2.3 Sixth Amendment Confrontation Clause Claim
Petitioner argues the admission of codefendants Escobar's and Martinez's statements to police, explained fully below, violated his Sixth Amendment right to confrontation, specifically Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), which prohibits the prosecution from using hearsay confessions implicating the defendant that are made by a nontestifying codefendant. Petitioner's claim only concerns his burglary conviction. (Pet. at 5; Mem. at 3-7.) Respondent contends this claim is procedurally barred and without merit. (Answer at 4-23.) The Court agrees with Respondent, as discussed below.
2.3.1 Procedural Default
Respondent contends Petitioner's pending claim is procedurally barred because Petitioner failed to object to the admission of the statements made by his codefendants at trial on the Bruton /Confrontation Clause ground he now raises. (Answer at 4-7.) The procedural default doctrine bars review of a petitioner's federal habeas claim when the claim was rejected in state court based on an adequate and independent state procedural bar. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546 (1991). To be independent, such a procedural bar must have arisen from explicit and independent state law. Id. at 735; Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989). If the basis of the decision is interwoven with federal law, or if a threshold federal analysis is required, there is no independent basis for the procedural bar, and the petitioner may seek relief in federal court. Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). For the procedural bar to be adequate, the bar must be clear, consistently applied, and well established at the time of the alleged default. Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005).
2.3.1.1 State Procedural Rule
" Under Section 353 of California's Evidence Code, also known as the 'contemporaneous objection rule, ' evidence is admissible unless there is an objection, the grounds for the objection are clearly expressed, and the objection is made at the time the evidence is introduced." Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002). The contemporaneous objection rule requires that a " timely and specific objection" is made " in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility." People v. Williams, 44 Cal.3d 883, 906, 245 Cal.Rptr. 336 (1988); see also People v. Alvarez, 14 Cal.4th 155, 186, 58 Cal.Rptr.2d 385 (1996) (without a specific or timely objection below " predicated on the Sixth Amendment's Confrontation Clause, " that claim was not preserved for review); People v. Stevens, 41 Cal.4th 182, 198-199, 59 Cal.Rptr.3d 196 (2007).
2.3.1.2 Relevant Proceedings
Here, although the statements at issue were discussed in a pretrial motion for severance, Petitioner's counsel made no objection to their admission, and as the state court of appeal correctly found, " [n]o objections were heard from [Petitioner's] counsel during Detective Gomez's or Detective Carrasco's testimony about the codefendants' statements." (LD 6 at 7; RT at B21-B23, 916-25, 1067-70.) As a result, the state court of appeal found Petitioner had " forfeited this issue" on appeal, and the court also found that the motion for severance was not adequate under the circumstances to preserve the Bruton /Confrontation Clause issue for appeal. (LD 6 at 10-11.)
2.3.1.3 Analysis
Respondent has the initial burden to adequately plead " the existence of an independent and adequate state procedural ground as an affirmative defense. . . ." Bennett, 322 F.3d at 586. That burden is satisfied when the state raises the defense explicitly and clearly. See King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006) (respondent's initial burden met where " [t]he government explicitly pleaded 'the existence of an independent and adequate state procedural ground . . . .'"). In the Answer, Respondent expressly raises procedural default as an affirmative defense and argues the state rule at issue is both an independent and adequate state procedural ground. (Answer at 5-6.) Respondent's position is supported by Ninth Circuit cases that have consistently found California's contemporaneous objection rule is an independent and adequate state procedural bar where a party has failed to make a timely objection to the admission of the challenged evidence. See Chein v. Shumsky, 323 F.3d 748, 751-52 (9th Cir. 2003); Melendez, 288 F.3d at 1125 (" We held more than twenty years ago that the rule is consistently applied when a party has failed to make any objection to the admission of evidence") (italics in original); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999); Garrison v. McCarthy, 653 F.2d 374, 376 (9th Cir. 1981).
As a result, " the burden to place that defense in issue shifts to the petitioner." A petitioner satisfies that burden " by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." If the petitioner meets that burden, Respondent bears the ultimate burden of " demonstrating that the bar is applicable . . . ." Bennett, 322 F.3d at 586. Here, Petitioner has not filed a reply, so he has not addressed Respondent's procedural default argument at all, let alone cited any authority showing the inadequacy of the state rule at issue. He has failed to meet his burden.
Moreover, the procedural default doctrine still applies even though the court of appeal alternatively addressed the merits in rejecting his claim. See Harris, 489 U.S. at 264 n.10; Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992).
Lastly, Petitioner may still overcome a procedural default if he demonstrates cause and actual prejudice, or shows that the failure of this court to consider this claim would result in a fundamental miscarriage of justice. Bennett, 322 F.3d at 580. Petitioner has failed to file a reply or otherwise address his procedural default, so he has also failed to show cause and prejudice, or a fundamental miscarriage of justice.
