Opinion
Civil No. 04CV1154-J (JMA).
June 19, 2007
Before the Court is Magistrate Judge Jan M. Adler's Report and Recommendation ("R R") recommending that the Court deny Petitioner Roy C. Rivas, Jr.'s ("Petitioner") Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. [Doc. No. 52.] Petitioner timely filed Objections to the R R. [Doc. No. 53.] Respondent has not filed a Reply. For the reasons set forth below, this Court ADOPTS the R R and DENIES the Petition in its entirety.
Factual Background
On May 29, 1993, Petitioner, Raymond Senteno, Nancy Jaime, Patsy Moreno, and Gloria Rivas went to Elpidio Beltran's apartment. (Lodgm't No. 3, People v. Rivas, No. D021952, slip op. at 3.) Beltran sold drugs to Petitioner's aunt, Gloria Rivas. ( See id.) Senteno, Jaime, Moreno, Gloria Rivas, and Petitioner intended to rob Beltran of his drugs after scaring him and tying him up with duct tape. ( See id.) Gloria Rivas, Senteno, and Jaime entered Beltran's apartment, followed by Petitioner. ( See id.) Petitioner pointed a gun at the downstairs occupants while holding a roll of duct tape. ( See id.) Gloria Rivas told the downstairs occupants of the apartment that she and her accomplices were the police, unplugged a telephone, and retrieved a young boy who tried to run outside after he saw the guns. ( Id. at 3.) While Petitioner, Gloria Rivas, and Jaime were holding the occupants downstairs, six-year-old Elpidio Beltran, Jr., ran upstairs and alerted his parents to the events. ( Id.) Senteno went to the upstairs bedroom where Beltran and his wife were watching a video and shot and killed Beltran. ( Id.) All the intruders fled the apartment. ( Id.)Procedural Background
Petitioner was charged with one count of first-degree murder under California Penal Code ("Penal Code") section 187(a) (count 1), one count of attempted robbery under Penal Code Sections 664, 211, 213(b) (count 2), and one count of residential burglary under Penal Code section 459 (count 3). The information also alleged that Petitioner used a firearm during the commission of count 2 and count 3 within the meaning of Penal Code section 12022.5(a). (Lodgm't No. 15 at 2-3.) The jury found Petitioner guilty on all counts, including the allegation under 12022.5(a). ( Id. at 154.) Petitioner was sentenced to thirty-three years to life. ( Id. at 156.)
Petitioner filed a direct appeal and a habeas corpus petition in the California Court of Appeal challenging his conviction. (Lodgm't Nos. 6, 2.) On April 26, 1996, the Court of Appeal issued an order to show cause to the San Diego Superior Court in response to Petitioner's habeas petition. ( Id.) The Court of Appeal directed the Superior Court to hold an evidentiary hearing regarding Petitioner's allegation that there was juror misconduct during his trial when the foreman, Rudy Medina, did not disclose in voir dire that he had a relationship with Petitioner's mother, Rita Reith, twenty-five years prior. (R R at 4.) After the evidentiary hearing, the Superior Court issued an opinion concluding that Petitioner was not denied a fair trial. ( Id.) Additionally, the Court of Appeal reduced Petitioner's sentence from thirty-three years to life to twenty-nine years to life. ( Id.)
Petitioner filed and subsequently withdrew a habeas corpus petition in the California Supreme Court. ( Id.) He then filed another habeas corpus petition in the California Supreme Court which was denied without citation of authority. ( Id.)
On June 9, 2004, Petitioner filed a habeas corpus petition in this Court pursuant to 28 U.S.C. § 2254 (2006). ( Id.) On November 3, 2004, Respondent filed a motion to dismiss, which this Court denied on September 29, 2005. ( Id. at 4-5.) On March 15, 2006, Respondent filed an Answer, and on June 6, 2006, Petitioner filed a Traverse and a Motion to Expand the Record. ( Id.)
Legal Standard
I. State Prisoner Habeas Corpus Standard
A federal court may grant a habeas petition if the applicant is in custody "in violation of the Constitution or other laws or treaties of the United States." 28 U.S.C. § 2254(a). State interpretation of state laws and rules cannot serve as the basis for a federal habeas petition, as no federal or constitutional question would be implicated. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Habeas petitions are governed by the provisions of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA").
Pursuant to AEDPA, a federal court may grant habeas corpus relief from a state court judgment only if the adjudication was (1) contrary to, or involved an unreasonable application of, clearly established federal law, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002).
