Opinion
No. C 02-5672 SI (pr)
October 8, 2003
JUDGMENT
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.
INTRODUCTION
This matter is now before the court for consideration of the merits of Michael Schwerdtfeger's pro se petition for writ of habeas corpus concerning his 1999 conviction. For the reasons discussed below, the petition will be denied on the merits.
BACKGROUND
A. The Crimes
Schwerdtfeger was convicted of manufacture of methamphetamine and possession of components used to manufacture methamphetamine, mostly based on evidence seized when his auto body shop was raided. Police found a few gallons of methamphetamine-in-the-making in a trunk of a car in the shop, and found drug-making recipes and many jars of pseudoephedrine tablets in his bedroom above the shop. The following evidence was presented at Schwerdtfeger's trial at which he represented himself.
1. The Prosecution's Case
On October 31, 1997, a man who identified himself as Michael Joseph Schwerdtfeger entered Alpha Chemical Supply Company in Concord and purchased a pound of iodine, a pound of red phosphorous, and two flasks. As required by law, someone at Alpha Chemical Supply Company took down identifying information about the purchaser: the purchaser was driving a car with license number 008 NSU (a car registered to Schwerdtfeger), furnished his driver's license which was numbered M0958804 (petitioner's driver's license number), gave his date of birth as July 25, 1946, and gave his address as 2770 Garden Avenue in Concord.
On February 19, 1998, police officers and detectives served a search warrant at a business/residence at 876-A Howe Road in Martinez, California. About 14 officers and detectives participated and were led by Glen Walkup, a Martinez police officer assigned to the Contra Costa County Narcotics Enforcement Team.
A vehicle with the license number 008 NSU — registered to Schwerdtfeger and the same license number as that on the car driven to Alpha Chemical a few months earlier — was parked outside the business/residence.
A uniformed police officer knocked, identified himself as a police officer, and called for someone to answer the door. After a couple of minutes, a man named Sacks opened the door. Walkup detained Sacks and told him that the officers had a search warrant. Walkup, followed by others, then entered the premises, which looked like an automobile repair shop. A staircase from the shop led to two bedrooms upstairs. Officers loudly announced their presence again and called for anyone in the upstairs area to come down. Kathryn Story came downstairs after 2-3 minutes, Mark Story came down after 2-3 more minutes, and Schwerdtfeger came down after another 2-3 minutes. Walkup detained the three people and escorted them outside.
Walkup searched Schwerdtfeger and seized from his pocket a key ring holding three keys and seized another key from his belt loop. The key from the belt loop fit the front door where the officers had entered. One of the three keys from Sehwerdtfeger's pocket opened the trunk of a 1977 Oldsmobile, located in the shop's bay.
Dust covered the hood of the Oldsmobile and the roof of the car had boards and other objects stacked on it. A blanket partially draped the trunk. Inside the trunk Walkup saw three plastic five-gallon buckets, partially covered by a blanket. The bucket lids were not snapped down but lay loosely on the top of the buckets. (There also was another bucket in the shop like the ones in the trunk.) Walkup detected a very strong chemical odor that from his training he associated with clandestine methamphetamine labs. He removed the lids from the buckets and saw "a reddish clear liquid. One of the buckets had a clear, bi-layer liquid in it over the top. I believe one to two inches was a clear liquid with the bottom portion being reddish." RT 50-51.
Arnold Ginn was called to the scene by Walkup. Ginn was an agent with the California Department of Justice Bureau of Narcotics Enforcement assigned to the clandestine lab investigation unit. Ginn was qualified to process liquids found at clandestine methamphetamine labs. He extracted samples from each of the buckets in the Oldsmobile trunk, placed the samples in a container, sealed the container and gave it to Walkup. Ginn believed the liquid, as well as its odor, was consistent with the manufacture of methamphetamine. Ginn thought that of the five gallons in the first bucket, the bottom layer amounted to about four gallons of waste material generated in the methamphetamine manufacturing process. The top layer, which was about four inches or one gallon deep, would have yielded roughly 2-3 pounds of dry powder methamphetamine after the final gassing out process.
Walkup searched the upstairs area. In a desk located in what appeared to be the master bedroom, Walkup seized what appeared to be a handwritten recipe for manufacturing methamphetamine, a handwritten note giving separate procedures for the hydrogenation of methamphetamine, and a soft-covered booklet marked "LSD mescaline" (which Walkup described as "a synthesis in extraction of organic psychedelics instruction book"). RT 58. Walkup also seized a photograph of Schwerdtfeger and correspondence addressed to Schwerdtfeger, including a telephone bill, a public storage billing statement, and a traffic ticket. Walkup seized from the fireplace mantle a checkbook bearing Schwerdtfeger's name and the address of 2770 Garden Avenue. From beneath a nightstand, Walkup seized a box containing 24 sealed plastic bottles of pseudoephedrine tablets. Walkup associated the tablets with methamphetamine manufacturing because the most common way to manufacture methamphetamine was to use ephedrine extracted from pseudoephedrine tablets sold over the counter.
Ginn later testified that pseudoephedrine, along with red phosphorous and iodine, is used in 98-99% of all methamphetamine operations. Ginn was of the view that what was taking place at the shop was methamphetamine manufacture.
Walkup took Ginn's container of samples to the Contra Costa County Crime Laboratory for analysis. That analysis revealed that one of the samples tested positive for methamphetamine. That sample had already been "cooked" and was being "extracted." The methamphetamine in it had not yet been "gassed out." One of the other samples was a simple water-based basic pH solution, which is "used to basify the methamphetamine mixture after the cooking has been completed." RT 147-48.
2. The Defense Case
The only witness for the defense was Schwerdtfeger. He testified that he had previously been sentenced to death for murder, but that the sentence was "converted" in 1972 by the Supreme Court and he ultimately served 17 years in prison before being paroled in 1989. He also had been convicted of kidnapping/robbery, two other robberies, and attempted murder. Because of his record, the police are "very serious" about him. RT 199.
Schwerdtfeger knew that his girlfriend could have testified that he and Brian Frazier looked alike, but Schwerdtfeger didn't want to get his girlfriend involved. RT 215-216.
On February 18, 1998, Schwerdtfeger had fired Brian Frazier for stealing, copying customer car keys (including a key to the Oldsmobile), and breaking into his briefcase (from Which he took documents relating to a DUI charge against Schwerdtfeger). Frazier sometimes stayed in the room from which the police seized the pills and recipes. Frazier had even once shown Schwerdtfeger the LSD book. Schwerdtfeger thought Walkup planted the methamphetamine recipes and that Frazier had bought the supplies from Alpha Chemical using Schwerdtfeger's car and driver's license. Schwerdtfeger and Frazier look very much alike.
