Opinion
Case No. 2:17-cv-02001-SB
05-22-2020
DEAN JAMES SANDERS, Petitioner, v. BRAD CAIN, Superintendent, Snake River Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Petitioner Dean James Sanders ("Sanders"), an individual in custody at Snake River Correctional Institution, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging his 2011 state convictions for Unauthorized Use of a Motor Vehicle (ten counts) and Possession of a Stolen Motor Vehicle (fourteen counts). Sanders contends that (1) trial counsel rendered ineffective assistance of counsel ("IAC") when she failed to challenge a juror during voir dire, and (2) the prosecutor violated Sanders' right to due process when he "elicited testimony about the harsh plea offer made by the District Attorney's Office and then used this improperly admitted evidence to bolster his case" during closing argument. (Pet'r's Br. in Supp. at 11, 17 (ECF No. 37).) For the reasons set forth below, the district judge should deny Sanders' habeas petition and issue a certificate of appealability on Sanders' IAC claim.
BACKGROUND
On June 14, 2011, a grand jury returned an indictment charging Sanders with fourteen counts of Unauthorized Use of a Vehicle, fourteen counts of Possession of a Stolen Motor Vehicle, one count of Unlawful Possession of Methamphetamine, and one count of Criminal Mischief in the First Degree. (Resp't Ex. 102 (ECF No. 23-1).) The charges were premised on allegations that Sanders operated a "chop shop" for stolen vehicles. (Id., Tr. at 65, 687-88 (ECF No. 24).)
Sanders' trial commenced on September 13, 2011, and counsel conducted voir dire. (Tr. at 50-55.) The Lane County District Attorney's son ("DG") was a member of the jury pool, but he did not disclose his family relationship during voir dire. (Id. at 72, 74.) Defense counsel did not challenge DG for cause, or use a peremptory challenge, and he was seated on the jury. (Id. at 73.) On the second day of trial (after the prosecutor's opening statement but before any testimony), defense counsel moved to exclude DG for cause. (Id. at 72.) Defense counsel argued that if DG disclosed to the jury that he was the district attorney's son, it may have "some effect on the jury deliberations." (Id.) The trial judge denied the challenge as untimely. (Id. at 75-76.)
Jury selection was not transcribed. (See Tr. at 55.)
Pursuant to OR. R. CIV. P. 57(D)(1)(c), a juror may be challenged for cause based on "[c]onsanguinity or affinity within the fourth degree of any party."
The Lane County District Attorney did not personally try the case, but his name was on the indictment. (See Resp't Ex. 102 at 1 (ECF No. 23-1).)
The prosecution's first witness was Eugene Police Sergeant Matthew Lowen. (Id. at 77.) Lowen testified that he conducted a video surveillance of Sanders' property and subsequently obtained a search warrant for the property. (Id. at 84-86, 92.) The video showed several stolen vehicles on the property and Sanders operating a stolen backhoe. (Id. at 86-91, 108.) Lowen testified that the stolen vehicles were brought to the property to be disassembled, car parts were either sold or installed on other vehicles, and then a "modest attempt" was made to bury the vehicles. (Id. at 122-23, 174-75.) Lowen testified that Sanders was at the property when the warrant was executed and admitted that "[e]very vehicle that's brought up here is stolen." (Id. at 129, 136.) However, Sanders denied playing a role in the theft or disassembling the vehicles. (Id. at 135, 175.) Lowen testified that Sanders walked the property with him and identified the stolen vehicles. (Id. at 136-41, 145-75.)
The trial court recessed for lunch during Lowen's testimony. (Id. at 141-42.) When the trial reconvened, the prosecutor informed the court that the parties had reached a stipulation to remove DG from the jury. (Id. at 142.) Based on counsel's stipulation, the trial judge replaced DG with the alternate juror without explanation to the jury and without inquiring into jury communications. (Id. at 142-44.) Lowen completed his testimony. (Id. at 145-220.)
Gabreona Gibson, an acquittance of Sanders, subsequently testified that she and her boyfriend brought stolen vehicles to Sanders' property and that Sanders was involved in deciding which cars to accept and the pricing of car parts. (Id. at 350-55.) Christina Natali testified that she lived with Sanders in 2011 and that he received stolen vehicles on the property. (Id. at 430-31, 434-36, 439.) She saw Sanders use the backhoe to rip apart vehicles. (Id. at 437-39, 472-73.) The owners of the stolen vehicles testified to the theft of their vehicles but, with the exception of one owner, did not know Sanders or implicate him in the crimes. (See id. at 221-345, 379-85, 412-14, 536-46.)