A state-court decision is "contrary to clearly established federal law" if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state-court decision is an unreasonable application of the facts "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." Id. at 413.
II. Reviewing a Magistrate Judge's R R
The duties of the district court in connection with a magistrate judge's R R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005); see also United States v. Raddatz, 447 U.S. 667, 676 (1980). "When no objections are filed, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law." Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). "Under such circumstances, the Ninth Circuit has held that `a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo.'" Id. (quoting Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989)). In this case, Petitioner filed objections to the R R. [Doc. No. 53.] Accordingly, this Court will make de novo determinations of factual findings as to those portions of the R R to which objections have been made.
Petitioner's Objections
Because Petitioner has filed objections to the R R, the Court must conduct a de novo review of the portions of the R R to which objections were made. Petitioner objects to the R R on the basis that: (1) there was an unreasonable determination of the facts by the state court because Petitioner was deprived of his right to exercise a peremptory challenge; (2) there was an unreasonable application of federal law because the foreman, Medina, lied during voir dire, and bias therefore should have been inferred; (3) the state court's decision regarding Petitioner's right to peremptorily challenge Medina and Medina's presence on the jury were contrary to federal law; (4) the admission of Patsy Moreno's statement to a police officer that she was the getaway driver violated Petitioner's Sixth Amendment right to confront and cross-examine witnesses against him; (5) Gloria Rivas' testimony violated Petitioner's Sixth Amendment right to a fair trial and to cross-examination because she testified using a "script" that the prosecution provided; (6) the R R incorrectly concluded that there is no evidence in the record that Gloria Rivas' testimony was false; (7) the cumulative effect of the errors in Petitioner's case prejudiced the outcome. (Pet'r's Objs. at 2-3.)
Discussion
The R R recommends that the Petition, the motion for an evidentiary hearing, and the motion to expand the record be denied. (R R at 2.) The R R finds that there was no juror misconduct on behalf of jury foreman Medina, who had a relationship with Petitioner's mother twenty-five years before Petitioner's trial. (R R at 16.) Additionally, the R R concludes that Petitioner's Sixth Amendment rights were not violated when Patsy Moreno's statement that she was the "getaway driver" was admitted. (R R at 20.) The R R further finds that witness Gloria Rivas did not testify according to a script, but instead was told by the prosecution to testify truthfully. (R R at 23.) Finally, the R R concludes that there was no admission of false evidence by the prosecution, there was no cumulative error, and the Motion to Expand the Record and the Motion for an Evidentiary Hearing should be denied. (R R at 29.) After a de novo review of the factual findings relevant to Petitioner's Objections and a de novo review of all conclusions of law, this Court FINDS the R R correctly addressed the issues raised in the Petition. Therefore, for the reasons set forth below, the Court ADOPTS the R R in its entirety and DENIES the petition for writ of habeas corpus, the Motion to Expand the Record, and the Motion for an Evidentiary Hearing.
I. There Was Not an Unreasonable Determination of the Facts In Light of the Evidence Presented In the State Court Proceedings
Petitioner claims that there was an unreasonable determination of the facts when the State Court found that jury foreman Medina did not lie during voir dire and was not biased against Petitioner. Pursuant to AEDPA, a federal court may grant habeas corpus relief from a state court judgment if the adjudication was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002).
A. The Superior Court's Finding that Foreman Medina Did Not Lie During Voir Dire
Petitioner claims that the state court's finding that there was no juror misconduct on behalf of jury foreman Medina was based on an unreasonable determination of the facts. (Pet'r's Pet. at 8-17.) When the Superior Court questioned Media during voir dire, he described how he knew Petitioner's mother:
THE COURT: Let's talk about the beginning here. How did you know her at that time?
PROSPECTIVE JUROR NO. 9: We worked for the same company.
THE COURT: What company?
PROSPECTIVE JUROR NO. 9: Deutch Company in Oceanside.
THE COURT: What kind of work?
PROSPECTIVE JUROR NO. 9: Electronic components.
THE COURT: How long did you know her at that company?
PROSPECTIVE JUROR NO. 9: Two or three years.
THE COURT: Were there events in your life that caused you to know her and her family socially during that time?
PROSPECTIVE JUROR NO. 9: Not really.
THE COURT: Company picnics?
PROSPECTIVE JUROR NO. 9: Yeah.
THE COURT: Any clear memory or recollection of you meeting with, speaking with, or having any relationship with any of her family members?