Schwerdtfeger denied that he knew how to make drugs. At the time of the search, there were about nine vehicles in Schwerdtfeger's shop and he had the keys for all of them. The police did not search any vehicle other than the Oldsmobile: they went straight to it and searched only the trunk.
B. Case History
Following the jury trial in the Contra Costa County Superior Court, Schwerdtfeger was convicted of manufacture of methamphetamine and possession of components used to manufacture methamphetamine.See Cal. Health Safety Code §§ 11379.6(a), 11383(c)(1). He also was found to have manufactured a controlled substance in excess of three gallons of liquid by volume, see Cal. Health Safety Code § 11379.8(a)(1), and to have suffered prior convictions, see Cal. Penal Code §§ 667 and 1170.12. On January 14, 2000, he was sentenced to a term of 28 years to life in prison. He appealed and filed state habeas petitions as well as several federal habeas petitions before filing this action. (The various actions are described in more detail in the procedural default analysis later in this order.) In this action, the court issued an order to show cause. Respondent filed an answer to the petition in which he asserted that the petition was procedurally barred and was meritless. Schwerdtfeger filed a traverse. The matter is now ready for the court's consideration.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Contra Costa County, California, within this judicial district. 28 U.S.C. § 84,2241(d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). Respondent contends that state court remedies were not exhausted as to the claim of prosecutorial misconduct, but this court need not reach the exhaustion question because it may and does deny the unexhausted claim. 28 U.S.C. § 2254(b)(2).STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." 28 U.S.C. § 2254(d).
Where, however, the state court has rejected a claim on procedural grounds, rather than on the merits, section 2254(d) does not always apply. If a federal court concludes that an asserted procedural bar was not an independent and adequate ground for the state court decision, the federal court must consider the claim on the merits; if the state courts never reached the merits of the claim, there is no state court decision to which to defer and the federal court must review the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002),cert. denied, 123 S.Ct. 2286 (2003): see also Nulph v. Cook, 333 F.3d 1052, 1056-57 (9th Cir. 2003). For the reasons discussed in the next section, the court concludes that the claims were rejected by the state court pursuant to procedural bars that this court cannot honor. As a result, this court must consider the claims de novo rather than apply the deferential standard set out in section 2254(d).
DISCUSSION
A. Procedural Default
Before reaching the merits of the claims, the court takes a detour into the field of procedural default, but ultimately concludes that Schwerdtfeger's claims are not procedurally barred.
1. Procedural history
Before his trial began, Schwerdtfeger filed a petition for writ of habeas corpus with the California Supreme Court on July 19, 1999. His trial concluded on November 10, 1999 and he was sentenced on January 11, 2000. The California Supreme Court denied his petition for writ of habeas corpus on January 25, 2000 in a summary order citing In re Dixon, 41 Cal.2d 756 (Cal. 1953). The Dixon cite stands for the California rule that habeas cannot be used as a substitute for an appeal.
Schwerdtfeger then appealed his judgment of conviction. The judgment of conviction was affirmed by the California Court of Appeal and the petition for review was denied by the California Supreme Court. Schwerdtfeger's appeal did not include the claims he raises in his federal petition.
Schwerdtfeger filed a federal habeas action on August 8, 2001, see Schwerdtfeger v. Lamarque, C 01-3047 SI. The court granted respondent's motion to dismiss on March 28, 2002, finding that state court remedies had not been exhausted as to the claims raised therein.
The 2001 action was Schwerdtfeger's fourth federal habeas action and the current action is his fifth federal habeas action. His first action was dismissed for failure to exhaust his state court remedies.See Schwerdtfeger v. Woodford, No. C 00-1873 SI. His second and third actions were dismissed for failure to pay the filing fee or submit an in forma pauperis application. See Schwerdtfeger v. Superior Court of Contra Costa County. No C 00-607 SI; Scnwerdtfeger v. Superior Court of Contra Costa County, No. C 00-568 SI.
Schwerdtfeger then filed another unsuccessful petition for writ of habeas corpus in the California Supreme Court. See Schwerdtfeger v. Lamarque, Cal. S.Ct. No. S106158. The petition raised four claims: (1) denial of right to present a defense and right to speedy trial because he was denied "subpoenas and other necessary legal supplies," (2) denial of due process because he was provided "inadequate access to the law library, legal resources, and telephone calls," (3) denial of equal protection because all calls out of the area code had to be made as collect calls which "plac[ed] a monetary burden on an indigent pro per inmate," and (4) denial of Fourteenth Amendment rights because he was required to disclose confidential documents to obtain photocopying services. See Resp. Exh. K. Schwerdtfeger also sent to the California Supreme Court an "Addendum To Petition For Writ Of Habeas Corpus" that purported to add a fifth claim, i.e., for prosecutorial misconduct in the closing argument in violation of Schwerdtfeger's right to due process. See Resp. Exh. L. In his addendum, he asked the court to "[a]ccept and file this added claim #5 . . . to petitioner's petition for Writ of Habeas Corpus in this matter," to hold an evidentiary hearing and to review and rule on claim #5 as with the other four claims actually included in the petition for writ of habeas corpus.See id. at 12-13. The clerk of the California Supreme Court responded to Schwerdtfeger that the addendum had been stamped received and "Our records indicate that you have the above-referenced petition for habeas corpus pending with this court, and there is no provision in the Rules of Court to supplement such a petition. The documents will be sent to the Court's attention for consideration with the petition." Id. at 16. The California Supreme Court denied the petition for writ of habeas corpus in an order citing In re Dixon, 41 Cal.2d 756 (Cal. 1953), In re Swain, 34 Cal.2d 300, 304 (Cal. 1949), and In re Duvall, 9 Cal.4th 464, 474 (Cal. 1995). See Resp. Exh. M.
Respondent described the procedural rules for which each of the three cases cited stood:
"Dixon holds that `habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.' 41 Cal.2d at 759. . . . Swain provides that a petitioner must `allege with particularity the facts upon which he would have a final judgment overturned and . . . fully disclose his reasons for delaying in the presentation of those facts.' 34 Cal.2d at 304. Duvall follows Swain and . . . holds that a habeas petition `must state fully and with particularity the facts upon which relief is sought,' and Duvall further provides that the petition must `include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.' 9 Cal.4th at 474."
Resp. Memo. of Points and Authorities In Support of Answer, pp. 11-12.
Schwerdtfeger then filed this action, seeking a federal writ of habeas corpus. His petition raised five claims, which were the same as the four claims raised in his 2002 petition for writ of habeas corpus to the California Supreme Court described in the preceding paragraph and the one claim contained in his addendum sent to the California Supreme Court.
