Opinion
No. C 00-4808 MMC (PR).
May 8, 2002.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Robert Lee Scott ("petitioner"), a California prisoner proceeding pro se, filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court dismissed one of petitioner's claims as not cognizable and ordered respondent to show cause why the petition should not be granted based on petitioner's other three claims. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse.
BACKGROUND
After a trial at which he represented himself in Del Norte County Superior Court, petitioner was convicted of five felony counts arising out of two separate incidents at Pelican Bay State Prison ("Pelican Bay"), where petitioner was incarcerated on a prior, unrelated matter. In connection with the first incident, petitioner was convicted of battery on a prison guard. In connection with the second, petitioner was convicted of assault on a prison guard with force likely to produce great bodily injury, battery on a prison guard, and two counts of resisting an executive officer.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent's Exhibit C contains the opinion of the California Court of Appeal (hereinafter "Slip Op.").
The California Court of Appeal summarized the facts of this case as follows:
On April 3, 1998, defendant asked to be taken to the prison yard. Defendant was on "cuff" status, which required that he be handcuffed and escorted to and from the yard. Accordingly, defendant put his hands through the food port of his cell, and Officer Gerald Whitehead (Whitehead) placed handcuffs on his wrists. Unlocking the cell door, Officers Whitehead and Ron Mayhue ("Mayhue") then started to enter, Mayhue in the lead.
The normal procedure requires the inmate to back out of the cell, with the handcuffs at his back. Defendant, however, came forward. He had slipped the handcuffs under his legs and brought them to the front. Although Mayhue ordered defendant to turn around he refused, jumped up, and, while aiming for the groin, kicked Mayhue in the leg. Mayhue responded by jumping backwards and then spraying defendant with pepper spray, before alerting the guard in the control booth to sound the alarm. Defendant got past Whitehead and again charged at Mayhue, this time hitting the officer "in full force." Mayhue managed to tackle the defendant and hold onto his legs during the violent scuffle that ensued. As the two men struggled, defendant repeatedly hit Mayhue on the back of his head with the handcuffs. Eventually Whitehead, Officer Ramona Reich ("Reich"), and others managed to gain control of defendant.
Defendant was charged with battery on a correctional officer arising out of the incident, and his arraignment was scheduled for August 13, 1998. The arraignment of inmates at Pelican Bay is conducted in the Board of Prison Terms room at the prison with closed circuit television linking the room to the superior court. On the day of the scheduled arraignment, Sergeant Carla Sekula ("Sekula") informed defendant of the proceeding, explaining the procedure for transporting him to the room where the arraignment was to take place. Defendant sat silently in his cell and would not acknowledge Sekula. After Sekula reported to the court defendant's refusal to attend the arraignment, the proceedings were continued to August 20.
Although due for release from prison on September 26, defendant was ordered to remain housed at Pelican Bay pending resolution of the new charges.
On August 19, 1998, the day before the rescheduled arraignment, Sekula went to defendant's cell and informed him he would be arraigned the next day. Defendant still did not respond. The following day, Sekula again went to defendant's cell, but again defendant refused to respond to her inquiries. Sekula advised her supervisor (Lieutenant David Carmichael ("Carmichael")), who then ordered defendant to allow handcuffing to attend the arraignment. Defendant replied, "[Y]ou're going to have to come and get me."
Next Carmichael informed his own supervisor (acting Captain Jeffrey Briddle ("Briddle")) of defendant's actions, who in turn directed Carmichael to form an "extraction" team. "Cell extraction" is the process by which an inmate who refuses to leave his cell is forcibly removed from the cell and delivered to the appropriate location. An extraction team was formed, composed of Sergeant Robert Aton ("Aton") and five others. Carmichael first ordered defendant to "cuff up;" however defendant refused. Defendant was next advised that if he continued to refuse physical force would be used to remove him from the cell, including pepper spray. Defendant again refused and threw a towel over his head. Aton was ordered to extract defendant from his cell.
The cell extraction was recorded on videotape, and the tape was played before the jury . . .
The cell was first doused with pepper spray, after which officers of the extraction team opened the door an entered. Defendant had placed a towel and a blanket over his head to minimize the effects of the pepper spray. As the officers entered defendant threw off the blanket and charged members of the extraction team.
Officer James Thom ("Thom") was the first to enter, carrying a plexiglass shield. In the vicinity of the doorway, defendant struck Thom in the shoulder, knocking the officer to the ground. Thom suffered a sprained shoulder as a result of the blow. Next, defendant began throwing numerous punches, one of which struck Officer Donald Coleman ("Coleman") hard in the chest. Coleman left the cell in pain and was off work for several days because of his injuries. Officers Thom and James Downs (Downs) grabbed defendant by the hair and by his jumpsuit and began pulling him down to the floor. Defendant resisted, trying to remain standing. In the struggle, Downs' gas mask was knocked off and he was overcome by the effects of the pepper spray. Downs crawled out of the cell. Eventually defendant was subdued and tied to a gurney. He was taken to the Board of Prison Terms room and was offered the opportunity to sit in a chair if he agreed to be cooperative. Instead, defendant replied, "If you come at me again, I'll bust your punk ass." Following the arraignment, defendant was returned to his cell and, as his hands were freed, he turned and unsuccessfully attempted to grab the officers.
Defendant presented two inmate witnesses whose cells adjoined his cell. These witnesses essentially testified that some of the threats and profanities shouted during the cell extraction came from other inmates, not from defendant.
Defendant also testified. He acknowledged that on April 3, 1998, he slipped his handcuffs in front to test whether any rule prohibited inmates from wearing handcuffs in front; he was in full view when officers entered his cell; and he did not run at or kick Mayhue. Rather, he proceeded toward the yard, but when Mayhue used the pepper spray defendant tried to flee. With defendant's vision clouded, he ran into the officer. He also denied engaging in any struggle with Mayhue.
Defendant acknowledged his refusal to attend the video arraignment, explaining that he was upset charges had been filed, as he was due to be released from prison. Defendant claimed these charges were fabricated to keep him in prison. He also admitted placing a blanket over his head in advance of the cell extraction, as he knew pepper spray would be applied. When the officers of the extraction team entered his cell, defendant backed up and was struck by Thom. His reaction was to move away from his assailants, but recalled throwing no punches. And finally, defendant offered that the law requires a captain to be present at all cell extractions, and he was merely waiting in his cell for a captain to arrive since he did not know Briddle was the acting captain that day.
DISCUSSION
A. Standard of ReviewThis Court may entertain a petition for a 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); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'"Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
Where, as here, the highest state court to reach the merits issued a summary opinion that does not explain the rationale of its decision, federal court review under § 2254(d) is of the last reasoned state court opinion to reach the merits. See, e.g., Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2000) (reviewing opinion of California Court of Appeal in deciding whether to grant habeas relief under § 2254(d)). In this case, the last reasoned state court opinion to address the merits of petitioner's claims is that of the California Court of Appeal.
B. Legal Claims
1. Jury Instruction
Petitioner claims that by instructing the jury that a correctional officer is an executive officer, the trial court removed the prosecution's burden of proving every element of the charges beyond a reasonable doubt. Counts five and six each alleged resisting an executive officer under California Penal Code § 69. The trial court rejected petitioner's request that the jury be instructed that the prosecutor had the burden of proving that correctional officers were executive officers within the meaning of § 69. Reporter's Transcript ("RT") (attached as Respondent's Exhibit B) at 410-13. The trial court issued the following instruction regarding § 69:
Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed on such officer by law, or who knowingly and intentionally resists such executive officer in the performance of his duty, is guilty of a violation of Section 69, a felony. A correctional officer at Pelican Bay State Prison is an executive officer. In order to p rove such a crime, each of the following elements must be proved: 1. The defendant willfully, and with specific intent to do so, did resist or attempt to resist an executive officer or deter or prevent said executive officer, by means of violence or threat, from performing his duty; 2. At the time the peace officer was engaged in the performance of his duties; and 3. The defendant knew or reasonably should have known that the other person was an executive officer and was engaged in the performance of his duties.
Clerk's Transcript ("CT") (Respondent's Exhibit A) at 273. The Court of Appeal rejected petitioner's claim after concluding that, under California law, the term "executive officer," as used in § 69, includes a correctional officer. Slip Op. at 6.
This Court must defer to the California Court of Appeal's conclusion that a correctional officer is an executive officer under § 69 as such finding is a determination of state law. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (holding that a determination of state law by a state appellate court is binding in a federal habeas action).
The trial court did not err in not requiring the prosecution to prove that a correctional officer is an "executive officer" under § 69. The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970) (emphasis added). The definition of the term "executive officer" in § 69, and whether a correctional officer falls within that definition, is not a factual issue; it is a purely legal inquiry into the meaning of a state statute. The jury was not instructed as to how to answer the factual questions raised by a charge of violating § 69, namely, whether the officers were correctional officers, whether they were engaged in the performance of their official duties at the times in question, and whether petitioner knew or reasonably should have known they were correctional officers engaged in their official duties. The trial court instructed the jury that these facts had to be proven, and that the prosecution had the burden of proof "beyond a reasonable doubt." CT at 261, 273. Due process did not require the trial court to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that a correctional officer is an "executive officer" under § 69. This is a legal issue that was properly decided by the judge.
In describing this element, the instruction used the term "peace officer" rather than "executive officer." Under California law, however, the term "executive officer" includes peace officers. See People v. Pacheco, 263 Cal.App.2d 555, 557 (1968).
Accordingly, the trial court's failure to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that a correctional officer is an "executive officer" under § 69 did not violate petitioner's right to due process, and habeas relief is not available on this basis.
2. Transcript
Petitioner claims that he is entitled to relief because during cross-examination of a prosecution witness he wanted to refer to the transcript of his first trial but was unable to do so because he had not been provided with a copy of that transcript. Two factors are relevant to the determination of whether a state's failure to provide a transcript of a prior proceeding violates a defendant's due process rights: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought; and (2) the availability of alternatives that would fulfill the same functions as a transcript.See Britt v. North Carolina, 404 U.S. 226, 227 n. 2 (1971); see also Roberts v. La Vallee, 389 U.S. 40, 42 (1967) (holding that an indigent defendant has a constitutional right to a transcript of his preliminary hearing). Here, the record demonstrates that petitioner was, in fact, provided with a transcript. During his cross-examination of Reich, petitioner expressed his desire to demonstrate inconsistencies between Reich's testimony and the testimony she gave in the first trial, but at that time he did not have a copy of the transcript. RT at 258-59. The following day, however, petitioner was provided a transcript of the first trial, and the trial court afforded him the opportunity to introduce Reich's prior testimony into evidence; petitioner then changed his mind and declined to do so. RT at 351, 365, 392-93. Petitioner makes no argument, and there is no indication, that the timing of his receipt of the transcript rendered his cross-examination ineffective or otherwise precluded him from conducting his defense. Indeed, petitioner's decision not to introduce Reich's prior testimony indicates that he did not find the testimony helpful to him. Because the record indicates that petitioner in fact received the transcript of his first trial and had the opportunity to make effective use of it, his right to due process was not violated. Accordingly, he is not entitled to habeas relief on this claim.
The first trial, which concerned only the April 3, 1998 incident, ended in a mistrial.
3. Prior Convictions
Petitioner claims that the trial court should have excluded the evidence of his two prior convictions for resisting a correctional officer and his one prior conviction for battery on a correctional officer. The prosecutor introduced these prior convictions while cross-examining petitioner. RT 365-67. Petitioner argues that since the prior convictions are for offenses similar to those charged at the trial, they are prejudicial and, consequently, although petitioner did not object to their introduction at trial, the trial court should have excluded them sua sponte. The California Court of Appeal rejected this claim, finding that the prior convictions were admissible for purposes of impeaching petitioner, and that the trial court had no duty to alert petitioner about possible evidentiary objections. Slip Op. at 13.
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that it results in a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). The admission of evidence violates due process only if there is no permissible inference that the jury may draw therefrom. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). The jury could draw permissible inferences from petitioner's prior convictions. Because petitioner chose to testify on his own behalf he put his credibility at issue, and the jury could rationally find him less credible because he had in the past been convicted of three felony offenses. See, e.g., Fed.R.Evid. 609(a)(1) (permitting admission of prior felony convictions to impeach a defendant); United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995) (finding prior felony convictions for robbery and drug offenses are relevant to a defendant's veracity); United States v. Toney, 27 F.3d 1245, 1253-54 (7th Cir. 1994) (finding prior felony convictions for aggravated battery and robbery were relevant to the defendant's credibility). Moreover, the trial court instructed the jury that evidence of prior convictions could only be used in assessing petitioner's credibility. CT at 257. See, e.g., Terrovona v. Kincheloe, 912 F.2d 1176, 1180-81 (9th Cir. 1990) (finding admission of prior bad act testimony did not violate due process where trial court gave jury cautionary instruction). In light of the permissible inferences the jury could have drawn from petitioner's prior convictions, their admission during petitioner's cross-examination did not violate his right to due process. Accordingly, habeas relief is not available on this basis.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is hereby DENIED.
This order terminates all pending motions. The clerk shall close the file.