Opinion
No. 2:11-cv-02403-JAM-AC-P
05-15-2014
PAUL EUGENE ROBINSON, Petitioner, v. WILLIAM KNIPP, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition, ECF No. 1, presents six claims challenging petitioner's 2003 convictions for several violent sexual offenses including forcible oral copulation, forcible penetration, and forcible rape. Respondent has answered, ECF No. 16, and petitioner has filed a traverse, ECF Nos. 18, 19.
BACKGROUND
On April 28, 2003, petitioner was convicted by a jury in Sacramento County Superior Court on charges of oral copulation with force, in violation of Cal. Penal Code § 288a(c)(2), two counts of forcible sexual penetration by a foreign object (§ 289(a)(1)), and two counts of forcible rape, (§ 261(a)(2)). Lodged Doc. 10 (Abstract of Judgment). As to all counts, the jury found true the enhancement allegation that petitioner personally used a deadly and dangerous weapon in the commission of the offense. (§§ 12022(b)(1) and 12022.3(a)). Lodged Doc. 9 (California Supreme Court Opinion, "Opinion") at 7. Petitioner was sentenced to an aggregate term of 65 years imprisonment. Id.
Further references are to the California Penal Code unless otherwise specified.
The California Supreme Court provided the following factual and procedural summary of the case:
These facts as recited by the state court are presumed true for purposes of this court's review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and the petitioner does not contend otherwise. See 28 U.S.C. § 2254(e)(1).
On August 25, 1994, 24-year-old Deborah L. awoke to find a male adult stranger standing in her bedroom doorway wearing gloves and holding a knife. He told Deborah to be quiet and that he was there "to get some pussy." When she screamed, he called her a "white bitch" and threatened to kill her if she did not shut up. Based on his distinctive voice, his skin color, and his silhouette, Deborah thought the man was African-American.Opinion at 4-7. (footnotes omitted).
The man climbed on top of Deborah and held the knife to her chest; she cut her hand when she instinctively grabbed at the knife. The man directed Deborah to cover her face with a pillow. He then fondled her breasts, placed his mouth on her vagina, inserted his fingers in her vagina and rectum, and raped her. After losing and regaining an erection, he raped her a second time; this time he withdrew his penis, ejaculated on her legs, and rubbed his semen on her stomach. As the man dressed, he said he would kill Deborah if she looked at him. Once he was gone, she called 911.
Police officers promptly took Deborah to a medical facility where a rape kit was prepared, vaginal swabs were collected, and her cut hand was stitched. The physician assistant who collected the vaginal swabs saw sperm on them. Jill Spriggs, an assistant criminal laboratory director for the California Department of Justice (Department), also found semen present on a swab collected from Deborah's vagina. In early August of 2000, Ms. Spriggs assayed that sperm to generate a genetic profile of the unknown male suspect as determined by the presence or absence of markers at 13 distinct DNA loci. Ms. Spriggs then used statistics to estimate, with respect to three racial groups, the probability that more than one person would harbor that same series of markers.
The parties stipulated that, prior to September 2000, defendant's blood had been collected, his DNA was profiled at 13 loci, and his profile had been entered into the Department's offender database. A Department of Justice criminalist testified the database is kept in the hope of matching DNA samples from unsolved crimes with known profiles, and that such a match is called a "cold hit."
Four days before the six-year statute of limitations would have expired, a felony complaint was filed against "John Doe, unknown male," describing him by his 13-loci DNA profile. The next day, the trial court found probable cause in the complaint, and an arrest warrant issued for "John Doe," incorporating by reference that DNA profile. As relevant here, "John Doe" was identified as an "unknown male with Short Tandem Repeat (STR) Deoxyribonucleic Acid (DNA) Profile at the following Genetic Locations, using the Cofiler and Profiler Plus Polymerase Chain Reaction (PCR) amplification kits: D3S1358 (15, 15), D16S539 (9, 10), THO1 (7, 7), TPOX (6, 9), CSF1PO (10, 11), D7S820 (8, 11), vWa (18, 19), FGA (22, 24), D8S1179 (12, 15), D21S11 (28, 28), D18S51 (20, 20), D5S818 (8, 13), D13S317 (10, 11), with said Genetic Profile being unique, occurring in approximately 1 in 21 sextillion of the Caucasian population, 1 in 650 quadrillion of the African American population, 1 in 420 sextillion of the Hispanic population."
In September, a criminalist who searched the Department's offender database using the DNA profile Ms. Spriggs had developed in the Deborah L. case generated a "cold hit" match between the 13-loci DNA profile in the John Doe arrest warrant and defendant Robinson's profile in the state's DNA database. Based on the match, an amended arrest warrant with Robinson's name issued; it was executed on September 15.