2. Analysis
The procedural default doctrine forecloses federal review of a state prisoner's federal habeas claims if those claims were defaulted on in state court pursuant to an independent and adequate state procedural rule. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To find procedural default, a federal court must determine that the state court explicitly invoked a state procedural bar as an independent basis for its decision and that the state procedural bar cited was clear, consistently applied and well-established at the time of the petitioner's purported default, see id.; Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996), cert. denied, 520 U.S. 1204 (1997). An order that is ambiguous with regard to procedural bars cannot preclude federal collateral review. See id. at 1131 (California Supreme Court order that did not specify which of 39 claims was barred by which of several state rules considered ambiguous and therefore insufficient to preclude federal collateral review).
The key case here is Washington v. Cambra, 208 F.3d 832, 833-34 (9th Cir.), cert. denied, 531 U.S. 919 (2000), which determined that a state court opinion that summarily denies more than one claim with a citation to more than one state procedural bar is ambiguous, and therefore there is no procedural default if any one of the state procedural bars is not adequate and independent. ApplyingWashington to the California Supreme Court's 2002 order citing three different procedural bars to the four or five claims without describing which bar(s) applied to which claim(s) requires a finding that the California Supreme Court's order is ambiguous and cannot bar federal review if any one of the state procedural bars is not adequate and independent. Under the circumstances of this case — where Schwerdtfeger raised claims in a pre-trial habeas petition, was told by the California Supreme Court to raise them in his appeal after trial, chose not to do so, and instead did not raise the claims until a state habeas petition filed long after the appeal concluded — it appears quite clear to this court that the California Supreme Court's rejection of each of the claims in his 2002 habeas petition was because he had not raised them on appeal. See Dixon, 41 Cal.2d 756. Nonetheless, Washington directs that an order such as that issued by the California Supreme Court in 2002 is ambiguous; this court must follow that Ninth Circuit precedent. Because of the "ambiguous" order, Schwerdtfeger's claims can be barred only if all the procedural bars cited in the order are adequate and independent. Respondent does not argue that they are all adequate and independent, but only argues that the Dixon bar is adequate and independent. That is not enough. Because respondent has not met his burden with respect to the procedural bars in the Swain andDuvall cases, the claims will not be determined to be procedurally barred. See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).
Schwerdtfeger argued on appeal that his conviction should be reversed because he did such a poor job representing himself that the constitutional right to a fair trial should trump his Faretta right. He explained in his 2002 state habeas petition why he had not raised his claims in his direct appeal. After consultation with his appellate counsel, he "reached the conclusion that the reasoning inFaretta v. California, 422 U.S. 806 (1975), was in need of challenge, and, petitioner felt that this single issue would best be litigated with [sic] the addition or added claims, which may serve to cloud or perhaps even unqualify the issue at hand." Resp. Exh. K, 14th page. He also gave a convoluted and erroneous procedural default and exhaustion analysis. Id. at 14th and 15th pages.
The combined effect of Pirtle v. Morgan, 313 F.3d at 1167-68, and Washington v. Cambra, 208 F.3d at 833-34, produces a peculiar result in this case: Schwerdtfeger's claims will be reviewed on the merits and will be reviewed de novo rather than under the deferential standard of 28 U.S.C. § 2254(d). Schwerdtfeger thus gains an advantage in federal court because he disregarded California law concerning the appropriate method to raise his claims in state court. The merits of the claims now must be considered.
B. Legal Claims
1. Pro se defendant's difficulties.
In his petition, Schwerdtfeger complained about various difficulties he had as pro se criminal defendant. He alleged that the state court denied and delayed in providing him subpoenas and other necessary legal supplies, thus depriving him of his right to present a defense and his right to a speedy trial, in violation of his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution. He also alleged that the state court deprived him of his right to represent himself by providing inadequate access to the law library, legal resources and telephone calls. And he alleged that the state violated his right to equal protection by limiting his calls from jail to collect calls, thereby imposing a monetary burden on him. He further alleged that his rights under the Fourteenth Amendment were violated when he was forced to disclose confidential information to obtain photocopying services from jail personnel.
a. The self-representation right
A criminal defendant has a Sixth Amendment right to represent himself.See Faretta v. California, 422 U.S. 806, 832 (1975). TheFaretta right has been construed by the Ninth Circuit to encompass certain corollary rights. "Faretta holds that the rights guaranteed by the sixth amendment are personal to the accused. The rights to notice, confrontation, and compulsory process' mean, at a minimum, that time to prepare and some access to materials and witnesses are fundamental to a meaningful right of representation. . . . An incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense. We are mindful that this right is not unlimited. Security considerations and avoidance of abuse by opportunistic or vacillating defendants may require special adjustments." Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985): see also UnitedStates v. Sarno, 73 F.3d 1470, 1491 (9th Cir. 1995), cert. denied, 518 U.S. 1020, and 519 U.S. 859 (1997) ( Sixth Amendment right of access for Faretta defendant to prepare a defense "is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison"). In Milton, the trial court had granted defendant's timely and reasonable requests for access to phone calls but jail authorities isolated him from the means to communicate with the outside world (e.g., they did not let him have a telephone book so he could find an investigator, once prevented him from contacting his runner, and greatly limited his phone usage). The state materially impeded the use of the minimal tools for defense preparation which the trial court tried to ensure. And the state offered no justification for the impediments. Thus, for reasons wholly beyond his control, the defendant had no opportunity to prepare his defense. See 767 F.2d at 1445. The Ninth Circuit rejected the notion that this state of affairs complied with Faretta. "We do not believe that a defendant who exercises his right, underFaretta, to conduct his own defense must subject himself to the possibility that he will have, through circumstances wholly beyond his control, no opportunity to prepare that defense. The right guaranteed by the fourteenth and sixth amendments to reject a lawyer and represent oneself is premised upon the right of the defendant to make a defense. The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.'" Milton, 767 F.2d at 1445 (quotingFaretta, 422 U.S. at 819).
Although the Ninth Circuit has read into the Faretta right the requirement that meaningful exercise of the Faretta right requires that the defendant be allowed access to law books, witnesses and other tools to prepare a defense, several other circuits have declined to do so. Those circuits have held that the government does not have to provide access to a law library to defendants who choose to represent themselves in criminal trials when counsel is available but self-representation is chosen. See, e.g., United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000); United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir.), cert. denied, 528 U.S. 904 (1999) ("It is well established that providing legal counsel is a constitutionally acceptable alternative to a prisoner's demand to access a law library"); id. at 1205 (collecting cases); United States v. Kincaide, 145 F.3d 771, 778 (6th Cir. 1998), cert. denied, 525 U.S. 1166 (1999) (refusal to allow extra time for filing of motion to suppress by pro se defendant who was having trouble gaining access to the law library was not an abuse of discretion); Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1986) (rejecting § 1983 claim for denial of access to the law library for inmate who represented himself in criminal trial). For those circuits, so long as counsel is offered, the alternative of a law library need not be.
The circuit split would suggest that there is no "clearly established Federal law, as determined by the Supreme Court of the United States," if 28 U.S.C. § 2254(d) applied in this case.
