Griffin v. Montgomery

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 AARON L. GRIFFIN, Case No.: 21cv601-WQH(KSC) 12 Petitioner, REPORT AND RECOMMENDA13 v. TION RE PETITION FOR WRIT OF HABEAS CORPUS 14 WARREN L. MONTGOMERY, Warden, 15 Respondent. [16] 17 Petitioner Aaron L. Griffin, a state prisoner, has filed a Petition for Writ of Habeas 18 Corpus, pursuant to Title 28, United States Code, Section 2254 , challenging his 19 conviction in San Diego Superior Court Case No. 267344. [Doc. No. 1, at p. 1.] 20 Respondent filed an Answer to the Petition, along with points and authorities arguing that 21 the Petition should be denied, because petitioner’s claims lack merit and are procedurally 22 barred. [Doc. Nos. 10, 10-1.] Petitioner did not file a traverse even though he was 23 granted a generous amount of time to do so. [Doc. Nos. 14-17.] For the reasons outlined 24 below, IT IS RECOMMENDED that the District Court DENY the Petition. 25 Procedural History 26 On August 28, 2018, a jury found petitioner guilty of: Count One, first degree 27 murder in violation of California Penal Code Section 187(a) with personal and intentional 28 use of a handgun; Count 2, assault with a semi-automatic firearm in violation of 1 California Penal Code Section 245(b) with personal use of a firearm; Count 3, shooting at 2 an occupied vehicle in violation of California Penal Code Section 246; and 3 Count 4, shooting at an inhabited house in violation of California Penal Code Section 4 246. [Doc. No. 11-3, at pp. 50-54.] The trial court imposed a sentence of 50 years to life 5 plus seven years eight months. [Doc. No. 11-18, at pp. 24-32; Doc. No. 11-22, at p. 2.] In 6 addition, the trial court imposed $10,000 in restitution plus various other fees and 7 assessments. [Doc. No. 11-18, at pp. 31-32; Doc. No. 11-22, at p. 2.] 8 Petitioner filed an appeal with the California Court of Appeal claiming 9 prosecutorial misconduct; ineffective assistance of trial counsel; instructional error; and a 10 violation of due process in imposing assessments, fees, and fines without an ability to pay 11 finding. [Doc. No. 11-19.] The judgment was affirmed by the California Court of 12 Appeal in an unpublished opinion filed on October 21, 2020. [Doc. No. 11-22.] 13 Petitioner also filed a petition for review in the California Supreme Court raising 14 the same issues addressed in his opening brief filed with the California Court of Appeal. 15 [Doc. No. 11-27.] The California Supreme Court summarily denied the petition for 16 review on December 30, 2020. [Doc. No. 11-28.] 17 On April 6, 2021, petitioner filed his Petition for Writ of Habeas Corpus in this 18 Court, raising the same prosecutorial misconduct; ineffective assistance of counsel; 19 instructional error; and due process claims that he presented to the California Court of 20 Appeal and the California Supreme Court. [Doc. No. 1, at pp. 6-23.] 21 Factual Background 22 The points and authorities filed by respondent include the full recitation of facts 23 taken from the California Court of Appeal’s unpublished opinion filed on October 21, 24 2020. [Doc. No. 10-1, at pp. 11-16, quoting Doc. No. 11-22, at pp. 2-12.] Briefly, the 25 California Court of Appeal’s opinion indicates petitioner is a member of the 26 Neighborhood Crips gang, and he was involved in two shooting incidents in 2016, the 27 second of which resulted in the death of Jamar, a known member of the gang known as 28 West Coast Crips. 1 The first incident occurred on May 17, 2016 about 3:00 a.m., when multiple bullets 2 hit a home. At the scene, police recovered six .45 caliber Winchester casings. Bullets 3 went through a window and wall and bullet holes were found in the resident’s car. Jamar 4 lived in the house next door with his girlfriend and their five-month-old child. 5 The second incident occurred about 1:00 p.m. on May 27, 2016, ten days after the 6 first incident, at the intersection of Euclid and Market in San Diego. Jamar was driving a 7 white Pontiac with his infant child in the back seat. Petitioner was driving a white Jeep. 8 Shots were fired from both vehicles. The Jeep drove away from the scene. Jamar was 9 found bleeding and slumped between the two front seats of the Pontiac, reaching toward 10 the back seat where the baby was seated. There was a gun in his lap. When police 11 arrived, they were unable to detect Jamar’s pulse. An autopsy later indicated Jamar died 12 from a gunshot wound to the chest and he also had wounds to his right bicep and the 13 shoulder blade area of his back. 14 The white Jeep was later found parked in front of a residence not far from the 15 intersection. There were bullet holes in the windshield and the driver’s side door. The 16 left rear tire was deflated. Police traced the white Jeep to a rental company and learned 17 that petitioner rented the vehicle on May 5, 2016. Ballistics evidence indicated that the 18 gun used in the first shooting incident on May 17, 2016 was the same gun used in the 19 second incident that resulted in Jamar’s death. 20 The investigation also revealed that shots had been fired from both vehicles. [Doc. 21 No. 10-1, at pp. 11-16, quoting Doc. No. 11-22, at pp. 2-11.] There was evidence 22 suggesting that “the Jeep was positioned somewhat behind the Pontiac because the shots 23 into the Pontiac came from the rear into the driver’s seat.” [Doc. No. 11-22, at p. 6.] 24 However, it was not possible to determine “who fired first,” “the sequence of shots,” or 25 “the exact positions of the vehicles at the start of the shootout.” [Doc. No. 11-22, at p. 6.] 26 “[A]t some point during the shootout the cars could have been side by side. . . .” [Doc. 27 No. 11-22, at p. 6.] 28 / / / 1 Discussion 2 I. Standard of Review. 3 Federal habeas corpus relief is available only to those who are in custody in 4 violation of the Constitution or laws of the United States. 