After defendant's arrest on September 15, his blood was collected, and Ms. Spriggs conducted an independent DNA analysis using that new blood sample. Comparing defendant's DNA profile from that blood with the DNA profile obtained earlier from the evidentiary semen from the vaginal swab, Ms. Spriggs found the two profiles matched "at all 13 loci." Based on her statistical calculations made to determine the frequency of a genetic profile in a random unrelated population, Ms. Spriggs testified that she estimated that the probability that two people would share identical DNA patterns at each of the 13 loci tested is one in 650 quadrillion (650 followed by 15 zeros) in the African-American population, one in six sextillion (6 followed by 21 zeros) in the Caucasian population, and one in 33 sextillion (33 followed by 21 zeros) in the Hispanic population. Ms. Spriggs testified that there had been no reported cases of two people who are not identical twins matching at all 13 loci.
On direct appeal, petitioner argued that his prosecution did not commence upon issuance of the arrest warrant because the warrant was not sufficiently particular under California law, and that the trial court erred by failing to suppress the DNA evidence, admitting certain expert testimony, and imposing upper terms of imprisonment. Lodged Doc. 3 at 4-5, n. 4. In a partially published opinion, the California Court of Appeal affirmed the judgment, concluding, in the published portion, that the DNA profile of the perpetrator of a sexual offense that is incorporated in an arrest warrant is sufficiently particular under California law; and, in the unpublished portion, rejecting petitioner's remaining claims of trial court error. Id. at 4-5.
A petition for review was granted by the California Supreme Court with respect to the following issues: (1) whether the issuance of a "John Doe" complaint and arrest warrant timely commences a criminal action for purposes of the statute of limitations; (2) whether an unknown suspect's DNA profile satisfies the "particularity" requirement for an arrest warrant; and (3) whether there is a remedy for the unlawful collection of genetic material under the DNA Forensic Identification Database and Data Bank Act of 1998 (Pen. Code § 295 et seq.). The court granted review on a fourth issue, but ordered briefing deferred pending the disposition of a related issue in a pending case. Lodged Doc. 5 (California Supreme Court Order Granting Petition for Review).
In a published opinion, the California Supreme Court affirmed the judgment of conviction, reasoning as follows:
The Court remanded to the trial court to correct a clerical error in the abstract of judgment and the minute order of sentencing.
[W]e conclude that, in cases in which the warrant identifies the perpetrator by his or her unique DNA profile only, the statute of limitations is satisfied if the prosecution is commenced by the filing of the "John Doe" arrest warrant within the limitations period. In reaching this conclusion, we find that an unknown suspect's unique DNA profile satisfies the "particularity" requirement for an arrest warrant. (§ 804, subd. (d).) Although defendant's blood was mistakenly collected under the Act, we conclude that the law enforcement personnel errors in this case do not trigger the exclusionary rule. Accordingly, we affirm the Court of Appeal's judgment.Opinion at 3 (footnote omitted).
Following the California Supreme Court's affirmance, a petition for a writ of certiorari was filed on petitioner's behalf in the United States Supreme Court. Lodged Doc. 11. The petition was summarily denied on January 12, 2012. Lodged Doc. 14. Petitioner did not collaterally attack his judgment of conviction by filing a habeas petition in state court.
Petitioner seeks federal habeas relief on the following grounds: (1) his right to due process under the Fourteenth Amendment and the California Constitution was violated when a "John Doe" complaint and arrest warrant were issued to timely commence the action; (2) the particularity requirements for an arrest warrant under the Fourth Amendment, the California Constitution, and Cal. Penal Code § 804, were not satisfied by the inclusion of a DNA profile as a description of the suspect; (3) the involuntary collection of his blood for DNA analysis violated his right to be free from unlawful searches and seizures under the Fourth Amendment and the California Constitution; (4) his right to due process under the Sixth and Fourteenth Amendments was violated by the trial court's admission of expert testimony to explain the probability of the DNA match obtained through the database search; (5) his right to due process under the Sixth and Fourteenth Amendments was violated by the trial court's admission of evidence derived from the use of a statistical methodology that was not generally accepted in the scientific community; and (6) his right to due process and a fair trial was violated when the trial court allowed evidence of separate probability statistics for a DNA match among three major ethnic groups, rather than using a general, non-ethnic population. ECF 1.
STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S. Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Clearly established federal law also includes "the legal principles and standards flowing from precedent." Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent may constitute "clearly established Federal law," but circuit law has persuasive value regarding what law is "clearly established" and what constitutes "unreasonable application" of that law. Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).
A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).
Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is "on what a state court knew and did." Id. at 1399. Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc).
DISCUSSION
I. Claim One: "John Doe" Complaint and Arrest Warrant
Petitioner claims that use of a "John Doe" complaint and arrest warrant to timely commence the criminal action unconstitutionally circumvented the statute of limitations and denied him due process under the Fourteenth Amendment and the California Constitution. ECF 1 at 23.
Page number citations such as this one are to the page numbers reflected on the court's CM/ECF system and not to page numbers assigned by the parties.
Petitioner first raised this issue in a pretrial motion to dismiss, which was denied by the trial court following an evidentiary hearing. 1 Lodged Doc. 16 at 1-137. The same claim was rejected in reasoned opinions by both the California Court of Appeal and the California Supreme Court. Lodged Doc. 3 at 18, Opinion at 27. Petitioner renewed this claim in a petition for writ of certiorari, which was summarily denied. Lodged Doc. 14. Petitioner raises the same issue before this court and, for the reasons discussed below, the undersigned recommends that the claim be denied.
The Reporter's Transcript on Appeal is lodged in this court as Lodged Doc. 16, Volumes 1-20.
A. State Law
California law allows for the use of "John Doe" arrest warrants as follows:
[a] warrant of arrest shall specify the name of the defendant or, if it is unknown to the magistrate, judge, justice, or other issuing authority, the defendant may be designated therein by any name. It shall also state the time of issuing it, and the city or county where it is issued, and shall be signed by the magistrate, judge, justice, or other issuing authority issuing it with the title of his office and the name of the court or other issuing agency.Cal. Penal Code § 815.
The California legislature has established a six-year statute of limitations for offenses that are punishable by imprisonment for eight years or more. Cal. Penal Code § 800. California law further provides that prosecution for an offense can commence when an arrest warrant is issued, "provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." Cal. Penal Code § 804. At the time these crimes were committed, each offense was punishable by a maximum term of eight years in state prison. Lodged Doc. 10.
B. Background
The complaint was filed on August 21, 2000, four days before the statute of limitations was set to expire, and the arrest warrant was issued the following day for "John Doe, unknown male," on charges stemming from the August 25, 1994 assault of Deborah L. Opinion at 26. The complaint described John Doe by his unique 13 loci DNA profile, and that description was incorporated by reference into the arrest warrant. Id. at 27. Approximately three weeks later, the Department's offender database was searched using the DNA profile that was originally developed in 1994, which generated a "cold hit" match between the DNA profile in the "John Doe" arrest warrant and petitioner's DNA profile in the state's DNA database. Id. at 6. Based on that match, an amended arrest warrant with petitioner's name on it was issued, and the warrant was executed on September 15, 2000. Id. Following his arrest, petitioner's blood was collected and an independent DNA analysis was conducted using the new blood sample. Id. The new DNA profile was then compared to the earlier profile, and yielded a match at all 13 loci. Id. Expert testimony at trial indicated that the probability that two people would share identical DNA patterns at each of the 13 loci tested was one in 650 quadrillion in the African-American population, one in six sextillion in the Caucasian population, and one in 33 sextillion in the Hispanic population. Id. at 6-7. Further testimony indicated that there had been no reported cases of two people matching at all 13 loci who were not identical twins. Id. at 7.
The parties stipulated that, prior to September of 2000, petitioner's blood had been collected and his DNA was profiled at 13 loci, and that profile was entered into the Department's offender database. Opinion at 5.
C. Petitioner's Argument
Petitioner states that the prosecution of this case had to commence by August 24, 2000 in order to satisfy California's statute of limitations. ECF 1 at 26. Petitioner further contends that, under § 804, the filing of a "John Doe" complaint and arrest warrant four days before the limitations period was set to expire did not lawfully commence the action, which is therefore barred under California's statute of limitations. Id. at 27-28. Petitioner concedes that "John Doe" warrants may be used in California, but argues that the legislative intent behind § 804, as expressed in the official comments of the California Law Revision Commission, indicate that such warrants were not intended to satisfy the statute of limitations, or to "stop the running of an expiring limitations period." ECF 1 at 30. Petitioner complains that the prosecution obtained the "John Doe" arrest warrant in order to circumvent the six-year statute of limitations that was duly enacted by the state legislature, in the hope of eventually identifying and prosecuting the unknown perpetrator. Id. at 32-33. Petitioner contends that allowing a "John Doe" warrant to commence the action to render the prosecution timely in this manner subverts the legislature's intent and violates his right to due process. Id. at 34.
D. Respondent's Argument
Respondent argues that habeas relief must be denied under § 2254(d), because the state court's rejection of petitioner's due process claim was not contrary to, or an unreasonable application of, controlling Supreme Court precedent. ECF 16 at 15-16.