Based upon the foregoing, Petitioner's pending Bruton /Confrontation Clause claim is procedurally barred in this Court. Coleman, 501 U.S. at 729-30; Bennett, 322 F.3d at 586.
Regardless, the procedural default doctrine is not jurisdictional, but rather, is based on comity. Batchelor v. Cupp, 693 F.2d 859, 863 n.2 (9th Cir. 1982). Thus, federal courts have the power to reach the merits notwithstanding a state procedural default. Id. Where it is clear that a claim fails on the merits, the interests of comity are better served by addressing the claim on the merits rather than invoking procedural default. Walters v. Maass, 45 F.3d 1355, 1360 n.6 (9th Cir. 1995). Because Petitioner's pending Bruton /Confrontation Clause claim is without merit, the Court addresses the substance of that claim below.
2.3.2 Merits Analysis
On direct review, the state court of appeal correctly summarized the statements at issue as follows:
This Court adopts verbatim the court of appeal's summary of the background facts pertinent to Petitioner's Sixth Amendment Confrontation Clause claim because that summary is an accurate and reasonable determination of the record, and because Petitioner has not presented clear and convincing evidence to the contrary. Miller-El, 537 U.S. at 340; Ocampo, 649 F.3d at 1106; Taylor, 366 F.3d at 1000.
Detective Gomez testified that she interviewed Escobar at the police station. Escobar admitted breaking into 4420 Prospect Avenue through an unlocked window. He admitted to running from the house when a female came home and screamed. He dropped his phone at the house. He said he ran to a large, black, four-door sedan that was waiting for him. He was carrying four laptops. He said " they took them" to a residence located near Lexington Avenue and Virgil Avenue. Escobar showed police the locations of 4420 Prospect Avenue and 1177 Virgil Avenue. At the Virgil Avenue address he pointed out the black sedan parked at the rear of that address. Escobar pointed out the front house and said that the computers were taken to that house. He admitted to breaking into another residence near Hoover Street and Melrose Avenue.
Martinez was interviewed by Detective Carrasco. She admitted to driving a vehicle in connection with the burglary at 4420 Prospect Avenue. It was the same vehicle in which she had been stopped. She drove the car to the location while " two other people" went to the house, took property, and returned to the car with the property.
(LD 6 at 9-10; RT at 916-25, 1067-70.)
Petitioner alleges the trial court violated Bruton to the extent the statements above refer to a third party's involvement in the crimes. Petitioner argues those references directly implicated him because he was the third codefendant on trial. (Pet. at 5; Mem. at 3-7.) The state court of appeal denied ground two, in pertinent part, as follows:
Defendant argues that the codefendants' statements " obviously" referred directly to defendant. This is because defendant was on trial with two codefendants, one of whom (Escobar) confessed to entering the house and stealing property before escaping in the black Caprice, and the other (Martinez) who confessed that she drove two people in a black Caprice to the house and waited while they stole property. No jury could avoid making the inference that the third person was defendant. Since defendant did not have the opportunity to confront Escobar or Martinez, he argues, his right to confrontation was violated.
We first observe that the issue of whether a statement is incriminating on its face without reference to other evidence is sometimes a difficult one. Any statement that does not specifically identify a codefendant by name, such as when a nickname or moniker is used, would require some other evidence to connect the identification to that defendant. Hence, an inference would have to be drawn for the statement to be incriminating. [ Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151 (1998)] stated that it is not the fact of an inference but the kind of inference that is significant. ( Gray, supra, 523 U.S. at p. 196.) " The inferences at issue . . . involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." ( Ibid .)
In the instant case, it is not necessarily true that Martinez's statement that she waited for two persons and Escobar's statement that a car was waiting for him were facially incriminating to defendant without reference to other evidence. Although defendant argues that Martinez's reference to " two people" obviously meant her two codefendants, linkage to other evidence was necessary to fully recognize the incriminating nature of the statement. Nevertheless, the statements would not pass muster under [ Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702 (1987)]'s oft-cited phrase that a statement that does not refer to a defendant by name or even refer to his existence does not violate Bruton . (State law citations omitted.) We question whether the latter condition is a bright line rule for exclusion of a codefendant's statement or merely a reference to the circumstances that occurred in that particular case. ( See Richardson, supra, 481 U.S. at p. 211 [no confrontation clause violation " when, as here, the confession is redacted to eliminate . . . any reference to [the defendant's] existence" ], italics added.) Such a rigid rule would seem to contradict Richardson 's expression of " no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." ( Richardson, at p. 211, fn. 5.)
