Opinion
Civil No. 04cv1326-BTM (LSP).
March 6, 2006
ORDER: (1) ADOPTING THE FINDINGS OF UNITED STATES MAGISTRATE JUDGE; AND (2) ISSUING A LIMITED CERTIFICATE OF APPEALABILITY
Petitioner, a state prisoner serving a term of life imprisonment without the possibility of parole plus ten years imposed following a conviction for first degree murder, is proceeding pro se and in forma pauperis with a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner contends his state and federal constitutional rights were violated when the trial judge and prosecutor vouched for the credibility of a key prosecution witness (claim 1), when evidence of third-party liability was excluded (claim 2), when a requested modification to a standard jury instruction was denied (claim 3), and by the cumulative effect of the trial errors (claim 4). (Pet. at 6-9; Attachment to Pet. at 3-17.) Respondent contends that the California Attorney General is not a proper respondent to this action, that Petitioner's claims do not present federal questions, that claim three is barred by Teague v. Lane, 489 U.S. 288 (1989), that claims three and four are procedurally defaulted and are without merit, and that the state court's adjudication of claims one and two was objectively reasonable within the meaning of 28 U.S.C. § 2254(d). (Answer at 3-11; Supplemental Answer at 2-6.)
Presently before the Court is a Report and Recommendation ("RR") submitted by United States Magistrate Judge Leo S. Papas which recommends the Petition be denied. (Doc. No. 18.) The Magistrate Judge found that: (1) Bill Lockyer, the Attorney General of the State of California, is not a proper respondent to this action, and recommends dismissing him as a named Respondent; (2) Petitioner has presented cognizable federal claims, and recommends rejecting Respondent's contention to the contrary; (3) claim three is not barred by Teague v. Lane, and recommends rejecting Respondent's contention it was; (4) claims three and four are procedurally defaulted, and Petitioner is unable to demonstrate cause and prejudice or the existence of a fundamental miscarriage of justice so as to excuse the default, and recommends dismissing claims three and four on that basis; and (5) and the state court's adjudication of claims one and two was neither contrary to, nor an unreasonable application of, clearly established United States Supreme Court precedent. (RR at 7-26.)
Neither party has filed objections to the RR. The Court has reviewed the RR pursuant to 28 U.S.C. § 636(b)(1), which provides that "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2005). The Court has reviewed the RR under this standard and ADOPTS the findings of the Magistrate Judge in full. The Court adds the following comments with respect to the second aspect of claim one.
Claim one alleges improper vouching by the trial judge and prosecutor for the credibility of Kevin Lukasik, a prosecution witness who was originally charged as Petitioner's co-defendant but who testified pursuant to a plea agreement. Under the plea agreement, if the trial judge determined that Lukasik testified truthfully, the prosecutor would accept a plea of guilty to voluntary manslaughter, and Lukasik would be sentenced to 13 years and 4 months in prison. With respect to the second aspect of claim one, the prosecutor stated at the very beginning of her closing argument, immediately after commenting upon the jury instructions which inform the jurors that they are not to speculate about matters for which there is no evidence, that she would be "happy to answer for you after the trial" any questions the jury may have "about why the evidence is in the state that it's in," and that she would be happy to answer after the trial any questions about the plea agreement reached with Lukasik. (Lodgment No. 2, vol. 9, Reporter's Tr. at 1152-53.) Defense counsel in his closing argument attacked the credibility of the prosecution's witnesses, arguing that all the witnesses were heavily involved in drugs, and implied that the prosecutor was trying to use the faulty memories of drug abusers five years after the fact in order to bring a case against Petitioner. (Id. at 1212.) The prosecutor responded by stating that she would be happy to answer any questions the jury had, after the trial was over, about why the case was filed five years after the homicide, and indicated that there "might be a reasonable explanation," but also stated that "If it was relevant, I'm sure you would have heard it." (Id. at 1216-18; RR at 19-20.)
The appellate court found that the comments made by the prosecutor during closing argument "did not refer to or imply the existence of extra-record evidence bearing on the credibility of Lukasik's testimony. . . . but instead properly directed the jury not to speculate about the existence of other evidence, why certain witnesses were not called to testify or why the District Attorney's office had entered into the agreement with Lukasik." (Lodgment No. 6, People v. White, No. D0337739, slip op. at 8 (Cal.Ct.App. Nov. 21, 2002).) The Magistrate Judge found that although the prosecutor acknowledged that jurors might be curious about matters outside the record, she also simultaneously emphasized that the jury was to consider only the evidence adduced at trial, and never suggested in any way that the things the jury might be curious about would support Lukasik's credibility. (RR at 20.)
Although Lukasik's testimony was arguably the most important evidence of Petitioner's guilt adduced at the trial, it is unlikely the jury would have viewed the prosecutor's invitation to answer questions after the trial as vouching for Lukasik's credibility for a number of reasons. The prosecutor clearly indicated that if the jury was curious about things that were not in the record, such information would not be relevant. Also, the prosecutor never stated that she had any evidence regarding Lukasik's credibility. Rather, she was at first commenting on the jury's instruction that they were not to speculate about evidence not in the record, and was later merely responding to the closing argument of defense counsel that there may be unanswered questions regarding why the prosecution chose to wait so long to bring charges when the memories of many witnesses were affected by drug use. Additionally, the jury was reminded numerous times that they were solely responsible for determining Lukasik's credibility based solely on the evidence introduced at trial. In fact, the jury was informed that as part of the plea agreement, it was the trial judge who would be determining whether Lukasik testified truthfully in regards to whether he fulfilled his end of the plea bargain, not the prosecutor.
With these additional comments, the Court ADOPTS in full the Magistrate Judge's finding that the appellate court's adjudication of claim one was neither contrary to, nor involved an unreasonable application of, clearly established federal law.See Darden v. Wainwright, 477 U.S. 168, 181 (prosecutorial misconduct rises to the level of a constitutional violation when her "comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'") (quotingDonnelly v. DeChristoforo, 416 U.S. 637 (1974).) However, mindful of the low threshold for issuance of a Certificate of Appealability, the Court ISSUES a Certificate of Appealability limited to all aspects of claim one. See Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (providing that threshold "substantial showing of the denial of a constitutional right," is met by demonstrating that: (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further). However, the Court finds that none of the remaining claims meet this standard.
Conclusion and Order
Based on the foregoing, the Court:
(1) ADOPTS in full the findings of the United States Magistrate Judge as set forth in the RR; (2) DISMISSES Bill Lockyer as a Respondent; (3) DENIES the Petition for a Writ of Habeas Copus; and, (4) ISSUES a Certificate of Appealability limited to claim one only.
IT IS SO ORDERED.