Opinion
Civil No. 06cv1126-BTM (RBB).
March 20, 2007
Petitioner is a California prisoner proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for kidnapping for rape and assault with intent to commit rape. Petitioner claims that his Fourteenth Amendment rights to due process and a fair trial were violated because there was insufficient evidence of his intent to rape the victim (claim one), and because it was not harmless error to introduce evidence which had been seized in violation of the Fourth Amendment (claim two).
Presently before the Court is a Report and Recommendation ("R R") submitted by United States Magistrate Judge Ruben B. Brooks, which recommends denying the Petition. (Doc. No. 12.) The Magistrate Judge found that habeas relief is unavailable because the state court's adjudication of claim one was objectively reasonable within the meaning of 28 U.S.C. § 2254(d), and because claim two is not cognizable on federal habeas under the doctrine announced in Stone v. Powell, 428 U.S. 465 (1976), but that even if claim two were cognizable, the state appellate court did not apply harmless error review in an objectively unreasonable manner. Petitioner has filed Objections to the R R. (Doc. No. 14.)
The Court has reviewed the R R pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2006). For the following reasons, the Court adopts the findings and conclusions of the Magistrate Judge as set forth below and overrules the objections thereto, denies habeas relief, and issues a Certificate of Appealability.
I. Background
Petitioner was initially convicted of kidnapping, kidnapping for rape, assault with intent to commit rape, and false imprisonment by violence following a jury trial based on evidence that he impersonated a security officer in order to lure an eighteen year-old woman into his van where he attempted to rape her. Upon his arrest the police seized videotapes showing him sexually assaulting his ex-wife while she was asleep or unconscious. His motion to suppress the videotapes was denied, and he pled guilty to rape of an unconscious person, oral copulation of an unconscious person and three counts of object rape of an unconscious person. A stipulation describing the contents of the videotapes was introduced at the trial in the van incident for the purpose of showing Petitioner's propensity to commit rape. The convictions arising from the incident involving Petitioner's ex-wife were overturned after the appellate court found that the videotapes, which provided the only evidence to support those convictions, had been illegally seized. The court also overturned the convictions for kidnapping and false imprisonment arising from the van incident, finding them to be lesser included offenses of kidnapping for rape and assault with intent to commit rape. The appellate court refused to overturn the convictions for kidnapping for rape and assault with intent to commit rape, finding that the introduction at trial of the stipulation describing the contents of the videotapes was harmless error.
II. Claim 1
Petitioner contends in claim 1 that his Fourteenth Amendment rights were violated because there was insufficient evidence adduced at trial that he intended to rape the victim in the van incident. (Pet. at 6-9.) The Magistrate Judge found that under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), sufficient evidence existed in the record to support the jury's finding that Petitioner had the intent to rape the victim, and, applying the deferential standard of review set forth in 28 U.S.C. § 2254(d), concluded that the state appellate court's determination to that effect was neither contrary to, nor involved an unreasonable application of, clearly established federal law as set forth in Jackson. (R R at 13-22.) The evidence supporting intent to rape identified in the R R included the victim's testimony that Petitioner impersonated a security guard to get her into the van where he forced her to lie on her back, pinned her arms down and straddled her, coupled with the evidence of Petitioner's prior sexual offenses against his ex-wife which showed his propensity to commit rape. (R R at 20-22.)
Petitioner first objects to the application of 28 U.S.C. § 2254(d) to the state appellate court opinion, contending that the state court's failure to make mention of the federal standard of review set forth in Jackson requires a de novo review of the claim. (Obj. at 2-3.) Petitioner contends the Magistrate Judge erred in relying on Early v. Packer, 537 U.S. 3 (2003) for the proposition that section 2254(d) applies even when the state court does not specifically reference the federal standard of review. The Magistrate Judge concluded that section 2254(d) applied to the state court opinion despite the fact that it did not mention the Jackson standard or federal law, based on the statement in Packer that a state court need not even be aware of relevant United States Supreme Court's cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Packer, 537 U.S. at 8. The Ninth Circuit has characterized that statement in Packer as dictum. Sims v. Rowland, 414 F.3d 1148, 1152 n. 2 (9th Cir. 2005). However, Petitioner's contention that this Court is free to disregard the deferential standard of review set forth in section 2254(d) is foreclosed by Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005), which applied section 2254(d) to a California appellate court opinion which also failed to reference federal law and applied a nearly identical standard of review as the one applied by the state appellate court here.Compare id. at 1275 n. 12 with Lodgment No. 9, People v. Majors, No. D037968, slip op. at 18. The Court therefore overrules this objection.