PROSPECTIVE JUROR NO. 9: I believe I saw him when he was a small child, five, six or seven-years-old.
THE COURT: Do you . . . find yourself having some feelings of loyalty, allegiance, partiality of any sort that would affect you here?
PROSPECTIVE JUROR NO. 9: That was 25 years ago.
(Lodgm't No. 14 (July 19, 1994 Rep.'s Tr.) at 80-81.)
Medina was also questioned by Petitioner's trial attorney about the nature of his relationship with Petitioner's mother twenty-five years prior:
MR. BOESEN: Mr. Medina, you talked to the judge about knowing Ms. Rivas [Reith] at some point in time, a long time ago. What was your relationship with her at that time?
PROSPECTIVE JUROR NO. 9: I was her supervisor at work.
MR. BOESEN: Any opportunity to share family secrets or family history? Anything about her personal life during the course of that relationship?
PROSPECTIVE JUROR NO. 9: Not a whole lot, some.
MR. BOESEN: I'm sorry?
PROSPECTIVE JUROR NO. 9: Some.
MR. BOESEN: Anything in a personal nature you feel you could share with us?
PROSPECTIVE JUROR NO. 9: No.
( Id. at 146.)
On April 26, 1996, in response to Petitioner's state petition for writ of habeas corpus, the California Court of Appeal issued an order directing the San Diego County Superior Court to hold an evidentiary hearing addressing the following questions:
1) Whether Juror Rudy Medina in fact had a romantic relationship with [Petitioner's] mother. If so,
2) What were the circumstances of the relationship and its termination, including whether there was any lasting influence on Medina?
3) Did Medina tell the whole truth in answering the court's and Rivas' counsel's questions of him during the voir dire?
4) What, if any, justification was there for Medina's nondisclosure of the relationship with [Rivas'] mother in response to the questions asked during voir dire by the court and Rivas' counsel?
5) Did Medina's nondisclosure operate to deprive Rivas of his rights to challenge a prospective juror for cause or to exercise a peremptory challenge?
(Lodgm't No. 2(a) at 1, 2.)
In response to questions one and two, the Superior Court found that Medina had been in a romantic relationship with Petitioner's mother that lasted from four to six months. (Lodgm't No. 5, Ex. F at 1.) Additionally, the Court concluded that the relationship was "a casual dating relationship" and a "physical/sexual relationship" that did not end acrimoniously and did not have a lasting influence on Medina. ( Id. at 1-3.)
In response to question three, the Superior Court found that Medina had been truthful in his answers regarding his relationship with Petitioner's mother. (Lodgm't No. 5, Ex. F at 3.) In response to the fourth question, the Court decided that Medina's answers on voir dire were justified because the questions did not address the personal aspects of his relationship with Petitioner's mother. ( Id. at 3-4.) Finally, the Superior Court concluded that Medina's nondisclosure of the relationship did not deprive Petitioner of his right to exercise a peremptory challenge. ( Id. at 5.)
The R R states that the Superior Court's determination that Medina did not lie in voir dire about the nature of his relationship with Petitioner's mother was not an unreasonable determination of the facts in light of the evidence presented in state court proceedings. The R R concludes that although Medina's answers were misleading, the state court's factual determination was not unreasonable because it is plausible that Medina interpreted the questions as only involving his work relationship with Petitioner's mother. (R R at 13.)
The Court agrees with the R R that the state court's factual determination was not unreasonable. A "state court factual determination is unreasonable only if it is `so clearly incorrect that it would not be debatable among reasonable jurists.'" Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996)). The R R concludes that "the state court's factual determination was not unreasonable because it is at least plausible that Medina believed the court and counsel were only interested in his work relationship with Reith." (R R at 13.) The R R's conclusion is supported by testimony during the evidentiary hearing. When asked, "Was there any reason you didn't reveal the nature of the relationship with [Reith] when the court was asking you those questions?" Medina responded, "I was never asked." (Lodgm't No. 2(b) at 210.) Medina's response to the question shows that it is plausible that he believed that he should only answer the questions asked, and not reveal anything about the romantic relationship with Reith in detail.