A separate and distinct constitutional right identified in Schwerdtfeger's petition — i.e., the constitutional right of access to the courts — does not provide an avenue for relief for Schwerdtfeger. In addition to the Faretta rights discussed above, an inmate has a separate constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817 (1977). The constitutional right of access to the courts is not dependent on an inmate exercising his Faretta rights or on the existence of ongoing criminal proceedings against him. To establish a claim for any violation of the right of access to the courts, the inmate must prove that there was an inadequacy in the prison's legal access program that caused him an actual injury. See Lewis, 518 U.S. at 350-55. The constitutional right is one of access to the courts and there is no freestanding right to the means to that end; thus, for example, there is no right to a law library or to a particular legal access program. Lewis endorsed the idea of continued local experimentation of assuring access to the courts by, for example, replacing law libraries with minimal access to legal advice and court-approved forms. Id at 352. Various circuits, including the Ninth Circuit, have concluded that making legal assistance available at government expense, if required, provides a constitutionally permissible means of access to the court. See United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir. 1982), cert. denied, 464 U.S. 867 (1983). "When such adequate access is provided, as was here, an inmate may not reject the method provided and insist on an avenue of his or her choosing." Id. "The offer of court-appointed counsel to represent [defendant] satisfied the Fifth Amendment obligation to provide meaningful access to the courts." Id. at 1272. The fact that the right of access to the courts can be satisfied by providing appointed counsel does not, however, undermine the separateFaretta-based right identified in Milton v. Morris. Milton, which found a right to prepare a defense for aFaretta defendant, declined to determine whether the separate constitutional right of access to the courts provided a separate avenue for relief for the inmate. 767 F.2d at 1446. Wilson remains the controlling precedent on the constitutional right of access to the court claim and it is consistent with Lewis' later statements that the states can use alternative methods of providing access to the courts. See also Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989) (the Faretta right, not the right of access to the courts under Bounds, controls question of access to law library for a pre-trial detainee who has rejected counsel and chosen to represent himself).
b. Subpoenaes
Schwerdtfeger complains about the difficulties in obtaining subpoenaes he wanted. He acknowledges that he received the subpoenaes and necessary supplies to send them by March 1999 — eight months before the trial. Traverse PAs, p. 24. The subpoenaes and supplies to send them were provided to Schwerdtfeger in sufficient time for him to represent himself and prepare his defense. Schwerdtfeger has not shown any prejudice resulting from any delay in obtaining the subpoenaes. He complains about the responses he did and did not receive to the subpoenas, but his complaints are unconvincing.
Schwerdtfeger complains that Alpha Chemical Supply Company responded to his subpoena, but not until the time of trial. Schwerdtfeger failed to present evidence that his subpoena called for an earlier response by Alpha and was otherwise proper in form. For example, if the subpoena called for production at the trial, Schwerdtfeger got exactly what he sought, and he cannot blame that on anyone but himself. Indeed, in his petition, Schwerdtfeger states he "is unsure as to their receiving the subpoena late, or their failing to respond in the required time." Petition, p. 6. Additionally, he has not shown why Alpha's allegedly late response is attributable to the court or the prosecutor.
The court numbered the pages of the petitions and exhibits thereto for this case and Case No. C 01-3047 SI, sequentially so that the reader might be able to find with predictability the materials cited.
He also claims that a subpoena he sent to the Pleasant Hill police department for the arrest records of Brian Frasier was not honored. He has not shown that his subpoena was in proper form or that he complied with the procedural requirements for obtaining the arrest records of a person who was not intended to be a prosecution witness. See e.g., Cal. Penal Code — 11081. He has not shown why the court or prosecution should be held liable for the Pleasant Hill police department's alleged failure to respond to his subpoena.
Schwerdtfeger has failed to identify anyone else who failed to respond to a subpoena proper in form and properly served. Schwerdtfeger had to connect his subpoena problems to a government action. He did not. He cannot succeed on his Faretta claim by showing that he did not know what he was doing, which is just what the record seems to indicate was the situation. For example, Schwerdtfeger apparently complained to the court about his problems with subpoenaes in a filing on September 26, 1999, as the court wrote back to him on September 29, 1999 that, "absent a motion with proof of service, I am not able to take any action on your subpoenaes." See Exh. B rec'd Dec. 13, 2001, in Case No. 01-3047 SI. There is no evidence before this court that Schwerdtfeger ever complied with the trial court's reasonable requirement that he make his request in accordance with standard procedure of a noticed motion.
c. Supplies
Schwerdtfeger moved for supplies on December 14, 1998. The court ordered that Schwerdtfeger be given one yellow tablet and refused his requests for other supplies. Schwerdtfeger repeated his requests for, among other things, paper, pencils, stamps and a folder. In February 1999, the court ordered supplies for Schwerdtfeger. Schwerdtfeger did not receive the ordered supplies then. He acknowledges that he did receive supplies by March 1999.
Some of Schwerdtfeger's purported difficulties are simply petty. He acknowledged in a hearing on December 30, 1998 that he had received some paper, but not enough. Dec. 30, 1998 RT 36. He complained that some of it was so badly copied that it was only 26-lined rather than 28-lined paper — but he has not shown that any court rejected papers because there it was 26-lined rather than 28-lined paper. See Dec. 30, 1998 RT 36. And later in that same hearing he complained that he was required to use a golf pencil. (Inmates were required to use the short golf pencils because they were making weapons with longer pencils.) Dec. 30, 1998 RT 37. He has not shown that the pencils were unuseable, even if they were uncomfortable. This court's files contain some of Schwerdtfeger's supply requests, and they show more his irritation in not receiving the jail's "pro per packet" which was supposed to contain a particular number of pencils, envelopes, pads and folders rather than an actual need for a specific item.See Petition in Case No. C 01-3047 SI, exhibits at pp. 31-40. But his lack of receipt of the "pro per packet" is not decisive in evaluating whether he could prepare his defense. For example, if Schwerdtfeger had one pencil with which he could write, the failure to give him the other four pencils included in the standard "pro per packet" had no constitutional relevance; after all, he hasn't shown an ability or need to write five things simultaneously.
