CA9 — memorandum disposition

Hernandez v. Lamarque, No. 07-15921 (argued) — The court affirmed the denial of a § 2254 petition raising a claim under Batson v. Kentucky, 476 U.S. 79 (1986), as not surpassing AEDPA’s limitation on relief.  The court ruled that the prosecutor’s reasons for exercising the strike were not pretexts for racially discriminatory reasons.  The petitioner failed to carry his burden of showing that the state courts’ factual findings were clearly erroneous because there was no evidence of actual discrimination or statistical inferences of discrimination.

Slovik v. Yates (CA9)

Slovik v. Yates, No. 06-55867 — The court granted habeas relief on a confrontation violation.  The charges stemmed from a fight in a pool hall in which the petitioner attacked others by throwing billiard balls.  At trial, defense counsel asked one of the prosecution witnesses whether he was on probation.  The witness denied it, and trial counsel attempted to impeach the witness with a document indicating that he was.  The prosecution objected, and the trial judge ruled the impeachment evidence inadmissible under Cal. Evid. Code § 352 (the analog to Fed. R. Evid. 403).  The petitioner received a sentence of 40 years to life as a result of California’s three-strikes law and other various sentencing enhancements; in state habeas proceedings, the sentence was reduced to 35 years to life.

It was important for the court to put the value of the impeachment evidence in context.  The impeachment evidence would not have had the effect of communicating to the jury that the witness was not credible because he was on probation.  The evidence would have communicated to the jury that the witness was not credible because he had lied about not being on probation.  Excluding this evidence violated clearly established constitutional rules regarding impeachment of witnesses.  See Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974).

The State countered that, in light of the other evidence introduced at trial, the error in excluding the impeachment evidence was harmless.  But the focus of the confrontation analysis is on the testimony of individual witnesses.  In any event, the California Court of Appeal did not analyze the Sixth Amendment question, instead viewing the argument as a routine application of state evidence law.  This was contrary to clearly established federal law.  Furthermore, the error was not harmless.  The petitioner claimed self-defense at trial, and the witness with respect to whom the impeachment evidence was denied was the alleged aggressor.  The court could not conclude that any error in excluding the impeachment testimony was harmless beyond a reasonable doubt, and granted relief.

Finally, the court chastized the California Court of Appeal for making conclusory statements regarding the harmless-error component of the claim.  The state appeals court merely proclaimed three times that there was no reasonable probability of a different result without pegging its analysis to the harmless-error standards of the Supreme Court’s Confrontation Clause jurisprudence.  “Although it is unclear whether the California Court of Appeal simply failed to conduct a harmless error analysis, or whether it misapplied that analysis, its conclusion that the trial court’s exclusion of the evidence… was harmless error” was contrary to or an unreasonable application of clearly established federal law.

CA9 — memorandum disposition

Nielsen v. Miller-Stout, No. 07-35872 (argued) — The petitioner was convicted in Washington state courts of homicide charges.  The statutory maximum sentence for the crime was life in prison, but the sentencing guidelines provided a range of 240 to 320 months.  The judge imposed a sentence of 640 months, applying three enhancements under Washington’s guidelines scheme.  The petitioner’s conviction became final on direct review in 2003, before Blakely v. Washington, 542 U.S. 296 (2004), was decided.  He sought habeas relief for the Blakely violation; the district court denied it, and the Ninth Circuit affirmed.  Blakely is not retroactive to cases final on direct appeal, even those cases that became final after Apprendi v. New Jersey, 530 U.S. 466 (2000), was decided.

Moses v. Payne (CA9)

Moses v. Payne, No. 07-35468 — The court affirmed the denial of a § 2254 bringing challenges to evidentiary rulings of the trial courts.  The petitioner was accused of killing his wife; his mother called the police from California.  The coroner testifed at the trial; he described the wounds inflicted on the victim’s body, and gave an opinion that the death was a “homicide.”  The coroner explained that he was using the word in a “mixed medical/legal” sense, “signifying the likelihood of another person’s responsibility leading to the death.”  Faced with evidence that the victim’s blood alchol level was .15% at the time of death, the coroner conceded that people having “difficulty with drugs and alcohol” are at a higher risk of suicide.

A ballistics expert also testified for the prosecution.  This expert testified that, based on the objective evidence relied on by the coroner, the death was more likely a homicide than a suicide or an accidental shooting during a struggle over a weapon.

