Opinion
No. 03-2368 PJH.
September 13, 2004
ORDER DENYING PETITION FOR FOR WRIT OF HABEAS CORPUS
Before this court is a petition for a writ of habeas corpus filed by state prisoner, Pablo Hernandez ("Hernandez"), pursuant to 28 U.S.C. § 2254. The court ordered the state to show cause why the writ should not be granted. The state filed an answer and memorandum of points and authorities in support, and Hernandez responded with a traverse. Hernandez also filed a request for an evidentiary hearing and motion for leave to conduct discovery, which the court previously denied in part. Having reviewed the parties' papers, the record, and having carefully considered their arguments, the court hereby DENIES the petition.
BACKGROUND
Hernandez was convicted following trial by jury in Alameda County Superior Court of two counts of sodomy by force; one count of lewd and lascivious conduct on a minor age fourteen or fifteen and at least ten years younger; one count of assault with intent to commit genital penetration by a foreign object; and one count of being a residential child molester of a child under the age of fourteen. The state trial court sentenced Hernandez to twenty-four years in prison, and he is currently incarcerated at the California State Prison in Sacramento. The California Court of Appeal affirmed his conviction and denied his petition for writ of habeas corpus before that court, which alleged ineffective assistance of counsel. The California Supreme Court summarily denied review.
Hernandez's conviction stems from the following facts, a more extensive summary of which can be found in the state appellate court's decision. See Exh. C at 2-4. Hernandez was convicted of five counts of sex offenses involving a child under the age of fourteen. The victim, M., is Hernandez's cousin. M. was born in July 1983, and was eleven years-old when the molestation began. Their families have a close relationship, and M. was often at the Hernandez's home for family functions or to babysit.
The molestation began in the spring of 1994, while M. was on a camping trip with Hernandez and other family members. Hernandez placed his hand on M.'s buttocks, and she became frightened and walked away. In the summer of 1994, Hernandez asked M. to remove her pants and rubbed his penis on her buttocks. On one occasion, while M. was at Hernandez's home, he fondled her breast and inserted his finger into her vagina. On another occasion at his home, he put M.'s hand on his penis and told her to "jack him off."
In the summer of 1995, M. was at Hernandez's home washing dishes. Hernandez again asked M. to remove her pants so that he could rub his penis on her buttocks, and he then held onto her waist and sodomized her. When M. was twelve or thirteen years old, Hernandez picked her up from her house to take her to his home, but before reaching his home he stopped his van and attempted to sodomize her.
In the summer of 1996, Hernandez orally copulated M. at his home after telling her he would stop bothering her if she let him do it. A few weeks after M.'s fourteenth birthday, Hernandez was driving with her when he stopped the truck, ordered her into some bushes, and sodomized her.
Somewhere between September 1997 and June 1998, while M. was at Hernandez's home, he followed her into the bathroom, locked the door, and sodomized her. In the summer of 1998, while Hernandez was in M.'s home, he fondled her breasts and buttocks over her clothing. Subsequently, in September 1998, Hernandez came to pick M. up to take her to his house, and while in the car, put his hands inside her pants and touched the outside of her vagina.
Toward the end of 1998, M. told her mother that she did not want to go to Hernandez's house anymore because he had been "bothering her." In January 1999, after telling an English teacher about the incidents with Hernandez, M. met with Officer Fajardo, a police officer who worked at her school. However, she did not feel comfortable talking to a male officer. Officer Fajardo took M. to a clinic, where she eventually talked to a female police officer.
ISSUES
In his petition, Hernandez alleges numerous violations of his constitutional rights. Specifically, Hernandez asserts the following claims for relief:
(1) that the trial court's exclusion of evidence regarding M.'s alleged prior false accusations and alleged motive to lie violated his due process rights;
(2) that the trial court violated his due process rights by admitting his alleged oral admission without giving the CALJIC 2.70 jury instruction;
(3) that the prosecution's closing argument violated his due process rights;
(4) that trial counsel rendered ineffective assistance of counsel in failing to object to the prosecution's closing argument and in making her own closing argument; and
(5) that the cumulative nature of the alleged errors violated Hernandez's due process rights.
STANDARD OF REVIEW
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).A state court decision is "contrary to" Supreme Court authority, falling within the first clause of §§ 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decided a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). "Clearly established Federal law" under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63, 1175 (2003). This "clearly established" law "refers to the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state court decision." Id.
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1174. However, this standard requires the state court decision to be more than incorrect or erroneous. Id. For the federal court to grant habeas relief, the state court's application of the Supreme Court authority must be objectively unreasonable. Id. at 1174-1175. The "objectively unreasonable" standard is different from the "clear error" standard in that "the gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. at 1175; see Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). Therefore, it is not enough that a habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous. Rather, the habeas court must conclude that the state court's application of federal law was objectively unreasonable. Andrade, 538 U.S. at 76; Clark, 331 F.3d at 1068.
However, when the state court decision does not articulate the rationale for its determination or does not analyze the claim under federal constitutional law, a review of the court's application of clearly established federal law is not possible. See Delgado v. Lewis, 223 F.3d 976, 981-81 (9th Cir. 2000); see also 2 J. Liebman R. Hertz, Federal Habeas Corpus Practice and Procedure § 32.2, at 1424-1426 nn. 7-10 (4th ed. 2001). When confronted with such a decision, a federal court must conduct an independent review of the record and the relevant federal law to determine whether the state court's decision was "contrary to, or involved an unreasonable application of" clearly established federal law. Delgado, 223 F.3d at 982.
When a state court does not furnish a basis for its reasoning, we have no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context . . . [A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the `objectively reasonable' lens ground by Williams [ v. Taylor, 529 U.S. 362 (2000)] . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law . . . Only by that examination may we determine whether the state court's decision was objectively unreasonable.Id. at 981-82.
As for state court findings of fact, under § 2254(d)(2), a federal court may not grant a habeas petition by a state prisoner unless the adjudication of a claim on the merits by a state court 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. section 2254(d)(2). The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under § 2254(d)(1) also applies in determining the "unreasonable determination of facts in light of the evidence" under section 2254(d)(2). See Torres v. Prunty, 223 F.3d 1103, 1107-1108 (9th Cir. 2000). To grant relief under 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Id. at 1108.
DISCUSSION
I. The State Court's Exclusion of Evidence of Other Accusations and Evidence Regarding an Alleged Affair did not Violate Hernandez's Constitutional Rights
A. Alleged False Accusations
At trial, Hernandez sought to introduce evidence regarding other allegations M. made at the time that she reported Hernandez's abuse, involving her brother-in-law, neighbor, and another cousin-in-law. In support, Hernandez sought to introduce M.'s psychiatric and medical records, which contained M.'s statements regarding the abuse, sought testimony from M.'s examining psychiatrists and physicians, and also sought to introduce the testimony of the other men that he claimed M. had accused of misconduct.
In his petition before this court, Hernandez claims that he sought introduction of the evidence to demonstrate that M. had falsely accused others of sexual misconduct, thereby suggesting that she had also falsely accused Hernandez. However, this court's review of the record below reveals that there was no evidence of multiple false accusations by M., and that Hernandez proffered this evidence for purposes other than those he now claims.
1. Background
In January 1999, after M. reported Hernandez's molestation to her English teacher, who then alerted the police, M. was transported to the hospital, where she gave a statement to a female police officer detailing the sexual abuse. M. was subsequently transferred to another hospital, where she received psychiatric and medical treatment for approximately ten days. While hospitalized, M. was treated by several doctors, including those referenced in Hernandez's papers before this court, Drs. Smith, Sturges, Crawford, and Noble. Subsequently, on January 21, 1999, M. also gave a statement regarding the alleged sexual abuse to the Child Abuse Listening Interviewing Coordination Center ("CALICO"); and in September 1999, testified regarding the abuse at a preliminary examination.
M. reported to medical personnel and police, at the CALICO interview, and during preliminary examination that she had been repeatedly sexually molested by a "cousin in law named Pablo (petitioner)" and by "other men in the family," including a "brother-in-law," another cousin, and a neighbor.
a. Alleged Accusation Against M.'s Brother-in-Law
With respect to the accusations against M.'s brother-in-law, Hernandez sought to introduce M.'s psychiatric records not to demonstrate the falsity of the accusation, but for impeachment purposes because of alleged inconsistencies regarding the duration and timing of the molestations. Hernandez did not contend that M.'s accusation against her brother-in-law was false; nor did he proffer an affidavit from the brother-in-law or seek to introduce testimony from him. Instead, Hernandez sought to introduce M.'s psychiatric records, which included her statements to psychiatrists regarding the abuse she had suffered, in order to impeach statements that M. made to police regarding the timing and duration of the abuse. See R.T. 194.
Hernandez also contended that physician notations regarding M.'s gastrointestinal problems could refute other medical evidence regarding the source of M.'s alleged injuries and medical conditions. However, the trial court denied Hernandez's request to introduce the records for these purposes as speculative unless Hernandez was able to obtain testimony to that effect from the doctors responsible for the notations, which he did not. R.T. 172-176, 200-201.
Specifically, Hernandez claimed that M. had reported to CALICO and to the police that she had only been abused once by her brother-in-law, which Hernandez claimed was inconsistent with M.'s statements to medical personnel that she had been "repeatedly molested" by Hernandez and other men in her family.
The trial court refused to admit the records on this basis, though, noting first that there was no evidence in the records that M.'s accusation against her brother-in-law was false. R.T. 194. Moreover, the court found that M.'s statements in her psychiatric records were not inconsistent with her other statements and testimony to police and CALICO. The court noted that there was no reference in the psychiatric records that M. had been molested repeatedly by the brother-in-law — rather, she stated that she had been repeatedly molested for two to three years by Hernandez, which was reflected in the charges forming the basis for the case against Hernandez. R.T. 193-95. The court then denied Hernandez's motion to admit M.'s psychiatric records, concluding that there was no evidence of falsity, the records were not inconsistent with M.'s other statements and testimony, did not contain exculpatory information, and had no bearing on M.'s credibility. R.T. 196-97.
Defense counsel agreed with the court that there was nothing to show that the accusation was false. See R.T. 194.
On appeal, the state appellate court affirmed the trial court's exclusion of M.'s accusation against her brother-in-law. The court rejected Hernandez's argument that, under state law, the prior accusation need not be false to be admissible to impeach the victim. Instead, the state appellate court held that "the relevance of these prior accusations depends on just that falsity."
b. Accusation Regarding M.'s Neighbor, Salvador Reyes
M. also reported to police and medical personnel that a neighbor, Salvador Reyes, attempted to get her intoxicated and to have sex with her. She apparently admitted to having sex with Reyes. There was some dispute as to whether the intercourse was forcible or consensual. The prosecution contended that M. admitted the intercourse was consensual, while the defense thought otherwise. However, as the trial court noted, even if the intercourse had been consensual, it would have constituted statutory rape because of M.'s age at the time.
At trial, Hernandez sought to introduce evidence of M.'s statements regarding her neighbor, claiming that Reyes had indicated that he would testify that the incident never occurred. However, Reyes refused to sign an affidavit to that effect, and had even previously admitted the incident. R.T. 210.
The trial court refused to admit any evidence regarding M.'s alleged intercourse with Reyes because of Hernandez's failure to follow the procedures required under state evidentiary law for admitting such evidence of a victim's prior sexual conduct. The court indicated that it would entertain argument if the defense filed a motion, as required by California Evidence Code § 782, with an affidavit from Reyes, which the defense subsequently failed to do.
California Evidence Code § 782 provides in pertinent part, that where "evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness," that the following procedure must be utilized:
(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.
(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant of the complaining witness is relevant to Section 780 [credibility generally], and is not inadmissible pursuant to Section 352 of this code [undue prejudice], the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
The California Court of Appeal upheld the trial court's exclusion of the evidence, agreeing that the proffered evidence constituted sexual conduct pursuant to section 782, thereby requiring Hernandez to meet the procedural prerequisites of that section. Since he had not done so, the state appellate court concluded that the evidence had been properly excluded.
c. Alleged False Accusation Against M.'s Cousin-in-Law, Victor Ramos
Hernandez also sought to introduce evidence that M. had allegedly falsely accused another cousin-in-law, Victor Ramos, of fondling her breast and attempting to kiss her. M. apparently reported to the police, to psychiatrists, and testified at her preliminary examination to a single incident while she was in elementary school, in which her cousin-in-law, Victor Ramos, a janitor, entered a classroom to help her rearrange some desks, and attempted to kiss her and placed his hand on her breast. Hernandez offered a declaration from Ramos denying the incident, and sought to have evidence regarding M.'s accusation and Ramos' denial introduced to impeach M.'s credibility.
The trial court refused to admit the evidence unless it was necessary to impeach evidence or testimony introduced during the prosecution's case-in chief. At the outset, the court found that, unlike the allegations concerning the neighbor, Salvador Reyes, the conduct concerning Victor Ramos, an alleged touching and attempted kiss, did not constitute "sexual conduct" of the victim, as covered by section 782 . Nevertheless, the trial court refused to admit the alleged false accusation to impeach M.'s credibility, ruling that it was of questionable relevance, given the fact that it was so remote, occurring when M. was in elementary school, and minor in nature and turpitude in comparison to Hernandez's alleged sexual misconduct. RT 236.
The trial court noted that: The victim "accused [Ramos] of fondling her breast and trying to kiss her which is far, far different from what . . . we have here. We have much more than fondling and kissing in this case. So, I don't think there's any, there's not that much similarity." R.T. 244; see also R.T. 235 ("Not the exact same conduct. The conduct that we're here on involves much more").
Given the questionable relevance, the trial court held that the evidence would be excluded under California Evidence Code § 352 as an undue consumption of time, resulting in a trial within a trial, and as confusing to the jury. Id. at 236, 38, 42. However, the court stated that it would allow the defense to introduce evidence of the Ramos accusation and its alleged falsity if the prosecution introduced evidence of it in its case-in-chief. R.T. 237-38 (noting that "If [M.] comes in here and says [Ramos] did it, then [defense] can bring him in and say he didn't").
California Evidence Code § 352 provides:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, of misleading the jury.
The California Court of Appeal agreed that the accusations against M.'s cousin were significantly different and less severe than the accusations against Hernandez. Hernandez argued before the state appellate court that the accusations were analogous to those made in People v. Burrell Hart, 237 Cal.Rptr. 654 (Cal.Ct.App. 1987), in which the California Court of Appeal reversed the trial court's section 352 exclusion of a rape victim's prior false accusation of rape. However, the state appellate court distinguished Hernandez's claim, finding that unlike Burrell Hart, where the excluded evidence in that case involved a crime identical to the one being prosecuted, M.'s prior accusation had only "slight relevancy" to the charges against Hernandez. Further, the appellate court agreed that the marginal probative value of the evidence did not justify the amount of time that would be consumed by testimony from the cousin and anyone else who witnessed the alleged incident.
2. Analysis
Hernandez argues before this court that the state trial court erred in excluding the above evidence, which he claims was favorable to his defense. However, "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (considering whether the state court's admission of evidence justified habeas relief where state appeals court had determined evidence was incorrectly admitted under state law). It is not the province of the federal habeas court to reexamine state court determinations of state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitutional laws, or treaties of the United States. Id. at 67-68. Accordingly, this court considers whether the state court's exclusion of the evidence violated Hernandez's constitutional rights to present a defense and/or his right to due process.
a. Legal Framework
A state court's procedural or evidentiary ruling may be subject to federal habeas review if it violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). A federal court can disturb on due process grounds a state court's procedural or evidentiary ruling only if the ruling was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v. Summer, 784 F.2d 984, 990 (9th Cir.).
The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43. The defendant must establish that his right to have the jury consider the excluded evidence in the case was a "fundamental principle of justice." See id.; see also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (it is clearly established federal law under the AEDPA that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation).
One of the fundamental rules that may be violated by the erroneous exclusion of critical, corroborative defense evidence is the Sixth Amendment right to present a defense. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Washington v. Texas, 388 U.S. 14, 18-19 (1967)) (finding the exclusion of critical defense evidence violated due process because it impeded petitioner's Sixth Amendment right to present a defense); see Chia, 360 F.3d at 1003. When deciding whether the exclusion of evidence violates the Due Process right to a fair trial or the Sixth Amendment right to present a defense, the court balances the following five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia, 360 F.3d at 1004; see id. at 1004-06 (state court erred by excluding reliable, material evidence of petitioner's innocence); Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000). The court must also give due weight to the state interests underlying the state evidentiary rules on which the exclusion was based. See Chia, 360 F.3d at 1006 (California's interest in excluding reliable statements that were "extraordinarily" relevant to question of petitioner's innocence or guilt was minimal, while importance to petitioner was immense); Miller v. Stagner, 757 F.2d 988, 995 (9th Cir. 1985
However, in order to obtain habeas relief on the basis of an evidentiary error, a petitioner must show not only that the error was one of constitutional dimension (test above), but also that the error was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). In other words, the petitioner must show that the error had "a substantial and injurious effect on the verdict." Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 623).
Hernandez analogizes this case to Franklin v. Henry, in which the Ninth Circuit concluded that the state trial court's exclusion of evidence of a prior false accusation of molestation violated the petitioner's constitutional rights and "had a substantial and injurious effect or influence" on the jury's verdict. 122 F.3d 1270 (9th Cir. 1997) (citing Brecht, 507 U.S. at 637), overruled on other grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002).
The petitioner in Franklin was convicted by a California jury of one count of continuous sexual abuse of a child under the age of fourteen, with substantial sexual contact. The petitioner, a friend of the victim's mother, resided, along with his daughter, with the five year-old victim and her family for approximately five months. During that time, petitioner babysat the victim while her parents worked and the other school-age children were at school. The victim subsequently told her mother that petitioner had sexually abused her, including that the petitioner had "licked her private and made her lick his private." 30 Cal.Rptr.2d 376, 378 (Cal.Ct.App. 1994).
The petitioner's defense was that the molestations did not occur. Prior to trial, the petitioner sought to introduce as evidence his own testimony that the victim, in petitioner's presence, told her brothers that her mother had come into her room at night and "licked her private." Id.; see also 122 F.3d at 1272. The prosecution objected that the evidence was inadmissible pursuant to California Evidence Code § 782, and the trial court excluded the evidence because petitioner did not comply with the procedural requirements of that section. See 30 Cal. Rptr.2d at 379.
On direct appeal, the petitioner in Franklin argued before the state appellate court that the trial court erred in applying section 782 because the proffered evidence "was not sexual conduct by the victim." Id. at 380. The state appellate court agreed with petitioner, and held that:
The instance of conduct being placed before the jury as bearing on [the victim's] credibility is the making of the false statement, not the sexual conduct which is the content of the statement.
Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness' credibility. The jury is asked to draw an inference about the witness' credibility from the fact that she stated as true something that was false. The fact that a witness stated something that is not true as true is relevant on the witness' credibility whether she fabricated the incident or fantasized it.Id.
The state appellate court then held that " if the trier of fact found it true that [the victim] falsely stated that her mother sexually molested her, this statement would be relevant to the trier of fact's determination of [the victim's] credibility on defendant's culpability," and "[t]he evidence should have been admitted." Id. at 381. However, the court held that the exclusion of the evidence "did not result in miscarriage of justice." Id. It noted that the function of the evidence was to impeach the victim's testimony, and that there was "ample evidence" already before the jury impeaching the victim's testimony.
On appeal of the district court's denial of Franklin's federal habeas petition, the Ninth Circuit disagreed with the state appellate court, and determined that the trial court's exclusion of the evidence was prejudicial. The Ninth Circuit held that the error "had a substantial and injurious effect" under Brecht because the prosecution's case was not a strong one, and the "evidence bearing on [the victim's] credibility must be regarded as having significance." 122 F.3d at 1273. Because the court was "in grave doubt as to the effect of the error," it ordered the district court to grant habeas relief. Id.
b. Hernandez's Arguments
Hernandez significantly mischaracterizes the evidence and the proceedings below in connection with this claim. He makes little distinction between the state court's treatment of M.'s accusations regarding her brother-in-law, Reyes, and Ramos, which was different with respect to all three. He also fails to adequately distinguish between the nature of the evidence regarding the three accusations.
Hernandez's rebuttal of the state's discussion of the nature of the accusations is inaccurate itself. His characterization of M.'s medical records and the substance of the allegations in those records, which were not admitted below, appears to be based solely on the record transcripts of the hearing regarding Hernandez's motion to admit the evidence, and not on the records or the actual notations themselves. Presumably, this is because the trial court refused to admit M.'s records and also held that it "was improper for [defense] counsel [prior to the hearing], to open . . . the psychiatric records . . . without first having an in camera hearing." R.T. 195. The trial court noted that while it was no fault of defense counsel that the records were mistakenly sent to her, "they should probably not have been opened since they were psych records and privileged information." R.T. 195-96. The court then noted that prior to defense counsel's review of the records and the motions before the court to admit the records, they should have been opened at an in camera hearing. Id.
Hernandez contends that this case is "much worse" than Franklin because, here, there were "multiple false accusations." However, as noted, this is not the case. Instead, as the state correctly notes in its opposition before this court, and as the state courts determined as well, there was no evidence presented before the state courts that two of the above three allegations — those regarding the brother-in-law and Reyes — were false.
For the first time, in his petition before this court, Hernandez suggests that he was not able produce declarations from anyone other than Victor Ramos demonstrating the falsity of the accusations because he was unable to ascertain the identity of the perpetrators since M. did not name them, but referred to them by generic terms. Hernandez, however, did not make this argument before the state trial or appellate courts, and never indicated before the state court at his hearing or in conjunction with the subject motions that he had any difficulty identifying the perpetrators to whom M. referred.
Moreover, as noted, Hernandez had in fact identified the neighbor to whom M. referred as Salvador Reyes, and admits that he was able to procure his appearance at the time that he argued for introduction of the accusations and the psychiatric records. The accusation regarding Reyes, however, was not admitted — not because of any confusion in identity — but because Reyes gave defense counsel conflicting statements and refused to sign a declaration as the trial court held was required under state law. R.T. 210.
c. Brother-in-Law
Hernandez argues nevertheless that the relevance of the accusations did not depend on their falsity. He contends that, contrary to the state appellate court's holding, it is not necessary that the brother-in-law's accusation be false to be relevant to M.'s credibility.
In support, Hernandez argues that the court in Franklin did not require a "preliminary showing of falsity" or a showing that the alleged falsity of the accusation was "undisputed." Hernandez, however, is mistaken regarding Franklin. The relevance of the accusation in Franklin was tied to its falsity. The Ninth Circuit, in Franklin, reiterated the state appellate court's holding regarding the relevance of the evidence as follows:
In the instant case, if the trier of fact found it true that [the victim] falsely stated that her mother sexually molested her, this statement would be relevant to the trier of fact's determination of [the victim's [credibility on defendant's culpability, [and] [t]he evidence should have been admitted.122 F.3d at 1272 (quoting 30 Cal Rptr.2d at 376) (emphasis added). In determining that the state trial court should have admitted the evidence, both the state appellate court and the Ninth Circuit appear to have assumed for purposes of their analyses that the trier of fact would have presumed the victim's accusation to be false, but instead erroneously applied state procedural requirements in excluding the evidence. Accordingly, contrary to Hernandez's position, Franklin does suggest that the relevance of the accusation depends on whether the trier of fact finds evidence of the accusation's falsity.
Moreover, the state court here excluded the evidence regarding M.'s brother-in-law on other relevance grounds as well. It found the evidence irrelevant to M.'s credibility because, contrary to Hernandez's arguments, the evidence did not demonstrate any inconsistencies in M.'s statements regarding the timing or duration of the abuse. This court has reviewed the record and relevant authority, and cannot conclude that the state court's findings with respect to M.'s brother-in-law were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. section 2254(d)(2).
d. Reyes
M.'s neighbor, Reyes, refused to file a declaration with the state trial court, so it is unclear whether Reyes would have testified contrary to M.'s reports. However, the defense contended that in spite of Reyes' reluctance to submit a declaration and Reyes' prior inconsistent statements, he would have testified that M.'s statements regarding the alleged intercourse were false.
Hernandez contends that, in affirming the trial court's exclusion of the evidence, the state appellate court wrongly placed the burden on him to show that the statements were false. This is not the case. Rather, the state trial court, and thereafter, the state appellate court held Hernandez to the procedural requirements of § 782, which required a motion and an offer of proof, including an affidavit from Reyes. Accordingly, Hernandez's argument is more appropriately considered a challenge to the validity of § 782 and its requirements, the constitutionality of which is not at issue in these proceedings, but which has been repeatedly held constitutional by state appellate courts. See People v. Blackburn, 128 Cal.Rptr. 864, 867 (Cal.App. 1976) (upholding constitutionality of offer of proof required under § 782 before evidence can be admitted); accord People v. King, 156 Cal.Rptr. 268, 273-74 (Cal.App. 1979).
It is possible that the state court erred by applying section 782 to the evidence in question. See People v. Franklin, 30 Cal. Rptr. 2d at 380 (holding that evidence relating to sexual conduct is admissible if the sexual conduct itself is not the fact from which the jury is asked to draw a credibility reference, but instead from the fact that the witness stated as true something that was false). However, because "federal habeas corpus relief does not lie for errors of state law," the inquiry is similar regardless of whether or not the state trial court erred in its application of section 782.
If the state court erroneously applied section 782, this court considers whether the exclusion of the evidence violated Hernandez's constitutional rights, and if so, whether it "had a substantial and injurious effect or influence" on the jury's verdict. See Brecht, 507 U.S. at 637. Likewise, even if the state court properly applied section 782 under the circumstances, this court must consider: (1) whether Hernandez's failure to comply with section 782 "justif[ied] the severe sanction of preclusion," balancing the interests in Hernandez's particular case, including Hernandez's Sixth Amendment interest in introducing relevant, probative evidence; and if not, (2) whether the exclusion "had substantial and injurious effect or influence in determining the jury's verdict." LaJoie v. Thompson, 217 F.3d 663, 669-70, 673 (9th Cir. 2000) (applying Michigan v. Lucas, 500 U.S. 145 (1991) (reversing state appellate court's determination that notice requirement in state rape shield law violated Sixth Amendment in all cases where it was used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant)).
A defendant is required to comply with established rules of evidence and procedure as required by the state "to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers v. Mississippi, 410 U.S. 284, 302 (1973). However, the state may not arbitrarily deny a defendant the ability to present testimony that is "relevant and material, and . . . vital to the defense." United States v. Valenzuela-Vernal, 458 U.S. 858, 867 (1982). While a state may not apply a rule of evidence mechanistically to defeat the ends of justice, in appropriate circumstances, the defendant's right to present relevant testimony may "bow to accommodate other legitimate interests in the criminal trial process." Michigan v. Lucas, 500 U.S. 145, 149 (1991).
Regardless of whether the state court erred in applying section 782, this court cannot conclude that exclusion had a "substantial and injurious effect or influence in determining the jury's verdict." First, unlike Franklin, there is nothing to suggest that the trier of fact believed that Reyes would have testified to the falsity of M.'s allegation that they had sexual intercourse. Cf. also LaJoie, 217 F.3d at 666 (trial court concluded that the excluded evidence was relevant, but nevertheless excluded evidence for failure to satisfy state procedural requirements under rape shield law). Defense counsel admitted that Reyes had given inconsistent statements regarding the incident and could not attest that Reyes would deny the occurrence of the incident, admitting that "maybe he's going to testify today that he had sex with [M.]." R.T. 206.
Moreover, even assuming that Reyes would have testified that he did not have intercourse with M., such testimony is of marginal, if any, probative value. Evidence that M. may have falsely alleged to have had nonforcible intercourse with a neighbor under the influence of alcohol differs substantially from the type of allegations she made regarding Hernandez, involving repeated acts of forcible sodomy and oral copulation. See United States v. Payne, 944 F.2d 1458, 1469-70 (9th Cir. 1991) (concluding that district court's exclusion of evidence regarding inconsistencies in twelve year-old victim's account of unrelated "heavy petting" incident with boy did not violate defendant's Sixth Amendment rights because incidents were of minimal probative value to the child molestation charges involving sexual intercourse in the case); see also Barker v. Olivarez, 1997 WL 578670 (N.D. Cal. 1997). This is, therefore, also unlike the Franklin case in which the excluded false allegation was nearly identical to an allegation regarding the petitioner. Accordingly, given the extremely limited probative value of the evidence and its very questionable reliability, as discussed by the state trial court, the court concludes that exclusion of the evidence did not violate Hernandez's right to due process or Sixth Amendment right to present a defense. See Chia, 360 F.3d at 1006.
However, even if the exclusion of the evidence violated federal law, it is unlikely that the exclusion "had substantial and injurious influence in determining the jury's verdict." Brecht, 507 U.S. at 637. First, the accusation against Reyes did not provide an alternate explanation for the physical evidence because it did not involve allegations of sodomy, which were corroborated by physical evidence of anal scarring consistent with prior traumatic episodes, not consistent with bowel problems. Contrary to Franklin, as noted by the state appellate court, the evidence in this case was not "thin." Instead, the prosecution presented a strong case against Hernandez, including physical evidence which corroborated M.'s accusation of molestation. Both Drs. Crawford and Ternahan attested that M. had abnormal anal scarring and venous pooling consistent with a pre-hemorrhoidal condition above and below her anus. RT 550-56. Additionally, M. provided the police with accurate descriptions for the sites of the molestations, including a secluded area in a park off of Highway 880 and a dead-end street near the Oakland Coliseum BART station.
Moreover, the disputed evidence was not the sole evidence pertaining to M.'s credibility. The testimony of M.'s cousins, Glenda Hernandez and Maliny Martinez, M.'s various testimony to medical personnel regarding her medical history, and alternative explanations regarding the venous pooling above and below her anus, all allowed the jury to evaluate M.'s credibility.
Glenda Hernandez testified that she and M. watched pornographic videos that included anal sex. RT at 869.
Maliny Martinez, M.'s second cousin, testified that when M. visited her in Mexico, M. stated that she didn't want to return home because "her mother was pressuring her to . . . tell lies about Pablo [Hernandez]." RT at 859.
M. told Dr. Ternahan, who performed M.'s sexual assault examination, that she did not have a history of constipation. However, M. had previously taken Colace, a stool softener. RT at 565-566.
Hernandez argued that M.'s anal scarring could have been caused by constipation. Additionally, Dr. James Crawford ("Crawford"), Medical Director of the Center for Child Protection at Children's Hospital, testified that he reviewed the records of M.'s examination by Ternahan. RT at 417. Crawford testified that M.'s venous pooling was "very common" and "not necessarily associated with . . . sexual contact." RT at 419.
Accordingly, because exclusion of the evidence did not violate Hernandez's right to due process or his Sixth Amendment rights, and because it is not likely to have affected the verdict, the exclusion of the evidence regarding Reyes is not grounds for federal habeas relief.
e. Ramos
With respect to the only accusation for which there existed evidence of falsity, that of Victor Ramos, Hernandez argues that the trial court's exclusion of the evidence was much more prejudicial than the exclusion in Franklin because, here, Hernandez contends that there was no other evidence impeaching M.'s credibility, and that the evidence of M.'s false accusations is more reliable since the accusations were made to third-party investigators and medical personnel, without any motive to assist Hernandez.
For the same reasons discussed above, this court concludes that, given the marginal relevance and limited probative value, the state court did not err, nor violate Hernandez's due process or Sixth Amendment rights, in excluding the evidence regarding M.'s accusation against Ramos. First, the evidence concerning Ramos is of even less probative value than that regarding Reyes, assuming M.'s allegations against Reyes were false. It is likewise of significantly less probative value than that in Franklin. As the state courts noted, and as the record confirms, the allegations regarding Ramos, concern a single incident of alleged breast fondling and an attempt to kiss M., which differed substantially from the repeated acts of forcible sodomy and oral copulation alleged against Hernandez. See Payne, 944 F.2d at 1469-70. Accordingly, this case is distinguishable from Franklin where the allegation against the petitioner and the false accusation regarding the victim's mother were almost identical. Moreover, as the state courts noted here, the alleged Ramos incident occurred when M. was considerably younger than she was at the time she was abused by Hernandez, and was, accordingly, remote in time. That the evidence of M.'s allegations to third-party medical personnel may have been more reliable than the evidence in Franklin, is only one of many factors this court considers. See Chia, 360 F.3d at 1004. Given the limited relevance and probative value, and the state's interest in excluding evidence that it has deemed unduly burdensome or prejudicial, it was not error, nor a violation of Hernandez's constitutional rights for the state court to exclude the Ramos evidence.
Moreover, for the reasons discussed above with respect to the Reyes allegations, exclusion of the evidence did not have a "substantial and injurious influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Contrary to Hernandez's assertions otherwise, and as previously stated, there was other evidence impeaching M.'s credibility.
Accordingly, this claim fails.
B. Exclusion of Evidence of M.'s Alleged Motive to Lie Did Not Violate Hernandez's Due Process Rights
Hernandez also contends that the state court's exclusion of evidence that he allegedly had an affair with M.'s mother violated his due process and Sixth Amendment rights. Before the state trial court, Hernandez attempted to introduce evidence that M's mother was having an affair with him. He claimed that this evidence demonstrated that M. had a motive to falsify the accusations against him in an effort to keep her parents together. However, the prosecution disagreed that there was an affair, and noted that, contrary to Hernandez's version, M.'s mother had, at the time of M.'s investigation, reported to the police that Hernandez had raped her on several occasions. R.T. 261. The trial court ultimately excluded any evidence of the affair, finding that "what bare, bare, bare shreds of evidence of some far away motive may come out would be totally overshadowed by the prejudicial effect of such testimony." RT at 263.
The trial court also remarked that: "What you have is a mother saying that [Hernandez] raped her, and [Hernandez is] going to say that they had an affair. And what we're going to do is get into a whole issue that neither involves the victim's sexual conduct or the victim's credibility, and it would involve a total undue consumption of time." R.T. 262.
The California Court of Appeal affirmed the trial court's exclusion of the evidence, concluding that the defense's offer of proof was inadequate, and that it had not demonstrated "the slightest basis for concluding" that to the extent an affair occurred, M. had any knowledge of it. The state appellate court therefore concluded that: "[t]here simply was no evidence proffered for the court to admit."
The state appellate court also dismissed Hernandez's claim that the evidence was also relevant to [M.]'s mother's credibility, noting that Hernandez raised this argument for the first time in his reply brief and that he had not shown good cause for the failure to assert it during the trial.
Hernandez argues before this court that his due process right to present a defense was violated by prohibiting him from cross-examining M. regarding the affair. Hernandez argues that Olden v. Kentucky establishes the right of a criminal defendant to conduct reasonable cross-examination regarding a witness' motive to lie. See Olden v. Kentucky, 488 U.S. 227 (1988).
The exclusion of the evidence did not violate Hernandez's due process or Sixth Amendment rights. First, as the state courts noted, the evidence was excludable under state evidentiary law because Hernandez failed to make a sufficient offer of proof. Moreover, exclusion of the evidence did not violate his constitutional rights.
This case is distinguishable from Olden, relied on by Hernandez. In Olden, the defendant in a rape trial was prohibited from cross-examining the victim regarding her motive to lie about the rape to avoid angering her boyfriend. The petitioner sought to introduce evidence that the victim, a Caucasian woman, was having an extramarital affair with an African American male friend of petitioner's. Petitioner claimed that the victim lied to protect her relationship with his friend, who had observed the victim climb out of petitioner's car. He also sought to introduce evidence that following the incident, his friend and the victim were living together. The trial court, however, excluded the evidence after determining that the jury would be inflamed by testimony that the victim, a Caucasian woman, was living with her boyfriend, an African American man. The court prohibited the defendant from raising the victim's relationship as evidence of her motive to lie, finding that the jury's reaction to the victim's interracial relationship would result in extreme prejudice against the victim. In overturning the verdict, the Supreme Court held that the state courts erred in excluding the evidence because "[s]peculation as to effect of jurors' racial biases cannot justify the exclusion of cross-examination with such strong potential to demonstrate the falsity of [the victim's] testimony." Id. at 232.
The alleged evidence in this case lacks the "strong potential to demonstrate the falsity" of M.'s allegations regarding Hernandez. In Olden, the evidence involved the conduct of the victim herself and a relationship that she had engaged in with the petitioner's friend. Here, Hernandez did not seek to cross-examine M. regarding her own conduct, but instead that of her mother, conduct of which M. may or may not have had knowledge. Moreover, there was no evidence that M. could either confirm or deny the existence of the alleged affair. Therefore, this evidence lacked the probative value present in Olden. Additionally, the evidence here was unreliable. Defense counsel could not confirm who would testify to the affair or M.'s knowledge of it. When asked who would testify, defense counsel stated, "Well, I don't know . . . I don't think [M.] will deny it." RT 261.
Furthermore, for the reasons stated above, exclusion of the evidence did not have a "substantial and injurious influence in determining the jury's verdict." Brecht, 507 U.S. at 637. As noted by the state court, the prosecution presented a strong case against Hernandez, including physical evidence which corroborated M.'s accusations.
II. The Trial Court's Failure to Provide CALJIC 2.70 Did Not Violate Hernandez's Due Process Rights
Hernandez also argues that the trial court's failure to instruct the jury sua sponte as to California Jury Instruction ("CALJIC") 2.70 violated his constitutional right to a fair trial and due process.
During the trial, M.'s mother attested that Hernandez threatened that he and other family members would testify that M. was a "chola" and a drug addict if M. did not drop the charges against him. Hernandez claims that this statement was an oral admission as defined by CALJIC 2.71, requiring the trial court to give CALJIC 2.70, which provides in pertinent part:
Hernandez defines "chola" as a female gang member.
An admission is defined in CALJIC 2.71 as a "statement made by the defendant which does not by itself acknowledge the guilt of the crimes for which [he] is on trial, but which statement tends to prove guilt when considered with the rest of the evidence."
An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence.
[Evidence of [an oral confession] [or] [an oral admission] of the defendant not made in court should be viewed with caution.]
The state appellate court held that under state law, the trial court erred in failing to instruct pursuant to CALJIC 2.70. However, the state appellate court held that any error was harmless because there was no reasonable probability that a result more favorable to Hernandez would have been reached in the absence of the error. In support, the court noted that M.'s mother's testimony was uncontested and that the jury received instructions on witness credibility and bias. However, before this court, Hernandez claims that his due process rights were violated given that M.'s credibility played a central role in the trial.
A challenge to a jury instruction as a violation of state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle, 502 U.S. at 71-72; see also, e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'"). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
The omission of an instruction is less likely to be prejudicial than a misstatement of the law. See Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson, 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "especially heavy burden." Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at 155). The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156); see id. at 972 (due process violation found in capital case where petitioner demonstrated that application of the wrong statute at his sentencing infected the proceeding with the jury's potential confusion regarding its discretion to impose a life or death sentence).
The purpose of CALJIC 2.70's cautionary instruction is to assist the jury in determining if the statement was in fact made. Here, the thorough direct and cross-examination of M.'s mother enabled the jury to evaluate the truthfulness of her testimony. Moreover, M.'s mother's testimony was uncontradicted.
M.'s mother testified that she went to a meeting of family members at Hernandez's mother's home after M. reported the molestation to police. Her testimony included the date and location of the meeting, her recollection of Hernandez's statement, and her understanding of the word "chola".
Further, the jury instructions provided by the court assisted the jury in evaluating M.'s mother's testimony. The court instructed that ". . . conduct [that may tend] to show a consciousness of guilt . . . is not sufficient in and of itself to prove guilt." RT at 1068. The jury also received instructions on witness credibility, including an instruction that the jury may consider the "bias, interest, or other motive" in determining witness believability. RT at 1069. These instructions enabled the jury to evaluate the significance of Hernandez's statement and M.'s mother's credibility. Thus, when the omission is evaluated in light of the other instructions given to the jury, it cannot be said that the omission was prejudicial. See Murtishaw, 255 F.3d at 971.
Moreover, given the evidence against Hernandez, there is no reasonable probability that the jury would have returned a more favorable verdict had the cautionary instruction been given. Therefore, the state appellate court's decision was not an unreasonable application of clearly established federal law.
III. Alleged Prosecutorial Misconduct Did Not Deprive Hernandez of a Fair Trial
Hernandez also contends that his due process and fair trial rights were violated when the prosecutor made several inappropriate comments and misstated the law. Specifically, Hernandez argues that the prosecution: (1) impermissibly commented on his failure to testify; (2) mischaracterized the reasonable doubt standard; and (3) mischaracterized the evidence.
A. Factual Background
1. Alleged Comment Regarding Hernandez's Failure to Testify and Mischaracterization of Reasonable Doubt Standard
Hernandez did not testify at trial. He claims that the prosecutor impermissibly commented on his failure to testify and mischaracterized the reasonable doubt standard by making the following statement regarding M. during her closing argument:
No one told you [M.] is a liar. And had she been a liar, you would have heard it. No one provided to you a reason for her to lie.
RT 1012. However, Hernandez did not raise either of these objections during trial.
2. Alleged Mischaracterization of the Evidence
As discussed, prior to trial, the court excluded evidence regarding M.'s prior accusations of molestation and sexual misconduct and also excluded evidence of M's alleged motive to falsify charges against Hernandez. Hernandez claims that the statement described above, that ". . . had [M.] been a liar, you would have heard it," mischaracterized the evidence regarding M.'s prior alleged false accusations. Hernandez also argues that the prosecutor similarly mischaracterized evidence regarding M.'s motive when she stated:
There is absolutely no reason, no reason at all that [M.] would be making this up. What would be her motive? . . . There's absolutely no reason why [M.] would tell you these horrendous acts of abuse unless they were true.
RT 1012. Again, Hernandez did not raise an objection to this statement during trial.
B. Hernandez Is Procedurally Barred From Raising A Prosecutorial Misconduct Claim
A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In the context of direct review by the United States Supreme Court, the "adequate and independent state ground" doctrine goes to jurisdiction; in federal habeas cases, it is a matter of comity and federalism. Id. The procedural default rule is a specific instance of the more general "adequate and independent state grounds" doctrine. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994).
Under California law, in order for a claim of prosecutorial misconduct to be preserved for appeal, defense counsel must both make an objection and request an admonition from the court. See People v. Montial, 21 Cal.Rptr. 705 (Cal. 1993) (claim of prosecutorial misconduct not preserved on appeal because defense counsel failed to request an admonition). Here, defense counsel did not raise an objection to any of the alleged instances of prosecutorial misconduct. The California Court of Appeal held that the claims were waived, but subsequently reviewed the issue on the merits.
Where the state court decision rests on a clearly alternate ground, one invoking a state procedural bar and the other addressing the merits, the state procedural ground is still sufficiently independent to preclude habeas review. See Bargas v. Burns, 179 F.3d 1207, 1214 (9th Cir. 1999); see also Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996) (concluding that Nevada Supreme Court rested its dismissal of petition on independent state procedural grounds because it stated that any discussion of merits was strictly for the purpose of demonstrating that petitioner's procedural defaults could not be overcome by showing of cause and prejudice). Here, the procedural bar relied on by the California Court of Appeal is independent of the federal question and adequate to support the judgment. Therefore, this court is precluded from addressing the constitutional violation unless Hernandez can demonstrate cause for the default and actual prejudice as a result of the alleged constitutional violation. Coleman, 501 U.S. at 750.
Cause exists if "the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Smith v. Murray, 477 U.S. 527, 537 (1986); accord Coleman 501 U.S. at 750; see also McCleskey v. Zant, 499 U.S. 467, 493 (1991). A petitioner must establish factual innocence in order to show that a fundamental miscarriage of justice would result from application of procedural default. See Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
Hernandez has not demonstrated factual innocence, and therefore cannot establish a fundamental miscarriage of justice. Likewise, Hernandez has demonstrated neither cause nor resulting prejudice. Hernandez concedes that defense counsel must "normally object" to an improper closing argument to preserve the issue on appeal. However, Hernandez does not demonstrate any "objective, external" factors that impeded his attorney's ability to raise an objection. Therefore, Hernandez has not shown any cause for the default. Without a demonstration of cause, there cannot be the requisite prejudice. Coleman, 501 U.S. at 750 (petitioner barred from bringing claims in federal habeas because of failure to demonstrate attorney's error constituted cause).
C. Hernandez's Prosecutorial Misconduct Claim Fails On The Merits
Nevertheless, even if this court were to conclude that Hernandez's prosecutorial misconduct claim was not procedurally barred, such that this court could reach the merits, this court would deny the claim.
Inappropriate comments made by the prosecutor in the presence of the jury may constitute reversible prosecutorial misconduct. See Darden v. Wainwright, 477 U.S. 168, 179-81 (1986). However, the appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. See id. A defendant's due process rights are only violated when a prosecutor's misconduct renders the trial "fundamentally unfair." Id. Claims of prosecutorial misconduct are reviewed "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.).
Factors which a court may take into account in determining whether misconduct rises to a level of a due process violation are: (1) the weight of evidence of guilt, compare United States v. Young, 470 U.S. 1, 19 (1985) (finding "overwhelming" evidence of guilt) with United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987) (in light of prior hung jury and lack of curative instruction, new trial required after prosecutor's reference to defendant's courtroom demeanor); (2) whether the misconduct was isolated or part of an ongoing pattern, see Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); (3) whether the misconduct relates to a critical part of the case, see Giglio v. United States, 405 U.S. 150, 154 (1972) (failure to disclose information showing potential bias of witness especially significant because government's case rested on credibility of that witness); and (4) whether a prosecutor's comment misstates or manipulates the evidence, see Darden, 477 U.S. at 182.
However, "[p]rosecutorial misconduct which rises to the level of a due process violation may provide the grounds for granting a habeas petition only if that misconduct is deemed prejudicial under the `harmless error' test articulated in Brecht." Shaw v. Terhune, 2004 WL 1774634 (9th Cir. 2004). Accordingly, even if this court determined that a due process violation occurred, the court must still evaluate whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht, 507 U.S. at 637).
1. The Prosecution Did Not Impermissibly Comment on Hernandez's Failure To Testify
The California Court of Appeal determined that the prosecutor's statement that ". . . had [M.] been a liar, you would have heard it" did not constitute a comment on Hernandez's failure to testify. Instead, the court determined that the prosecutor's comment referenced the testimony provided by other witnesses. Accordingly, the court found that the prosecutor did not indirectly or directly comment on Hernandez's failure to testify on his own behalf because he was not the only person who could have contradicted M.'s story. See Griffin v. California, 380 U.S. 609, 610-615 (1965) (prosecutor commits misconduct by commenting directly or indirectly on a defendant's failure to testify in his own behalf).
The state appellate court reviewed the following portion of the prosecution's closing argument: "Every witness that testified corroborated the fact the [M.] had absolutely no reason to make up lies against [defendant]. Do you believe her? Defendant's family corroborates [M.]. No one told you [M.] was a liar. And had she been a liar, you would have heard it. No one provided you a reason for her to lie". See Exh. C at 8.
Hernandez argues before this court that because he was the only witness who could have testified that a particular incident never occurred, the jury could have interpreted the prosecution's statement as a reference to his failure to testify.
The Fifth Amendment prohibits the prosecutor from commenting on a defendant's decision not to testify. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987). A comment is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. Id. However, such commentary is reversible only if "(1) the commentary is extensive; (2) an inference of guilt from silence is stressed to the jury as a basis for conviction; and (3) where there is evidence that could have supported acquittal." Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993).
In this case, the prosecutor's comment did not call attention to Hernandez's failure to testify. The prosecutor properly inferred that M.'s testimony was credible based on the fact that several family members testified and did not say that M. was known to be a liar. Unlike Lincoln, where the prosecutor repeatedly stated that there was "only one person" who could tell the jury "what happened," M.'s attorney did not make a direct reference to the defendant. See Lincoln, 807 F.2d at 809 n. 1. M.'s attorney stated that "No one" told the jury that M. was a liar, which referenced the testimony of all of the witnesses in the trial. The jury had previously heard testimony from several witnesses regarding the credibility of M.'s accusations, including M.'s mother, M.'s cousin Glenda Hernandez, and M.'s second-cousin, Maliny Martinez, with the testimony of the latter two casting a not entirely favorable light on M. Therefore, the jury would not infer that the prosecution's statement "No one told you [M.] was a liar" was directed at Hernandez's failure to testify.
Moreover, even if the prosecutor impermissibly commented on Hernandez's decision not to testify, the comment does not warrant reversal. The disputed statement was an isolated incident, and was not a significant element of the closing argument. The prosecution did not imply that Hernandez was guilty based on his silence, she argued that his guilt was demonstrated by the physical evidence and witness testimony that corroborated M.'s accusations.
Therefore, Hernandez has not demonstrated that the comment had an injurious effect on the verdict or violated his due process rights.
2. The Prosecution Did Not Mischaracterize the Reasonable Doubt Standard
Hernandez also claims that the prosecution mischaracterized its burden when it stated to the jury that: "No one provided to you a reason for [M.] to lie." The state appellate court determined that the prosecutor's remarks were fair comments on M.'s credibility, and did not misstate the law regarding the prosecution's burden of proof or the reasonable doubt standard.
In his brief to the California Court of Appeal, Hernandez relied on additional statements to demonstrate that the prosecutor mischaracterized the reasonable doubt standard. In addition to the statement cited in his brief to this court, Hernandez alleged that the prosecution's statement that the jury should believe [M.] if her testimony had "the ring of truth" and to "trust [your gut] feelings" suggested a lower standard than reasonable doubt. These statements were not included in Hernandez's petition before this court, although the state mistakenly argues as if they were.
This court does not find the state court's conclusion unreasonable. The prosecutor did not directly or indirectly suggest that reasonable doubt standard was met because the defense had failed to prove the untruthfulness of M.'s testimony. Further, the jury received instructions on the reasonable doubt standard. The trial court also instructed the jury that it should not consider attorneys' comments as evidence, and that any comments made by the attorneys that contradicted the instructions should be disregarded.
3. The Prosecution's Mischaracterization of Evidence Was Harmless Error
Hernandez next contends that the prosecutor mischaracterized the evidence by stating ". . . had [M.] been a liar, you would have heard it" and "There's absolutely no reason for [M.] not to have told you the truth." Hernandez claims these comments mischaracterized the evidence by arguing that there was no evidence of a false accusation or motive to lie on M.'s part, when in fact such evidence existed.
The California Court of Appeal determined that the defense, in fact, had no evidence of M.'s motive to lie. Therefore, according to the state appellate court, the prosecution did not mischaracterize the evidence regarding M.'s motive.
However, the state appellate court concluded that the defense had "at least one piece of evidence of a false accusation by [M.] of sexual misconduct by a third person: the Ramos declaration." The state appellate court noted that under state law, the exclusion of the evidence did not permit the prosecution to argue that such evidence never existed. Nevertheless, given the substantial evidence against Hernandez, the court concluded that the prosecutor's mischaracterization was not prejudicial. Hernandez now claims that the prosecutor violated his due process rights by improperly arguing a false state of facts to the jury.
It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true. But it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt. . . .United States v. Blueford, 312 F.3d 962, 968-69 (9th Cir. 2002).
This court agrees with the California Court of Appeal, that Hernandez fails to demonstrate that the prosecutor's statement had a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 637-38 (1993). Although the prosecutor misstated the evidence, a misstatement is only one of the factors that this court may consider in evaluating whether misconduct amounts to a constitutional violation. See Darden, 477 U.S. at 181. And, when examined in the context of the entire proceeding, this single mischaracterization did not render the trial fundamentally unfair. As noted by the state appellate court, the verdict was supported by physical and testimonial evidence that corroborated M.'s accusation of molestation.
Aside from the evidence that demonstrated Hernandez's guilt, the jury also heard testimony that challenged M.'s credibility, including the testimony of M.'s cousins that M. was being pressured to "lie about [Hernandez]," inconsistencies in M.'s accounts, and alternative medical explanations for M.'s injuries. Additionally, the defense vigorously challenged M.'s credibility during their own closing arguments. Thus, the prosecution's single mischaracterization did not unduly prejudice the jury. Accordingly, the state appellate court's determination of harmless error was not an unreasonable application of federal law.
During cross-examination, Ternahan testified that during M.'s medical examination, M. stated that she "didn't remember" when asked if she had been orally copulated by Hernandez, if she had orally copulated Hernandez, and if she had masturbated Hernandez. RT at 569-570.
IV. Hernandez Has Not Demonstrated Ineffective Assistance of Counsel
Hernandez presents two claims for ineffective assistance of counsel, arising from his counsel's failure to object to the alleged prosecutorial misconduct, and also from remarks made by his counsel during her closing argument. The state appellate court issued a postcard denial of Hernandez's ineffective assistance of counsel claims brought before it in state habeas proceedings. See Exh. K. However, in a federal habeas challenge, a state court's conclusion that counsel rendered ineffective assistance is not binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). The inquiry regarding whether counsel was effective is a mixed question of law and fact. See Strickland v. Washington, 466 U.S. 668, 698 (1984). Therefore, claims of ineffective assistance of counsel require a review of the record.
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland, 466 U.S. at 686. In order to prevail on a Sixth Amendment ineffective assistance of counsel claim, Hernandez must establish two elements. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. See Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. It is unnecessary for a federal court considering a habeas ineffective assistance claim to address the prejudice prong of the Strickland test if the petitioner cannot establish incompetence under the first prong. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998).
The first prong of the Strickland test requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. The defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. To prevail on the second prong, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 446 U.S. at 693. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694.
A. Defense Counsel Was Not Ineffective In Failing to Object During The Prosecution's Closing Argument
Hernandez first argues that his Sixth Amendment right to effective counsel was violated by his attorney's failure to object to comments made during the prosecution's closing argument. The remarks which Hernandez claims his attorney should have objected to are the same statements that form the basis for his claim of prosecutorial misconduct, which this court has already rejected, including the prosecution's alleged (1) comment on Hernandez's failure to testify, (2) mischaracterization of the reasonable doubt standard, (3) mischaracterization of evidence regarding M.'s prior false accusation, and (4) mischaracterization regarding M.'s motive to lie.
For the reasons discussed above with respect to Hernandez's claim of prosecutorial misconduct, the prosecutor's statement did not constitute an impermissible comment on the Hernandez's failure to testify, nor did the prosecutor mischaracterize the reasonable doubt standard or M.'s motive to lie. Accordingly, defense counsel's failure to object to these comments was not deficient.
However, as discussed, the prosecution did commit harmless error when it mischaracterized the existence of evidence regarding M.'s prior false accusation against Ramos. Accordingly, this court must determine whether Hernandez's counsel's failure to object to the harmless error constituted ineffective assistance of counsel.
"Due process does not require errorless counsel . . . but [that] counsel render reasonably effective assistance." Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1997). Failure to raise a meritless argument does not constitute ineffective assistance. Id.; Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985). As stated in Cooper:
In summary, the role of the District Court presented under allegations of ineffective assistance of counsel is not to pass upon the merits of the action not taken but to determine whether, under the particular facts of the case, trial counsel failed to render reasonable effective assistance. This does not mean that . . . defense counsel, to protect himself against allegations of inadequacy, must make every conceivable motion no matter how remote the possibilities of success.Cooper, 551 F.2d at 1166.
Here, Hernandez's counsel's failure to object to the prosecution's statement ". . . had [M.] lied, you would have heard it" likely falls below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. Hernandez's counsel could not have reasonably believed that an objection to the prosecution's mischaracterization was meritless, because, as noted by the state appellate court, under state law, the exclusion of evidence does not permit the prosecutor to argue as if it never existed.
However, even if it was objectively unreasonable for defense counsel to fail to object to the prosecution's mischaracterization, Hernandez is unable to show prejudice. See id. For the reasons discussed previously with respect to the prosecutorial misconduct claim, the mischaracterization was not prejudicial; nor was counsel's failure to object to it. Because Hernandez cannot demonstrate prejudice, the state appellate court's denial of the claim was not an unreasonable application of clearly established federal law.
B. Defense Counsel's Closing Argument Was Not Deficient
Hernandez also claims that his Sixth Amendment right to effective counsel was violated when defense counsel stated during her closing argument: "I know that [M.] believes her truth. But it may not be the truth as a normal person would see it". RT 1055. Hernandez argues that defense counsel implied he was guilty by conceding that [M.] was sincere.
Counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. . . . Judicial review of a defense attorney's summation is therefore highly deferential — and doubly deferential when it is conducted through the lens of federal habeas.Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (counsel's exclusion of some issues in closing did not amount to professional error of constitutional magnitude where issues omitted were not so clearly more persuasive than those raised).
Defense counsel's comment regarding M.'s sincerity is not objectively unreasonable. In Yarborough, the Supreme Court overturned the Ninth Circuit's decision that a defense attorney's comment during closing argument that he did not know "who told the truth" was objectively unreasonable, and held that the comment may have been a reasonable tactic to gain empathy from the jury. See Yarborough, 124 S. Ct. at 7. Similarly, defense counsel's comments here may have been an effort to avoid alienating the jury by directly accusing M. of lying.
Hernandez claims that the state has "waived" any argument that defense counsel had tactical reasons for making the above statement, because the state failed to raise the issue in its answer. However, Hernandez is mistaken because the state clearly argued before the California Court of Appeal that Hernandez's counsel's comment was a tactical decision made to avoid alienating the jury. See Exh. J at 3.
Although Hernandez may have preferred that his counsel address M.'s truthfulness in a different manner, a difference of opinion as to trial tactics does not constitute denial of effective assistance. See United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Following her comment on M.'s "truth as she sees it," defense counsel vigorously defended Hernandez's innocence, including examining each of the inconsistencies in M.'s testimony, and highlighting alternative explanations for M.'s anal scarring. Thus, Hernandez's counsel's comment during closing argument was not objectively unreasonable. Therefore, Hernandez fails to meet the first prong of the Strickland test.
Moreover, even if defense counsel's statement was objectively unreasonable, there is no reasonable probability that the outcome would have been different. Hernandez mistakenly relies on Swanson in arguing that he is entitled to reversal without a showing of prejudice. See United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991). Unlike the petitioner in Swanson, Hernandez's attorney did not "entirely fail to subject the prosecution's case to meaningful adversarial testing." See id. at 1076. For the reasons discussed regarding Hernandez's first claim of ineffective assistance of counsel, it is unlikely that the jury would have rendered a different decision.
C. Hernandez Is Not Entitled To An Evidentiary Hearing On His Ineffective Assistance of Counsel Claim
Hernandez also argues that his ineffective assistance of counsel claim warrants an evidentiary hearing. Hernandez claims that there was no opportunity for an evidentiary hearing during the state court proceedings because the government did not raise the tactical decision argument as a defense to his ineffective assistance of counsel claim. Hernandez now argues that this court should hold an evidentiary hearing to determine whether his counsel made a tactical decision to withhold objection during the prosecution's closing argument. Further, Hernandez claims an evidentiary hearing is necessary to evaluate whether defense counsel had a tactical reason for stating "I know [M.] believes her truth" during closing argument.
A state habeas petitioner is entitled to an evidentiary hearing on a claim if he did not receive a full and fair evidentiary hearing in state court and if he alleges facts, that, if proven, would entitle him to relief." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002). However, even if a petitioner presents a colorable claim, there is no per se requirement for an evidentiary hearing. See id. A petitioner is entitled to an evidentiary hearing on an ineffective assistance of counsel claim only if he can demonstrate that, if his allegations were proven at the evidentiary hearing, deficient performance and prejudice would be established. See id.
For the reasons discussed above with regard to Hernandez's ineffective assistance of counsel claim, Hernandez cannot demonstrate that his attorney's failure to object to the prosecution's closing argument or that the challenged remarks made during his counsel's closing argument resulted in prejudice. Therefore, his request for an evidentiary hearing is denied.
IV. Cumulative Effect of Alleged Errors
Finally, Hernandez asserts that the cumulative effect of errors warrant reversal. "Cumulative error applies where although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant." Mancuso v. Oliverez, 292 F.3d 939, 957 (9th Cir. 2002). However, because there was no single constitutional error in this case, there can be no cumulative effect.
CONCLUSION
For the reasons set forth above, Hernandez's petition for writ of habeas corpus is DENIED. This order fully adjudicates the motions listed at Nos. 1 and 22 of the clerk's docket for this case and terminates all other pending motions. The clerk shall close the file.