ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on March 17, 2005
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
People v. Rowe-Manns, No. C072576, 2014 WL 7334314, at *1-2 (Cal. Ct. App. Dec. 23, 2014), review denied (Feb. 25, 2015).
II. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 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.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.
A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This court "must determine what arguments or theories . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
III. Petitioner's Claims
A. Juror Misconduct
Petitioner contends that his convictions should be reversed because, during a recess, several jurors purportedly claimed that the trial was a `colossal waste of time' and another asked `where did he even hit her, anyway?' ECF No. 1 at 8-9.
Rowe-Manns, 2014 WL 7334314, at *2-3. This issue was raised again in a petition for review submitted to and summarily rejected by the California Supreme Court. Lodged Document "Petition for Review"; Lodged Document "Denial of the Petition for Review."
Applicable Legal Standards
The Anti-Terrorism and Effective Death Penalty Act of 1996 prevents federal courts from considering a habeas claim which a state court has denied due to "a procedural barrier to adjudication of the claim on the merits." Walker v. Martin, 562 U.S. 307, 315 (2011). This barrier to federal consideration is effective where "`the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. "The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Id. Regardless of whether it is a substantive rule or procedural barrier, the rule must be well established and consistently applied. Id. at 316. To be considered independent, the rule cannot "rest primarily on federal law, or . . . be interwoven with the federal law." Cooper v. Neven, 641 F.3d 322, 332 (9th Cir. 2011). Even if the rule in question is independent and adequate, a petitioner may still have his claim reviewed if he can show (1) cause for the default and actual prejudice resulting from the purported violation of federal law; or (2) that the failure to consider his claims would result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Juror Misconduct Claims
The Sixth Amendment right to a jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Due process requires that the defendant be tried by "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). Jurors are objectionable if they have formed such deep and strong impressions that they will not listen to testimony with an open mind. Irvin, 81 S. Ct. at 1642 n.3. Not every incident of juror misconduct requires a new trial, however. United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974). "The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." Id. A petitioner is entitled to habeas relief on this ground only if it can be established that constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000).
Respondent argues that federal review of petitioner's juror misconduct claim is barred because the Court of Appeal's conclusion that the claim was forfeited is an independent and adequate determination of state law. ECF No. 11 at 16. This court agrees. As noted above, the Court of Appeal determined that petitioner's juror misconduct claim was forfeited when he failed to seek relief from the trial court. Rowe-Manns, 2014 WL 7334314, at *2-3. The Ninth Circuit has previously held that California's contemporaneous objection rule is independent and adequate. Paulino v. Castro, 371 F.3d 1083, 1093 (9th Cir. 2004); Kelly v. Swarthout, 599 F. App'x 267, 268 (9th Cir. 2015); see also Tong Xiong v. Felker, 681 F.3d 1067, 1075 (9th Cir. 2012) ("Accordingly, because [petitioner] failed to object to the court's post-trial investigation of the juror misconduct at trial, his forfeiture under California law constitutes a procedural default."). Petitioner has failed to rescue this claim from procedural default by showing either cause for the default (and actual prejudice) or that the failure to reach this claim would result in a fundamental miscarriage of justice.
Moreover, his claim would fail on the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar."). While juror discussion of a case before the start of formal deliberations may constitute misconduct, it does not warrant reversal of a conviction unless it is accompanied by some showing of bias. See United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) ("The important thing is not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury."), cert. denied, 419 U.S. 835 (1974). Here, petitioner claims that several jurors vaguely lamented that the trial was a waste of time and another wondered aloud as to where Brandi was struck. ECF No. 1 at 8-9. Neither statement is, on its face, indicative of bias or an inability of these jurors to keep an open mind and decide the case only on the basis of the evidence presented and only after hearing all of the evidence and the trial court's instructions, and petitioner has failed to otherwise demonstrate that these premature discussions had a substantial or injurious effect on the jury's verdict. See Belmontes v. Brown, 414 F.3d 1094, 1124-25 (9th Cir. 2005) (petitioner failed to demonstrate prejudice flowing from juror misconduct because he did not allege facts "other than that premature deliberations took place"), rev'd on other grounds, Ayers v. Belmontes, 549 U.S. 7 (2006).
Based on the foregoing, this claim should be denied.
B. Instructions on Superseding Cause
Next, petitioner contends that the jurors raised questions about causation during their deliberation, but the trial court failed to give the jury sufficient instruction, sua sponte, on the issue of superseding cause. ECF No. 1 at 4. The Court of Appeal rejected these arguments:
Rowe-Manns, 2014 WL 7334314, at *3-5. This claim was presented in a petition for review to the California Supreme Court which was summarily denied. Lodged Document "Petition for Review"; Lodged Document "Denial of the Petition for Review".
Applicable Legal Standards
Jury instructions are generally matters of state law and, as such, federal courts are bound by a state appellate court's determination that a particular instruction was not warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."). As such, "[f]ailure to give [a jury] instruction which might be proper as a matter of state law," by itself, does not merit federal habeas relief." Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005) (quoting Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985)). In order to warrant federal habeas relief, a challenged jury instruction "cannot be merely undesirable, erroneous, or even universally condemned, but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973) (internal quotations omitted). A challenge to a trial court's jury instructions is reviewed under the standards in Brecht, 507 U.S. at 637 — that is, whether the error had a substantial and injurious effect in determining the jury's verdict. See California v. Roy, 519 U.S. 2, 5 (1996).
As a threshold matter, any contention that either the trial court or the Court of Appeal erred in their application of state law is not cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law."); see Estelle, 502 U.S. 62 at 67-68 ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). The only relevant question is whether the trial court's failure to offer superseding cause instructions sua sponte violated petitioner's due process rights.
Next, the court concludes that petitioner's due process rights were not violated for several reasons. First, a petitioner may not transform a state law claim into a federal one merely by asserting a vague and conclusory due process violation associated therewith. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) ("[Petitioner] may not, however, transform a state-law issue into a federal one merely by asserting a violation of due process."). Second, there is no clearly established federal law requiring a trial court to offer a specific instruction sua sponte.
C. Ineffective Assistance of Counsel
Petitioner's third claim is that his trial counsel was ineffective in failing to request an evidentiary hearing on juror misconduct and an instruction on superseding cause. ECF No. 1 at 5. The Court of Appeal rejected both ineffective assistance claims. With respect to counsel's failure to request an evidentiary hearing:
Rowe-Manns, 2014 WL 7334314, at *3. And, with respect to counsel's failure to request a superseding cause instruction:
Id. at 5. Both of these claims were included in a petition for review submitted to the California Supreme Court which was summarily denied. Lodged Document "Petition for Review"; Lodged Document "Denial of the Petition for Review".
Applicable Legal Standards
The clearly established federal law governing ineffective assistance of counsel claims is that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Richter, 562 at 104 (quoting Strickland, 466 U.S. at 687).
Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S. Ct. at 792.
"The standards created by Strickland and § 2254(d) are both "highly deferential," and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). Thus, in federal habeas proceedings involving "claims of ineffective assistance of counsel, . . . AEDPA review must be "`"doubly deferential"`" in order to afford "both the state court and the defense attorney the benefit of the doubt." Woods v. Donald, U.S. ___, ____, 135 S.Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015) (quoting Burt v. Titlow, 571 U.S. ___, ____, 134 S.Ct. 10, 13, 187 L. Ed. 2d 348 (2013)). As the Ninth Circuit has recently acknowledged, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Bemore v. Chappell, 788 F.3d 1151, 1162 (9th Cir. 2015) (quoting Richter, 562 U.S. at 105). See also Griffin v. Harrington, 727 F.3d 940, 945 (9th Cir. 2013) ("The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.") (quoting Richter, 562 U.S. at 101).
First, as noted supra, petitioner has failed to show that the juror's pre-deliberation discussions of his case were indicative of bias. Absent any indication of bias against him, this court cannot conclude that trial counsel's failure to move for an evidentiary hearing on the misconduct prejudiced his defense under Strickland. Moreover, the Court of Appeal reasonably determined that trial counsel's decision not to pursue this issue could have been tactical. It noted that some of the jurors' comments were potentially indicative of skepticism toward the prosecution's case and trial counsel could have elected to "let sleeping dogs lie" in the hopes that this skepticism would benefit petitioner. Rowe-Manns, 2014 WL 7334314, at *3. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and "judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. In light of this highly deferential standard — which, as noted above, must be extended to both trial counsel and the state court's decision — petitioner is not entitled to relief on this claim.
Second, petitioner is not entitled to relief based on trial counsel's failure to request a superseding causation instruction. As previously stated, the jury's instructions already obliged them to acquit petitioner of battery with serious bodily injury if they concluded that the cause of Brandi's serious injuries was the teenage girl's attack. Accordingly, trial counsel's failure to request a superseding cause instruction did not prejudice the defense under Strickland. Moreover, the Court of Appeal — whose conclusions of state law should not be second-guessed by this court — determined that a superseding cause instruction was not legally applicable to the facts underlying petitioner's case. Rowe-Manns, 2014 WL 7334314, at *3-5. As such, trial counsel's failure to request such an instruction was not deficient performance. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (failure to raise a meritless argument does not constitute ineffective assistance).
D. Judicial Misconduct
The final claim is that the sentencing judge — Judge David W. Abbott — failed to perform his "ministerial" duties by declining to readdress petitioner's sentence. ECF No. 1 at 5. Petitioner notes that, at sentencing, Judge Abbott indicated that he would consider a petition to modify the sentence if petitioner demonstrated good behavior while in custody. Lodged Document ("Reporter's Transcripts, Vol. 3") at 666. Petitioner asserts that he has demonstrated good conduct but has not been granted any relief. ECF No. 1 at 5. This claim, as respondent notes, was not presented to the state's highest court and is unexhausted. Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) ("A petitioner has not satisfied the exhaustion requirement unless he has fairly presented his claim to the highest state court."). It is also plainly without merit, however, and the court will dispose of it on that basis. Bell v. Cone, 543 U.S. 447, 451 n.3 (2005) (an application for habeas corpus may be denied on the merits even if unexhausted in state court).
The court interprets this claim as arising under a theory of judicial misconduct insofar as it does not attack the legality of the original sentence. This claim fails because it does not allege any violation of federal law or the United States constitution. Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) ("A habeas petition must allege the petitioner's detention violates the Constitution, a federal statute, or a treaty."). Petitioner's claim does not even rest on any particular state law. Rather, he appears to argue that Judge Abbott's obligation to reevaluate his sentence arises out of some fundamental notion of fairness, i.e. that he make good on his word. This argument, while perhaps understandable from petitioner's perspective, simply does not give rise to any cognizable federal habeas claim. Moreover, petitioner has already received a response from the superior court indicating that its ability to modify his sentence is limited and that any such modifications must instead be addressed by the Board of Prison Terms or the Board of Parole Hearings. ECF No. 1 at 12.
E. Motion for Default Judgment
Lastly, on January 3, 2017, petitioner filed a motion for default judgment (ECF No. 19) arguing that respondent had failed to respond to his traverse. Id. at 1-2. There is, however, no requirement that respondent do so. See Rules Governing § 2254 Cases In The United States District Courts, Rule 5. His motion is therefore denied.
Accordingly, it is ORDERED that petitioner's motion for default judgment (ECF No. 19) is denied. Further, it is RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).