After the state rested its case, defense counsel made an opening statement in which she stated:
Let me give you a brief opening statement before I begin my case, and let you know that now you're going to hear from Mr. Sanders.(Id. at 547.)
The first thing he's going to tell you is that he hasn't lived a completely innocent life. He does have a criminal history. He does have prior convictions for Unlawful Use of a Motor Vehicle and Burglary and an Attempting to Elude a Police Officer.
He's going to tell you that in that case he pled guilty to those charges because he had committed those crimes, and he's taking this case to trial because he did not commit these crimes.
Sanders subsequently testified that he pled guilty in 2008 to Burglary in the First Degree (one count), Burglary in the Second Degree (two counts), Theft in the First Degree (three counts), Identity Theft (one count), Unauthorized Use of a Motor Vehicle (ten counts), Criminal Mischief in the First Degree (one count), and Attempting to Elude a Police Officer (five counts). (Id. at 549-50, 611-12.) He explained that he pled guilty to those charges because he was guilty. (Id. at 550.) Sanders testified that he is innocent of the pending charges, explaining that other people living on the property (including Jordan Rahier) brought the stolen vehicles to the property. (Id. at 555-60, 564-66, 584-85, 615.)
On cross examination, the prosecutor delved further into Sanders' motivation in pleading guilty in 2008 and proceeding to trial on the pending charges:
Q. And you previously told us in your testimony that you . . . pled guilty to that case because you did it, but you didn't do this one, right?
A. I absolutely did not do this one.
Q. You were convicted . . . of that case on August 21st, 2008, correct?
A. 2008, yes, sir.
Q. You got a pretty favorable plea deal in that case, didn't you?
A. Yes, sir, I did.
Q. You bet. You did less than two years in prison, didn't you?
A. I did . . . 22 months total.
Q. And 23 felonies?
A. It's - if that was the count, yes, sir.
Q. That's a great deal, isn't it?
A. Yes, sir, it is.
Q. You weren't offered that kind of a deal in this case at all, were you?
A. No, sir, I was not.
Q. It was substantially greater than that, wasn't it?
. . . .
A. Yes, sir.
Q. Pretty undesirable plea offer?
. . . .
A. Well, I mean, it's - it's my life. I have children.
Q. And you're trying in this case - by coming up here and testifying, and saying what you're saying, Mr. Sanders, isn't it true that you're trying to create a bogeyman in Jordan Rahier?
A. No, I'm just up here telling the truth. That's what [sic] I'm here.(Tr. at 612-14; see also Resp't Ex. 115 (rejected plea offer) (ECF No. 23-2).)
Defense counsel objected to this line of questioning as irrelevant, but the trial judge overruled the objection. (Tr. at 613.) During closing arguments, the prosecutor stated that the jury should question Sanders' credibility given that he was "convicted of 23 prior felonies, [and] looking at a substantial amount of incarceration." (Id. at 686.) Defense counsel objected to the statement, but the trial court again overruled the objection. (Id.)
At the conclusion of closing arguments, defense counsel moved for a mistrial based on the prosecutor's statement in closing that Sanders faced a substantial amount of incarceration. (Id. at 693-94.) The trial court overruled the objection because defense counsel opened the door to evidence of motive and intent when she put Sanders on the stand "inquiring on the priors that he has, asking him why he had - pled guilty to those, and why he was in trial today." (Id. at 694; see also id. at 703-04 (denying renewed motion for mistrial after the jury verdict).)
The jury returned a guilty verdict on ten counts of Unauthorized Use of a Vehicle and fourteen counts of Possession of a Stolen Vehicle. (Id. at 697-99; Resp't Ex. 118 (ECF No. 23-2).) The jury also found Sanders guilty of aggravating circumstances for sentencing enhancement purposes. (Tr. at 711-12, 725-26, Resp't Ex. 119 (ECF No. 23-2).) The trial judge imposed a 332-month sentence. (Resp't Ex. 101 at 7-24 (ECF No. 23-1).)