There was also testimony of a domestic dispute between the petitioner and the victim, and how the victim had to be hospitalized.  The emergency room doctor testified that the victim had told him that the petitioner had broken her jaw.  One of the children said that the petitioner had kicked the victim, and so child welfare personnel testified.  The child welfare officer’s testimony supported the prosecution’s theory that the victim was preparing to leave the petitioner on the night she was killed.

The defense’s theory was that the victim had committed suicide.  Doctors from the hospital where the victim had been treated for drug abuse and depression testified for the defense.  The defense wanted an expert to testify regarding symptoms of depression (in order to rebut prosecution testimony), but the trial court excluded the expert.  The trial judge also excluded a photograph of the victim’s unclothed, emaciated body, ruling that it would be too prejudicial to the jury.  The defense wanted to portray the victim as suffering from an eating disorder.  The petitioner was convicted of second-degree murder and sentenced to 420 months in prison.  The Washington Court of Appeals affirmed the conviction, and the Washington Supreme Court denied review.

The court ruled that the victim’s statement to the treating physician did not implicate Crawford v. Washington’s definition of “testimony,” 541 U.S. 36 (2004), because her statements were made for purposes of treatment rather than in order to implicate the petitioner in a crime.  Accordingly, the state court’s evidence ruling was not an unreasonable application of Crawford.  As soon as the victim mentioned she had spoken with child welfare officials, however, her statements became “testimonial,” and the trial court erred in admitting them.  Nevertheless, the state appellate court ruled that admitting them was harmless under Chapman v. California, 386 U.S. 18 (1967).  The Ninth Circuit ruled that admitting these statements did not have a “substantial and injurious effect on the verdict” in light of the overwhelming evidence that the petitioner had killed his wife.  As for the testimony that the petitioner had kicked the victim on a previous occasion, the court reasoned that because this testimony merely served to explain why child welfare personnel were involved, Crawford was not implicated and no habeas relief was available.

The court also considered whether excluding expert testimony under state evidence rules (analogous to Fed. R. Evid. 702) violated the petitioner’s constitutional right to present a defense.  Because Rule 702 was intended to “assist the trier of fact” in admitting expert testimony, there was no violation of Supreme Court case law forbidding rules of evidence that excluded evidence for arbitrary reasons.  The court then cast the petitioner’s argument as challenging the trial court’s exercise of its discretion to exclude testimony under Rule 702.  But because there was no clearly established Supreme Court law regarding the point at which an exercise of “discretion” under Rule 702 violated the Constitution, there could be no habeas relief on this claim because of Carey v. Musladin, 127 S. Ct. 649 (2006).  The same reasoning applied to admitting the victim’s diary, to excluding the photographs of her emaciated body, and to allowing experts to give opinion testimony as to whether the cause of death was “homicide.”

Judge Gould dissented from the court’s ruling on the Rule 702 issue.  For him, excluding the expert testimony regarding the effects of depression “should shake our confidence that the jury reached its verdict after a fair trial.”  Judge Gould’s first point of departure was whether the court could consider any judicial decision other than one issued by the Supreme Court.  The majority had ruled that it could not; Judge Gould pointed out that while Supreme Court decisions are the only relevant source of “clearly established” law under AEDPA, circuit precedent could help explain what an “unreasonable application” of clearly established law might be.  Although clearly established federal law allowed states to exclude evidence in certain limited circumstances, the scope of that exclusion was directly related to the magnitude of the infringement on the defendant’s right to present a defense.  The greater the intrusion on that right, the narrower the scope of the exclusion.  Because Rule 702 was used to completely exclude the testimony of an important defense expert, it could be justified only in the face of a minimal incursion on the petitioner’s right to present a defense.

Judge Gould then pointed out that excluding a defense witness entirely strikes at “the heart of the defendant’s right to mount a defense.”  It was critical to the petitioner’s defense, moreover, to know whether his wife had committed suicide.  The victim had been shot in the head; the petitioner’s fingerprints were on the gun; the victim had suffered from suicidal ideation.  The critical question for the jury was whether the petitioner had shot his wife and tried to blame it on her suicidal thoughts, or whether she had shot herself despite his attempts to stop her from doing so.  “Determination of those facts is in the province of the jury.  But what we must do is to ensure that the process by which the jury receives the question is a fair one, so that we can have confidence in its determination of criminal guilt beyond a reasonable doubt.”