28 U.S.C. § 2254 (a). “A 5 federal court may not issue the writ on the basis of a perceived error of state law.” Pulley 6 v. Harris, 465 U.S. 37, 41 (1984). “[A] mere error of state law is not a denial of due 7 process.” Engle v. Isaac, 456 U.S. 107 , 121 n.21 (1982) (internal quotations omitted). 8 This Petition is governed by the provisions of the Antiterrorism and Effective 9 Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 327 (1997). 10 AEDPA imposes a “highly deferential standard for evaluating state-court rulings, which 11 demands that state-court decisions be given the benefit of the doubt.” Woodford v. 12 Visciotti, 537 U.S. 19, 24 (2002) (internal citations and quotations omitted). Under 13 Section 2254(d) of AEDPA, a habeas petition “on behalf of a person in custody pursuant 14 to the judgment of a State court shall not be granted with respect to any claim that was 15 adjudicated on the merits in State court proceedings unless the adjudication of the 16 claim--(1) resulted in a decision that was contrary to, or involved an unreasonable 17 application of, clearly established Federal law, as determined by the Supreme Court of 18 the United States; or (2) resulted in a decision that was based on an unreasonable 19 determination of the facts in light of the evidence presented in the State court 20 proceeding.” 28 U.S.C. § 2254 (d)(l) &(2). 21 For purposes of Section 2254(d)(l), “clearly established Federal law” means “the 22 governing legal principle or principles set forth by the Supreme Court at the time the state 23 court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Therefore, a 24 lack of controlling Supreme Court precedent can preclude habeas corpus relief. Wright v. 25 Van Patten, 552 U.S. 120, 126 (2008) (concluding that the state court’s decision did not 26 unreasonably apply clearly established Supreme Court law, because the relevant cases 27 provided “no clear answer to the question presented”). 28 / / / 1 The AEDPA standard is highly deferential and “difficult to meet.” Harrington v. 2 Richter, 562 U.S. 86, 102, 105 (2011). Federal habeas relief may be granted under the 3 “contrary to” clause of Section 2254 if the state court applied a rule different from the 4 governing law set forth in Supreme Court cases, or if it decided a case differently than the 5 Supreme Court “on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 6 685, 694 (2002). The focus of inquiry under the “contrary to” clause is “whether the state 7 court’s application of clearly established federal law is objectively unreasonable.” Id. 8 “[A]n unreasonable application is different from an incorrect one.” Id. In other words, 9 Federal habeas relief cannot be granted simply because a reviewing court concludes 10 based on its own independent judgment that the state court decision is erroneous or 11 incorrect. Id. Habeas relief is only available under Section 2254(d)(l) “where there is no 12 possibility fair minded jurists could disagree that the state court’s decision conflicts” with 13 Supreme Court precedent. Harrington v. Richter, 562 U.S. at 102 . In addition, “review 14 under§ 2254(d)(l) is limited to the record that was before the state court that adjudicated 15 the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 16 To be objectively reasonable, a state court’s decision need not specifically cite or 17 rely on Supreme Court precedent. “[S]o long as neither the reasoning nor the result of 18 the state-court decision contradicts [Supreme Court precedent],” the state court’s decision 19 will not be “contrary to clearly established Federal law.” Early v. Packer, 537 U.S. 3 , 8 20 (2002). 21 This Court gives deference to state court findings of fact and presumes them to be 22 correct; petitioner may rebut the presumption of correctness, but only by clear and 23 convincing evidence. 28 U.S.C. Section 2254 (e)(1). Where, as here, there is no reasoned 24 decision from the California Supreme Court, this Court “looks through” to the underlying 25 appellate court decision and presumes it provides the basis for the higher court’s denial of 26 a claim or claims. Ylst v. Nunnemaker, 501 U.S. 797, 805-806 (1991). 27 / / / 28 / / / 1 II. Petitioner’s Claim of Prosecutorial Misconduct. 2 A. Procedural Bar. 3 Respondent argues that the District Court should reject petitioner’s prosecutorial 4 misconduct claim, because it is procedurally barred from review in Federal Court under 5 the independent and adequate state law ground doctrine. [Doc. No. 10-1, at p. 17.] In 6 respondent’s view, the independent and adequate state law ground rule precludes review 7 of petitioner’s prosecutorial misconduct claim in Federal Court, because the California 8 Court of Appeal concluded on direct appeal that the claim was forfeited for failure to 9 object in the trial court. [Doc. No. 10-1, at p. 18, referring to Doc. No. 11-22, at p. 11.] 10 According to respondent, forfeiture for failure to object in the trial court is a state 11 procedural bar that is independent and adequate. [Doc. No. 10-1, at p. 18.] 12 “The [independent and adequate state law ground] doctrine applies to bar federal 13 habeas [review] when a state court declined to address a prisoner’s federal claims 14 because the prisoner had failed to meet a state procedural requirement” that “rests on 15 independent and adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 16 722, 729-730, (1991). See also Calderon v. U.S. Dist. Ct. for E. Dist. of California, 96 17 F.3d 1126 , 1129 (9th Cir. 1996). However, the doctrine does not preclude review of 18 petitioner’s prosecutorial misconduct claim, because the California Court of Appeal 19 applied the forfeiture rule but then also considered the merits of petitioner’s claim. [Doc. 20 No. 11-22, at pp. 11-17.] “If the last state court to be presented with a particular federal 21 claim reaches the merits, it removes any bar to federal-court review that might otherwise 22 have been available.” Ylst v. Nunnemaker, 501 U.S. at 801 . 