Sanders filed a direct appeal alleging that the trial court erred in (1) overruling Sanders' objection to the prosecutor's question regarding the substantial amount of imprisonment Sanders was facing, (2) overruling Sanders' objection to the prosecutor's rebuttal argument telling the jury to consider the substantial amount of incarceration that Sanders was facing, and (3) denying Sanders' motion for a mistrial. (Resp't Ex. 103 (ECF No. 23-1).) The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. State v. Sanders, 258 Or. App. 388, rev. denied, 354 Or. 389 (2013).
Sanders sought state post-conviction relief ("PCR"), alleging that trial counsel was ineffective by (1) failing timely to challenge DG as a juror, (2) failing to object to evidence concerning a gray Nissan pickup, (3) failing to ensure that Sanders' rejection of the state's plea offer was knowing, voluntary, and intelligent, and (4) coercing Sanders to testify. (Resp't Ex. 110 at 6-7 (ECF No. 23-2).) PCR Counsel raised nine additional claims of ineffective assistance of trial counsel and two claims of ineffective assistance of appellate counsel pursuant to Church v. Gladden, 241 Or. 308 (1966). (Id. at 7-10; Resp't Ex. 123 at 5-8 (ECF No. 23-3).)
In Church v. Gladden, 244 Or. 308, 311-12 (1966), the Oregon Supreme Court held that a PCR petitioner must inform the court at his first opportunity if his attorney fails to follow any legitimate request.
At the state PCR proceeding, Sanders' trial counsel attested that she forgot to raise a preemptory challenge to DG's presence on the jury. (Resp't Ex. 122 at 1 (ECF No. 23-2).) Defense counsel referenced an email (filed as an exhibit in the PCR proceeding) in which she explained her failure timely to challenge DG:
Initially, the elected DA[']s son was on our jury pool. No one challenged him for cause, and then I forgot to use a preremptory [sic] challenge on him. Once I realized my mistake, I moved to challenge him after the jury was sworn (we had an alternate so wouldn't be stuck one juror short). I did this after being approached by the elected DA and informed that he believed that he was party to the case and as a matter of law, his son needed to be kicked. My motion was denied as untimely. After that, another judge got involved and after a lengthy discussion in chambers, the deputy DA on the case stipulated with me to kick the guy off. However, no one on the jury was questioned as to whether this guy tainted the jury. The son wasn't questioned as to whether he had any discussions with the jury as to who he was, etc.(Resp't Ex. 113 at 1 (ECF No. 23-2).)
However, Sanders presented no evidence to the PCR court that DG (1) had an actual, as opposed to implied, bias, (2) that he disclosed to any juror that he was the son of the district attorney, or (3) that he otherwise tainted the jury. Indeed, PCR counsel acknowledged the absence of such evidence in his closing argument:
[U]nfortunately we don't know specifically . . . how much he . . . influenced the jury while he was in there, but he's-it is clear to see that being in there even through part of opening statement that-that he would have had an impact on influencing the jury and he should have been kicked off the jury long before that.(Resp't Ex. 123 at 19 (ECF No. 23-3).) The PCR court denied relief, concluding that there was insufficient evidence that DG "in any way influenced the jury." (Id. at 23; see also Resp't Ex. 124 (written judgment denying PCR relief) (ECF No. 23-3).)
Sanders appealed the denial of PCR relief. Appellate counsel filed an opening brief raising one assignment of error—that trial counsel was ineffective for failing to object to the admission of evidence concerning a gray Nissan pickup truck. (Resp't Ex. 125 (ECF No. 23-3).) Sanders filed a pro se supplemental brief challenging the PCR court's denial of his IAC claims based on trial counsel's (1) failure timely to challenge DG, (2) failure to ensure that Sanders' rejection of the state's plea offer was knowing, voluntary, and intelligent, and (3) insistence that Sanders testify. (Resp't Ex. 126 at 4 (ECF No. 23-3).) Additionally, Sanders assigned error to the PCR court's denial of his "Church v. Gladden claims." (Id.) The Oregon Court of Appeals affirmed without opinion. Sanders v. Nooth, 283 Or. App. 649 (2017). Sanders raised the identical claims in a counseled petition for review and a pro se supplemental petition for review to the Oregon Supreme Court. (Resp't Exs. 128, 129 (ECF No. 23-4).) The Oregon Supreme Court denied review. Sanders v. Nooth, 361 Or. 671 (2017).