Schwerdtfeger never received as much paper as he asked, but he did receive some paper. See Petition, p. 8 (received 15 sheets at a time); Traverse PAs, p. 32 (received about 20 sheets at a time). If there was a problem with paper, it was the use to which Schwerdtfeger put it rather than the limit on the number of sheets he could receive at any one time. For example, most of the first two hundred pages of exhibits attached to the Petition in Case No. C 01-3047 SI were motions and petitions that were at best longshot efforts to have the case dismissed. Also, Schwerdtfeger, who claims to have been so pressed for paper, wrote about 14 lines per page. And a significant misuse of paper by Schwerdtfeger was for filing civil rights actions in this court unrelated to the defense of the criminal case. See Schwerdtfeger v. Rainey, Case No. C99-044 SI ( § 1983 action in which Schwerdtfeger claimed he witnessed an improper cell extraction of another inmate), Schwerdtfeger v. Yancey, Case No. C99-132 SI ( § 1983 action in which Schwerdtfeger complained that a form letter from this court was opened outside his presence), Schwerdtfeger v. Yancey, Case No. C99-133 SI ( § 1983 action duplicating Case No. C 99-132 SI and also alleging that in forma pauperis process was too difficult; Schwerdtfeger and cellmate claim they were emotionally traumatized — causing Schwerdtfeger to lose sleep and his cellmate to go on a "cookie binge"), Schwerdtfeger v. Yancey, Case No. C99-198 SI (patently frivolous § 1983 action complaining that defendant's use of a footer on a brief that said "A:\DOGMAN. 153" was defamatory because Schwerdtfeger's alias was "Walking Dog" and not "Dogman"), Schwerdtfeger v. Hartman, Case No. C99-396 SI ( § 1983 action in which Schwerdtfeger complained his mail was opened and he was verbally harassed). All these federal cases were prepared in December 1998 — January 1999 and many were not limited to the use of this court's form complaints. Certainly the state court judge who authorized paper for Schwerdtfeger had in mind that Schwerdtfeger needed it for his pending criminal case and did not intend for that paper to be used for Schwerdtfeger's miscellaneous federal cases.
Schwerdtfeger has not shown that he was unable to adequately represent himself and prepare a defense based on the delay in receiving supplies and the limits on supplies provided to him.
Schwerdtfeger also contends that the subpoena and supply problems he encountered denied him his Sixth Amendment right to a speedy trial.
A speedy trial is a fundamental right guaranteed by the Sixth Amendment to the Constitution and imposed by the Due Process Clause of the Fourteenth Amendment on the states. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). No per se rule has been devised to determine whether the right to a speedy trial has been violated. Instead, courts must apply a flexible functional analysis, Barker v. Wingo, 407 U.S. 514, 522 (1972), and consider and weigh the following factors in evaluating a Sixth Amendment speedy trial claim: (1) length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Doggett v. United States, 505 U.S. 647, 651 (1992); Barker, 407 U.S. at 530; United States v. Lam, 251 F.3d 852, 855 (9th Cir.), amended, 262 F.3d 1033 (9th Cir.), cert. Denied, 534 U.S. 1013(2001).
The length of the delay is to some extent a triggering mechanism. Unless there is some delay which is "presumptively prejudicial," there is no necessity for inquiry into the other factors. Doggett, 505 U.S. at 651-52. Presumptive prejudice is not dispositive and instead is simply part of the mix of relevant facts and its importance increases with the length of the delay. United States v. Gregory. 322 F.3d 1157. 1162 (9th Cir. 2003). Depending on the nature of the charges, lower courts have generally found post-accusation delay presumptively prejudicial as it approaches one year. Doggett, 505 U.S. at 652 n.l; see, e.g., McNeely v. Blanas, 336 F.3d 822, 826 (9th Cir. 2003) (three-year delay was presumptively prejudicial); Gregory, 322 F.3d at 1162 (22-month delay between first superseding indictment and trial date was presumptively prejudicial but did not weigh heavily in defendant's favor because it was not excessively long); United States v. Murillo, 288 F.3d 1126, 1132 (9th Cir.), cert. denied, 537 U.S. 931 (2002) (delay of thirteen months between arrest and trial is presumptively prejudicial);Lam, 251 F.3d at 856 (noting that Ninth Circuit has found that a six month delay constitutes a "borderline case.").
Schwerdtfeger was arrested in November 1998, a grand jury indictment was obtained in May 1999 and trial was held in November 1999. Schwerdtfeger apparently was in custody from late 1998 onward. Schwerdtfeger made repeated requests for continuances during the year the case was pending.
Schwerdtfeger filed a motion for continuance/request for stay pending appeal on April 17, 1999. Therein, he noted that he also had unsuccessfully requested a stay on February 25, 1999. See Petition in Case No. C 01-3047 SI, exhibits at pp. 49-52. He requested the stay because he thought he wasn't receiving adequate supplies (an argument weakened by the fact that he had the pencil and paper on which to prepare his request) and wanted to appeal the denial of his request for dismissal. Schwerdtfeger apparently took a hard line and refused to try to make do with the supplies he had until he could receive additional supplies and the subpoenaes, but that was his choice and he bears the responsibility for the consequences of that bad decision. He also sought a stay in May or June 1999 when he filed a "petition for writ of certiorari" in the California Supreme Court. See Petition in Case No. C 01-3047 SI, exhibits at pp. 101-124.
Schwerdtfeger's position in his federal habeas petition contradicts his position during his motion for new trial where he moved for a new trial based on, among other things, the fact that things happened too fast for him and he was unprepared for trial after he received his materials and investigator. See Jan. 11, 2000 RT 297-299. The prosecutor's response at the hearing on the motion for new trial — comments to which Schwerdtfeger did not object — paints a picture of a case dragging on at the pro se litigant's request and against the prosecutor's preferences:
[THE PROSECUTOR:] The idea that he was surprised that he was in a trial department doesn't make any sense, Judge, because this case had been continued on numerous occasions.
For one, the case was filed in November of '98. It came to May of '99, and the case still had not gone to preliminary hearing, the defendant was still in custody.
It wasn't a murder case or extremely difficult case factually, therefore, at that time, since the case had aged almost six months with the defendant still remaining in custody making continuances for his preliminary hearing, we decided to take the case to grand jury.
We took the case to grand jury to get the case into Superior Court to speed up the process. That was done, I believe, on May 12th or the 13th of 1999.
Then after that, trial dates were set and defendant continued his trial on a number of times. The last time it was continued was when the defendant did have a broken hand. The case was put over at that time to the November date where we went to trial.
But there was also a readiness conference date prior to that date for trial on which Mr. Schwerdtfeger appeared in court.
Mr Schwerdtfeger made another oral motion at that time to continue his trial. That was heard by Judge Spinetta sitting in Department 12 at that time, and Judge Spinetta denied that motion and confirmed the trial date.
And so Mr. Schwerdtfeger's sitting in custody for almost a year on this case waiting for this case to go to trial. He was told the case was going to trial. It was not a surprise.
Jan, 11, 2000 RT 304-305. The court denied the motion for new trial.
Applying the Barker factors here leads to a conclusion that Schwerdtfeger's right to a speedy trial was not violated because of the delay in obtaining the subpoenaes and legal supplies. He received the supplies and subpoenaes by March 1999, which was only four months after he was arrested and eight months before the trial. Trial was held within twelve months of his arrest, and within six months of the indictment. None of the post-indictment delay is attributable to the lack of subpoenaes and legal supplies. The record does not contain evidence that the government sought the delay; the record suggests that the delays were sought by the defendant. He suggests that the delays sought by him should be attributed to the government because it was the government's failure to provide him with supplies and subpoenaes that caused the need for the delays. This court disagrees. Schwerdtfeger has not shown that he was trial-ready but for the missing subpoenaes and missing supplies. The stays he sought while he filed his various motions and petitions to try to have the case dismissed were stays for his strategic benefit and were not necessitated by an absence of subpoenaes or supplies because they had by then been provided. Schwerdtfeger also does not show that he asserted his speedy trial right in the trial court. He suffered no prejudice as a result of the delay. See Gregory, 322 F.3d at 1162-63. He is not entitled to the writ on his speedy trial claim.
d. Private investigator
Schwerdtfeger contends he intended to subpoena the arrest records of Brian Frasier and to have a private investigator check Frasier's file for evidence of several kinds of crimes he thought relevant to his own defense and to have Frasier's fingerprints compared to those from the crime scene. Schwerdtfeger has not shown that Frasier's arrest records could have been obtained even if a private investigator had been hired, has not shown that a file existed for Frasier that had evidence of property crimes relevant to his defense, and has not shown that fingerprints had been taken from the crime scene that could have been compared to Frasier's fingerprints.
Schwerdtfeger states that he sent out two letters in September 1999 — one to Adams Polygraph Services and one to Berin Investigations — and received no answer. The letter to Berin Investigations explained that he had received court authority for an investigator at $40 per hour and requested the company's services as a compensated private investigator. See Exh. C, rec'd Dec. 13, 2001, in Case No. C 01-3047 SI. Neither the court nor the prosecutor bear any responsibility for a private firm declining to be employed to assist Schwerdtfeger. Schwerdtfeger misrepresented in his petition that "the Private Investigator was never approved." Petition, p. 6.
He also states that the trial court informed him by letter that he would address the issues of the subpoena and private investigators at the next hearing. See Petition, p. 7. That is not an accurate reflection of the trial judge's writings. The trial judge wrote to Schwerdtfeger on June 10, 1999, that, although it received his request for an investigation and legal runner, he "must give me sufficient information to warrant these appointments. You may detail your reasons in a letter to me marked `confidential' and processed as jail mail for apro per." Exh. B, rec'd Dec. 13, 2001, in Case No. C 01-3047 SI. And on August 4, 1999, the court wrote to Schwerdtfeger that he had to (1) provide the date of birth and social security number for his proposed legal runner so she could be screened by the sheriff, and (2) provide a detailed statement of the work he wanted from an investigator and the estimated hours to complete that work so the court could consider funding for the investigator.Id. The judge wrote on August 19, 1999 that he required the reason for a request for a polygraph and a cost estimate therefor in order to consider Schwerdtfeger's request for a polygraph. Id. On August 23, 1999, the court approved Jacqueline Schwerdtfeger as a legal runner for up to 20 hours' work to be paid by the court.Id. On September 29, 1999, the court wrote a letter responding to Schwerdtfeger's September 26, 1999 letter stating, "I cannot assist you in retaining an investigator and absent a motion with proof of service, I am not able to take any action on your subpoenas."Id. Schwerdtfeger has failed to show that a government force precluded him from employing a private investigator; indeed, the evidence is to the contrary: the court authorized an investigator and Schwerdtfeger failed to find one willing to work for him. The trial court had no constitutional duty to automatically grant his requests and could properly require him to follow proper procedure and substantiate his requests. See United States v. Sarno, 73 F.3d at 1491.
Schwerdtfeger had filed an ex parte motion for court-appointed investigator for hearing on May 25, 1999 in which he said he wanted an investigator but did not explain what he wanted the investigator to do. In the same motion, he asked for compensation for a legal runner of his choosing. See Petition in Case No. C 01-3047 SI, exhibits at pp. 42-48.
Schwerdtfeger speculates without proof that jail staff interfered with his letter to the investigator. If he felt his letters were not being mailed from the jail, he could have given them to his legal runner to mail to the investigator.
e. Law library
Schwerdtfeger argues that the law library services in the jail were inadequate for him to prepare his case. He contends that the slowness of the copying program and paging system at the law library caused him to suffer delays. Traverse PAs, p. 32. He shows no prejudice resulting therefrom. Although he alleges that some of the hearings were delayed, he has not shown that this rendered his trial unfair.
Schwerdtfeger argues that a brief he mailed to the California Supreme Court was rejected as untimely because of the mail and copying system in place at the jail. Traverse PAs, pp. 30-31. He tells only half the story in trying to establish that his petition was rejected because of its lateness. The California Supreme Court acknowledged receiving the petition for review, and noted that it was untimely but explained that a late filing could be permitted for good cause. The letter stated: "For good cause, the court may permit a late filing. In addition to the petition for review, you must also submit an original only of an `Application for Relief from Default' which explains the reasons for failing to file a timely petition." See Petition in Case No. C 01-3047 SI, exhibit at p. 125. The application had to reach the office by July 19, 1999. Schwerdtfeger thus could have obtained consideration of his petition for review if he had filed the application. He appears to argue that someone altered the date of the mailing of the petition (because he is sure the California high court had a prisoner mailbox rule that would have made his petition timely), but this is sheer speculation on his part. In light of the California Supreme Court's rejection of Schwerdtfeger's later petitions raising the same claims, there is no likelihood that the petition would have succeeded even if it was timely filed.
f. Telephone usage
Schwerdtfeger complains that his access to the telephone was limited. Traverse, p. 34. But he fails to specify how he was unable to make any particular call that prejudiced him. He makes generalizations at a time when specifics are necessary. His argument that making a call "between 10 and 11 AM was nearly impossible" does not aid in determining whether there was a particular call that he needed to make and could not. Also, his description of the limits on the pro se telephone show that, although limited, there were times during the day and evening when an inmate could make a call. See Petition, p. 10.
He also contends that the telephone system violated his equal protection rights because, he was required to make calls outside the area code as collect calls although calls within the area code could be made direct. This "placed a monetary burden on him as an indigent proper defendant." Traverse PAs, p. 35. He provides a couple of examples of calls he could not make because the recipients would not accept collect calls. He could not call the private investigation firm, but that firm had insisted on a letter requesting its services — information he learned from his legal runner who called the investigation firm — and a telephone call (collect or direct) would not have solved that problem. He also apparently did not attempt to hire another local investigation firm, and has not explained why no other private investigator was available in the same area code as the county jail so that it could be reached without a collect call. He also could not contact by telephone the Alpha Chemical Supply Company or the Pleasant Hill police department, although he does not explain why he did not have his legal runner contact those entities. Also suspect is his assertion that the cities of Concord (where the Alpha Chemical Company was located) and Pleasant Hill (where the Pleasant Hill police department was located) actually had a different area code than Martinez (where the county jail was located); according to a current local telephone directory, all currently have a 925 area code. Schwerdtfeger also states that he could not contact unidentified potential witnesses and follow up on subpoenaes to unidentified persons, but does not explain why his legal runner could not have aided him in contacting these unidentified people. Schwerdtfeger's contention that the collect call rule denied him equal protection is unpersuasive. All inmates were treated alike, as his challenge is to the jail-wide policy. The jail-wide policy did not distinguish between indigent and non-indigent inmates: all had to use the collect call system. The county jail could properly impose restrictions, such as requiring long distance calls to be collect, to further legitimate security considerations and avoidances of abuse by opportunistic or vacillating defendants. See Milton v. Morris, 767 F.2d at 1446. Offering free and unlimited long distances calls toFaretta defendants would open the door for substantial abuse of the jail telephone system; reasonable regulations were permissible.