Petitioner objects to the R R and declares that Medina lied when he responded "Not really" when asked, "Were there events in your life that caused you to know her and her family socially during that time?" (Lodgm't No. 14 (July 19, 1994 Rep.'s Tr.) at 80-81.) Petitioner argues that, "given the absence from the record of any indication that Medina misunderstood the question, the state court's finding that he did not lie because he did not realize what he was being asked must be seen as an unreasonable determination of the facts." (Pet'r's Objs. at 3.) However, this Court concludes that there is at least some evidence supporting the state court's finding that Medina did not lie. Medina claimed he did not tell the Court about his romantic relationship with Reith because he was not directly asked, and he was confused by the question "were there events in your life that caused you to know Mrs. Rivas and her family socially during that time? (Lodgm't No. 2(b) at 210-11.) Additionally, as established in Jeffries, "In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct." 114 F.3d at 1500. This Court ADOPTS the R R's application of the rule in Jeffries, because the state court's factual determinations were not "so clearly incorrect that [they] would not be debatable among reasonable jurists." Id.
B. The Superior Court's Determination that Jury Foreman Medina Was Not Biased Against Petitioner
The R R adopts the state court's finding that Medina's relationship with Petitioner's mother did not bias him against Petitioner. The R R concludes that Medina was not biased against Petitioner because the relationship occurred twenty-five years before and had no effect on him at the time of Petitioner's trial. Petitioner objects to the R R's conclusion that Medina was not biased against him. In addition, Petitioner states that he would have used his right to peremptorily challenge Medina had he been given the opportunity to do so.
Any party to an action can make an objection and challenge a prospective juror for cause. Cal. Civ. Proc. Code § 225 (2007). Implied bias and actual bias are grounds for challenging prospective jurors for cause. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 558 (1984). Actual bias is "the existence of a state of mind on the part of the juror in reference to the case, or any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." Cal. Civ. Proc. Code § 225(b)(1)(c) (2007). Implied bias can be inferred from "the existence of a state of mind in the juror evincing enmity against, or bias towards, either party." Cal. Civ. Proc. Code § 229(f) (2007). In addition to challenges for cause, a party to a trial is also entitled to peremptory challenges to remove jurors. See Cal. Civ. Proc. Code § 231 (2007).
The Court agrees with the R R and FINDS that Medina's relationship with Petitioner's mother did not bias him against Petitioner. When asked, "Do you . . . find yourself having some feelings of loyalty, allegiance, partiality of any sort that would affect you here?", Medina replied, "That was twenty-five years ago." The Court agrees with the R R that "although not precise, Medina's response can logically be taken to mean . . . that the relationship occurred a long time ago and had no [effect] on him in the present." ( See R R at 16.) Further, the testimony elicited during the evidentiary hearing supports the R R's conclusion that Medina's relationship with Petitioner's mother did not end acrimoniously. Reith was asked a series of questions about her breakup with Medina, and whether the relationship ended on bad terms:
[Government's Attorney]: Mr. Medina was not the one who ended the relationship acrimoniously was he?
THE COURT: I think the question, Mrs. Reith, is whether or not Mr. Medina ended the relationship angrily or on bad terms. "Acrimony" means to do so with anger, with a lot of animosity. That's what "acrimony" means.
THE WITNESS: No.
THE COURT: Did he end it like that?
THE WITNESS: No.
(Lodgm't No. 2(b) at 108.) Although Reith stated at the hearing that Medina wanted to marry her, but she would not marry him because she did not believe that he would be faithful, this testimony was contradicted by her declaration. ( See id. at 61-62.) In her declaration, Reith stated that "Mr. Medina refused to divorce his wife and marry me." (Reith Decl. ¶ 3) As a result, any bias that may have been inferred to Medina as a result of Reith's refusal to marry him is undermined by her declaration stating that it was actually Medina who opposed the couple's marriage.
Petitioner also claims that his right to a peremptory challenge was denied. The R R concludes that the state courts' factual finding that Petitioner was not denied his right to a peremptory challenge is reasonable for two reasons. (R R at 16.) First, the information that Medina failed to disclose in voir dire was not directly related to bias. Second, even if Medina had disclosed the relationship, there is no certainty that Petitioner's counsel would have exercised a peremptory challenge. ( See Lodgm't No. 6, Ex. F at 7; Lodgm't No. 3 at 14-15.) The findings of the R R and the state courts are supported by Medina's testimony during the evidentiary hearing that his relationship with Reith ended twenty-five years ago, that the relationship was casual, and that he did not harbor any bad feelings toward Reith when they separated. ( See Lodgm't No. 2(b) at 197.) Accordingly, the Court FINDS that Petitioner was not denied his right to exercise a peremptory challenge to Medina.