E. California Supreme Court Opinion
The California Supreme Court explicitly rejected the premise that the legislative history of § 804 indicates that "John Doe" warrants were not intended to satisfy the statute of limitations. Opinion at 37-45. The court began by noting that the plain language of § 815 allows for the issuance of an arrest warrant identifying the suspect by a fictitious name if his name is unknown. Id. at 38. The court then explained that the plain language of § 804(d), providing that prosecution for an offense commences with the issuance of an arrest warrant that describes the defendant with the particularity required for an indictment, information, or complaint, does not exclude "John Doe" arrest warrants from the general category of arrest warrants that ordinarily commence a prosecution in satisfaction of the statute of limitations. Id. at 38-39. The court saw no reason not to give effect to the plain language of both statutes. Id. at 39.
Further, the court made it clear that the official comments of the California Law Revision Commission are not conclusive evidence of legislative intent and, in any case, neither the California legislature nor the official comments addressed the precise issue raised by this case; which was whether the use of a fictitious name, coupled with the unique DNA profile of the defendant, identified the defendant with enough certainty such that the warrant informed the person of the prosecution. Id. at 39-40. The court went on to examine law from other states approving the use of indictments based on a suspect's DNA profile, and agreed with their conclusion that a DNA indictment was an appropriate method to prosecute individuals charged with committing the most heinous criminal acts. Id. at 40-43. The court concluded that the arrest warrant in this case, which used a fictional name coupled with petitioner's unique DNA profile, was sufficient to identify him with the particularity required by California law, thereby satisfying his constitutional right to fair notice. Id. at 45.
F. Analysis
1. State Law Claim
To the extent that petitioner's claim is based on alleged violations of state law or the California Constitution, it is not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[i]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. .. .[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Here, the California Supreme Court carefully considered petitioner's argument that a "John Doe" arrest warrant accompanied by a DNA profile "circumvented" the limitations period prescribed by the California legislature, thereby denying him due process under both the California Constitution and the Fourteenth Amendment. Opinion at 37-45. The California Supreme Court rejected petitioner's legislative intent argument and determined that there was nothing in the plain language of §§ 804 and 815 to indicate that the state legislature intended to exclude "John Doe" arrest warrants from the general category of arrest warrants that would normally commence a prosecution and satisfy California's statute of limitations. Id. at 39. In light of this determination, the court concluded that the "John Doe" arrest warrant, describing petitioner by his unique DNA profile, satisfied the particularity requirements of California law, therefore the instant prosecution was properly commenced within the six-year statute of limitations. Id. at 45. The California Supreme Court found no error under state law, and a federal habeas court is bound by the state courts' interpretation and application of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
2. Federal Claim
Petitioner's Fourteenth Amendment due process challenge also fails, as there is no clearly established federal law stating that a "John Doe" complaint and arrest warrant cannot timely commence a criminal action and thereby satisfy a state's statute of limitations. If there is no U.S. Supreme Court precedent that controls a legal issue raised by a habeas petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam). Here, there is no U.S. Supreme Court authority holding that a "John Doe" arrest warrant cannot commence a criminal action in satisfaction of a statute of limitations, or even addressing the question. Accordingly, the California Supreme Court's decision rejecting petitioner's claim was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Moses v. Payne, 543 F.3d 1090, 1098 (9th Cir. 2008) ("a state court's decision cannot be contrary to a Supreme Court decision that provides 'no categorical answer' to the question before the state court.").
II. Claim Two: Challenge to the Particularity of the Arrest Warrant
In this related claim petitioner contends that the inclusion of his DNA profile in the "John Doe" complaint and arrest warrant was insufficient to satisfy the particularity requirements for an arrest warrant as set forth in the Fourth Amendment, the California Constitution, and Cal. Penal Code § 804. ECF 1 at 37. For the reasons discussed below, the undersigned recommends that this claim be denied.
A. Background
As discussed above, petitioner's motion to dismiss was denied by the trial court following a lengthy pretrial hearing, after which the court concluded that the arrest warrant satisfied the particularity requirements of the Fourth Amendment, and was sufficient to commence the prosecution and toll the statute of limitations. Lodged Doc. 16 at 132-37. Petitioner's claim was also briefed before and thoroughly considered by the California Court of Appeal, which issued a reasoned decision rejecting the claim. Lodged Doc. 1, 2, & 3.