There was no indication that the expert’s testimony would not be reliable (cf. Crane v. Kentucky).  The expert would have helped the jury to understand major depression and suicide generally, the implications of a diagnosis of major depression, and the inconsistencies between the affect and the internal thoughts of a person suffering from major depression.  Although the jury did have testimony from others who had treated the victim, they had no other testimony regarding the likelihood that she would have recovered before her death.  At best the expert’s testimony was “partially cumulative.”  In light of the importance this testimony had to the petitioner’s defense, Judge Gould had “grave doubt” about the harmlessness of excluding it.

CA9 — memorandum dispositions

Skattebo v. Carey, No. 06-15723 (argued) — The court affirmed the denial of a § 2254 petition.  The petitioner claimed trial counsel was ineffective for relying on cross-examination from a prior trial to support a heat-of-passion defense to murder charges, rather than allowing the petitioner to testify personally on an imperfect self-defense theory.  Based on the course of testimony at the prior trial, counsel made a strategic decision to pursue a heat-of-passion defense, which had been corroborated by several witnesses.  In light of this testimony, counsel’s decision at the second trial was not unreasonable.  This is especially true because allowing the petitioner to testify regarding an imperfect self-defense theory would have afforded the prosecution an opportunity to undermine the heat-of-passion theory as well.

Alaimalo v. United States, No. 07-56621 (screening) — The district court correctly dismissed the § 2241 petition for lack of jurisdiction because the petitioner did not demonstrate that the § 2255 remedy was ineffective or inadequate to afford him relief from his sentence.

CA9 — memorandum disposition

Wright v. Crawford, No. 07-16316 (argued) — The petitioner had been convicted of six felony charges in connection with a string of over 50 residential burglaries in Las Vegas; two of the charges were for firearms offenses.  The petitioner had also suffered six prior convictions in California, and thus was found to be an habitual criminal under Nevada sentencing law.  He was sentenced to six terms of 10 years to life on each of the felony counts, grouped into three consecutive blocks of two concurrent 10-years-to-life terms.  In other words, his total sentence was 30 years to life.

In federal habeas, the petitioner brought an exhausted claim that the structuring of his sentences violated the Eighth Amendment’s ban on cruel and unusual punishments.  Constrained by AEDPA, the court affirmed the district court’s denial of relief.  The only “clearly established” law with respect to noncapital sentences is the “gross disproportionality” principle of Harmelin v. Michigan, 501 U.S. 957 (1991), under which life sentences for habitual nonviolent offenders constitute cruel and unusual punishment unless there is the possibility for parole, however remote.  See Solem v. Helm, 463 U.S. 277 (1983).  Nothing in Lockyer v. Andrade, 538 U.S. 63 (2003), changed this landscape.  “Given the seriousness of the underlying crimes in Wright’s case, compared to those in Andrade, the state court did not violate clearly established Federal law.”

The court notably did not mention its precedent in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004), a post-Andrade case in which the court held a sentence under California’s three-strikes law to constitute cruel and unusual punishment.

CA9 — memorandum disposition

Gullers v. Bejarano, No. 07-55137 (argument) — The petitioner sought § 2241 habeas relief from an extradition order sending her to Mexico to face criminal fraud charges.  The court remanded for further proceedings.

Under the extradition treaty between Mexico and the United States, a defendant may not be extradited if the limitations period applicable to the criminal activity under the laws of both nations has not expired.  There was no dispute that the limitations period had not yet expired under U.S. law.  But under Mexican law, under which the limitations period was 125% of the average of the shortest and longest authorized sentences (!), it was not clear whether the Mexican prosecution was time barred.  The answer to this question depended on the particular charging document used to initiate the charges in the Mexican state of Jalisco.  The district court did not apply the correct law, and so the court remanded the case for further proceedings.

Hebner v. McGrath (CA9)

Hebner v. McGrath, No. 06-16533 — The court affirmed the denial of a motion to amend a 2254 petition to add a claim that would have been untimely without relation back to the date of the original petition.

The petitioner had been charged with rape, attempted rape, assault by force likely to produce great bodily injury, and false imprisonment.  Testimony from the victim of another, uncharged sexual assault by the petitioner was admitted under Cal. Evid. Code § 1108, allowing the jury to draw certain inferences about the petitioner’s propensity to commt the rapes with which he was presently charged.  The jury was instructed that it could find that the petitioner committed the uncharged rapes by a preponderance of the evidence.  The petitioner was convicted and sentenced to 48 years in prison.

In his original § 2254 petition, the petitioner alleged that admitting the evidence of the uncharged rape violated his due process rights.  After the AEDPA limitations period had expired, he sought to add a claim challenging the jury instruction.  The State conceded that, if the district court had allowed him to amend his petition, it would have succeeded in light of Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2003).  Under Mayle v. Felix, 545 U.S. 644 (2005), however, the petitioner could not amend unless he could demonstrate that the jury instruction claim stemmed from a “common core of operative facts” as another claim already properly before the court.  The court reasoned that it did not, because his other claim challenged the introduction of evidence during the trial rather than the instructions to the jury at the end of the trial.  These were discrete events at his trial, and thus the district court did not abuse its discretion in denying the motion to amend.

Cox v. Del Papa (CA9)

Cox v. del Papa, No. 06-15106 — Must a trial court examine the validity of a Miranda waiver when the defendant’s competency to stand trial is at issue?

Cox was charged with killing a prostitute in Las Vegas.  He was arrested outside of Winslow, Arizona, and read the Miranda warnings.  Cox told the police that he had been framed, that he killed the woman in self-defense, and she had come at him with “fangs and fingernails” and that he had choked her only long enough to subdue her.  Cox spent a week in jail in Arizona before Las Vegas detectives came to fetch him.  When the Nevada detectives returned, they again read Cox the Miranda warnings.  Although they told Cox they were not going to interrogate him during the ride back to Las Vegas, Cox “decided to speak spontaneously for almost 10 hours straight about everything under the sun.”  (Google Maps tells us it’s only a 5-hour drive from Winslow to Las Vegas.)  Cox told the Nevada cops that the woman had come out of the bathroom in the motel they were staying at wrapped in a towel and then “flipped out.”  Cox claimed he had to restrain her because she was acting “bizarre and devilish.”  Once the woman passed out, Cox said, he fled, hoping that someone would find her and help her.

Four psychiatrists ultimately examined Cox in the time between his arrest and the beginning of his trial.  Two opined he was competent to stand trial; two opined he was not, diagnosing him as either delusional or schizophrenic.  At a hearing, the trial judge found Cox not competent to stand trial, but also ruled that Cox would be a danger if released, and committed him to a state hospital.  His competency was periodically reviewed, and he was ultimately deemed competent to stand trial.  He was then tried for first-degree murder and sentenced to life in prison without the possibility of parole.  He exhausted his direct appeals and state habeas proceedings.

Cox argued that because the trial court harbored some doubts as to his competency to stand trial, it should have sua sponte inquired into the validity of his Miranda waivers.  As to the second set of statements, those made on the ride from Winslow to Las Vegas, the court held Miranda to be totally inapplicable because the statements were “clearly spontaneous.”  Under Carey v. Musladin, 127 S. Ct. 649 (2006), there could be no relief for this claim, because the Supreme Court had never held that courts have a sua sponte obligation to examine the validity of a Miranda waiver in the face of a suggestion of incompetence to stand trial.

Cox also argued that trial counsel was ineffective during a sentencing proceeding for failure to argue mitigating circumstances that might favor a sentence of life with parole (rather than without).  There was some mitigating evidence presented at the hearing — Cox had sustained no disciplinary violations in prison, he was “polite and courteous,” “not a problem to anyone,” and “trying to cope within the system.”  A landlord in San Francisco spoke positively about his carpentry skills.  Cox’s lawyer attributed Cox’s behavior to cocaine use, but Cox interrupted the presentation, protesting that he was not under the influence of cocaine.  Thereupon counsel changed course, arguing that life with parole was an appropriate sentence because it allowed for the possibility of release at some point in the future.  The judge disagreed, citing Cox’s peculiar behavior and the nature of the crime.

Under Wiggins v. Smith, 539 U.S. 510 (2003), the court ruled that Cox was not entitled to relief.  Unlike in Wiggins, there was no “powerful” mitigating evidence left uncovered.  Cox did not express any significant difficulties in his childhood or adolescence.  A long history of substance abuse in adulthood and fathering three illegitimate children did not suggest that avenues for uncovering mitigating evidence remained uncovered.  Furthermore, Cox’s efforts to prevent counsel from presenting drug use as the explanation for his behavior were fatal to his IAC claim.  See Schriro v. Landrigan, 127 S. Ct. 1933 (2007).

CA9 — memorandum disposition

Licon v. Marshall, No. 07-56016 (argued) — The court affirmed the denial of a 2254 petition.  Trial counsel was not ineffective for failing to call certain alibi witnesses when his investigation disclosed that they would not support the petitioner’s story.  The court declined to certify for appeal the question of whether admitting evidence of prior sex offenses the petitioner had committed violated his due process rights, because the Supreme Court expressly held that to be an open question.