On the other hand, Martinez's reference to " two persons" approaches, although from a distance, the phrase condemned in Gray, i.e., " Me,, , and a few other guys." Unlike the written statement in Gray, however, Martinez's statement was revealed to the jury in a much more fleeting iteration that did not call particular attention to the unnamed participants. ( Gray, supra, 523 U.S. at pp. 192, 193, 194.) . . . .
Even assuming, however, that it was erroneous to admit the two redacted statements here, any error in doing so was harmless beyond a reasonable doubt. . . . We conclude that other properly admitted evidence was compelling with respect to defendant's guilt, and the extrajudicial statements were merely cumulative of other evidence. (Citation omitted.)
Victim Reilley testified that she saw two Hispanic men inside her home when she was prevented from entering by the door chain. Passerby Repuyan testified that he saw two Hispanic men run from the Prospect Avenue location toward the black sedan and get in the car. Repuyan identified defendant in court as one of the men - the one wearing a smirk on his face as he got in the car. Subsequently, Martinez and defendant were placed in adjoining jail cells where their shouted conversation was incriminating toward defendant. Police found stolen property in the home defendant shared with Martinez. Defendant was stopped while driving the car identified as the getaway car, and a purse inside the car contained Reilley's roommate's camera. All of this evidence pointed inexorably to defendant's guilt. As the jury members were instructed with CALCRIM No. 376, if they concluded that defendant knew he possessed property and that the property was recently stolen, they could consider this evidence in conjunction with even slight supporting evidence to prove that defendant committed burglary. (Footnote omitted.) To the extent the jury could not have avoided the conclusion that defendant must have been one of the two persons for whom Martinez acted as driver, i.e., because other evidence in the case pointed so strongly to defendant's identification as one of the burglars, the statement was merely cumulative.
Nothing else in Martinez's redacted statement, as testified to by Gomez, implicated defendant. Compared to other evidence, Martinez's statement was inconsequential. As noted, it was not a written statement admitted into evidence, as occurred in Gray, but rather a paraphrase of Martinez's statement recounted by the detective. Thus, even if the issue had not been waived, we find no error in the redaction used for Martinez's statement in this case. Even if the jury used Martinez's confession against defendant, it did not contribute to the verdict and was insignificant in relation to everything else the jury considered. (Citation omitted.)
Likewise, any error in admitting Escobar's reference to at least one accomplice (the driver) was harmless. With respect to Escobar's confession, however, defendant also argues that Escobar tied his own commission of the crime directly to defendant's house and car. According to defendant, this strongly suggested that the other participants in the burglary were connected with the black Caprice and the house at 1177 Virgil Avenue. Defendant states that, " [t]he jury surely connected this inference to other evidence . . . that [defendant] was arrested while driving the Caprice and that he lived at 1177 North Virgil." Thus, defendant himself acknowledges that an inference had to be drawn that defendant was an accomplice of Escobar's, since defendant was found driving the Caprice a few days later, he acknowledged that he lived at 1177 Virgil Avenue, and evidence at this address indicated the occupants were participants in the burglary. Thus, this evidence was an indirect implication of defendant's guilt that, combined with the proper jury admonition, did not violate Bruton . ( Richardson, supra, 481 U.S. at pp. 208, 211.)
* * * *
Finally, as we have indicated, the trial court instructed the jury to limit consideration of Martinez's statements to Martinez and Escobar's statement to Escobar. (See CALCRIM Nos. 303, 304, 305.) As the high court noted, " 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 [for the jury members] to forget." ( Richardson, supra, 481 U.S. at p. 208.) The fact that the trial court did not give a limiting instruction until the close of the case, along with the rest of the jury instructions, does not negate the prophylactic effect of the instruction.[FN15] . . . .
[FN15] Defendant points out that the jury requested a readback of Detective Carrasco's testimony about Martinez's statement, and he asserts that the request must have been for the sole purpose of considering her confession against defendant. This is mere speculation. Also contrary to defendant's assertion, the fact that the jurors requested this readback does not necessarily signify that the deliberations were close.
In sum, admission of the redacted statements was not prejudicial because there was unrebutted, convincing, and independent evidence of defendant's guilt. Any error was harmless beyond a reasonable doubt since the verdict was surely unattributable to the redacted statements. (Citation omitted.)
(LD 6 at 11-16.)
The state court of appeal's analysis and conclusion were not contrary to or unreasonable applications of clearly established Supreme Court precedent, and were based upon a reasonable determination of the facts in the record. § 2254(d).
First, Petitioner has failed to show the state court of appeal unreasonably applied clearly established Federal law . § 2254(d). As stated above, the Confrontation Clause prohibits the admission of a non-testifying codefendant's confession naming the defendant as a participant in the crime. Bruton, 391 U.S. at 135-36. As a prefatory matter, in this case three codefendants were on trial for the same burglary, and two of those codefendants made confessions referring to a third perpetrator. Accordingly, the Court agrees with the state court of appeal's conclusion that this scenario " approaches, although from a distance, the phrase condemned in Gray ." See Gray, 523 U.S. at 196 (condemning statements that " obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial."); see also Richardson, 481 U.S. at 211 (" [T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence .") (emphasis added).
However, under AEDPA, " approaching" a constitutional violation " from a distance" is grossly insufficient. As the state court of appeal also correctly pointed out, the specific, written, redacted statement held to be unconstitutional in Gray is not presented in this case. Instead, here the statements were merely " paraphrase[s] . . . recounted by the detective[s], " and were " revealed to the jury in a much more fleeting iteration that did not call particular attention to the unnamed participants." (LD 6 at 12, 14.) In fact, in Gray, the Supreme Court's holding relied in part on its conclusion that a written statement like the one presented in that case - and not here - which overtly deleted or blacked out the defendant's name, " may well call the jurors' attention specially to the removed name" and " overemphasize the importance of the confession's accusation . . . ." Gray, 523 U.S. at 193.
Consequently, Petitioner has failed to show that Gray or any other Supreme Court decision constitutes clearly established Federal law prohibiting the statements at issue in this case, i.e., statements that were presented in oral testimony, and which included only brief, passing references to a third party's participation in the crime. See Smith, 2014 WL 4956764, at *3 (state court decision did not unreasonably apply clearly established Federal law where no Supreme Court precedent addressed " the specific question presented by th[e] case."); Van Patten, 552 U.S. at 125-26 (state court could not have unreasonably applied clearly established Federal law where no Supreme Court decision " squarely addresse[d] the issue in this case, . . . ."); see also Moses, 555 F.3d at 753 (" a state court must apply legal principles established by a Supreme Court decision when the case 'falls squarely within' those principles, but not in cases where there is a 'structural difference' between the prior precedent and the case at issue, or when the prior precedent requires 'tailoring or modification' to apply to the new situation.") (Citation omitted). In other words, the state court of appeal's reasoned decision denying Petitioner's Confrontation Clause/ Bruton claim was not, and could not be, violative of any clearly established Federal law. See Musladin, 549 U.S. at 77 (" Given the lack of holdings from this Court" on the specific issue presented in that case, " it cannot be said that the state court unreasonably applied clearly established Federal law.") (citation, internal quotation marks, and brackets omitted).
Second, and more important, even if Petitioner had shown a violation of clearly established Federal law in this case, the alleged error was exceedingly harmless in light of the overwhelming evidence of his guilt. A federal habeas petitioner is entitled to relief only if an alleged error had a " substantial and injurious effect or influence in determining the jury's verdict, " and only if he can establish actual prejudice. Brecht v. Abrahamson, 507 U.S. 619, 623, 637, 113 S.Ct. 1710 (1993); see also Mendoza v. Runnels, 251 Fed.Appx. 406, 408 (9th Cir. 2007) (finding alleged Bruton error harmless under Brecht ) (cited pursuant to 9th Cir. R. 36-3). Here, the state court of appeal correctly concluded " that other properly admitted evidence was compelling with respect to [Petitioner's] guilt, and the extrajudicial statements were merely cumulative of other evidence." (LD 6 at 13.) Petitioner was positively identified in open court as one of the men running down the driveway where the burglary occurred, and then getting into the getaway vehicle. (RT at 664-65, 668-69, 679, 922-23.) He was later arrested while driving a vehicle that matched the description of the getaway vehicle, with one of the stolen items from the burglary in the vehicle. Numerous other stolen items were then found inside the residence Petitioner shared with Martinez. (RT at 927-40, 943-55, 980, 1036, 1038.) Petitioner's subsequent jailhouse conversation with Martinez was also incriminating; she offered to take the blame for the crimes, Petitioner then instructed her on what she could say and who else she could blame, and Martinez then asked Petitioner to promise her that he would not " do this again." (RT at 1040-42, 1044-45.) Petitioner's guilt, even if his codefendants' statements had never been admitted, was conclusively established. Consequently, the admission of the statements at issue did not have a substantial and injurious effect or influence in determining the jury's verdict. Brecht, 507 U.S. at 637.
Petitioner is not entitled to federal habeas relief.
3. RECOMMENDATION
In accordance with the foregoing, IT IS RECOMMENDED that the Court issue an order: (1) accepting the findings and conclusions of this Report and Recommendation; and (2) directing that judgment be entered dismissing this action with prejudice.