(HC) Tremper v. Covello

• Court: District Court, E.D. California
• Decided: May 11, 2022
• Docket: 2:21-cv-01456
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN THOMAS TREMPER, Case No. 2:21-cv-01456-KJM-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT THE PETITION FOR WRIT OF 13 v. HABEAS CORPUS BE DENIED 14 PATRICK COVELLO, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 1 16 17 Petitioner Benjamin Thomas Tremper, a state prisoner proceeding without counsel, seeks 18 a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner advances one claim: that 19 the trial court erred when it instructed the jury on adoptive admissions. Id. For the reasons stated 20 below, I recommend that his claim be denied. 21 Background 22 In the early hours of November 15, 2016, Charles G., who was 88 years old and living 23 alone in a retirement community, noticed that the blinds to his sliding glass door were askew. 24 ECF No. 11-8 at 62-63, 66, 90. He went to investigate and found petitioner inside his apartment. 25 Id. at 80. Petitioner jumped on Charles’ back, bringing him to the ground. Id. Once on the 26 ground, Charles didn’t fight back—instead, he crawled to his bathroom while petitioner rifled 27 through his apartment. Id. at 81. Once he was in the bathroom, Charles managed to pull the 28 emergency cord, and minutes later, a nightshift employee knocked on his door, sending petitioner 1 out the sliding glass door. Id. at 80-84, 89. The nightshift employee called the police, who 2 responded within five minutes. Id. at 89. Charles gave a description of petitioner to the police. 3 Id. at 92. One of the responding officers, Officer Stevenson, followed a path of footprints left in 4 the wet morning grass. Id. at 219-20. A few hundred feet away from Charles’ apartment, 5 Stevenson found petitioner with Charles’ stolen belongings, including a jewelry box belonging to 6 Charles’ late wife, car keys, and wallet. Id. at 162, 173. 7 Charles identified petitioner at a field show-up the same day and a crime scene 8 investigation recovered petitioner’s fingerprints from Charles’ sliding glass door. Id. at 285-87. 9 Shortly after petitioner was arrested and given a Miranda warning, he spoke with Stevenson in a 10 recorded interview and wrote Charles an apology letter. Id. at 25, 231-32. While most of the 11 interview was transcribed, some of petitioner’s statements were deemed “unintelligible” by the 12 transcriber. ECF No. 1 at 22-28. The following colloquy is an example of the transcriber noting 13 petitioner’s comments were “unintelligible” during the interview:

14 [Officer Stevenson:] . . . So what happened, you just push him to the ground to get out or… [sic] 15 [Petitioner:] (Unintelligible) 16 [Officer Stevenson:] Huh? Again, dude, why did you pick his [Charles’] 17 place?

18 [Petitioner:] (Unintelligible)

19 [Officer Stevenson:] You don’t know? You know that its an old folks’ home, right? 20 [Petitioner:] No. 21 [Officer Stevenson:] Huh? 22 [Petitioner:] (Unintelligible) 23 [Officer Stevenson:] You didn’t know that? So why did you pick that 24 place?

25 [Petitioner:] (Unintelligible). It was open. . . . 26 ECF No. 124-25. The interview and letter were later presented to the jury. Id.; ECF No. 11-8 at 27 237. 28 1 Legal Standard 2 A federal court may grant habeas relief when a petitioner shows that his custody violates 3 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 4 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 5 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter, 6 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the 7 last state court that issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers, 8 138 S. Ct. 1188, 1192 (2018); Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (“Because, 9 here, neither the court of appeal nor the California Supreme Court issued a reasoned opinion on 10 the merits of this claim, we look to the trial court’s decision.”); McCormick v. Adams, 621 F.3d 11 970, 975-76 (9th Cir. 2010) (reviewing the decision of the court of appeal, which was last 12 reasoned decision of a state court); Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (“Because 13 the California Supreme Court denied review of Gill’s habeas petition without comment, we look 14 through the unexplained California Supreme Court decision to the last reasoned decision . . . as 15 the basis for the state court’s judgment.”) (internal quotations omitted). 16 Under AEDPA, a petitioner may obtain relief on federal habeas claims that have been 17 “adjudicated on the merits in state court proceedings” only if the state court’s adjudication 18 resulted in a decision (1) “contrary to, or involved an unreasonable application of, clearly 19 established Federal law, as determined by the Supreme Court of the United States” or (2) “based 20 on an unreasonable determination of the facts in light of the evidence presented in the State court 21 proceeding.” 28 U.S.C. § 2254(d). 22 “A decision is ‘contrary to’ Supreme Court precedent ‘if it applies a rule that contradicts 23 the governing law set forth in [the Supreme Court’s] cases or if it confronts a set of facts that are 24 materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a 25 result different from [the Supreme Court’s] precedent.’” Amado v. Gonzalez, 758 F.3d 1119, 26 1136 (9th Cir. 2014) (quoting Early v. Packer, 537 U.S. 3, 8 (2002). 27 A decision involves an “unreasonable application” of federal law if it (i) “correctly 28 identifies the governing rule but unreasonably applies it to a new set of facts” or (ii) “fails to 1 extend a clearly established legal principle to a new context in a way that is unreasonable.” 2 Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). The application must be more than 3 incorrect or erroneous; it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 4 75 (2003). “‘[I]t is not an unreasonable application of clearly established Federal law for a state 5 court to decline to apply a specific legal rule that has not been squarely established” by the 6 Supreme Court.’” Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013). 7 Discussion 8 Petitioner claims that the trial court erred by instructing the jury on adoptive admissions.1 9 ECF No. 1 at 16. During petitioner’s interview with law enforcement, the transcriber inserted 10 “(unintelligible)” for words or phrases that he or she could not understand. See, e.g., ECF No. 1 11 at 22, 24, 25. Petitioner argues that the jury could have considered his “unintelligible” responses 12 to some of Officer Stevenson’s questions as evidence of his guilt. Instead, he claims that his 13 “unintelligible” responses were actually his “reassert[ion] of his fifth amendment right against 14 self-incrimination.” ECF No. 1 at 17. Petitioner raised the same argument on direct appeal to the 15

16 1 The jury instruction for adoptive admission, which was given by the trial court:

17 If you conclude that someone made a statement 18 outside of court that (accused the defendant of the crime/ [or] tended to connect the Defendant with the commission of the crime) 19 and the Defendant did not deny it, you must decide whether each of the following is true: 20 1. The statement was made to the Defendant or made in his presence; 21 2. The Defendant heard and understood the statement; 22 3. The Defendant would, under all the circumstances, naturally have denied the statement if he thought it 23 was not true; and 24 4. The Defendant could have denied it but did not. If you decide that all of these requirements have 25 been met, you may conclude that the Defendant admitted the statement was true. 26 If you decide that any of these requirements has not been met, you must not consider either the statement or the 27 Defendant’s response for any purpose.

28 ECF No. 11-9 at 8. 1 California Court of Appeal, which “easily conclude[d] that any error was harmless” because the 2 evidence against petitioner was overwhelming, the prosecutor never mentioned adoptive 3 admissions during his closing argument, and the trial court instructed the jury to disregard 4 inapplicable jury instructions. ECF No. 11-1 at 5-9. I review the Court of Appeal’s denial, the 5 last reasoned opinion, under the deferential standard of § 2254. 6 Generally, claims of instructional error raise questions of state law and are not cognizable 7 on federal habeas review. “[T]he fact that [an] instruction was allegedly incorrect under state law 8 is not a basis for [federal] habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). A 9 federal court’s review of a claim of instructional error is highly deferential. See Masoner v. 10 Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). A reviewing court may not judge the instruction 11 in isolation but must consider the context of the entire record and of the instructions as a whole. 12 See id. A state prisoner is not entitled to federal habeas relief unless the instructional error 13 resulted in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). If the court is 14 convinced that the error did not influence the jury, or had little effect, the judgment should stand. 15 See O’Neal v. McAninch, 513 U.S. 432, 437 (1995). 16 Petitioner has failed to show how the Court of Appeal’s harmlessness determination meets 17 the requirement of Richter, in that it was contrary to, or involved an unreasonable application of, 18 clearly established Federal law. As pointed out by the Court of Appeal, the evidence of 19 petitioner’s guilt was overwhelming: the victim identified petitioner as the man who broke into 20 his home and stole his property, petitioner was located near the scene with the victim’s stolen 21 property, petitioner’s fingerprints were at the scene of the crime, and petitioner wrote a letter of 22 apology to the victim of the crime. ECF No. 11-1 at 7-9. The Court of Appeal also considered 23 the fact that the prosecution never mentioned the jury instruction during its closing argument. Id. 24 at 9. I conclude that the Court of Appeal’s determination was neither contrary to nor based on an 25 unreasonable application of clearly established federal law. 26 Petitioner relies on Hurd, but that reliance is misplaced. Hurd v. Terhune, 619 F.3d 1080 27 (9th Cir. 2010). In Hurd, the Ninth Circuit determined that the prosecutor’s reliance on the 28 defendant’s silence was not harmless because the prosecutor relied heavily on the defendant’s 1 refusal to answer, and the evidence of guilt was not overwhelming. /d. at 1090-91. Here, in 2 contrast, the opposite is true: the prosecutor never relied on the instruction and the evidence of 3 guilt was overwhelming. 4 I cannot find that the Court of Appeal’s rejection of petitioner’s instructional error claim 5 was “objectively unreasonable.” See Coleman v. Johnson, 566 U.S. 650, 651 (2012). I 6 recommend that petitioner’s claim of instructional error be denied. 7 It is RECOMMENDED that petitioner’s petition, ECF No. 1, be denied. 8 I submit these findings and recommendations to the district judge under 28 U.S.C. 9 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 10 Eastern District of California. The parties may, within 14 days of the service of the findings and 11 recommendations, file written objections to the findings and recommendations with the court. 12 Such objections should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” The district judge will review the findings and recommendations under 28 14 U.S.C. § 636(b)(1)(C). The parties’ failure to file objections within the specified time may result 15 in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 16 7 IT IS SO ORDERED. 18 ( 1 Oy — Dated: _ May 10, 2022 q_-—_— 19 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE

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