Roque Solis v. Raymond Madden

Opinion

ROQUE SOLIS, Case No. CV 20-8474-DMG (ADS)

Petitioner,

v. ORDER ACCEPTING UNITED STATES MAGISTRATE JUDGE’S REPORT AND

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. No. 1), Respondent’s Answer (Dkt. No. 10), Petitioner’s Reply (Dkt. No. 34), the Report and Recommendation of the United States Magistrate Judge (Dkt. No. 36), Petitioner’s Objections (Dkt. No. 40), and all the records and files herein. The Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections were made and overrules the objections. The Court accepts the findings and recommendations of the Magistrate Judge. For the sake of completeness and finality, the Court addresses the arguments Petitioner raises in his Objections, below. 1. The Statements of Petitioner’s Co-Defendants to the Police Informant Were Not Testimonial. Contrary to Petitioner’s arguments in his Objections (Dkt. No. 40 at 3-4), and as stated in the Report and Recommendation (Dkt. No. 36 at 6-8), the statements of Petitioner’s co-defendants to the police informant do not qualify as testimonial

statements such that their admission implicated Petitioner’s rights under the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 825 (2006) (“statements made unwittingly to a Government informant” and “statements from one prisoner to another” are “clearly nontestimonial.”). Courts across the country concur. See also United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (“a declarant’s statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford”) (Sotomayor, J.); United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009) (same); United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) (same); United States v. Udeozor, 515 F.3d 260, 270 (4th Cir. 2008) (same); United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (same); United States v. Hendricks, 395 F.3d 173, 182-84 (3d Cir. 2005) (same).

2. Petitioner Has Not Established that His Co-Defendants’ Statements Were Coerced. Next, the Court is not persuaded by Petitioner’s arguments in the Objections that the informant coerced the statements of Petitioner’s co-defendant Gonzalez (Dkt. No. 40 at 6-8) and, therefore, accepts the analysis in the Report and Recommendation on this issue (Dkt. 36 at 11). /// /// 3. Any Federal Constitutional Question Arising from Petitioner’s Argument Regarding the Admission of Evidence Lacks Merit. Petitioner also objects to the Report and Recommendation rejecting as not cognizable Petitioner’s claim regarding the admission of Gabriel’s statements under the statement against penal interest exception to California’s hearsay rule. (Dkt. No. 40 at

9-11). To the extent Petitioner’s claim regarding the admission of this evidence could raise questions of federal constitutional significance, his claim lacks merit. Any argument that the admission of Gabriel’s statements violated Petitioner’s right to due process does not warrant relief here because there is no violation of clearly established federal law. Although the Supreme Court stated in Williams v. Taylor, 529 U.S. 362, 375 (2000), that habeas relief should be granted when constitutional errors have caused a trial to be fundamentally unfair, the Supreme Court has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant habeas relief. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (noting that the Supreme Court has not yet clearly ruled that the admission of irrelevant or overtly prejudicial evidence constitutes a due process

violation). Absent such “clearly established Federal law,” the state courts’ denial of Petitioner’s claim could not be an unreasonable application of Supreme Court precedent. Wright v. Van Patten, 552 U.S. 120, 126 (2008) (where Supreme Court’s cases give no clear answer to the question presented, state court’s rejection of petitioner’s claim did not constitute an unreasonable application of clearly established Federal law). Petitioner’s claim still would fail even if the Court could consider it under Ninth Circuit precedent, which states that “[o]nly if there are no permissible inferences the jury may draw from the [disputed] evidence can its admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). The California Court of Appeal found on direct appeal that the trial court did not err under state law by admitting Gabriel’s statements. (Dkt. No. 11-23 at 26-32.) This Court must defer to the state court’s interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

(“a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in federal habeas”). Having been properly admitted under state law, the jury could have inferred from Gabriel’s statements that he committed the crime with Petitioner and Gonzalez. 4. Instructional Error The Court also is not persuaded by Petitioner’s arguments in the Objections regarding his instructional error claims. (Dkt. No. 40 at 11-14). To the extent Petitioner argues that he was denied due process by the trial court’s failure to instruct the jury regarding the corroboration of accomplice testimony (Dkt. No. 40 at 12), his claim lacks merit. Although California law requires corroboration of accomplice testimony, such corroboration is not constitutionally mandated. See United

States v. Augenblick, 393 U.S. 348, 352 (1969) (“When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions.”); see also Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000) (P.C. § 1111 “is a state law requirement that a conviction be based on more than uncorroborated accomplice testimony. . . . As a state statutory rule, and to the extent that the uncorroborated testimony is not ‘incredible or insubstantial on its face,’ the rule is not required by the Constitution or federal law.”) (citations omitted); Jones v. Uribe, No. CV 12-944-GW (MRW), 2013 WL 6050381, at *7 (C.D. Cal. Nov. 11, 2013) (“[T]he issue of corroborating an alleged acomplice is a matter of state statutory law that raises no federal question. The failure to give the requested instruction here cannot, on its own, violate the Constitution.”). Indeed, under federal law, “[t]he uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face.” United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.

1993). To the extent Petitioner challenges the Report and Recommendation’s analysis with respect the trial court’s jury instruction regarding adoptive admissions (Dkt. 40 at 12-14), the Court accepts the conclusion in the Report and Recommendation that Petitioner’s argument raises issues of state law only that are not cognizable on federal habeas review (Dkt. No. 36 at 13-14). Moreover, the California Court of Appeal held on direct appeal that the instruction accurately reflected state law and that the instruction was applicable under the facts of this case. (Dkt. No. 11-23 at 38-40). The Court defers to the state court’s application and interpretation of state law. See Bradshaw v. Richey, 546 U.S. at 76. This proper issuance of the jury instruction could not have rendered Petitioner’s trial so fundamentally unfair as to violate due process. Spivey v. Rocha, 194

F.3d 971, 976-77 (9th Cir. 1999) (rejecting due process challenges to state jury instructions where the instructions were correct statements of the law). 5. Cumulative Error Finally, to the extent Petitioner raises arguments that the cumulative impact of the errors alleged warrants federal habeas relief (Dkt. No. 40 at 9-11, 13), his arguments fail. 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. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002), as amended June 11, 2002 (quoting United States v. Frederick, 78 F.3d 1370, 1381 (oth Cir. 1996)) (internal quotation marks omitted). However, where no error lies with each alleged claim taken separately, there also rests no cumulative error. See Mancuso, 292 F.3d at 957 (“Because there is no single constitutional error in this case, there is nothing to accumulate to a level of a constitutional violation.”). As explained herein and in the Report and Recommendation, the Court finds no constitutional error. Accordingly, there are no errors to accumulate. Accordingly, IT IS HEREBY ORDERED: 1. The Court approves and accepts the Report and Recommendation of the United States Magistrate Judge (Dkt. No. 36); 2. The Petition is denied and this case is dismissed with prejudice; and 3. Judgment is to be entered accordingly. DATED: March 27, 2023 ptt, dn, DOLLY M. ¢ YE UNITED S®ATES DISTRICT JUDGE