II. Petitioner Was Not Denied His Right to an Impartial Jury
In addition to alleging that Medina was biased against him, Petitioner similarly alleges that he was denied his right to an impartial jury. The R R concludes that Petitioner was not denied his right to an impartial jury because the evidentiary hearing did not indicate that there was bias against him. In Smith v. Phillips, the Supreme Court held that "the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." 455 U.S. 209, 215 (1982). As already stated, Petitioner received an evidentiary hearing and was unable to prove actual bias because Medina's testimony showed that his casual relationship twenty-five years prior with Reith did not end acrimoniously. The Court thus ADOPTS the R R's conclusion and DENIES Petitioner's claim that he was denied his right to an impartial jury.
III. Sixth Amendment Violations
A. The Admission of Moreno's Statement that She Was the Getaway Driver
The R R concludes that Petitioner's Sixth Amendment rights were not violated by the admission of Moreno's statement to a police officer that she was the getaway driver.
The Confrontation Clause of the Sixth Amendment is outlined in Crawford v. Washington, 541 U.S. 36 (2004). The Crawford court held that "[t]estimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." Id. at 59. Because Moreno stated that she was the getaway driver during her interrogation by Officer Martin Silva ( See Lodgm't No. 14, Vol. 3 at 344), her statement is considered testimonial, and would not be admissible under Crawford unless Petitioner had a prior opportunity to cross-examine her. (R R at 19.)
However, due to the Supreme Court's decision in Whorton v. Bockting, 127 S. Ct. 1173 (2007), Crawford does not apply to the admissibility of Moreno's statements. The Whorton court held that the Crawford rule is not a "watershed rule" and cannot be applied retroactively on collateral review. Id. at 1181. Because Petitioner's appeal was decided in 1996, and Crawford was decided in 2004, Crawford does not apply to Petitioner's case. Instead, the test in Ohio v. Roberts, 448 U.S. 56 (1980), controls. Roberts provides that hearsay testimony is admissible if: (1) the declarant is unavailable; and (2) the statement either falls within a firmly rooted hearsay exception or bears adequate indicia of reliability. Id. at 66. Even if Petitioner demonstrates that Moreno's statement does not fall within a firmly rooted hearsay exception or does not bear indicia of reliability, he still is not entitled to relief unless the error "had `substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
To challenge the admissibility of Moreno's statement, Petitioner must demonstrate that the statement that Moreno made either did not fall within a firmly rooted hearsay exception or did not bear an adequate indicia of reliability. See Roberts, 448 U.S. at 56. Petitioner objects on the basis that Moreno's statement did not bear an indicia of reliability. However, "self-inculpatory statements have long been recognized as bearing strong indicia of reliability." Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004). The R R concludes that the statement bore an indicia of reliability because "Moreno implicated herself when she admitted she was the `getaway driver' for the robbery attempt, but did not attempt to shift blame or implicate [Petitioner]." (R R at 19.) The R R's conclusion is supported by the fact that Moreno told a police officer that she was the getaway driver, and it is unlikely that she would have fabricated a statement to the police that inculpated herself. Therefore, this Court FINDS that Moreno's statements were admissible because she was unavailable due to exercising her Fifth Amendment privilege against self-incrimination, and her statement bore an indicia of reliability. This Court thus ADOPTS the R R's conclusion that Petitioner was not denied his Sixth Amendment right to confront and cross-examine Moreno.
B. The Admission of Gloria Rivas' Testimony
Petitioner contends that during his trial, witness Gloria Rivas testified according to a script provided by the prosecution so that she could obtain a plea deal. Petitioner asserts that Gloria Rivas' alleged false testimony violated his due process rights. In exchange for testifying, Gloria Rivas was to plead guilty to second-degree murder and attempted robbery. (Lodgm't No. 14, Vol. 4 at 380.)
The Ninth Circuit has held that "an agreement that requires a witness to testify truthfully in exchange for a plea is proper so long as `the jury is informed of the exact nature of the agreement, defense counsel is permitted to cross-examine the accomplice about the agreement, and the jury is instructed to weigh the accomplice's testimony with care.'" Allen v. Woodford, 395 F.3d 979, 995 (9th Cir. 2005) (quoting United States v. Yarbrough, 852 F.2d 1522, 1537 (9th Cir. 1988)).