In the instant proceeding, Sanders alleges that (1) the trial court erred by overruling defense counsel's objection to the prosecutor's questions and comments concerning the substantial sentence Sanders was facing, and denying Sanders' motion for mistrial; (2) trial counsel rendered ineffective assistance of counsel in multiple particulars, including failing to challenge DG; and (3) appellate and PCR counsel rendered ineffective assistance of counsel. (Pet. at 6-7, 11-19.)
In his supporting brief, however, Sanders addresses only two grounds for relief: (1) that his "Sixth Amendment right to an impartial jury was denied when his lawyer failed to challenge the district attorney's son who was seated on the jury and subsequently removed mid-trial," and (2) that his "Due Process rights were . . . denied when the trial prosecutor cross-examined him about the unfavorable plea offer the District Attorney's office had tendered and then used that 'substantial amount of incarceration' to vouch for the State's case in rebuttal argument." (Pet'r's Br. in Supp. at 1, 11, 17.)
Respondent urges the Court to deny habeas relief because many of Sanders' grounds are procedurally defaulted or not cognizable, Sanders failed to sustain his burden of proving habeas relief is warranted as to his unargued grounds, and the state courts' rejection of the remaining grounds was not objectively unreasonable. (Resp't Resp. 2, 6 (ECF No. 21).)
STANDARDS
Pursuant to 28 U.S.C. § 2254(d), a district court shall not grant a petition for writ of habeas corpus filed by an individual in state custody, with respect to any claim that was adjudicated on the merits in state court, unless the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Harrington v. Richter, 562 U.S. 86, 100 (2011). A state court unreasonably applies clearly established federal law under § 2254(d)(1), if its decision is so lacking in justification that there is an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Id.; Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).
DISCUSSION
The procedural posture of this proceeding is complicated by the manner Sanders set forth his grounds for relief in his pro se habeas petition and appendices thereto. Sanders clearly labeled seven "grounds for relief" in his petition and appendix five (Pet. at 6-7, 18-19), but includes an additional thirteen ineffective assistance of trial counsel claims and two ineffective assistance of appellate counsel claims in Appendix One to his petition, some of which he labels Church v. Gladden claims. (Pet. at 12-15.)
After a careful examination of the petition, this Court concludes that (1) Sanders procedurally defaulted Grounds Four, Five, and Six, (2) habeas relief is not warranted as to Ground Seven because it does not include any allegations, (3) Sanders failed to sustain his burden of demonstrating habeas relief is warranted as to all grounds he failed to address in his supporting brief, and (4) habeas relief is not warranted on the grounds addressed in Sanders' supporting brief because he has not demonstrated that the state court's rejection of the grounds was contrary to, or an unreasonable application of, clearly established federal law. /// ///
Sanders alleges in Ground Seven that he "respectfully reserves his rights to Amend or add to his petition for habeas corpus with the expectation of court appointed counsel." (Pet. at 19.)
I. Procedurally Defaulted Claims
Generally, an individual in state custody must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1). "[A] petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby afford[ing] the state courts a meaningful opportunity to consider allegations of legal error." Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004) (internal quotation omitted); Baldwin v. Reese, 541 U.S. 27, 29 (2004). A fair presentation requires the petitioner to reference both the specific federal constitutional guarantee at issue and the facts that support his claim. Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014).
A claim that was not, and can no longer be, presented fairly in state court is procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). An individual in state custody is barred from raising procedurally defaulted claims in federal court unless he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Respondent urges the Court to deny habeas relief "[w]ith respect to any claims that petitioner did not fairly present in state court, [because] those claims can no longer be exhausted properly, and they are now procedurally defaulted." (Resp't Resp. at 2, 6.) Respondent does not identify the procedurally defaulted grounds with any particularity. Sanders does not address the issue of procedural default in his supporting brief.
This Court has reviewed Sanders' counseled and pro se briefing on direct appeal (Resp't Exs. 103 and 105 (ECF No. 23-1)), his second amended PCR petition (Resp't Ex. 110 (ECF No. 23-2)), and his counseled and pro se briefing on appeal from the denial of PCR relief (Resp't Exs. 125, 126, 128, and 129 (ECF No. 23-3 & 4)). Having done so, this Court concludes that Sanders procedurally defaulted Ground Four (ineffective assistance of PCR counsel), Ground Five ("cumulative effect of evidence presented"), and Ground Six (IAC for failing adequately to investigate all supporting facts) by failing to present those grounds to the PCR court or on appeal therefrom. Sanders does not argue otherwise, and he has not demonstrated any basis to excuse his procedural default. Accordingly, habeas relief is not warranted on Grounds Four, Five, and Six.
II. Unargued Claims
As noted above, Sanders alleges seven grounds for relief in his pro se petition and Appendix Five, and an additional fifteen IAC grounds in Appendix One. In his supporting brief, however, Sanders pursues only two grounds: (1) trial counsel was ineffective for failing timely to challenge DG for cause (raised in Appendix One), and (2) his Sixth Amendment right to due process was violated when the prosecutor elicited testimony about the harsh plea offer made by the District Attorney's Office and then used this improperly admitted evidence to bolster his case (Grounds One and Two). (Pet. at 6, 11.) This Court has reviewed the remaining unargued grounds and concludes that Sanders has failed to sustain his burden of proving that habeas relief is warranted. See Mayes v. Premo, 766 F.3d 949, 957 (9th Cir. 2014) (holding that a petitioner bears the burden of proving his claims under 28 U.S.C. § 2254(d)(1) and (2)); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (same).
III. Ineffective Assistance of Counsel
Sanders' IAC claim is premised on the assertion that trial counsel's deficient performance deprived him of the right to an impartial jury. The Sixth Amendment guarantees a criminal defendant the right to a speedy and public trial, by an impartial jury. Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020). "The bias or prejudice of even a single juror is enough to violate that guarantee." United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (stating that "one touchstone of a fair trial is an impartial trier of fact"). The Ninth Circuit has opined that bias may be implied in extreme situations where, for example, a prospective juror has a relationship to someone involved in the trial. United States v. Gonzalez, 906 F.3d 784, 797 (9th Cir. 2018); Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007); Dyer v. Calderon, 151 F.3d 970, 982 (9th Cir. 1998).
Sanders argues that "[t]here is no question that counsel performed deficiently in forgetting to pursue a for cause challenge to the District Attorney's son" and that "[t]he seating of a juror [that] state law presumes is unable to serve due to bias is presumptively prejudicial." (Pet'r's Br. in Supp. at 16-17; see OR. R. CIV. P. 57(D)(1)(c) (providing that a juror may be challenged for cause on the ground of "[c]onsanguinity or affinity within the fourth degree").) Sanders concludes that "[t]he PCR court's finding on prejudice is unreasonable and contrary to Strickland because Supreme Court decisions . . . presume prejudice when a biased juror is seated." (Pet'r's Br. in Supp. at 14.)
Respondent counters that "[g]iven the strength of the case against [Sanders], as well as the fact that [DG] was removed from the jury early in the case and well before the jurors deliberated, the state court's conclusion regarding prejudice was not objectively unreasonable." (Resp't Reply at 5 & n. 3 (ECF No. 41).) The Court agrees.
In Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1987), the Supreme Court held that in order to prevail on a Sixth Amendment IAC claim, a habeas petitioner must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In so holding, the Supreme Court held that prejudice may be presumed when there is an actual or constructive denial of counsel altogether, when the state interferes with counsel's assistance, and when counsel is burdened by an actual conflict of interest. Strickland, 466 U.S. at 692.
A court need not address both Strickland prongs if the petitioner fails on either one. Strickland, 466 U.S. at 697 (holding that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed").
The Ninth Circuit has extended the presumption of prejudice to counsel's deficient performance during jury selection, holding that prejudice is presumed if even one biased juror is seated on the jury. See Davis, 384 F.3d at 643 (holding that "[e]stablishing Strickland prejudice in the context of juror selection requires a showing that, as a result of trial counsel's failure to exercise peremptory challenges, the jury panel contained at least one juror who was biased"); Fields, 503 F.3d at 776 (applying the Strickland prejudice prong to IAC claim based on trial counsel's failure to challenge juror with actual bias).