Schwerdtfeger was not denied all communications with the outside world and has not shown a hindrance even close to that shown inMilton. He had a legal runner who could have assisted him. The trial court was receptive to specific requests for assistance with issues arising from Schwerdtfeger's self-representation status. See, e.g., Exh. B, rec'd Dec. 13, 2001, in Case No. C 01-3047 SI. Schwerdtfeger did speak to witnesses before trial. See Jan. 11, 2000 RT 299. Schwerdtfeger does not show that he was prejudiced by any limitation on the telephone and has not shown that he was unable to use his runner to make the necessary contacts with persons/entities outside the local calling area, and has not shown that he asked the court for permission to make specific calls.
2. Denial of Confidentiality
Schwerdtfeger complains that he improperly was required to disclose confidential information in order to obtain photocopying services at the jail, citing California Penal Code § 1054.6 in support of his proposition. Section 1054.6 provides that neither the defendant nor prosecutor must disclose work product or that which is privileged. Schwerdtfeger cannot obtain the writ for a violation of state law.See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The court notes that he likely could not even establish a violation of state law as he did not show that his own work was work product protected under California Code of Civil Procedure § 2018 or under any statutory provision.
Schwerdtfeger also has not shown the existence of a federally protected right of confidentiality for a self-represented defendant. The Fourteenth Amendment, cited by Schwerdtfeger in support of this claim, does not include the alleged right. Even if there were such a right, he has not shown that there was any prejudice resulting from the photocopying system at the jail. His entire argument on this claim is pure speculation: he speculates that the person who receives his material to photocopy read it and transmitted the contents to the prosecution. No evidence supports such speculation. The claim is meritless on both the law and the facts.
The problems Schwerdtfeger claims to have encountered as aFaretta defendant, whether viewed individually or collectively, did not amount to a denial of his Sixth Amendment right. He was not prevented from meaningfully exercising his right to represent himself. A review of the record leaves the firm impression that Schwerdtfeger did not know what he was doing in preparing and presenting his case. He cannot obtain habeas relief based on his lack of advocacy skills, his poor prioritizing, and his poor preparation.
This would have been a tough case for the defense to win, whether or not an attorney represented the defendant. The evidence for the prosecution was quite strong and his defense was very weak. The prosecution's evidence included proof that Schwerdtfeger had purchased methamphetamine ingredients, had methamphetamine-in-the-making in a car in his auto body shop, and had methamphetamine supplies and recipes in his bedroom. Schwerdtfeger defended by trying to show that the purchaser of the methamphetamine ingredients was a third party who looked like him and had stolen his license and car, and argued that the incriminating evidence at the crime scene belonged to the same third party or was planted by a police officer. That defense was weak, and this court has no sense that it would have been stronger but for the limits Schwerdtfeger identifies in his petition.
3. Fingerprint evidence and alleged prosecutorial misconduct in closing argument
Schwerdtfeger alleges that his right to due process was violated when the prosecutor in final argument misled the jury "by informing them that no prints were taken, and, used that lie to inflame the jury toward petitioner, giving petitioner no opportunity to present a theory of defense." Petition, p. 19. He argues that he had requested the latent print cards and lab reports, which the prosecutor promised to produce at the preliminary hearing but never did.
a. Background
At a December 30, 1998 hearing, the court considered Schwerdtfeger's discovery motion. Dec. 30, 1998 RT 19. One of his requests was for lab tests. The prosecutor stated: "I believe all of the examination results have been provided to the defendant. We have no objection to providing those although I did look at the copy that we got from the crime lab in regards to fingerprint evidence. That may not be a legible copy so I'll provide the defendant with a more legible copy." Dec. 30, 1998 RT 21. Schwerdtfeger indicated he had received the documents: "There are several copies you are speaking of. They just weren't clear copies." Dec. 30, 1998 RT 22. The prosecutor said he would obtain legible copies. Another of Schwerdtfeger's requests was for photographs of latent fingerprints from the crime scene and written reports of comparisons made of the prints. Id. The prosecutor commented, "I don't know if we have photographs of the fingerprints that were made. We have no problems with the turning over of any written reports of comparisons that were done. The latent lift cards are in custody of the police department and they will be — they can be available for him to view but we can't give those to him." Id. The prosecutor offered to bring the cards to the preliminary hearing for Schwerdtfeger to view; Schwerdtfeger responded, "[t]hat will be fine." Id. No preliminary hearing was ever held so the scheduled production date never occurred. There is no evidence that Schwerdtfeger ever asked again for the cards to be produced or ever made any arrangements to have the cards analyzed by his own expert.
At another hearing the next month when discovery requests were being discussed, the prosecutor stated that, as to Schwerdtfeger's request for photographs of latent fingerprints, "I was told there were no latent fingerprints of any value taken from the scene." Jan. 20, 1999 RT 5.
At the grand jury hearing, California Department of Justice Bureau of Narcotics Enforcement agent Arnold Ginn testified that the buckets and lids containing the methamphetamine manufacturing materials found at Schwerdtfeger's shop were not dusted for fingerprints.
At trial, little evidence was presented about fingerprints,see RT 136, but both sides commented about fingerprints in their closing arguments. The prosecutor did not mention fingerprints in his initial closing argument. Schwerdtfeger immediately attacked the absence of fingerprint evidence when he made his closing argument. He called it odd that there was no fingerprint evidence:
Where is the fingerprints? Where, — why didn't they take fingerprints? They have — they have all of this evidence here. They have the — this — these things here. They have these buckets and all of this stuff, where is the fingerprints? Why weren't they taken? That's what I want to know. Why?
Okay. The issue is whose drugs are they? Where did they come from? Why did the police only search that one trunk, not inside of the car, not the glove compartment, not under the hood, not nine other vehicles that are in my control? Not one of them. They went right to this trunk, because they were called and they were told this is where you go. This is where that is. This is where these pills are. This is where this — and that is — I think with the drawer thing, you know, I'm not contesting the evidence. You know, why is — why are we having — and why wasn't — why weren't these things checked for fingerprints? That's what I want to know.