The jury was informed of the nature of the plea agreement before Gloria Rivas testified. (Lodgm't No. 14, Vol. 4 at 380.) During Gloria Rivas' direct examination, she stated that Rivas had a gun and tape in his hand, but alluded that Rivas and the others did not talk about how they were going to use the gun and tape in connection with the robbery. The prosecutor then sought to correct her testimony:
Q: What was the [tape] to be used for, Gloria?
A: I don't know what he was going to use it for. Or — I don't know, nobody talked about nothing, what we were going to use it, I don't know.
Q: Gloria, you know if you don't tell the truth I will prosecute you for first degree murder, don't you?
A: Yes, I do.
Q: And?
A: Yes, I know that.
( Id. at 414.)
Gloria Rivas then changed her testimony, and she stated that she, Petitioner, Senteno, Jaime, and Moreno discussed that they were going to rob Beltran for his drugs and scare him with the gun. ( Id. at 422.) In an exchange between Petitioner's attorney and Gloria Rivas during cross-examination, Petitioner's attorney stated that if Gloria Rivas did not testify truthfully, she would forfeit her plea agreement:
Q: In fact, [the prosecutor] during direct examination, would you say, appeared to get a little upset with you?
A: Today?
Q: Yes.
A: Yes.
Q: Told you you might not get your deal, right?
A: Yes.
Q: Scared you, didn't it?
A: Of course.
Q: Badly?
A: Yes.
Q: That is when you came back in here and changed your testimony, correct?
A: Yes.
Q: Told you he was pretty upset with you, right?
A: Yes.
Q: Told you if you don't get your act together and say what you were supposed to say you would be in big trouble.
A: Not what I'm supposed to say, the truth is what he said.
( Id. at 490-91.)
The R R concludes that Petitioner's claim that Gloria Rivas was testifying according to a script is not plausible because Gloria Rivas was instructed to testify truthfully. (R R at 23.) Petitioner objects to the R R on the basis that Gloria Rivas' testimony was restricted to benefit the prosecution and not the defense. (Pet'r's Objs. at 15.) However, Petitioner does not offer any evidence other than his own assertions supporting the premise that Gloria Rivas testified according to a script. The record indicates that Gloria Rivas was instructed to testify truthfully, and that she understood this instruction. ( See Lodgm't No. 14, Vol. 4 at 414, 491.) In addition, Petitioner's attorney questioned Gloria Rivas regarding the truthfulness of her testimony, and she indicated that she understood her obligation to tell the truth. Further, the jury was aware of the plea agreement between Gloria Rivas and the prosecution, and the jury was instructed to take her plea agreement into account when assessing her testimony. (Lodgm't No. 14, Vol. 4 at 380.) Finally, the Court notes that it is not improper for a witness to testify truthfully in exchange for a plea agreement. See Allen, 395 F.3d at 995. Accordingly, the Court ADOPTS the R R's conclusion that the admission of Gloria Rivas' testimony was not an unreasonable application of law.
IV. Petitioner's Claim that His Due Process Rights Were Violated Due to the Prosecution's Use of False Evidence
Petitioner objects to the R R's statement that false evidence must be knowingly used by the prosecution for a conviction to be set aside. Petitioner also objects to the R R's conclusion that there is no evidence that the prosecution used false evidence. Petitioner argues that false evidence was used when "Gloria testified under oath that petitioner did not have a gun or duct tape and that the only reason she changed her testimony was because of the prosecutor's duress and to earn her deal." (Pet'r's Objs. at 19.)
The Supreme Court has consistently held that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." See United States v. Agurs, 427 U.S. 97, 103 (1976). Although a prosecutor's presentation of false evidence is viewed seriously and its effects must be carefully scrutinized, a new trial is not automatically granted. United States v. Polizzi, 801 F.2d 1543, 1550 (9th Cir. 1986). Rather, a finding of "materiality of the evidence" is required. Id.
There is no evidence in the record that the prosecutor offered false testimony or coerced Gloria Rivas' testimony. Even though Gloria Rivas initially testified that she did not know what the tape would be used for and that the robbery was not planned, she corrected herself and stated that she, Petitioner, and the other accomplices discussed the robbery beforehand. (Lodgm't No. 14, Vol. 4 at 422.) The prosecutor pointed out the inconsistencies in Gloria Rivas' testimony, and she corrected them while testifying under oath during direct examination. Moreover, Petitioner's attorney questioned Gloria Rivas regarding the truthfulness of her testimony, and she stated that she knew that she had to tell the truth. (Lodgm't No. 14, Vol. 4 at 490-491.) In addition, evidence introduced at trial established that Petitioner and four accomplices traveled to the apartment with a gun and duct tape, unplugged the phone once they reached the apartment, and designated a getaway driver. (Lodgm't No. 3, People v. Rivas, No. D021952, slip op. at 3.) These facts suggest that the group had developed a plan before the robbery took place. In contrast, Petitioner has failed to put forth any evidence or point to any testimony supporting his account that the robbery was not planned. Finally, even if Gloria Rivas falsely testified that the robbery was planned, there is no reasonable likelihood that the false testimony could have affected the judgment of the jury due to other evidence establishing that Petitioner participated in the robbery by pointing a gun at the occupants of the victim's apartment. The Court thus FINDS that the prosecution did not use or solicit false testimony, and that Petitioner's due process rights were not violated.
V. Cumulative Impact of the Errors In the Case
Petitioner argues that the cumulative impact of the alleged errors in this case entitles him to relief. A "cumulative error applies where, `although no single trial error examined in isolation is sufficiently prejudicial to warrant a reversal, the cumulative effect of multiple errors [has] still prejudiced a defendant.'" Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000) (quoting United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)). The R R states that "no constitutional errors occurred at [Petitioner's] trial, and thus there is no cumulative effect." (R R at 26.) Petitioner objects on the basis that "the implied bias of the jury foreman, Patsy's out-of-court testimonial statement and Gloria's coerced testimony contradicting her uncoerced exculpatory testimony all conjoined to so infect the trial with unfairness as to make the resulting conviction a denial of due process." (Pet'r's Objs. at 20.)
The Court has examined Petitioner's claims and has found no indication that there were constitutional errors at trial. As noted above, Petitioner has failed to demonstrate juror misconduct or that his Sixth Amendment rights were violated. Even if there were constitutional errors at trial, the weight of the evidence indicates that the outcome of the trial would have been the same regardless of the alleged errors. Accordingly, this Court ADOPTS the R R and DENIES Petitioner relief.
VI. Motion to Expand the Record
Petitioner filed a Motion to Expand the record to include a declaration by prisoner Dale R. Hurd as well as twelve additional exhibits regarding the timeliness of the Petition. (R R at 26.) Because the Court decided in its September 29, 2005 Order that the Petition is timely, the Court DENIES AS MOOT the Motion to Expand the Record. [ See Doc. No. 33.]
VII. Motion for an Evidentiary Hearing
Petitioner moves for an evidentiary hearing, but does not state why he should be granted an evidentiary hearing. A district court has discretion to grant a motion for an evidentiary hearing. Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999). Evidentiary hearings in 28 U.S.C. § 2254 habeas cases are governed by the AEDPA. In order for a district court to grant an evidentiary hearing, the Court must "determine whether a factual basis exists in the record to support the petitioner's claim." Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) (quoting Baja, 187 F.3d at 1078). If there is no factual basis, then the court must "ascertain whether the petitioner has `failed to develop the factual basis of the claim in State court.'" Insyxiengmay, 403 F.3d at 670 (quoting Baja, 187 F.3d at 1078). If "the Petitioner has failed to develop the factual basis for his claim in state court, `the court must deny a hearing unless the applicant establishes one of the two narrow exceptions set forth in § 2254(e)(2)(A) (B).'" Insyxiengmay, 403 F.3d at 670 (quoting Baja, 187 F.3d at 1078). There are six situations where a habeas petitioner should be entitled to an evidentiary hearing: "(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing." Townsend v. Sain, 372 U.S. 293, 313 (1963), overruled on other grounds by Keeny v. Tamayo-Reyes, 504 U.S. 1, 5 (1992).
This Court ADOPTS the R R's conclusion that Petitioner received a full and fair evidentiary hearing regarding the relationship between Medina and Petitioner's mother, making another evidentiary hearing unnecessary. Petitioner had an adequate opportunity to develop the record because both Medina and Reith were questioned at the evidentiary hearing. Additionally, Petitioner does not satisfy any of the six factors in the Townsend test because the state court made a reasonable determination of the facts, and Petitioner has failed to raise any newly discovered evidence. For these reasons the Court DENIES Petitioner's Motion for an Evidentiary Hearing.
Conclusion
For the reasons set forth above, this Court ADOPTS the R R and DENIES the Petition in its entirety.
IT IS SO ORDERED.