B. California Supreme Court Opinion
The California Supreme Court addressed petitioner's Fourth Amendment claim as follows: "Under federal and state law, an accusatory pleading may issue with a fictitious name provided it names or describes the person being charged with reasonable certainty." Opinion at 29. The court emphasized that "[t]he constitutional and statutory requirements of particularity are satisfied if the warrant 'imposes a meaningful restriction upon the objects to be seized,'" and noted that "[t]he requirement of reasonable particularity 'is a flexible concept, reflecting the degree of detail available from the facts known to the affiant and presented to the issuing magistrate.'" Opinion at 30-31. (citations omitted). Applying this standard, the court determined that "at the time the John Doe arrest warrant issued and the John Doe complaint was filed in this case, there was no more particular, accurate, or reliable means of identification available to law enforcement than the suspect's unique DNA profile." Id. at 31.
The court went on to examine relevant Ninth Circuit authority in conjunction with several cases from other states that had also considered the validity of arrest warrants describing a suspect by his DNA profile. Opinion at 30-33. Based on its analysis of the relevant case law, the California Supreme Court concluded that the arrest warrant's description of petitioner through a 13 loci DNA profile with a random match probability that essentially eliminated any possibility that it could be duplicated in the human population, satisfied the Fourth Amendment's requirement that the person seized be described with particularity. Opinion at 33.
As for petitioner's argument under the California Constitution, the California Supreme Court made it clear that the state constitution parallels the relevant language of the Fourth Amendment, and that the arrest warrant "described the defendant with sufficient particularity to avoid a violation of the warrant particularity requirement of our state Constitution." Opinion at 30, 34. The court went on to consider whether the particularity requirement set forth in § 804(d) was satisfied, such that the felony prosecution was commenced for purposes of the statute of limitations. Opinion at 34-35. The court examined the state statutory scheme and interpretive case law regarding the particularity required for an arrest warrant to commence prosecution for purposes of the statute of limitations, and again concluded that there was no violation of state law. Id. at 37.
C. Analysis
1. State Law Claim
Petitioner raises the same arguments he made in state court on direct appeal, essentially trying to relitigate his motion to dismiss based on the validity of the "John Doe" arrest warrant. ECF 1 at 37-56. Again, to the extent petitioner's claim is based on alleged violations of state law it is not cognizable on federal habeas review. Estelle, 502 U.S. at 67. Because the California Supreme Court found no error under state law, this federal habeas court is bound by the state courts' interpretation and application of its own law. Bradshaw, 546 U.S. at 76.
2. Federal Claim
Petitioner's claim for relief under the Fourth Amendment must also fail. A Fourth Amendment claim is not cognizable in federal habeas proceedings if a defendant has had a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 481-82 (1976). "The relevant inquiry is whether [defendant] had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.1996). Here, petitioner took full advantage of the opportunity to litigate his Fourth Amendment claim in state court, first by filing a motion to dismiss in the trial court and then by presenting the same claim to the California Court of Appeal and the California Supreme Court on direct review. Lodged Doc. 16 at 1-137, Lodged Doc. 1, 2, 3, & 6. Petitioner had a full and fair opportunity to litigate the validity of the arrest warrant in state court, therefore there is no basis for federal habeas relief. Myers v. Rhay, 577 F2d 504, 508 (9th Cir. 1978) (even assuming that an arrest is invalid due to an unconstitutionally issued arrest warrant, there is no basis for relief in light of Stone, 428 U.S. at 494); Terrovona v. Kincheloe, 912 F. 2d. 1176, 1178 (9th Cir. 1990) (finding that Stone and Myers bar federal review of a state prisoner's warrantless arrest claim).
III. Claim Three: Involuntary Collection of Blood for DNA Analysis
Petitioner's next claim is twofold. First, he claims that his Fourth Amendment rights were violated by the involuntary collection of a blood sample from which his DNA profile was developed and included in the state offender database. Second, he contends that the appropriate remedy for the unlawful seizure is reversal of his conviction, exclusion of his profile from the database, and destruction of his blood sample. ECF 1 at 57.
A. Background
The DNA and Forensic Identification Data Base and Data Bank Act of 1998 (the "Act") mandates that any person convicted of a "qualifying offense" under the statute must provide a blood specimen for law enforcement identification analysis and inclusion in the state's DNA and Forensic Identification Database. Cal. Penal Code § 296. On March 2, 1999, petitioner was an inmate at the Rio Cosumnes Correctional Center serving a sentence for two misdemeanor convictions, and awaiting transfer to state prison for a parole revocation stemming from an earlier conviction for felony first degree burglary. Opinion at 10. At the time the sample was drawn, felony burglary was not listed as a qualifying offense requiring collection of blood for DNA analysis. Id. at n. 15. Law enforcement personnel, mistakenly believing that petitioner had been convicted of a qualifying offense under the Act, collected his blood sample and submitted it to the laboratory database section for verification to confirm that petitioner was a qualified offender. Id. at 9-10. At the time his blood was drawn and analyzed, petitioner had not been convicted of any qualifying offenses. However, through a series of errors in the verification process, the blood sample was mistakenly deemed to be qualified for inclusion in the state database. Id. at 11.