Petitioner next objects to the Magistrate Judge's application of 2254(d), focusing on a concluding statement in the R R that "all that is required" under Jackson is that intent to commit rape is one rational interpretation of the evidence presented at trial. (Obj. at 3, citing R R at 22, ln. 14-16.) The Magistrate Judge correctly identified the scope of review of an insufficiency of the evidence claim under Jackson and section 2254(d), and correctly applied those standards to the state appellate court opinion. (R R at 14-22.) The phrase used in the R R's conclusion as to that review, that all that is required under Jackson is that one rational interpretation of the evidence supports intent to commit rape, is an incorrect statement of the application of section 2254(d) and Jackson to a claim of insufficiency of the evidence. The correct standard is, viewing the evidence in the light most favorable to supporting the verdict, and giving deference to the state courts findings of fact, whether no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Juan H., 408 F.3d at 1276. That was in fact the standard applied by the Magistrate Judge. (R R at 22, ln. 4-13.)
The Magistrate Judge correctly found that even if the evidence was sufficient to show that Petitioner had the intent to commit some other type of sexual assault, as he contends, the evidence was also sufficient to establish that he had the intent to commit rape. The Court overrules the objection to the standard of review used in the R R. The Court also overrules Petitioner's objection to the Magistrate Judge's finding there was sufficient evidence that he had the intent to rape the victim. The Magistrate Judge correctly found that the victim's testimony, coupled with evidence that Petitioner had a propensity to commit rape as shown by the prior rape of his ex-wife, constituted sufficient evidence of intent to commit rape. (R R at 18-22.) The Court adopts the findings and conclusions of the Magistrate Judge with respect to claim 1, and denies habeas relief for the reasons set forth in the R R.
III. Claim 2
Petitioner contends in claim 2 that the admission of evidence that he raped his ex-wife in order to show his propensity to commit rape violated his Fourteenth Amendment rights to due process and a fair trial. (Pet. at 10.) He contends habeas relief is available in this Court because the evidence was seized in violation of his Fourth Amendment rights, and because the state appellate court erred in finding the admission of the evidence harmless. (Id.)
When Petitioner was arrested following the van incident, videotapes were found in his home which showed him sexually assaulting his ex-wife while she was either asleep or unconscious. After his motion to suppress the videotapes was denied, he pled guilty to rape of an unconscious person, oral copulation of an unconscious person, and three counts of rape with a foreign object on an unconscious person, and proceeded to trial on charges related to the van incident. The trial court found that the videotapes were admissible as propensity evidence in the trial on the charges arising from the van incident, but granted a defense motion to limit the scope of the evidence after finding that the prejudicial effect of the videotapes outweighed their probative value. (Lodgment No. 2, Reporter's Tr. at 182-83.) The jury was presented with a stipulation of the parties, which read:
Your Honor, there would be a stipulation of facts regarding the defendant, Gaylon Michael Majors, committed an act of sexual intercourse with Carol Majors, his ex-wife. At the time of the act, while she was asleep/unconscious, and he knew she was asleep/unconscious, the defendant also orally copulated Carol Majors, and put a finger, banana, and bottle in her vagina for purposes of sexual gratification, and while he knew she was asleep/unconscious. These acts occurred on January 28, 1999, and the defendant pled guilty to these crimes. . . . [¶] if Carol Majors were to testify, she would testify that she is the ex-wife of Gaylon Majors, the defendant. She never has, and never would allow the defendant to place a banana or a bottle in her vagina. She has never consented to defendant placing his penis, finger, or mouth in her vagina while she was unconscious. She has never pretended to be asleep/unconscious while she and the defendant were engaging in the [sic] consensual sex. [¶] At the time of the crimes there [sic] were living together in her condo. There was no physical violence beyond that necessary in the rape conduct itself. And she was not aware that the crime had occurred until 18 months later.