23 B. The Merits of the Prosecutorial Misconduct Claim. 24 Alternatively, respondent contends petitioner’s prosecutorial misconduct claim 25 fails on the merits, because the prosecutor’s comments to the jury were reasonable 26 inferences from the record and because the state court’s rejection of this claim was 27 reasonable and not contrary to or an unreasonable application of clearly established 28 Supreme Court law. [Doc. No. 10-1, at p. 20.] 1 To prevail on a claim of prosecutorial misconduct, a petitioner must show that the 2 alleged misconduct “so infected the trial with unfairness as to make the resulting 3 conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 180 (1986). 4 “Prosecutors have considerable leeway to strike ‘hard blows’ based on the evidence and 5 all reasonable inferences from the evidence.” United States v. Henderson, 241 F.3d 638 , 6 652 (9th Cir. 2000). In this regard, “[p]rosecutors are free in argument to suggest that the 7 jury draw reasonable inferences from the evidence presented at trial.” United States v. 8 Flores, 802 F.3d 1028, 1035 (9th Cir. 2015). For example, “[i]n a case that essentially 9 reduces to which of two conflicting stories is true, it may be reasonable to infer, and 10 hence to argue, that one of the two sides is lying.” United States v. Molina, 934 F.2d 11 1440, 1445 (9th Cir. 1991). Remarks that are “undesirable or even universally 12 condemned” are not enough to establish prosecutorial misconduct. Darden v. 13 Wainwright, 477 U.S. at 181 . 14 Petitioner’s prosecutorial misconduct claim stems from his assertion that he fired 15 shots at Jamar in self-defense and that the prosecutor unfairly “asserted facts not in 16 evidence” to refute his claim of self-defense when he told the jury petitioner waited for 17 30 minutes to ambush Jamar and when he referred to this theory as a fact. [Doc. No. 1, at 18 p. 7.] According to petitioner, the prosecutor also unfairly told the jury that cell phone 19 evidence proved petitioner waited for 30 minutes to ambush Jamar, even though the 20 prosecutor’s own expert testified that cell phone evidence could not pinpoint the location 21 of a cell phone and could not show a cell phone was in a stationary location for 30 22 minutes. [Doc. No. 1, at pp. 7-8.] 23 Petitioner also complains that the prosecutor relied heavily and unfairly on 24 “erroneous statements” to reinforce the planned ambush theory when he told the jury 25 petitioner wore a ski mask during the shooting that was later found on the front seat of 26 the white Jeep. Petitioner contends the prosecutor made these statements even though 27 there was no evidence petitioner wore the ski mask during the shooting. Petitioner points 28 out that a witness testified he saw petitioner at the intersection right after the shooting and 1 the witness was able to describe petitioner’s skin color and hair which would have been 2 covered if he had been wearing a ski mask. [Doc. No. 1, at p. 8.] 3 With respect to the ski mask, the California Court of Appeal’s summary of the 4 facts elicited at trial states as follows: “When police searched the Jeep, they discovered 5 clothing and personal property in laundry baskets and miscellaneous bags in the back. 6 Police recovered a black ski mask from the front seat area.” [Doc. No. 11-22, at p. 5.] 7 The California Court of Appeal’s opinion also includes the following summary of 8 testimony by the prosecution’s expert about cell phone data obtained from petitioner’s 9 cell phone carrier around the time of Jamar’s murder: 10 Criminal Intelligence Analyst Peter Villaver testified regarding cell phone data. He used a visual representation to show jurors cell towers [11] activated by Griffin’s phone the day of the shootout, from 11:00 a.m. to 3:00 12 p.m. [Footnote 3: Some of the cell phone tower activations indicated antenna directionality, and others did not.] The visual representation [13] included two locations: the intersection at Euclid and Market, and the 14 residence where the Jeep was found. He explained cell tower information was based on activity generated from voice calls and text messages; they [15] could not pinpoint a phone’s exact location, only general whereabouts. Cell 16 tower information also did not indicate who was in possession of the cell phone. [17] 18 If a cell phone is moving, it can transact with one cell tower or switch to another cell tower or a number of cell towers. Griffin’s phone consistently [19] activated the same general towers between 11:00 a.m. and 12:00 p.m., 20 indicating the phone was in the East Village neighborhood during that time. [21] [Thereafter, t]he first activity occurred at 12:09 p.m., in the East 22 Village. At 12:16 p.m., the cell phone activated a cell site in the area of Market Street and Interstate 15. At 12:19 p.m. and 12:23 p.m., Griffin’s cell [23] phone hit a tower in the Oakpark neighborhood. At 12:28 p.m., the phone 24 was detected by a tower in the general area of Euclid and Market. The phone was detected by that same tower at 12:32 p.m., 12:39 p.m., and 12:56 p.m. [25] There were additional detections in the same general neighborhood between 26 1:00 p.m. and 1:15 p.m. From 1:15 p.m. to 2:00 p.m., there were multiple hits to towers in the Fairmont Park and Oakpark areas, near where Interstates [27] 805 and 15 cross. Villaver testified that there was one activation in the 28 Golden Hill area during that same period, but because it occurred in the 1 midst of back and forth activities, it appeared the tower near Golden Hill was the best to provide service, but the phone was likely in the Fairmont [2] Park or Oakpark area. Based on the saturation of cell towers, the phone was 3 moving to the northwest away from the Market and Euclid intersection. [4] On cross-examination, defense counsel clarified with Villaver that the 5 precise location of the phone could not be identified at any given activation, and that there was a range of area in which the phone could have been [6] located. [7] 8 [Doc. No. 11-22, at pp. 7-9. See also Trial Transcript at Doc. No. 11-13, at pp. 147-167.] 9 The California Court of Appeal’s opinion acknowledges that the prosecutor, during 10 closing arguments, “argued [petitioner] had committed first degree murder both because 11 he had waited at the intersection to attack Jamar and because he fired from a vehicle. To 12 support his first theory, the prosecutor relied on the cell phone evidence and commented 13 on the presence of a ski mask recovered from the Jeep, as well as the possession of the 14 gun used to kill Jamar. He argued [petitioner] had hunted Jamar and explained why self15 defense could not justify [petitioner’s] actions.” [Doc. No. 11-22, at p. 9.] 16 Just prior to closing arguments, the trial court instructed the jury as follows: 17 Please keep in mind that what the attorneys will be telling you in their closing arguments is not evidence. You have heard all of the evidence that [18] you are going to hear in this case. They will be, of course, reflecting on the 19 evidence and explaining to you how they believe the evidence fits in with the instructions that I -- I read with you yesterday afternoon. [20] 21 If they misstate something about the facts, in other words, if they state something about the facts that does not comply with your understanding of [22] the facts, don't -- don't infer any motive on their part to mislead you. They're 23 not going to do that. They are going to honestly tell you what they believe the facts have proved. But, ultimately, it’s what you find to be the facts, that [24] is what actually existed. [25] [Doc. No. 11-15, at pp. 3-4.] [26] 27 Based on the record, the California Court of Appeal reached the following 28 conclusion on petitioner’s prosecutorial misconduct claim: 1 The prosecutor inferred that the cell tower records showed Griffin remained at the intersection of Euclid and Market because the phone [2] activations indicated he remained in the same area at 12:32, 12:39, and 3 12:56 p.m., the 30 minutes immediately preceding the shootout. He asked the jury to likewise infer the cell tower evidence placed Griffin at the scene, [4] waiting for the opportunity to kill the victim. Whether the prosecutor’s 5 inference was reasonable was a question for the jury to decide. [Citation omitted.] While the challenged remarks may have been hyperbolic, we [6] cannot say they were based on evidence outside the record or that they were 7 misleading. [Citation omitted.] Accordingly, this did not rise to the level of prosecutorial misconduct. [8] 9 [Doc. No. 11-22, at p. 13.] [10] 11 Regardless of whether the prosecutor’s comments during closing arguments 12 about the cell phone evidence and the ski mask are viewed separately or together, they 13 do not warrant Federal habeas relief, because they did not make the trial unfair. The 14 California Court of Appeal reasonably concluded the prosecutor’s comments “did not 15 rise to the level of prosecutorial misconduct.” [Doc. No. 11-22, at p. 13.] The 16 prosecutor was entitled to refute petitioner’s claim of self-defense by citing evidence 17 from the record that did not support it and to argue to the jury that petitioner did not 18 shoot Jamar in self-defense. The cell phone evidence, although weak on this point, does 19 suggest petitioner was in the area near the intersection about 30 minutes prior to the 20 shooting waiting for Jamar to drive through, so it was fair for the prosecutor to refer to 21 this evidence in support of his theory of the case.1 [Doc. No. 11-15, at p. 33.] [23] 1 With respect to the cell phone evidence, the prosecutor stated as follows in closing [24] argument: “Jamar Johnson leaves that Albertson’s in East Village at around 12:07. 25 [¶]The defendant’s phone activates in the East Village at around 12:09. At 12:16, the phone is moving east about halfway between East Village and Market. At 12:19 and [26] 12:23, it’s over here hear the 94. . . . [¶]That main intersection you saw on the map 27 yesterday with Detective Schaffer, that’s just by that Balmoral house. The main intersection, where if you’re coming from the west or exiting from the 94 to the north, [28] 1 Despite petitioner’s contention, the prosecutor’s arguments about the cell phone 2 evidence are forceful and persuasive and possibly even “hyperbolic” as the California 3 Court of Appeal referred to them [Doc. No. 11-22, at p. 13], but, taken in context, they 4 are clearly presented as argument, not fact. The prosecutor summarized the cell phone 5 evidence in a chronological manner, apparently referring to demonstrative exhibits, and 6 argued that the jury should infer from that evidence that petitioner waited near the 7 intersection for 30 minutes prior to the shootout. Even if it could be said that the 8 prosecutor’s words appear to present this evidence as fact, the trial court, as noted 9 above, appropriately instructed the jury that the attorneys’ argument are not facts. 10 [Doc. No. 11-15, at pp. 3-4.] “A jury is presumed to follow its instructions.” Weeks v. 11 Angelone, 528 U.S. 225, 234 (2000). 12 Nor did the prosecutor make “erroneous statements about petitioner wearing a ski 13 mask.” [Doc. No. 1, at p. 8.] Rather, the prosecutor said petitioner “was sitting at that 14 intersection with a .45-caliber semi-automatic handgun and a ski mask. That ski mask -- 15 that is the only piece of clothing in the front passenger compartment. The front 16 passenger compartment and the driver’s compartment there that -- are the only 17 relatively clean area of the car. The back is littered with clothing. The only item of 18 clothing left in the front of that car is the ski mask, sitting at that intersection for 30 19 minutes.” [Doc. No. 11-15, at p. 34.] Later, the prosecutor said, “On May 27th, 20 [petitioner] was the hunter and Jamar was the prey. He snuck up with a ski mask and a 21 gun at a tactical advantage, open fire. . . .” [Doc. No. 11-15, at p. 39.] The prosecutor’s 22 argument here is not that petitioner was wearing the mask. Rather, it is apparent that [24] 25 you would have to pass through to get back to that Balmoral house. [¶]And the defendant’s phone pings that intersection starting at 12:28, a half an hour before the [26] murder, and he sits there pinging those towers right there at that intersection. The 27 defendant waited at Market and Euclid for 30 minutes. We didn’t hear any evidence that he lives by there. He was staying by there. It looks like they’re living out of that Jeep.” [28] 1 the prosecutor believes the ski mask suggests planning and hunting rather than a chance 2 encounter between petitioner and Jamar (i.e., that petitioner deliberately placed the ski 3 mask in the front of the car so that it was accessible in case it was needed quickly to 4 cover his face if the circumstances so required before, after, or during the planned 5 shooting of Jamar). In other words, the prosecutor did not make an erroneous statement 6 that petitioner wore the ski mask during the shootout, but he did ask the jury to infer 7 that the presence of the ski mask in the front of the Jeep was indicative of planning and 8 hunting rather than a chance meeting with Jamar at the intersection where the shootout 9 occurred. 10 In Darden v. Wainwright, 477 U.S. 168 , the Supreme Court stated that “[t]he 11 weight of the evidence against petitioner was heavy . . . [and this] reduced the 12 likelihood that the jury’s decision was influenced by argument.” Id. at 182 . Here, it is 13 worth noting that the weight of the evidence supported the prosecutor’s theory of the 14 case. The ski mask and the cell phone data were not the only pieces of evidence from 15 the record that the prosecutor cited in support of his theory that petitioner did not shoot 16 Jamar in self-defense but was instead hunting Jamar by waiting at the intersection to 17 ambush him as he passed through the area. For example, the prosecutor cited the 18 evidence of the first shooting in the middle of the night on May 17, 2016. In this 19 regard, the prosecutor said, “The defendant was hunting Jamar Johnson. We see that in 20 the May 17th shooting. He is shooting at a house. It looks like he thinks Jamar Johnson 21 is in there based on where the car is. He doesn't know who else was in that house. He 22 doesn't care. Endangering anybody who would be in that house. He was willing to stop 23 at nothing to kill Jamar Johnson.” [Doc. No. 11-15, at p. 31.] Based on the verdict, it is 24 apparent that the jury believed petitioner was the shooter in the first incident on 25 May 17, 2016, so they could reasonably infer what the prosecutor was suggesting based 26 on this evidence – that petitioner was hunting Jamar and waited for him at the 27 intersection where the shootout took place. 28 / / / 1 In sum, based on this Court’s review of the record, the prosecutor’s conduct in 2 referring to the ski mask and the cell phone evidence does not constitute misconduct 3 and did not infect “the trial with unfairness as to make the resulting conviction a denial 4 of due process.” Darden v. Wainright, 477 U.S. at 181 . Therefore, the California Court 5 of Appeal’s rejection of petitioner prosecutorial misconduct claim is not contrary to, nor 6 an unreasonable application of, clearly established Supreme Court law. Accordingly, 7 IT IS RECOMMENDED that the District Court DENY petitioner’s prosecutorial 8 misconduct claim. 9 III. Petitioner’s Ineffective Assistance of Counsel Claim. 10 As part of his prosecutorial misconduct claim, petitioner argues that he received 11 ineffective assistance of counsel, because his trial attorney failed to object to the 12 prosecutor’s closing arguments about the cell phone and the ski mask. [Doc. No. 1, at 13 p. 9.] In this regard, petitioner believes that his trial attorney should have informed the 14 jury that the prosecutor’s “statements of fact were not reasonably related or connected to 15 the evidence” and that his arguments “were deceptive and misleading based on his own 16 expert’s testimony.” [Doc. No. 1, at pp. 10.] As a result, petitioner claims that his trial 17 attorney’s “inaction was below prevailing professional norms.” [Doc. No. 1, at p. 10.] 18 Respondent argues that petitioner’s ineffective assistance of counsel claim should 19 be rejected by the District Court, because the California Court of Appeal reasonably 20 concluded there were sound tactical reasons trial counsel did not object to the 21 prosecutor’s arguments. [Doc. No. 10-1, at p. 25.] The California Court of Appeal also 22 rejected petitioner’s ineffective assistance of counsel claim, because “[t]here were tactical 23 reasons that could explain why defense counsel did not object to various prosecution 24 arguments.” [Doc. No. 11-22, at p. 17.] 25 Trial counsel is generally presumed competent, so the burden rests on the accused 26 to overcome this presumption and demonstrate a constitutional violation. United States 27 v. Cronic, 466 U.S. 648, 658 (1984). To prevail on a claim of ineffective assistance of 28 trial counsel, a habeas petitioner must show that “counsel made errors so serious that 1 counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” 2 Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]he performance inquiry must 3 be whether counsel’s assistance was reasonable considering all the circumstances.” Id. 4 at p. 688. When considering all of the circumstances, counsel must be given “wide 5 latitude . . . in making tactical decisions.” Id. at 689 . In other words, a reasonable 6 tactical decision cannot serve as the basis for a finding that counsel was constitutionally 7 ineffective. Id. In assessing an ineffective assistance of counsel claim, Federal Courts 8 must also be “highly deferential,” avoid “the distorting effects of hindsight,” and 9 “indulge a strong presumption that counsel’s conduct falls within the wide range of 10 reasonable professional assistance.” Id. 11 A habeas petitioner also cannot prevail on a claim of ineffective assistance of 12 counsel without showing that counsel’s performance prejudiced the defense. Id. at 687 . 13 To establish prejudice, a defendant must demonstrate “there is a reasonable probability 14 that, but for counsel’s unprofessional errors, the result of the proceeding would have 15 been different. A reasonable probability is a probability sufficient to undermine 16 confidence in the outcome.” Id. at 694 . “The likelihood of a different result must be 17 substantial, not just conceivable.” Harrington v. Richter, 562 U.S. at 112 . Because a 18 defendant must prove both elements of the Strickland test in order to prevail, a court 19 may reject a claim of ineffective assistance of counsel if it finds counsel’s performance 20 was reasonable, or the claimed error was not prejudicial. Strickland v. Washington, 466 21 U.S. at 687. 22 “The standards created by Strickland and § 2254(d) are both ‘highly deferential.’ 23 [citations omitted], and when the two apply in tandem, review is ‘doubly’ so. [Citation 24 omitted.] The Strickland standard is a general one, so the range of reasonable 25 applications is substantial. [Citation omitted.] Federal courts must guard against the 26 danger of equating unreasonableness under Strickland with unreasonableness under 27 § 2254(d). When 2254(d) applies, “the question is not whether counsel’s actions were 28 reasonable. The question is whether there is any reasonable argument that counsel 1 satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. at 105 . “As 2 a condition for obtaining habeas corpus from a federal court, a state prisoner must show 3 that the state court’s ruling on the claim being presented in federal court was so lacking 4 in justification that there was an error well understood and comprehended in existing law 5 beyond any possibility for fairminded disagreement.” Id. at 786-787. 6 Here, the California Court of Appeal was justified in rejecting petitioner’s 7 ineffective assistance of counsel claim. First, for the reasons outlined in the previous 8 section of this Report and Recommendation, the prosecutor’s closing arguments did not 9 constitute misconduct and were not deceptive or misleading. Second, this Court agrees 10 with the California Court of Appeal that “[t]here were tactical reasons that could 11 explain why defense counsel did not object to various prosecution arguments.” [Doc. 12 No. 11-22, at p. 17.] For example, as the California Court of Appeal noted in its 13 Opinion, defense counsel “could have opted not to focus on whether [petitioner] was 14 near the intersection before the shootout [or] the meaning of the mask.” [Doc. No. 1115 22, at p. 17.] Therefore, petitioner is unable to establish deficient performance on the 16 part of his trial attorney or prejudice. Under these circumstances, the California Court 17 of Appeal’s rejection of petitioner’s ineffective assistance of counsel claim is not 18 contrary to, nor an unreasonable application of, clearly established Supreme Court law. 19 Accordingly, IT IS RECOMMENDED that the District Court DENY petitioner’s 20 ineffective assistance of counsel claim. 21 IV. Petitioner’s Claim of Instructional Error. 22 A. Procedural Bar. 23 Respondent argues that the District Court should reject petitioner’s instructional 24 error claim, because it is procedurally barred from review in Federal Court under the 25 independent and adequate state law ground doctrine. [Doc. No. 10-1, at p. 26.] 26 However, as outlined more fully above, the doctrine does not preclude review of 27 petitioner’s instructional error claim, because the California Court of Appeal applied the 28 forfeiture rule but then also considered the merits of petitioner’s claim. [Doc. No. 11-22, 1 at pp. 18-21.] “If the last state court to be presented with a particular federal claim 2 reaches the merits, it removes any bar to federal-court review that might otherwise have 3 been available.” Ylst v. Nunnemaker, 501 U.S. at 801 . 4 B. The Merits of Petitioner’s Instructional Error Claim. 5 Petitioner’s instructional error claim challenges the wording of CALCRIM No. 6 224, a standard jury instruction, which reads as follows: 7 Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be [8] convinced that the People have proved each fact essential to that conclusion 9 beyond a reasonable doubt. [10] Also, before you may rely on circumstantial evidence to find the 11 defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If [12] you can draw two or more reasonable conclusions from the circumstantial 13 evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, [14] when considering circumstantial evidence, you must accept only reasonable 15 conclusions and reject any that are unreasonable. [16] 17 [Doc. No. 11-14, at pp. 132-133.] 18 Petitioner argues that CALCRIM No. 224 violated his right to due process and a 19 fair trial, because of the use of the term “innocence” in the second paragraph of the 20 instruction. Because “innocence” was not defined, petitioner believes the jury could have 21 misconstrued the instruction. According to petitioner, the jury “should have been told 22 that they were to adopt a reasonable interpretation that points to a reasonable doubt about 23 guilt rather than one that points to innocence.” [Doc. No. 1, at p. 15.] 24 To the extent petitioner contends the instruction violates state law, respondent 25 argues that petitioner’s claim should be rejected, because it is not cognizable on Federal 26 habeas review. [Doc. No. 10-1, at pp. 26-27.] Respondent is correct on this point. 27 “[F]ederal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, [28] 502 U.S. 62, 67 (1991). Thus, to the extent petitioner contends the trial court’s use of 1 CALCRIM No. 224 was a violation of state law, his claim is not cognizable on Federal 2 habeas review. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991). 3 Respondent also argues that petitioner’s instructional error claim should be 4 rejected, because the challenged instruction did not have an impact on the jury’s verdict. 5 According to respondent, the challenged instruction “clearly informed the jury that, 6 before the jury could find [petitioner] guilty, it had to find that the evidence as a whole 7 established beyond a reasonable doubt that [petitioner] was guilty of committing the 8 murder.” [Doc. No. 10-1, at p. 30.] As a result, respondent contends it was reasonable 9 for the California Court of Appeal to reject this claim. [Doc. No. 10-1, at p. 30.] 10 Noting that other California Courts had already rejected similar arguments, the 11 California Court of Appeal denied petitioner’s instructional error claim with the 12 following explanation: “The inclusion of the word ‘innocence’ does not lead us to 13 conclude that the instruction has shifted the burden of proof. Instead, the use of the word 14 ‘innocence’ simply means ‘less than that required to establish guilt.’” [Doc. No. 11-22, 15 at p. 21.] The California Court of Appeal further explained that “the prosecution’s 16 burden of proof beyond a reasonable doubt was repeated in several other jury 17 instructions . . . . The burden of proof was also emphasized throughout closing 18 arguments by both attorneys, so there was no uncertainty regarding what was required.” 19 [Doc. No. 11-22, at p. 21.] 20 Federal habeas relief is warranted when a petitioner can establish that an 21 instruction to the jury “so infected the entire trial that the resulting conviction violates 22 due process.” Estelle v. McGuire, 502 U.S. at 72 . A jury instruction “may not be judged 23 in artificial isolation, but must be considered in the context of the instructions as a whole 24 and the trial record.” Id. (internal quotation omitted). Even if a constitutional error is 25 found in the instructions to a jury, a Federal Court must also assess the “prejudicial 26 impact” of the error under Brecht v. Abrahamson, 507 U.S. 619 (1993). Dixon v. 27 Williams, 750 F.3d 1027, 1034 (9th Cir. 2014). Under Brecht, 507 U.S. 619 , a 28 / / / 1 habeas petitioner is only entitled to relief if the error “had substantial and injurious effect 2 or influence in determining the jury’s verdict.” Id. at 637 . 3 Here, considering the use of CALCRIM No. 224 along with the trial record and the 4 other instructions, this Court cannot agree with petitioner’s contention that his right to 5 due process and a fair trial was violated because of the use of the term “innocence” in the 6 second paragraph of the instruction. This instruction does not define the burden of proof 7 and is obviously intended only to assist the jury in considering circumstantial evidence. 8 As respondent contends, the instruction “does not use the term ‘innocence’ in a strict 9 sense, but provides it at one end of a spectrum, if ‘one of those reasonable conclusions 10 points to innocence and another to guilt, you must accept the one that points to 11 innocence.” [Doc. No. 10-1, at p. 30, quoting CALCRIM No. 224.] 12 Additionally, the jury was instructed with CALCRIM No. 220, which clearly sets 13 forth the burden of proof and advises the jury that the defendant is presumed innocent; 14 that they must not be biased against the defendant just because he was arrested, charged 15 with a crime, or brought to trial; and that the People must prove the defendant guilty 16 beyond a reasonable doubt. [Doc. No. 11-14, at pp. 129-130.] As set forth in CALCRIM 17 No. 220, the trial court further instructed the jury that: “Proof beyond a reasonable doubt 18 is proof that leaves you with an abiding conviction that the charge is true.” [Doc. No. 1119 14, at p. 130.] In addition, the jury was instructed by the trial court with CALCRIM 20 No. 200, which provides in part as follows: “Pay careful attention to all of these 21 instructions and consider them together.” [Doc. No. 11-14, at p. 127.] “A jury is 22 presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. at 234 . It is also 23 noteworthy that petitioner’s counsel took time during closing argument to explain the 24 meaning and the significance of this instruction to the jury. [Doc. No. 11-15, at p. 45.] 25 Based on the foregoing, the challenged instruction did not violate petitioner’s right 26 to due process and did not cause petitioner any prejudice. Accordingly, the California 27 Court of Appeal’s rejection of petitioner’s instructional error claim was neither contrary 28 to, nor an unreasonable application of, clearly established Supreme Court law. Therefore, 1 habeas relief is not warranted on this claim, and IT IS RECOMMENDED that the 2 District Court DENY petitioner’s instructional error claim on the merits. 3 V. Petitioner’s Due Process Claim re Restitution, Fines, and Fees. 4 At petitioner’s sentencing hearing, the trial court imposed a restitution fine in the 5 amount of $10,000 to the state victim’s fund. A second restitution fine of $10,000 was 6 imposed but stayed unless supervision or parole is revoked. In addition, the trial court 7 imposed a court security fee of $160, a critical needs act fee of $120, and a criminal 8 justice fee of $154. Petitioner also stipulated to restitution in the amount of $5,600 to 9 cover Jamar’s funeral expenses. The amount of restitution to Jamar’s child and the 10 child’s mother were left to be determined at some later date. [Doc. No. 11-18, at pp. 3111 34.] 12 In his final claim, petitioner argues his right to due process was violated because 13 the trial court imposed and began executing fines, fees, and assessments against him 14 without considering his present ability to pay. [Doc. No. 1, at p. 19.] Respondent argues 15 that the District Court should deny this claim, because it is procedurally defaulted for 16 failure to object in the trial court at the time the fines, fees, and assessments were 17 imposed and because petitioner has not shown cause and prejudice for his failure to 18 object. Alternatively, respondent argues that the claim is not cognizable on Federal 19 habeas review, because a petitioner may only seek relief from a state-court conviction on 20 the ground that he is in custody in violation of the Constitution or Federal law. 21 According to respondent, petitioner’s challenge to restitution, fines, and fees does not 22 contest the legality of his custody. [Doc. No. 10-1, at pp. 31-33.] 23 The California Court of Appeal concluded that petitioner forfeited his right to 24 challenge the fines, fees, and assessments imposed against him, because he failed to 25 object in the trial court. [Doc. No. 11-22, at p. 22]. Unlike the other claims in the 26 Petition, the California Court of Appeal did not consider the merits of this claim. [Doc. 27 No. 11-22, at pp. 22-23.] 28 / / / 1 When a state prisoner has defaulted a Federal claim in state court because of an 2 independent and adequate state procedural rule, Federal habeas review of the claim is 3 barred, unless the prisoner can demonstrate cause for the default, actual prejudice, or a 4 fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 749 -750. “A state 5 procedural default is independent unless it appears to rest primarily on federal law or 6 appears to be interwoven with federal law. A state procedural default is adequate if it is 7 firmly established and regularly followed by the time as of which it is to be applied.” 8 Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012) (internal citations and 9 quotations omitted). 10 Here, the California Court of Appeal’s application of the contemporaneous 11 objection rule is “independent,” because it is separate from and not interwoven with 12 Federal law. It is adequate, because the Ninth Circuit has recognized that “California 13 consistently applies its contemporaneous objection rule when a party fails to object.” 14 Fairbank v. Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011). Petitioner has not submitted, 15 and this Court has been unable to locate, any information indicating petitioner could 16 establish cause, prejudice, or a fundamental miscarriage of justice. 17 Additionally, as respondent contends, this claim presents a state law question that 18 cannot be challenged on Federal habeas review. In this regard, Federal Courts may 19 “entertain an application for a writ of habeas corpus in behalf of a person in custody 20 pursuant to the judgment of a State court only on the ground that he is in custody in 21 violation of the Constitution or laws or treaties of the United States.” 8 U.S.C. § 2254 . 22 Section 2254 “does not confer jurisdiction over a state prisoner’s in-custody challenge to 23 a restitution order imposed as part of a criminal sentence.” Bailey v. Hill, 599 F.3d 976 , 24 981-984 (9th Cir. 2010). In reaching this conclusion, the Ninth Circuit explained that a 25 successful challenge to a restitution order could only reduce the amount of restitution 26 owed and the petitioner would “still have to serve the rest of his custodial sentence in the 27 same manner.” Id. The same rationale applies to other types of fines and fees. 28 / / / 1 Therefore, petitioner’s claim is not a cognizable claim for relief on Federal habeas 2 review. 3 For the reasons outlined above, IT IS RECOMMENDED that the District Court 4 DENY petitioner’s claim that his right to due process was violated because the trial court 5 imposed and began executing fines and fees against him without considering his present 6 ability to pay. This claim is procedurally default and does not state a cognizable claim 7 for Federal habeas review. 8 Conclusion 9 Based on the foregoing, IT IS RECOMMENDED that the District Court DENY all 10 claims raised in the Petition. [Doc. No. 1.] Petitioner’s prosecutorial misconduct, 11 ineffective assistance of counsel, and instructional error claims lack merit. Petitioner’s 12 claim that his due process rights were violated because the trial court imposed fines and 13 fees without determining his ability to pay is procedurally defaulted and does not state a 14 cognizable claim for Federal habeas review. 15 This Report and Recommendation is submitted to the assigned United States 16 District Judge pursuant to Title 28, United States Code, Section 636 (b), and Civil Local 17 Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 18 California. 19 IT IS HEREBY ORDERED that no later than April 22, 2022 any party to this 20 action may file and serve written objections to this Report and Recommendation. The 21 document should be captioned “Objection to Report and Recommendation. 22 IT IS FURTHER ORDERED that any reply to the objection shall be filed and 23 served no later than May 7, 2022. The parties are advised that failure to file objections 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / | || within the specified time may waive the right to raise those objections on appeal of this 2 ||Court order. Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 ||Dated: March 23, 2022 Me Uf; 5 ULL 6 Hori. Karen S. Crawford , United States Magistrate Judge