Neither of the Supreme Court cases cited by Sanders involved an IAC claim or the propriety of a presumption of prejudice under Strickland. In Parker v. Gladden, 385 U.S. 363, 365-66 (1966), the Court held that a bailiff's statements to jurors concerning the petitioner's guilt violated the Sixth Amendment right to an impartial jury. In United States v. Martinez-Salazar, 528 U.S. 304, 316-17 (2000), the Court held that the loss of a preemptory challenge caused by the court's erroneous refusal to remove a juror for cause did not violate the defendant's right to due process. In so holding, the Court recognized that the seating of one biased jury violates the Sixth Amendment right to an impartial jury. Parker, 385 U.S. at 366; Martinez-Salazar, 528 U.S. at 316. --------
The question presented in this case is whether Strickland prejudice should be presumed when trial counsel's failure timely to challenge a prospective juror with an implied bias results in the individual being seated on the jury but is removed and replaced by an alternate juror early in the case and before jury deliberations occurred. This Court concludes that Strickland prejudice is not presumed because the juror's brief presence on the jury does not evince a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.
Absent a presumption of prejudice, this Court further concludes that the PCR court's rejection of Sanders' IAC claim, based on its conclusion that there was insufficient evidence that DG "in any way influenced the jury," is neither contrary to, nor an unreasonable application of, clearly established law. Sanders failed to present any evidence to the PCR court that DG revealed to the jury that he is the district attorney's son, made any statements concerning the merits of the case, participated in any type of deliberations, or otherwise tainted the jury. Given the strength of the prosecutor's case at trial, Sanders has failed to demonstrate a reasonable probability that, but for counsel's failure timely to challenge DG, the result of the proceeding would have been different.
IV. Due Process
Sanders alleges that he was denied a fair and impartial trial due to the prosecutor's questions and closing argument regarding the harsh plea offer made by the district attorney's office and the substantial amount of prison time Sanders faced if convicted. (Pet. at 6; Pet'r's Br. in Supp. at 17.) Sanders argues that the prosecutor's statements "introduced into evidence the judgment of the District Attorney's office that Sanders needed to be imprisoned for a substantial amount of time, even if he was willing to plead guilty." (Pet'r's Br. in Supp. at 18.) Sanders also argues that the prosecutor's statements vouched for the state's witnesses' credibility. (Id. at 17-18.)
A prosecutor's improper comments violate the Constitution only if they "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Floyd v. Filson, 949 F.3d 1128, 1149-50 (9th Cir. 2020), quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986); Rowland v. Chappell, 876 F.3d 1174, 1187-88 (9th Cir. 2017) (holding that a prosecutor's improper statements regarding the appropriateness of the death penalty did not undermine the fundamental fairness of the trial). Factors relevant to a prosecutorial misconduct claim include "the weight of the evidence, the prominence of the comment in the context of the entire trial, whether the prosecutor misstated the evidence, whether the judge instructed the jury to disregard the comment, whether the comment was invited by defense counsel in its summation, and whether defense counsel had an adequate opportunity to rebut the comment." Floyd, 949 F.3d at 1150; Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) (holding that the court determines whether a petitioner suffered prejudice by placing the improper comments in the context of the entire trial).
Taking into account the foregoing factors, this Court concludes that Sanders has failed to demonstrate that the prosecutor's questions and closing argument so infected the trial with unfairness as to deprive him of due process. The prosecutor's statements referencing prior plea negotiations and the substantial sentence Sanders was facing were prompted by defense counsel's opening statement and Sanders' testimony suggesting that he would have pled guilty if indeed he was guilty, as he did in 2008. The prosecutor did not vouch for prosecution witnesses and did not suggest to the jury that their verdict should be based on anything other than the facts presented in evidence. To the extent that the prosecutor's statements conveyed "the judgment of the District Attorney's office that Sanders needed to be imprisoned for a substantial amount of time, even if he was willing to plead guilty" (Pet'r's Br. in Supp. at 18), any impact on the jury was diminished by the trial court's instruction to the jury that they must "not consider what sentence might be imposed by the Court if the defendant is found guilty." (Tr. at 621.) In light of the strength of the prosecution's case, Sanders has not demonstrated that the prosecutor's questions and argument so infected the trial with unfairness as to deprive him of due process. Accordingly, the state court's rejection of Sanders' due process claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Habeas relief therefore is not warranted.
CONCLUSION
Based on the foregoing, the district judge should DENY Sanders' Habeas Petition (ECF No. 1), and issue a certificate of appealability on Sanders' IAC claim only.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 22nd day of May, 2020.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge