Opinion
Civil No. 04-0134-JM (LSP).
February 8, 2006
REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
Paul Vasquez ("Petitioner"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."). Petitioner claims that the trial court erred in instructing the jurors, pursuant to California Jury Instruction Number 17.41.1 (CALJIC No. 17.41.1), that they were obligated to report to the trial court any "improper" thoughts expressed by any juror during deliberations. (Pet. at 6.) Respondent has filed an Answer to the Petition.
The Court has reviewed the Petition, Respondent's Answer, and all supporting documents submitted by the parties. For the reasons set forth below, the Court recommends the Petition be DENIED.
I. FACTUAL BACKGROUND
The following facts are taken from the California Court of Appeal opinion in People v. Vasquez, No. DO38819, slip op. (Cal.Ct.App. Nov. 18, 2002). (See Respondent's Lodgment 6.) This Court relies on these facts pursuant to 28 U.S.C. § 2254 (e) (1). See Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from the facts, are entitled to statutory presumption of correctness);Sumner v. Mata, 449 U.S. 539, 547 (1981) (stating deference is owed to findings of state trial and appellate courts); Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990) (holding factual findings of state trial and appellate courts are entitled to presumption of correctness on federal habeas corpus review).
The evidence at trial revealed that on the night of March 9, 1995, Sandra C. was home alone when she heard a noise from the upstairs area of her townhouse (Respondent's Lodgment 6 at 3.). When she went upstairs to investigate the source of the noise, a man, later identified as Vasquez, abruptly struck her on the face, knocking her to the ground. (Id.) Stunned and surprised, Sandra thought she was going to die. (Id.) Within a matter of seconds, Vasquez dragged Sandra into a bedroom and began forcefully removing her dress. (Id.) He then proceeded to rape Sandra numerous times, "hog-tied" her, and left when he was finished. (Id.)
Upon Vasquez's flight, Sandra ran to a neighbor's home for help. (Id.) The neighbor called the police, who arrived shortly to investigate the details of the rapes. (Id.) Sandra was then transported to a hospital for treatment of the severe physical injuries she suffered as a result of the crimes. (Id.) It was stipulated that Vasquez's semen was collected from Sandra's body at that time. (Id.)
Vasquez's defenses at trial were that Sandra consented to having sex with him, and that she asked him to get "manly," slap her and tie her up. (Id.) In short, Vasquez denied raping Sandra or forcing sex on her in any way. (Id.)
II. PROCEDURAL BACKGROUND
On August 10, 2001, a jury convicted Vasquez on three counts of forcible rape with qualifying circumstances and two counts of rape by a foreign object with qualifying circumstances. (Respondent's Lodgment 1 at 148-152.) He then filed an appeal with the California Court of Appeal, Fourth Appellate District, Division One. (See Respondent's Lodgment 3.) On November 18, 2002, the Court of Appeal issued an unpublished decision affirming Vasquez's conviction. (See Respondent's Lodgment 6.)
On December 12, 2002, Vasquez filed a Petition for Review in the California Supreme Court. (See Respondent's Lodgment 7.) The California Supreme Court denied that petition on January 22, 2003. (See Respondent's Lodgment 8.)
On January 20, 2004, Vasquez filed the current Petition in this Court. On June 29, 2004, Respondent filed an Answer to the Petition.
On September 7, 2004, Petitioner filed a Motion for Stay Abeyance of his Petition. On September 27, 2004, the Court granted the Motion and stayed the case until February 14, 2005.
On October 26, November 24, December 28, 2004, February 7, March 1, April 21, October 26 and November 7, 2005, the Court extended the stay imposed in this case, at Petitioner's request.
On April 21, 2005, the Court held a hearing in this matter, at which it explained to Petitioner that the stay in this case was imposed so that he could exhaust "newly discovered" claims in the California states courts.
On May 23, 2005, Petitioner filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court. On July 18, 2005, the Petition was denied.
On August 22, 2005, Petitioner attempted to file a Traverse in this Court, but the Court rejected the Traverse because it was not signed and was premature.
In the Traverse, Petitioner raised a new claim that the trial court erred in refusing to hold a Marsden hearing prior to sentencing. This claim had not been previously presented to this Court.
On October 26, 2005, the Court, having not received any information from Petitioner regarding the status of his exhaustion efforts in the California state courts, held a hearing on an Order To Show Cause. At the hearing, the Court reiterated that the stay in this case was imposed so that Petitioner could exhaust "newly discovered" claims in the California state courts. The Court further explained to Petitioner that he must present his "newly discovered" claims to the California Supreme Court in order to complete exhaustion of those claims.
On November 7, 2005, the Court, having not received any information from Petitioner regarding the status of his exhaustion efforts in the California state courts, held another hearing on an Order To Show Cause. At the hearing, the Court extended the stay in this case to January 20, 2006 and ordered that if Petitioner chose to continue to exhaust his "newly discovered" claims, he shall serve a copy on the Court, and on Respondent's counsel, copies of what he files in the California courts. Petitioner was explicitly warned that if he did not continue his effort to exhaust his claims in the California courts, the stay imposed in this case would be lifted and the case would proceed.
At the November 7, 2005 hearing, the Court also informed Petitioner that before presenting the Marsden claim (raised in the Traverse) to this Court, he was required to present the claim to the California Supreme Court and allow the California Supreme Court to rule on the claim.
As of the date of this Report and Recommendation, Petitioner has not served any state court filings on the Court, nor on Respondent's counsel. Therefore, the Court does not have before it any evidence that Petitioner is continuing his efforts to exhaust his "newly discovered" claims. As a result, the stay in this case is lifted and the Court will proceed to analyze Petitioner's claims on the merits. III. SCOPE OF REVIEW
The Court will not address the potential applicability ofRhines v. Weber 125 S.Ct. 1528 (2005) or Evans v. Chavis 126 S.Ct. 846 (January 10, 2006), which may have an effect on whether Petitioner has timely proceeded to exhaust his claims in the California courts.
Because the present petition was filed on January 20, 2004, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this case. See Lindh v. Murphy, 521 U.S. 320 (1997) (stating AEDPA applies to habeas corpus petitions filed after 1996). As amended by AEDPA, 28 U.S.C. § 2254 (d) reads:
d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.A. § 2254(d)(1)-(2) (West Supp. 2002).
The Supreme Court interprets § 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The Supreme Court has also explained that a state court's failure to cite Supreme Court precedent when resolving a habeas corpus claim does not render the state court's decision "contrary to" clearly established Supreme Court precedent. Early v. Packer, 537 U.S. 3, 7 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" the state court decision will not be "contrary to" clearly established federal law. Id.
In Williams, the Court stated, "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. The Williams court further explained: A state court's decision can involve an "unreasonable application" of federal law if it either correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Williams 529 U.S. at 406-407.
Where the state's highest court does not articulate its rationale, this Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the petitioner is entitled to habeas relief. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
IV. DISCUSSION
In the present case, Petitioner raises one claim, with two parts. Petitioner claims his Sixth Amendment rights and due process rights were violated when the trial court erred in instructing the jurors, pursuant to CALJIC Number 17.41.1, that they were obligated to report to the trial court any "improper" thoughts expressed by any juror during deliberations. (Pet. at 6.) Specifically, Petitioner alleges that CALJIC No. 17.41.1 deprived him of his Sixth Amendment and due process rights to candid, free, and secret jury deliberations. (Pet. at 6.) Respondent argues the state court reasonably denied Petitioner's claims, and that the state court's determination of this claim was not contrary to, nor an unreasonable application of, clearly established federal law. (Mem. of P. A. in Supp. of Answer at 7-9.)
CALJIC No. 17.41.1 provides:
The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis, it is the obligation of the other jurors to immediately advise the court of the situation.
2 California Jury Instructions — Criminal No. 17.41.1 (West Supp. 2002).
A. California Court of Appeal
The California Supreme Court did not articulate its rationale for denying this claim, so this Court looks to the decision of the California Court of Appeal. Ylst, U.S. at 801-06.
In the Court of Appeal, Petitioner argued that "the instruction violated his state and federal constitutional rights, particularly his rights to jury unanimity and due process, by intruding on the sanctity of the deliberative process, by stifling freedom of expression and debate in the jury room, and by allowing majority jurors to wield undue pressure on dissenting jurors thereby coercing a unanimous verdict." (Respt's Lodgment 6 at 9.) The court disagreed and stated that recent California Supreme Court cases determined that CALJIC No. 17.41.1 "did not constitute error . . . in the absence of facts showing the jury was impacted by the instruction." (Id. at 10.) On that premise, the court stated that it had "absolutely no information in this case as to how the instruction might possibly have impacted Vasquez's right to a jury trial." (Id. at 9.) "[T]here are no facts in this record upon which we can find any such prejudice." (Id. at 10.)
People v. Williams, 25 Cal.4th 441 (2001); People v. Engelman, 28 Cal.4th 436 (2002).
Petitioner also alleged that "the instruction negates his right to nullify or acquit regardless of the evidence of guilt." (Id. at 9.) The court rejected this argument as well, stating "there was no prejudicial error. To the extent there was any error in the scope of the instruction . . . such error was harmless." (Id. at 11.) In its reasoning, the court stated "the jury did not ask any questions regarding the challenged instruction, nor did any juror report any alleged misconduct to the court." (Id. at 9.) Nothing in the record suggests CALJIC No. 17.41.1 had any prejudicial impact on the jurors' deliberative process or the right to a unanimous jury. (Id. at 10.) B. The Sixth Amendment
Petitioner alleges that CALJIC No. 17.41.1 deprived him of his Sixth Amendment rights to candid, free and secret jury deliberations. (Pet. at 6.) The Court does not agree.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]" U.S. Const. Amend. VI. The overwhelming majority of claims of violations of the right to an impartial jury involve pretrial publicity, see Irvin v. Dowd, 366 U.S. 717 (1961), ex parte communications with jurors, see Turner v. Louisiana, 379 U.S. 466 (1965), or the jury selection process. See Georgia v. McCollum, 505 U.S. 42 (1992); Morgan v. Illinois, 504 U.S. 719 (1992); Holland v. Illinois, 493 U.S. 474 (1990); Lockhart v. McCree, 476 U.S. 162 (1986). Neither party has cited a Supreme Court decision discussing whether the jury instruction at issue here (or one similar to it) violated a defendant's right to an impartial jury, and this Court has found none.
However, the Ninth Circuit has held that no Supreme Court precedent establishes that CALJIC 17.41.1 violates an existing constitutional right. Brewer v. Hall 378 F.3d 952 (9th Cir. 2004), cert. denied 125 S.Ct. 814 (2004). In Brewer, the petitioner argued that his constitutional rights to a jury trial and due process were violated because CALJIC 17.41.1 improperly allowed the trial court to intrude into the jury deliberations. The Brewer court disagreed, even though there was evidence in the case of trouble in the jury's deliberations which required the trial court to, on two separate occasions, reinstruct the jury with CALJIC 17.41.1.
Thus, in the absence of clearly established federal law from the Supreme Court on this issue, the Court of Appeal's adjudication of this claim cannot be "contrary to" clearly established federal law. See O'Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998) overruled on other grounds in McCambridge v. Hall 303 F.3d 24 (1st Cir. 2002) The only other issue is whether the court of appeal's adjudication involved an unreasonable application of clearly established Supreme Court precedent.
"The goal of the Sixth Amendment is `jury impartiality with respect to both contestants.'" McCollum, 505 U.S. at 58 (quoting Holland, 493 U.S. at 483). The Supreme Court has explained that "an impartial jury consists of nothing more than `jurors who will conscientiously apply the law and find the facts.'" Lockhart, 476 U.S. at 178 [quoting Wainwright v. Witt, 469 U.S. 412, 423 (1985)].
In this case, Petitioner has not presented any evidence that CALJIC No. 17.41.1 violated Petitioner's right to an impartial jury. The California Supreme Court has already clearly rejected a defendant's claim that this instruction violates federal constitutional rights. See People v. Engelman, 28 Cal. 4th 436 (2002). The defendant in Engelman alleged that CALJIC No. 17.41.1 "impaired the free and private exchange of views that is an essential feature of the right to a jury trial guaranteed by the federal and California Constitutions." Id. at 442. The court agreed there were problems with CALJIC No. 17.41.1, namely that it "has the potential to intrude unnecessarily on the deliberative process and affect it adversely — both with respect to the freedom of jurors to express their differing views during deliberations, and the proper receptivity they should accord the views of their fellow jurors." Id. at 440. The court also stated that CALJIC No. 17.41.1 "has the potential needlessly to induce jurors to expose the content of their deliberations."Id. at 446. The Engelman court further concluded that CALJIC No. 17.41.1 "should not be given in criminal trials in California," id. at 440.
However, in spite of the California Supreme Court's disapproval of the instruction, it ultimately rejected the defendant's argument that it violated his federal constitutional rights. It found no authority "that the federal constitutional right to trial by jury . . . requires absolute and impenetrable secrecy for jury deliberations in the face of an allegation of juror misconduct, or that the constitutional right constitutes an absolute bar to jury instructions that might induce jurors to reveal some element of their deliberations." Id. at 443. Therefore, while the instruction was frowned upon, it was held to be free from contradiction with Supreme Court precedent.
In this case, the Court of Appeal rejected Petitioner's claim that CALJIC No. 17.41.1 violated his state or federal constitutional rights. Clearly, federal courts do not defer to state courts' interpretations of federal law. Townsend v. Sain, 372 U.S. 293, 318 (1962), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Nevertheless, the adjudication of this claim was not an unreasonable application of Supreme Court precedent because there is no evidence to suggest Petitioner was denied his right to an impartial jury. See Brewer 378 F.3d at 956.
Here, there were no jury questions about the instruction, and the record contains no evidence of a deadlock, holdout jurors or reports of juror misconduct. Even if the instruction was given in error, as the Court of Appeal made clear, the instruction did not prejudice Petitioner. (See Respondent's Lodgment 6 at 9-11.) Accordingly, this claim does not entitle Petitioner to federal habeas relief.
C. Due Process
Petitioner alleges that CALJIC No. 17.41.1 violated his due process rights by denying him an impartial jury. However, after evaluating this claim, the Court does not find a due process violation.
To merit relief based on a due process claim, Petitioner must show that the jury instructional error so infected the entire trial that the resulting conviction violated due process.Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cupp v. Naughten, 414 U.S. 141, 147 (1973). The allegedly erroneous instruction must be considered in the context of the trial record and the instructions as a whole. Estelle, 502 U.S. at 62, 71-72;Henderson, 431 U.S. at 156; Cupp, 414 U.S. at 146-47. In other words, "[a] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp, 414 U.S. at 146-47 (citing Boyde v. California, 494 U.S. 370). Further, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil, 124 S. Ct. 1830 (2004). From the Court's perspective, "the principal constitutional inquiry is whether a reasonable likelihood exists that the jury applied the challenged instruction in violation of the Constitution." Estelle, 502 U.S. at 71-72, See also Brewer 378 F.3d at 955-956.
Here, there is no evidence in the record that CALJIC No. 17.41.1 affected the trial or obstructed an impartial jury deliberation. (See Respondent's Lodgment 6 at 9-11.)
The Supreme Court mandates an evaluation of the challenged instruction in the context of the overall charge. Cupp, 414 U.S. at 146-147. Since Petitioner has not made other claims with respect to other elements of his trial, the Court infers that Petitioner's trial proceeded without other contestable error. It follows then that even if the instruction was given in error, it does not alone rise to the level of infecting the entire trial without some evidence or precedent substantiating such. See Brewer 378 F.3d at 955-956.
Moreover, there is no evidence in the record showing any likelihood that the jury applied the instruction in violation of the Constitution. See Estelle, 502 U.S. at 71-72. Therefore, this claim does not entitle Petitioner to federal habeas relief. V. CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus be DENIED. IT IS ORDERED that no later than March 8, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later thanMarch 29, 2006 The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Y1st, 951 F.2d 1153, 1156 (9th Cir. 1991).