I mean, I should — I means as the police I think I would have had that right as a victim. I mean, as the defendant, you know, where is the fingerprints? Where is the proof?
RT 262-264. And Schwerdtfeger returned to the absence of fingerprint evidence repeatedly in his closing argument. See, e.g., RT 265 ("But I think if you look at the facts of this case, I don't think I have ever seen a case where there hasn't been fingerprints."); RT 269 ("I think it was very sloppy police work. They had all the time in the world to take fingerprints. If they want proof, what more do you want."); RT 269-270 ("Uhmm, why not just — okay, let's lift some prints off of here, let's lift some prints off here, run the prints, hey, here we go. But you're not seeing that."). Schwerdtfeger wrapped up his closing argument with the comment, "I'm somewhat angered that there aren't fingerprints. That could make this thing so easy. So simple. I wouldn't have to be standing here." RT 271.
In rebuttal closing argument, the prosecutor responded to Schwerdtfeger's fingerprint comments. He stated that a person has the right to represent himself in a criminal case and that he alone would take responsibility for the defense.
That is what Mr. Schwerdtfeger did when he told you he was advised of those things. And he decided to take that responsibility himself, [ ¶ ] So when Mr. Schwerdtfeger stands in front of you, complains why weren't there any fingerprints taken, if he was concerned about fingerprints he could have requested fingerprints be done. He didn't do so. Why? What was he afraid of? Just in the same manner as a prosecutor he can request —
THE DEFENDANT: Your Honor.
THE COURT: Yes.
THE DEFENDANT: I would — I have an objection to that. [ ¶ ] If the transcripts of this trial and the municipal court, that was an issue, that was one of my discovery requests, as a matter of fact, specifically, and — and I questioned that, were there any prints.
THE COURT: Okay.
THE DEFENDANT: So that is not true.
[THE PROSECUTOR]: What he said was he requested the punts, he didn't request that these be printed, and that is my point.
THE COURT: Okay.
[THE PROSECUTOR]: Were there any prints? No, there were no fingerprints taken. Could he have requested them? Yes, he could have. Did he do so? No. Why not? What was he afraid to. He just wanted to walk in here the day of the trial and say there was no fingerprints taken, therefore, I am not guilty. Doesn't work that way.
RT 273-274.
b. Analysis
The appropriate standard of review for a prosecutorial misconduct claim in a federal habeas corpus action is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's due process rights are violated when a prosecutor's comments render a trial fundamentally unfair. See id.; Smith v. Phillips, 455 U.S. 209, 219(1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). "Because `improvisation frequently results in syntax left imperfect and meaning less than crystal clear,' "a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations."Williams v. Borg, 139 F.3d 737, 744 (9th Cir.), cert. denied, 525 U.S. 937 (1998), (quoting Donnelly v. DeChristoforo, 616 U.S. 637, 647 (1974)). Prosecutorial comment must be viewed in context. See id. at 745.
Schwerdtfeger's prosecutorial misconduct claim includes his contention that there is fingerprint evidence helpful to the defense that the prosecutor did not turn over to him. His argument that a witness lied in a grand jury proceeding in saying the buckets and lids were not tested for fingerprints simply has no support. Even if the crime scene was fingerprinted, that does not necessarily mean the buckets and lids were fingerprinted.
Schwerdtfeger acknowledges that the buckets and lids were the key pieces of evidence. In his traverse, he writes that he "saw the box of pills and drug book at trial, and that evidence had no sign of fingerprint dust, so it had to be the buckets with the chemicals in them, which would automatically mean Agent Gin lied to the grand jury." Traverse, p. 41. Because Schwerdtfeger and Brian Frasier (the third party he contends was actually responsible) both worked at the shop, finding their fingerprints elsewhere in the shop or on the car in which the buckets were found, or finding Schwerdtfeger's prints in his living quarters, would have had no inculpatory or exculpatory value as the fingerprints would have been wholly consistent with the men's admitted presence at the scene. The key evidence which might have yielded fingerprints of interest was the buckets and lids. The only evidence before this court is that agent Ginn testified to the grand jury that they were not fingerprinted. Schwerdtfeger merely speculates that the buckets and lids were tested for fingerprints.
Even if fingerprints were taken from the crime scene, it does not necessarily follow that the fingerprints were of such quality that they could be compared against any other fingerprints. This appears to be the situation, as the prosecutor said there were no latent fingerprints of any value taken from the scene. Schwerdtfeger has not shown that any fingerprint evidence was collected that was material to the case. The only evidence before this court is that whatever fingerprint evidence was taken was not of any value. Schwerdtfeger speculates that the prosecutor was lying and speculates that fingerprints were found that match someone other than him, but his speculation is not enough to warrant habeas relief or even an evidentiary hearing. See Phillips v. Woodford, 267 F.3d 966, 987 (9th Cir. 2001); Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000), cert. denied, 532 U.S. 999 (2001) (rejecting as speculative argument that withheld material might have led to some admissible evidence which might have been sufficiently favorable to meet the standard).
The prosecutor did not engage in misconduct during the closing argument. His comments were a permissible fair reply to Schwerdtfeger's argument about the absence of fingerprint evidence to support the prosecution's case. See United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986). Schwerdtfeger repeatedly emphasized the absence of fingerprint evidence to his benefit. He conceded that drug materials were found and focused instead on what he contended was a sloppy investigation. He highlighted the failure to do the elementary task of obtaining fingerprints as proof of the poor quality of the investigation. The prosecutor fairly responded to this argument when he argued that Schwerdtfeger had not bothered to test the physical evidence for fingerprints. The prosecutor stated that "if [Schwerdtfeger] was concerned about fingerprints he could have requested fingerprints be done. He didn't do so." RT 273. When Schwerdtfeger objected, the prosecutor noted that Schwerdtfeger had requested the fingerprints that already had been done but had not requested that the items be tested for fingerprints. The prosecutor was correct: Schwerdtfeger had misconstrued his statements. There is no evidence that Schwerdtfeger attempted to have the items (e.g., the buckets and lids) tested. There was no prosecutorial misconduct. It also appears, in context, that the prosecutor's remaining comments concerned Schwerdtfeger's failure to test for fingerprints and the court will not infer that the prosecutor meant otherwise. See Williams v. Borg, 139 F.3d at 744. It did not aid the prosecutor's position to argue that the police had not taken fingerprint evidence, as that would merely strengthen the defense position that the investigation had been sloppy. The comment after Schwerdtfeger's interruption continued his rebuttal theme that Schwerdtfeger did not bother to test for fingerprints. When considered in context, the prosecutor's comments did not so infect the trial with unfairness as to make the resulting conviction a denial of due process.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The request for an evidentiary hearing is DENIED. (Docket # 16.) The clerk shall close the file.
IT IS SO ORDERED.