(Id. at 293-94.)
The state appellate court found that the trial court had incorrectly denied the motion for suppression of the videotapes. The court found that the affidavit which the investigating officer submitted to obtain the search warrant did not contain a factual basis for including videotapes within the scope of the warrant, and that no exception to the warrant requirement had been established. (Lodgment No. 9, People v. Majors, No. D037968, slip op. at 8-11 (Cal.App.Ct. Dec. 1, 2004.) Petitioner was therefore allowed to withdraw his guilty plea to the offenses regarding the sexual assault of his ex-wife, for which the videotapes provided the only evidence. (Id. at 11.) The appellate court denied Petitioner's Fourteenth Amendment due process claim seeking to reverse the convictions arising from the van incident, however, stating:
Majors also argues that if the videotapes of his sexual assault on his former wife were obtained as a result of an illegal search, his stipulation that the sexual acts shown on the videotapes occurred should not have been admitted into evidence. Although his argument may be correct, we conclude that the admission of the stipulation was nevertheless not prejudicial to his defense. It is not reasonably likely that exclusion of the propensity evidence would have resulted in a different result at trial with regard to counts 1 though 4. (People v. Watson (1956) 46 Cal.2d 818.) Even were we to apply the Chapman standard of prejudice (Chapman v. California (1967) 386 U.S. 18, 24), we would conclude that, beyond a reasonable doubt, exclusion of the evidence would not have resulted in a more favorable verdict for Majors.
(Lodgment No. 9, People v. Majors, No. D037968, slip op. at 17-18.)
The Magistrate Judge, citing cases from federal courts in the First, Second, Third and Tenth Circuits, found that Petitioner's challenge to the appellate court's harmless error analysis is indistinguishable from a Fourth Amendment challenge to the seizure of the videotapes, and is therefore foreclosed by Stone v. Powell. (R R at 22-27.) Petitioner objects to this finding, contending that he is not presenting a Fourth Amendment challenge, but merely challenging the appellate court's harmless error finding, and that no Ninth Circuit case has found such a claim to be indistinguishable from a Fourth Amendment challenge. (Obj. at 4.) The Magistrate Judge alternately found that the appellate court "did not apply harmless error review in an objectively unreasonable manner." (R R at 27-28.)
A fair reading the Petition reveals that Petitioner seeks habeas relief as to claim 2 on the basis that his Fourteenth Amendment rights to due process and a fair trial were violated because the state appellate court's finding of harmless error was objectively unreasonable under 28 U.S.C. § 2254(d)(1) for the same reasons he contends the evidence had a substantial and injurious effect or influence on the jury's verdict, namely, due to the overwhelmingly powerful nature of propensity evidence of this type, especially in a close case like this one, and because the evidence was illegally seized in violation of the Fourth Amendment. (Pet. at 10; Pet. Mem. at 12-15.) Petitioner specifically disavows that he is challenging the merits of the determination that the seizure of the videotapes violated the federal constitution, despite language to the contrary in the Petition (see Pet. at 10), contending that "[t]he error raised in this petition is [the] finding that the constitutional error was harmless." (Pet. Mem. at 14; Traverse at 5.)
Clearly established federal law provides that when a non-structural error of federal constitutional magnitude occurs in a state trial, and the state court has applied the standard set forth in Chapman v. California, 386 U.S. 18, 24 (1967), or its state law equivalent, finding the error to have been harmless beyond a reasonable doubt, federal habeas relief is available only if the petitioner can demonstrate that the application ofChapman was objectively unreasonable within the meaning of 28 U.S.C. § 2254(d), and that the error "had a substantial and injurious effect or influence in determining the jury's verdict."Calderon v. Coleman, 525 U.S. 141, 145 (1998), quoting Brecht v. Abrahamson, 507 U.S. 619. 637 (1993); see also Penry v. Johnson, 532 U.S. 782, 795 (2001); Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005). The Court in Calderon specifically noted that the application of Brecht's "substantial and injurious effect" standard "protects the State's sovereign interest in punishing offenders and its good-faith attempts to honor constitutional rights . . . while insuring that the extraordinary remedy of habeas corpus is available to those whom society has grievously wronged." Calderon, 525 U.S. at 145 (internal citations and quotation marks omitted). Thus, in order to be entitled to federal habeas relief, Petitioner must first identify a federal constitutional error which occurred at his trial, then he must demonstrate that the state court's application of the harmless error standard in Chapman was objectively unreasonable within the meaning of section 2254(d), and, finally, he must demonstrate that the error had a substantial and injurious effect or influence on the jury's verdict. Inthavong, 420 F.3d at 1059.
To the extent the federal constitutional error Petitioner identifies as having taken place at his trial is the admission of evidence seized in violation of the Fourth Amendment (see Pet. at 10), his claim is non-cognizable. The Court in Stone stated that: "In sum, we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review." Stone, 428 U.S. at 494 n. 37. The Magistrate Judge correctly concluded that to the extent Petitioner asks the Court to apply the Fourth Amendment exclusionary rule, his claim is non-cognizable because he does not, and cannot, contend he did not have a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. The fact that he eventually prevailed in the appellate court on the suppression issue proves that he had both a full and a fair opportunity to litigate the issue.
To the extent Petitioner presents a generalized due process claim arising from the unfairness of the admission of the evidence on its own account (i.e., independent of the Fourth Amendment violation), he has not identified a federal constitutional violation. In Jammal v. Van de Kamp, 926 F.2d 918 (9th Cir. 1991), the Ninth Circuit recognized that only where there are no permissible inferences to be drawn from evidence improperly admitted at trial can its admission violate federal due process, and even then the evidence must be of such quality as to necessarily prevent a fair trial. Id. at 920. The introduction of the evidence of Petitioner's propensity to commit rape does not satisfy that standard. Petitioner admits that California law provides that such evidence is admissible. (Obj. at 4.) There was a permissible inference the jury could have drawn from the evidence, namely, that Petitioner had a propensity to commit rape, and in particular a propensity to rape compliant victims, particularly in light of the evidence that he lured her into his van by impersonating a security guard, told her if she cooperated she would not be hurt, did not physically injure her, but straddled her and held her arms down while imploring her to do what he wanted and telling he that she would not be hurt if she cooperated, and allowing her to leave after she continued to struggle and said she would rather die than submit. (R R at 3-4.) Neither was the evidence of a quality so as to deprive Petitioner of a fair trial, as Petitioner stipulated to its accuracy. Thus, to the extent Petitioner is contending the introduction of the stipulation violated his Fourteenth Amendment right to due process and a fair trial separate and apart from a Fourth Amendment violation, there is no basis for federal habeas relief. Jammal, 926 F.2d at 920.
Finally, Petitioner attempts to present what appears to be a novel federal due process violation, one arising solely from the finding of the appellate court that the Fourth Amendment error was harmless. If Petitioner were to demonstrate that the application of the Chapman standard by the appellate court was contrary to or involved an unreasonable application of clearly established federal law as those terms are defined in 28 U.S.C. § 2254(d)(1), he would not state an independent constitutional violation, but would merely pass one of the hurdles placed in his way by Congress in AEDPA to obtain habeas relief. See Duhaime v. Ducharme, 200 F.3d 597, 601 (9th Cir. 1999) (holding that: "Section 2254(d) merely limits the source of clearly established law that the Article III court may consider, and that limitation serves to govern prospectively classes of habeas cases rather than offend the court's authority to interpret the governing law and to determine the outcome in any pending case.") There is no authority cited by Petitioner to support a finding that a state court's harmless error review in and of itself can establish a violation of the federal constitution, or federal law or treaties, sufficient to support a grant of habeas relief. Rather, the only federal constitutional violation identified by Petitioner arises under the Fourth Amendment. Because such a claim is barred by Stone, Petitioner is not entitled to habeas relief. However, mindful of the low threshold, the Court issues a Certificate of Appelability as to all claims in the Petition. See Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (providing that threshold "substantial showing of the denial of a constitutional right," is met by demonstrating that: (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further).
IV. Conclusion and Order
For the reasons set forth above, the Court ADOPTS the findings and conclusions of the Magistrate Judge, and overrules the objections thereto. The Court DENIES the petition for writ of habeas corpus and ISSUES a Certificate of Appealability as to all claims presented in the Petition.
The Clerk shall enter judgement accordingly.
IT IS SO ORDERED.