Petitioner filed a motion to suppress seeking to exclude any evidence derived from the mistaken inclusion of his DNA profile in the state database. 1 Lodged Doc. 16 at 156. The trial court denied the motion after a two-day evidentiary hearing, finding that petitioner was subject to a search as a valid condition of his parole, and, in the alternative, that correctional officials made every effort to avoid mistakes while acting under a good faith belief that he was a qualified offender. 2 Lodged Doc. 16 at 528-35. In a reasoned decision, the California Court of Appeal concluded that the trial court properly denied petitioner's motion to suppress the evidence. Lodged Doc. 3 at 36.
B. California Supreme Court Opinion
The California Supreme Court agreed, concluding as follows:
[W]e hold that the challenged errors do not, by themselves, "require the 'extreme sanction of exclusion.'" We agree with the trial court that the law enforcement personnel errors in this case were the result of negligence, "rather than systematic error or reckless disregard of constitutional requirements," that the unlawful collection of genetic material under the Act was not "sufficiently deliberate that exclusion can meaningfully deter it," and that the law enforcement personnel were not sufficiently culpable that such deterrence is worth the price paid by the justice system.Opinion at 25-26. (internal citations and footnotes omitted).
We have analyzed the nonconsensual extraction of defendant's blood for the March 2, 1999 blood sample as a state statutory violation that did not violate the Fourth Amendment, and, alternatively, as an assumed federal constitutional violation. In either case, we agree with the Court of Appeal that "the exclusionary rule is inapplicable to suppress the [blood and DNA test] evidence in this case."
C. Analysis
This claim is barred by Stone v. Powell, supra. The state provided petitioner with an opportunity for full and fair litigation of his Fourth Amendment claim. Even if there was a Fourth Amendment violation, therefore, petitioner cannot obtain a remedy in federal court. Stone, 428 U.S. at 482 ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.").
IV. Claim Four: Challenge to the Statistical Methodology Used at Trial
Petitioner claims that his right to due process was violated by the trial court's admission of expert testimony to explain the probability of a match between the DNA profile derived from the crime scene, and his own DNA profile obtained from the blood sample taken after his arrest. ECF 1 at 83-125. Specifically, he argues that the statistical methodology used to calculate the random match probability - the so-called "product rule" - was not generally accepted by the scientific community in cases involving a "cold hit" match. ECF 1 at 83, 85.
The product rule is a statistical method used to calculate the rarity of a sample in a given population. This method was explained by the California Supreme Court in some detail in People v. Soto, 21 Cal. 4th 512, 524-25 (1999).
A. Background
Petitioner's claim was considered and rejected by the trial court following a lengthy pretrial hearing, after which the court concluded that the statistical approach used was generally accepted and should apply in his case. 3 Lodged Doc. 16 at 700 through 9 Lodged Doc. 16 at 2665. In a reasoned opinion, the California Court of Appeal upheld the trial court's ruling finding the evidence admissible. Lodged Doc. 3 at 37-48. The appellate court explained petitioner's claim as follows:
Statistical evidence was introduced at trial to explain the rarity of the DNA match between the evidentiary sample and defendant's blood sample taken upon his arrest. The statistical calculation was arrived at by applying the modified product rule. (MPR.)Id. at 37-38.
Defendant contends the DNA evidence was erroneously admitted under Kelly/Frye, because there is no generally accepted statistical method for calculating the probability of a DNA match when a suspect is identified by means of a "cold hit." A cold hit is a match obtained by comparing the DNA profile derived from an evidentiary sample with the DNA profile of an individual included in an offender data base. Defendant asserts there is a deep division among the experts on how to calculate the chance that a cold hit match is coincidental. Respondent contends the MPR is admissible under Kelly/Frye because it is generally accepted in the relevant scientific community to calculate the statistical frequency of a match between two DNA profiles.
We agree with respondent and hold that the evidence of MPR and its application in this case were properly admitted.
Petitioner renewed this claim before the California Supreme Court, which granted review but stayed briefing pending its disposition of a similar issue in People v. Nelson, 43 Cal. 4th 1242 (2008). Following its decision in Nelson, the California Supreme Court resolved the issue against petitioner, and declined further comment. Opinion at 3, n.6.
B. Analysis
Petitioner reiterates the same claim that he raised before the state courts: that the expert testimony was inadmissible because the statistical methodology relied upon by the witnesses was not generally accepted in a "cold hit" case. Plaintiff invokes both the state standard for admissibility of expert testimony set forth in People v. Kelly, 17 Cal.3d 24 (1976), and the federal standard set forth in Frye v. United States, 293 F. 1013 (C.A.D.C. 1923). ECF 1 at 92-93.
1. State Law Claim
The California Supreme Court has summarized the Kelly test as follows: "The admissibility of expert testimony based on 'a new scientific technique' requires proof of its reliability—i.e., that the technique is 'sufficiently established to have gained general acceptance in the particular field to which it belongs.'" Nelson, 43 Cal. 4th at 1257. In Nelson, the California Supreme Court addressed whether the application of the product rule to a cold hit case was indeed a new scientific technique that required general scientific acceptance in satisfaction of the Kelly standard. Id. at 1261-65. The court determined that use of the product rule in a cold hit case did not involve the application of a new scientific technique, and was therefore not subject to the Kelly test. Id. at 1263-64. The court found that the product rule could be reliably used to show the rarity of a genetic profile in a population group, leaving it within the trial court's discretion to determine the relevance of the technique to the criminal prosecution. Id. at 1265. The court went on to conclude that a statistical calculation derived through use of the product rule was both relevant and admissible under California law, even in a cold hit case. Id. at 1266-67.
Once again, to the extent that petitioner's claim is grounded in state law, it is not cognizable on federal habeas review. Estelle, 502 U.S. at 67. This federal habeas court is bound by the state courts' interpretation and application of its own law. Bradshaw, 546 U.S. at 76. State evidentiary rulings do not provide a basis for federal habeas relief unless the admission of the evidence violated the petitioner's due process right to a fair trial. Estelle, 502 U.S. at 68. The court now turns to that question.
2. Federal Claim
Petitioner claims that the trial court's admission of the expert testimony prejudiced his defense, thereby rendering the trial fundamentally unfair in violation of his Sixth and Fourteenth Amendment right to due process. ECF 1 at 121-22. The Unites States Supreme Court has not addressed whether the use of a particular statistical methodology to explain the probability of a random DNA match in a "cold hit" case violates due process, nor has it "made a clear ruling that admission of irrelevant or prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Accordingly, the state court cannot have unreasonably applied federal law within the meaning of the AEDPA. See Wright v. Van Patten, 552 U.S. at 125-26; Moses v. Payne, 543 F.3d at 1098 (9th Cir. 2008).
The evidentiary standard on which petitioner relies - the Kelly-Frye rule - is not constitutionally required and does not constitute "clearly established Federal law." Frye, which required the proponent of scientific evidence to demonstrate "general acceptance" of the evidence "in the particular field in which it belong[ed]," was the decision of a lower federal court. Frye, 293 F. at 1013. Decisions of lower federal courts do not constitute "clearly established federal law" for purposes of 28 U.S.C. § 2254(d). Lockyer v. Andrade, 538 U.S. at 71-72. The U.S. Supreme Court never endorsed Frye, and later held that held that its widely-adopted "general acceptance" test had been displaced by the less stringent standard provided by the Federal Rules of Evidence. The Court held in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), that Rule 702 requires district judges to be gatekeepers for proposed scientific evidence by assuring "that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Accordingly, an expert's testimony must be based on scientific knowledge that is grounded "in the methods and procedures of science," and consists of more than just "subjective belief or unsupported speculation." Id. at 590-91. Daubert, like Frye, states a non-constitutional evidentiary rule that applies in the federal trial courts. Accordingly, it provides no basis for habeas relief.
Even if the Daubert rule were compelled by due process - which the Supreme Court has not suggested, let alone clearly established - there would be no unreasonable application on the facts of this case. The trial court diligently performed its gatekeeping function by conducting a lengthy evidentiary hearing and considering the testimony of a number of different experts before making specific findings on the record describing why the statistical methodology employed in this case was relevant and reliable. 3 Lodged Doc. 16 at 700-9 Lodged Doc. 16 at 2652-65. The trial court's ruling finding the expert testimony admissible to explain the probability of a random DNA match did not render petitioner's trial fundamentally unfair. See Estelle, 502 U.S. at 70 (finding no due process violation where the evidence sought to be admitted is relevant to the case). Accordingly, the California Supreme Court's decision affirming the trial court's ruling on this issue was not contrary to, or an unreasonable application of, clearly established federal law.
V. Claim Five: Challenge to the Application of the Statistical Methodology Used at Trial
In this closely related claim, petitioner contends that his right to due process and a fair trial was violated by the trial court's erroneous admission of evidence that was derived from the use of a statistical methodology that had not garnered general acceptance in the scientific community. ECF 1 at 126-128.
Respondent argues that this specific claim is unexhausted as phrased in the federal petition and should be dismissed on that basis. ECF 16 at 30. However, because this claim is essentially a variant or sub-claim of Claim Four, the undersigned will consider it on the merits.
As discussed above in relation to Claim Four, the trial court conducted a lengthy pretrial hearing addressing whether the statistical methodology propounded, the product rule, was generally accepted under the California standard set forth in Kelly, and concluded that it was. 9 Lodged Doc. 16 at 2661. The California Supreme Court upheld the trial court's decision as a matter of state law. Lodged Doc. 9 at 3, n.6.
Petitioner suggests that his own argument must fail if this court determines that the trial court applied the correct statistical methodology. Id. at 127. However, in deciding whether petitioner's federal right to due process has been violated, it is not the role of this court to decide whether the trial court applied the correct statistical approach. Rather, it is the function of this court to determine whether the admission of evidence derived from this approach rendered petitioner's trial fundamentally unfair. Williams v. Taylor, 529 U.S. 362, 375 (2000) (finding that relief should be granted when a constitutional error renders a trial fundamentally unfair). Petitioner states that he has "no quarrel with the specific figures the crime lab developed from the data, only with the method it used in arriving at those figures." ECF 1 at 127. This amounts to a concession that there was no prejudice from the trial court's admission of the evidence. Therefore it stands to reason that admission of the evidence did not render petitioner's trial fundamentally unfair. Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal authority.
The other reasons set forth above for denying Claim Four apply equally to Claim Five.
VI. Claim Six: Challenge to Statistical Estimates Based on Ethnic Groups
Petitioner's final claim is that the trial court violated his right to due process and deprived him of a fair trial because it lowered the prosecution's burden of proof by allowing evidence of separate probability statistics for a DNA match among Caucasian, African-American, and Hispanic populations. ECF 1 at 129-135.
A. Background
At trial, the prosecution presented testimony from a DNA expert concerning the frequency with which petitioner's genetic profile would occur among one of three main racial groups. 14 Lodged Doc. 16 at 4020-23. The expert testified that it would appear in one in 650 quadrillion in the African-American population, one in 6 sextillion in the Caucasian population, and one in 33 sextillion in the Hispanic population. Id. at 4022.
The California Court of Appeal rejected petitioner's claim of trial court error, finding that calculating the statistical probability of a DNA match using the three different racial groups was entirely appropriate because the victim in this case could not definitively identify the race of her assailant. Lodged Doc. 3 at 47-48. The court concluded that the evidence was properly admitted under California law. Lodged Doc. 3 at 48. The California Supreme Court, without comment, declined to grant review on this issue. Lodged Doc. 5.
B. Analysis
Failure to comply with the state's rules of evidence is not a sufficient basis for granting federal habeas relief. Jammal v. Van de Kamp, 926 F. 2d 918, 919 (9th Cir. 1991). In order to prevail on his federal due process claim, petitioner must again show that "admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair." Id. As the California Supreme Court has observed, "'[w]hen the perpetrator's race is unknown, the frequencies with which the matched profile occurs in various racial groups to which the perpetrator might belong are relevant for the purpose of ascertaining the rarity of the profile.'" People v. Wilson, 38 Cal. 4th 1237, 1240 (2006).
Petitioner's reliance on People v. Pizarro, 110 Cal.App.4th 530, 628 (2003), to support his position that the probability statistics should have been presented using a neutral, non-ethnic population, is misplaced, as that case addressed a scenario where the prosecution informed the jury that the relevant population chosen (Hispanic) was based on the defendant's ethnicity, thereby potentially lowering the prosecution's burden of proof. Id. at 628. In this case, the perpetrator's race was unknown, so the same reasoning does not apply. The last reasoned decision by the California Court of Appeal correctly held that it was bound by the California Supreme Court's decision in Wilson, therefore the California Court of Appeal correctly determined that the trial court's admission of this evidence did not lower the prosecution's burden of proof. Petitioner was not in any way deprived of his right to a fair trial. No holding of the U.S. Supreme Court prohibited the testimony at issue. Accordingly, relief should be denied on this claim.
Pursuant to Ylst v. Nunnemaker, 501 U.S. 797 (1991), this court looks through the unexplained decision of the California Supreme Court and uses the last reasoned opinion of the California Court of Appeal as the basis of this court's AEDPA review for reasonableness.
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CONCLUSION
For all the reasons explained above, the state court's denial of petitioner's claims was not objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS RECOMMENDED that the petition for writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE