Jackson v. Carlin

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, United States District Court Chief Judge

         Pending before the Court is a Petition for Writ of Habeas Corpus, filed by Idaho state prisoner Pony Leo Jackson (“Petitioner” or “Jackson”), challenging Petitioner's state court convictions. (Dkt. 1.) The Court previously dismissed Claims 1, 3, 4, 5, 6, 8, 9, 10, 11, and 16 as procedurally defaulted or noncognizable.^[1] (Dkt. 26.) The remaining claims in the Petition are now fully briefed and ripe for adjudication.

         The Court takes judicial notice of the records from Petitioner's state court proceedings, which have been lodged with the Court. See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). Having carefully reviewed the record in this matter, including the state court record, the Court concludes that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order denying habeas corpus relief on the remaining claims in the Petition.

         INTRODUCTION

         In 2008, Petitioner was charged in the Seventh Judicial District Court in Clark County, Idaho, with two counts of lewd conduct with a minor under sixteen years of age. The charges stemmed from conduct that occurred sixteen years earlier when the victim, K.W., was a four-year-old child. The charges came to light because, during an investigation into other charges against Petitioner, a television news report stated that Petitioner “had been charged with possession of child pornography and that law enforcement authorities were requesting contact from anyone who had been victimized by him.” (State's Lodging B-4 at 1-2.) K.W., then an adult, learned of the news report and reported the earlier molestation to police.

         Petitioner was convicted of both counts of lewd conduct and sentenced to twenty years in prison with ten years fixed.

         Petitioner filed the instant Petition in August 2015. The Court previously dismissed Claims 1, 3, 4, 5, 6, 8, 9, 10, and 11(b) as procedurally defaulted and Claims 11(a) and 16 as noncognizable. (Dkt. 26.) The Court reserved its ruling on whether Claim 14 was procedurally defaulted. (Id. at 11-13.) Therefore, Claims 2, 7, 12, 13, 14, and 15 remain for the Court's consideration.

         Claims 12, 13, 14, and 15 assert that the prosecutor committed misconduct. Claim 12 asserts misconduct based on the prosecutor's rebuttal argument that allegedly commented on Petitioner's failure to testify. Claim 13 asserts misconduct based on the prosecutor's eliciting testimony, from K.W.'s mother, that she believed her daughter's allegations against Petitioner. Claim 14 asserts that the prosecutor committed misconduct (a) by referring, in opening statement, to the news report appealing to any victims of molestation by Petitioner and (b) by eliciting testimony from K.W. that she reported the allegations because of that report's request that such victims come forward and notify law enforcement. Claim 15 asserts that, in closing argument, the prosecutor (a) appealed to the passions and prejudices of the jury and (b) impermissibly vouched for K.W.

         Claims 2 and 7 are ineffective assistance claims. Claim 2 asserts that trial counsel rendered ineffective assistance by failing to object to the prosecutor's opening statement, which referenced the news report. Claim 7 asserts that trial counsel was ineffective in failing to object to the victim's testimony regarding that report.

         HABEAS CORPUS STANDARD OF LAW

         Federal habeas corpus relief may be granted on claims adjudicated on the merits in a state court judgment when the federal court determines that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas relief is further limited to instances where the state court's adjudication of the petitioner's 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). In determining whether a petitioner is entitled to habeas relief, a federal court reviews the state court's “last reasoned decision.” Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).

         When a party contests the state court's legal conclusions, including application of the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the “contrary to” test and the “unreasonable application” test.

         Under the first test, a state court's decision is “contrary to” clearly established federal law “if the state court applies a rule different from the governing law set forth in [the Supreme Court's] cases, or if it decides a case differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). Under the second test, to satisfy the “unreasonable application” clause of § 2254(d)(1) the petitioner must show that the state court-although identifying “the correct governing legal rule” from Supreme Court precedent-nonetheless “unreasonably applie[d] it to the facts of the particular state prisoner's case.” Williams (Terry) v. Taylor, 529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis omitted).

         A federal court cannot grant habeas relief simply because it concludes in its independent judgment that the decision is incorrect or wrong; rather, the state court's application of federal law must be objectively unreasonable to warrant relief. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that fair-minded jurists could disagree on the correctness of the state court's decision, then relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has emphasized that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. To be entitled to habeas relief under § 2254(d)(1), “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         AEDPA deference is required even where the state court denied a petitioner's claim without expressly addressing it. In such a case, the federal court must “conduct an independent review of the record to determine what arguments or theories could have supported the state court's decision”; the court must then determine “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a decision of the Supreme Court.” Bemore v. Chappell, 788 F.3d 1151, 1161 (9th Cir. 2015) (internal quotation marks and alterations omitted).

         Though the source of clearly established federal law must come only from the holdings of the United States Supreme Court, circuit precedent may be persuasive authority for determining whether a state court decision is an unreasonable application of Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000). However, circuit law may not be used “to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

         As to the facts, the United States Supreme Court has clarified “that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This means that evidence not presented to the state court may not be introduced on federal habeas review if a claim was adjudicated on the merits in state court and if the underlying factual determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014).

         Two separate statutory subsections govern a federal court's review of state court factual findings. When a petitioner contests the reasonableness of the state court's factual determinations based entirely on the state court record, a federal court must undertake a § 2254(d)(2) analysis. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). There are two general ways to challenge factual findings as unreasonable under § 2254(d)(2). “First, a petitioner may challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record. Second, a petitioner may challenge the fact-finding process itself on the ground that it was deficient in some material way.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (internal citations omitted).

         To be eligible for relief under § 2254(d)(2), the petitioner must show that the state court decision was based upon factual determinations that were “unreasonable . . . in light of the evidence presented in the State court proceeding.” A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.”).

         Under the second subsection dealing with state court factual findings, 28 U.S.C. § 2254(e)(1), such findings are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. In Taylor v. Maddox, the Ninth Circuit held that “the presumption of correctness and the clear-and-convincing standard of proof [as set forth in § (e)(1)] only come into play once the state court's fact-findings survive any intrinsic challenge [under § (d)(2)]; they do not apply to a challenge that is governed by the deference implicit in the ‘unreasonable determination' standard of section 2254(d)(2).” 366 F.3d at 1000.

         However, in Pinholster, the United States Supreme Court held that new evidence introduced in federal court “has no bearing” on a merits review of a state court's legal conclusions; therefore, a petitioner cannot receive a federal evidentiary hearing on the merits of any claims that the state court has addressed unless the factual findings of the state court are unreasonable. 563 U.S. at 185. As the Ninth Circuit has explained, Pinholster “eliminated the relevance of ‘extrinsic' challenges when … reviewing state-court decisions under AEDPA.” Murray v. Schriro, 745 F.3d at 999. Therefore, the relationship between § 2254(d)(2) and § 2254(e)(1) is not entirely clear. However, any differences between § 2254(d)(2) and § 2254(e)(1) are rarely determinative. See Wood, 558 U.S. at 304-05 (“Because the resolution of this case does not turn on them, we leave for another day the questions of how and when § 2254(e)(1) applies in challenges to a state court's factual determinations under § 2254(d)(2).”); Murray, 745 F.3d at 1001 (“[W]e do not believe the difference between our two lines of cases is determinative in this case, and thus we need not resolve the apparent conflict to decide this case.”).

         If a petitioner satisfies § 2254(d)-either by showing that the state court's adjudication of the claim was contrary to, or an unreasonable application of Supreme Court law or by establishing that the state court's factual findings were unreasonable- then the federal habeas court must review the petitioner's claim de novo. Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014). De novo review is also required where the state appellate court did not decide a properly-asserted claim or where an adequate excuse for the procedural default of a claim exists. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc).

         When considering a habeas claim de novo, a district court may, as in the pre-AEDPA era, draw from both United States Supreme Court and well as circuit precedent, limited only by the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989). Even under de novo review, however, if the factual findings of the state court are not unreasonable under § 2254(d)(2), the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to any facts found by the state courts. Pirtle, 313 F.3d at 1167-68. Contrarily, if a state court factual determination is unreasonable, the federal court is not limited by § 2254(e)(1) and may consider evidence outside the state court record, except to the extent that § 2254(e)(2) might apply. Murray, 745 F.3d at 1000.

         Generally, even if a petitioner succeeds in demonstrating a constitutional error in his conviction, he is entitled to federal habeas relief only if the petitioner “can establish that [the error] resulted in ‘actual prejudice.'” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under the Brecht standard, an error is not harmless, and habeas relief must be granted, only if the federal court has “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).

         However, some types of claims “are analyzed under their own harmless error standards, which can render Brecht analysis unnecessary.” Jackson v. Brown, 513 F.3d 1057, 1070 (9th Cir. 2008). Ineffective assistance of counsel claims are included in this category. Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we apply Strickland's prejudice standard and do not engage in a separate analysis applying the Brecht standard.”).

         DISCUSSION

         1. Petitioner's Prosecutorial Misconduct Claims

         A. Clearly-Established Law

         “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). The Due Process Clause guarantees the right to a fair trial, and prosecutors have a “duty to refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). However, such methods will warrant habeas relief only if they “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 180 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A court must consider the record as a whole when making such a determination, because even a prosecutor's inappropriate or erroneous comments or conduct may not be sufficient to undermine the fairness of the proceedings when viewed in context. See United States v. Young, 470 U.S. 1, 16-17 (1985); Darden, 477 U.S. at 182 (applying Young); see also Donnelly, 416 U.S. at 647-48 (distinguishing between “ordinary trial error of a prosecutor” and the type of “egregious misconduct . . . [that] amount[s] to the denial of constitutional due process”).

         A prosecutor “should not use arguments calculated to inflame the passions or prejudices of the jury.” Darden, 477 U.S. at 192 (internal quotation marks omitted). However, a prosecutor's closing argument, “billed in advance to the jury as a matter of opinion not of evidence, ” is “seldom carefully constructed” and may contain “[i]solated passages” that are “less than crystal clear.” Donnelly, 416 U.S. at 646-47. Therefore, a court must not “lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” Id. at 647.

         When reviewing prosecutorial misconduct claims under the “unreasonable application” prong of § 2254(d)(1), the Court must keep in mind that this standard is a “very general one” that affords state courts “leeway in reaching outcomes in case-by-case determinations.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam) (internal quotation marks and alterations omitted).

         B. Claim 12: Rebuttal Argument and Petitioner's Failure to Testify

         Claim 12 asserts that the prosecutor improperly commented on Petitioner's exercise of his Fifth Amendment right to be free from compelled self-incrimination. Every criminal defendant has a right not to testify, and the Fifth Amendment “forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 616 (1965). Not every comment relating to the right not to testify violates the Fifth Amendment, however. The Fifth Amendment is “concerned only with adverse comment, whether by the prosecutor or the trial judge”; neutral comments, such as an instruction by the court that the jury may not infer guilt from a defendant's silence, do not offend the Constitution. Lakeside v. Oregon, 435 U.S. 333, 338 (1978). Further, a prosecutor's comments on a defendant's choice not to testify will not violate the Fifth Amendment if those comments constitute fair argument offered in fair response to a defense argument. United States v. Robinson, 485 U.S. 25, 31-32 (1988).

         For example, in Robinson, the defendant did not testify. During closing argument, defense counsel argued that the government had breached its “duty to be fair” and had not allowed the defendant to explain himself. Id. at 27 n.2. The prosecutor then told the jury, “[Defense counsel] has made comments to the extent the Government has not allowed the defendant[] an opportunity to explain. It is totally unacceptable. . . . He could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.” Id. at 28. The Supreme Court held that the prosecutor's statements, taken in the context in which they were made, did not violate the defendant's ent right to be free from compelled self-incrimination. Id. at 31. The Court determined that the Fifth Amendment does not “prohibit [a] prosecutor from fairly responding to an argument of the defendant by adverting to [the accused's] silence.” Id. at 34; see also Darden, 477 U.S. at 179 (stating that, when a prosecutor's allegedly improper comments occur in a rebuttal closing, those comments “must be evaluated in light of the defense argument that preceded [them].”).

         In this case, Petitioner did not testify in his own defense. However, defense counsel elicited testimony, from Detective Steven Anderson, that Petitioner had previously denied committing the crimes:

Q. And you had an opportunity to question Pony Jackson?

A. I did.

Q. In fact, you did that with another detective, correct?

A. Yes.

Q. And in that interview with Pony Jackson, you asked him, didn't you, whether he did these things to [K.W.]?

A. Yes, sir.

Q. And his response?

A. “No.”

(State's Lodging A-2 at 158-59.)

         During closing argument, defense counsel stated that Petitioner had a constitutional right not to testify: “He's not required to testify. And you cannot take that for anything, a matter of his guilt or of his innocence. He has a constitutional right not to be required to take the stand.” However, referring to the above testimony of Detective Anderson, counsel continued, “But [Petitioner] already did testify to the detective; and again, he denied any of these things ever happened.” (State's Lodging A-2 at 352-53 (emphasis added).) Defense counsel's statement that Petitioner testified to Detective Anderson was incorrect; Petitioner was simply making an unsworn statement in a police interview when he denied the allegations.

         In rebuttal argument, the prosecutor-apparently responding to defense counsel's mischaracterization of Petitioner's statements to Detective Anderson as “testimony”- stated, “Did we hear any testimony that it didn't happen? I don't recall hearing any testimony that it didn't happen. The only testimony I recall was that it happened.” (Id. at 356.) Petitioner argues that these statements constituted improper comments on Petitioner's decision not to testify.

         The Idaho Court of Appeals properly cited Griffin as setting forth the applicable analysis and rejected Petitioner's argument. The court held that, in the context of defense counsel's misstatement that Petitioner “testified” to the detective, the prosecutor's reference to the lack of testimony at trial “can be viewed as fair rebuttal” to that mischaracterization. (State's Lodging B-4 at 9.) The prosecutor did not “explicitly call[] for the jury to infer that Jackson was guilty or to convict him on that basis.” (Id.) Rather, the prosecutor's comment, “given in response to defense counsel's own improper argument, was at most an indirect and ambiguous comment on the absence of trial testimony from Jackson.” (Id.)

         Petitioner asserts that “the only reasonable factual finding” is that “the prosecutor was commenting on Mr. Jackson's failure to testify in his case-in-chief at the criminal trial and deny the conduct alleged.” (Dkt. 31 at 8.) The Court disagrees. Defense counsel, whether intentionally or accidentally, mischaracterized Petitioner's interview statements as “testimony.” This might have been a mistake, or it might have been a deliberate attempt to place the imprimatur of oath-sworn testimony onto Petitioner's out-of-court denial and to connect Petitioner's denial, at least in the minds of the jurors, with the same sort of solemnity as the testimony of a witness at trial. The state court appropriately evaluated the prosecutor's comments “in light of the defense argument that preceded” them. Darden, 477 U.S. at 179. That court's finding that the prosecutor's attempt to correct defense counsel's mischaracterization constituted a “fair[] respon[se]” to the argument of the defense was reasonable, Robinson, 485 U.S. at 34, and its rejection of Claim 12 was a reasonable application of Griffin and its progeny. See 28 U.S.C. § 2254(d).

         C. Claims 13 and 15: Eliciting Testimony of K.W.'s Mother as to K.W.'s Credibility, Vouching for K.W. in Closing Argument, and Appealing to the Passions and Prejudices of the Jury

         i. Claim 13 and 15(b): Eliciting Vouching Testimony by Witness and Personally Vouching for Witness in Closing Argument

         Claim 13 asserts that the prosecutor improperly elicited vouching testimony from K.W.'s mother. Claim 15(b) asserts that the prosecutor's statements regarding the believability of K.W.'s story constituted improper vouching.

         A prosecutor should not vouch for the credibility of a witness or express a personal opinion about the guilt of the accused. Young, 470 U.S. at 18. The Supreme Court has explained that such comments “pose two dangers”: (1) they “can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury”; and (2) they “may induce the jury to trust the Government's judgment ...