california attorney general response to phil spector's writ of habeas corpus

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KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General LAWRENCE M. DANIELS Supervising Deputy Attorney General State Bar No. 183901

300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2288 Fax: (213) 897-6496 E-mail: [email protected]

Attorneys for Respondent

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

PHILLIP SPECTOR,

Petitioner,

v.

RALPH M. DIAZ, Warden,

Respondent.

Case No. CV 12-5288-SJO (PLA)

ANSWER AND RETURN TO PETITION FOR WRIT OF HABEAS CORPUS; MEMORANDUM OF POINTS AND AUTHORITIES

Hon. Paul L. Abrams U.S. Magistrate Judge

Case 2:12-cv-05288-SJO-PLA Document 13 Filed 10/12/12 of 60 Page ID #:201

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TABLE OF CONTENTS

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Memorandum of Points and Authorities ................................................................... 1 Procedural History ..................................................................................................... 1 Statement of Facts ...................................................................................................... 2 Petitioner’s Grounds for Relief .................................................................................. 3 Standards of Review .................................................................................................. 3

A. Relitigation of the claims in Grounds One, Two, and Four of the Petition is barred by 28 U.S.C. § 2254(d), since they previously have been rejected on the merits by a state court ...................................... 3

B. Review of Ground Three of the Petition is de novo ................................. 6 Argument ................................................................................................................... 7

I. The California Court of Appeal reasonably rejected Petitioner’s claims in Grounds One and Two that the trial court improperly admitted part of a videotaped hearing of the first trial.............................. 7 A. Factual background ........................................................................... 7 B. The state court reasonably decided that there was no

confrontation clause violation ........................................................... 9 C. The state court reasonably decided that there was no due

process violation based on judicial bias .......................................... 13 D. Any error in admitting the trial court’s statements and gestures

on the videotape was harmless ........................................................ 16 II. Petitioner’s prosecutorial misconduct claim in Ground Three based

on the videotaped depiction of the trial judge is procedurally defaulted, unexhausted, and meritless ..................................................... 21 A. Procedural default ........................................................................... 21 B. Exhaustion ....................................................................................... 24 C. There was no prosecutorial misconduct ......................................... 25

1. Prosecution’s argument .......................................................... 25 2. Display of photos .................................................................... 29

D. Any error was harmless .................................................................. 31 III. The California Court of Appeal reasonably rejected Petitioner’s

prosecutorial misconduct claim in Ground Four regarding alleged attacks on defense counsel’s integrity and Petitioner’s wealth ............... 32 A. Comments regarding payment to experts ....................................... 34 B. Comments allegedly attacking defense counsel’s integrity ............ 37 C. No Supreme Court authority supports relief ................................... 41 D. There was no prejudice ................................................................... 43


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TABLE OF CONTENTS (continued)

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IV. The Petition is unverified by Petitioner .................................................. 45

Conclusion ............................................................................................................... 46


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TABLE OF AUTHORITIES

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CASES

Anderson v. United States, 417 U.S. 211, 94 S. Ct. 2253, 41 L. Ed. 2d 20 (1974) ....................................... 11

Beard v. Kindler, 130 S. Ct. 612, 175 L. Ed. 2d 417 (2009) .................................................... 13, 21

Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003) .............................................................................. 24

Berghuis v. Thompkins, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) ........................................................ 3

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) ................................................................................ 22

Bragg v. Galaza, 242 F.3d 1082 (9th Cir. 2001) .................................................................. 7, 29, 30

Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) ............... 16, 31, 43, 44

Brown v. Lynbaugh, 843 F.2d 849 (5th Cir. 1988) .............................................................................. 14

Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983) ...................................................................... 41, 42

Camper v. Workers’ Comp. Appeals Bd., 3 Cal. 4th 679, 12 Cal. Rptr. 2d 101 (1992) ..................................................... 3, 6

Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) ................................. 4, 16

Casey v. Moore, 386 F.3d 896 (9th Cir. 2004) .............................................................................. 24

Casey v. Virga, No. CV 10-4672-AG (JPR), 2011 WL 7121624 (C.D. Cal. Nov. 28, 2011) ..... 43


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TABLE OF AUTHORITIES (continued)

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Castille v. Peoples, 489 U.S. 346, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989) ........................... 24, 25

Ceja v. Stewart, 97 F.3d 1246 (9th Cir. 1996) .............................................................................. 28

City of Oakland v. Public Employees’ Retirement System, 95 Cal. App. 4th 29, 115 Cal. Rptr. 3d 151 (Cal. Ct. App. 2002) ...................... 13

Clark v. Brown, 450 F.3d 898 (9th Cir. 2006) .............................................................................. 16

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) ..................... 21, 22, 25

Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009) ................................... 6

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ............................. 10, 13

Cullen v. Pinholster, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) ........................................ 4, 12, 13, 15

Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) ....................... 28, 32, 33

Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) ................................. 10

Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004) .............................................................................. 27

Deutscher v. Angelone, 16 F.3d 981 (9th Cir. 1994) .......................................................................... 45, 46

Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) ..................................... 28

Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995) ................................................................................ 27


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Felkner v. Jackson, 131 S. Ct. 1305, 179 L. Ed. 2d 374 (2011) .......................................................... 5

Fields v. Woodford, 309 F.3d 1095 (9th Cir. 2002) ............................................................................ 31

Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008) ................................................................................ 4

Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007) ................................... 16

Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) ....................... 4, 5, 6, 33

Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) ................................. 22

Hein v. Sullivan, 601 F.3d 897 (9th Cir. 2010) ........................................................................ 41, 44

Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) .............................................................................. 45

Hittle v. Santa Barbara County Employees Retirement Assn., 39 Cal. 3d 374, 216 Cal. Rptr. 733 (1985) ......................................................... 23

Howard v. Clark, 608 F.3d 563 (9th Cir. 2010) ................................................................................ 4

Hurles v. Ryan, 650 F.3d 1301 (9th Cir. 2011) ...................................................................... 14, 15

In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 2d 942 (1955) ....................................... 14

Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir. 1993) ................................................................................ 28

Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) ................................. 17


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Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) .......................................... 6

Jones v. Superior Court, 26 Cal. App. 4th 92, 31 Cal. Rptr. 2d 264 (1994) .............................................. 23

Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009) ................................... 4

Larson v. Palmateer, 515 F.3d 1057 (9th Cir. 2008) ............................................................................ 16

Martinez-Serrano v. I.N.S., 94 F.3d 1256 (9th Cir. 1996) .............................................................................. 23

Martinez-Villareal v. Lewis, 80 F.3d 1301 (9th Cir. 1996) .............................................................................. 24

McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991) ................................. 24

Merolillo v. Yates, 663 F.3d 444 (9th Cir. 2011) ........................................................................ 31, 43

Moore v. Shaw, 116 Cal. App. 4th 182, 10 Cal. Rptr. 3d 154 (2004) .......................................... 22

Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) ................................... 23

Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007) ................................... 4

Parker v. Matthews, ___ U.S. ___ 132 S. Ct. 2148, 183 L. Ed. 2d 32 (2012) ........................ 32, 33, 41

Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004) ................................................................ 13, 22, 23

People v. Cleveland, 32 Cal. 4th 704, 11 Cal. Rptr. 3d 236 (2004) ..................................................... 22


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People v. Cookson, 54 Cal. 3d 1091, 2 Cal. Rptr. 2d 176 (1991) ...................................................... 24

People v. Freeman, 8 Cal. 4th 450, 34 Cal. Rptr. 2d 558 (1994) ....................................................... 22

People v. Gionis, 9 Cal. 4th 1196, 40 Cal. Rptr. 2d 456 (1995) ..................................................... 22

People v. Medina, 11 Cal. 4th 694, 47 Cal. Rptr. 2d 165 (1995) ..................................................... 22

People v. Saunders, 5 Cal. 4th 580, 20 Cal Rptr. 2d 638 (1993) ........................................................ 22

People v. Scott, 14 Cal. 4th 544, 59 Cal. Rptr. 2d 178 (1996) ..................................................... 24

People v. Spector, 194 Cal. App. 4th 1335, 128 Cal. Rptr. 3d 31 (2011) .......................................... 1

People v. Yarbrough, 269 Cal. App. 4th 303, 86 Cal. Rptr. 3d 674 (Cal. Ct. App. 2008) .................... 33

Pliler v. Ford, 542 U.S. 225, 124 S. Ct. 2441, 159 L. Ed. 2d 338 (2004) ................................. 25

Poland v. Stewart, 169 F.3d 573 (9th Cir. 1998) .............................................................................. 21

Premo v. Moore, 131 S. Ct. 733 (2011) ........................................................................................... 4

Quercia v. United States, 289 U.S. 466, 53 S. Ct. 698, 77 L. Ed. 1321 (1933) .......................................... 14

Renico v. Lett, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010) ...................................................... 4, 5

Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005) ................................. 25


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Rice v. Collins, 546 U.S. 333, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) ..................................... 5

Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) ................................... 17

Runningeagle v. Ryan, 686 F.3d 758 (9th Cir. 2012) ........................................................................ 12, 13

Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990) ............................................................................ 25

Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000) .............................................................................. 31

Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007) ............................... 2, 6

Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008) .............................................................................. 28

Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990) ........................................................................ 41, 42

Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) ................................. 25

Smith v. Campbell, No. C-06-2972-EMC, 2012 WL 1657169 (N.D. Cal. May 10, 2012) ............... 43

Smith v. Curry, 580 F.3d 1071 (9th Cir. 2009) ............................................................................ 15

T.P. v. T.W., 191 Cal. App. 4th 1428, 120 Cal. Rptr. 3d 477 (Cal. Ct. App. 2011) .......... 13, 22

Tamalini v. Stewart, 249 F.3d 895 (9th Cir. 2001) .............................................................................. 25

Tan v. Runnels, 413 F.3d 1101 (9th Cir. 2005) ............................................................................ 28


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Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) ................................................................................ 5

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) ................................... 1

Thompson v. Borg, 74 F.3d 1571 (9th Cir. 1996) .............................................................................. 28

Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 2d 749 (1927) ....................................... 17

United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996) .............................................................................. 28

United States v. Friedman, 909 F.2d 705 (2d Cir. 1990) ......................................................................... 41, 42

United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) .......................................................................... 41, 42

United States v. Lopez-Martinez, 543 F.3d 509 (9th Cir. 2008) .............................................................................. 12

United States v. McChristian, 47 F.3d 1499 (9th Cir. 1995) .............................................................................. 28

United States v. Mostella, 802 F.3d 358 (9th Cir. 1986) .............................................................................. 29

United States v. Reyes, No. C 06-00556-1-CRB, 2007 WL 2462147 (N.D. Cal. Aug. 29, 2007) .......... 43

United States v. Smith, 962 F.2d 923 (9th Cir. 1992) .............................................................................. 29

United States v. Wright, 625 F.3d 583 (9th Cir. 2010) ........................................................................ 41, 44

United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) ..................................... 42, 43


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Vansickel v. White, 166 F.3d 953 (9th Cir. 1999) .............................................................................. 22

Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) ....................................... 22

Weeks v. Angelone, 528 U.S. 225, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000) ............................. 17, 31

Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) ................................... 6

Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) ....................................... 14

Wright v. Van Patten, 552 U.S. 120, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008) ............................... 4, 15

CONSTITUTIONAL PROVISIONS

U.S. Const., 6th Amend. ................................................................................ 9, 10, 11

COURT RULES

C.D. Cal. R. 83-16.2 ................................................................................................ 45

Cal. R. Ct. 8.204 ............................................................................................................. 13, 23 8.500 ................................................................................................................... 24

Fed. R. App. P. 28 .................................................................................................... 23

Rules Governing Section 2254 Cases in the United States District Court, Rule 2 ................................................................... 45


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STATUTES

28 U.S.C. § 2241 ................................................................................................................... 6 § 2242 ................................................................................................................. 45 § 2244 ................................................................................................................. 25 § 2254 .......................................................................................................... passim § 2255 ................................................................................................................. 45

Cal. Penal Code § 187 ..................................................................................................................... 1 § 12022.5 .............................................................................................................. 1 § 12022.53 ............................................................................................................ 1

OTHER AUTHORITIES

Antiterrorism and Effective Death Penalty Act of 1996 ......................................... 33

CALCRIM 520 ...................................................................................................................... 18 3550 .............................................................................................................. 17, 31


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1

Respondent, Ralph M. Diaz, Acting Warden of California Substance Abuse

Treatment Facility and State Prison at Corcoran, California, hereby files this

Answer and Return to the Petition for Writ of Habeas Corpus, and admits, alleges,

and denies the following:

1. Petitioner is properly in the custody of the California Department of

Corrections and Rehabilitation under the authority of a valid judgment and felony

conviction in Los Angeles County Superior Court case number BA255233, under

which Petitioner is serving a state prison term of fifteen years to life for second

degree murder, plus four years for an accompanying firearm enhancement.

2. Grounds One, Two, and Four alleged herein should be denied and

dismissed with prejudice because the California Court of Appeal’s denial of relief

on these claims was neither contrary to, nor an unreasonable application of, clearly

established Supreme Court precedent; nor was the denial of relief based upon an

unreasonable determination of the facts presented in the state court proceedings.

See 28 U.S.C. § 2254(d).

3. Ground Three does not entitle Petitioner to relief under the federal

Constitution.

4. The Petition appears to be timely.

5. Ground Three of the Petition is procedurally defaulted.

6. Ground Three of the Petition is unexhausted.

7. It does not appear that any grounds are barred by the nonretroactivity

doctrine set forth in Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed.

2d 334 (1989).

8. No evidentiary hearing is necessary to resolve the claims alleged in the

Petition because a proper application of 28 U.S.C. § 2254(d) requires that the

claims be denied on the basis of the record before the state court. Moreover, no

evidentiary hearing should be held because, to the extent that Petitioner’s claims are

not fully factually developed, he failed to exercise “due diligence” within the


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meaning of 28 U.S.C. § 2254(e), and cannot otherwise meet the stringent

requirements of 28 U.S.C. § 2254(e)(2). Further, no evidentiary hearing is called

for to the extent Petitioner’s claims are resolvable by reference to the state-court

record. See Schriro v. Landrigan, 550 U.S. 465, 474-75, 127 S. Ct. 1933, 167 L.

Ed. 2d 836 (2007).

9. Respondent denies each and every allegation of the Petition and

specifically denies that Petitioner’s custody is in any way improper, that the

judgment underlying Petitioner’s custody is in any way improper, and that his

federal constitutional rights are being violated in any way.

10. This Answer is based on the attached Memorandum of Points and

Authorities, this Court’s file, and the records and files in this case, including the

clerk’s transcript and reporter’s transcript prepared in connection with Petitioner’s

direct appeal, copies of which are being lodged concurrently herewith, and on such

other matters as are properly submitted to the Court.

WHEREFORE, Respondent respectfully asks this Court to deny the Petition

with prejudice. Dated: October 11, 2012

Respectfully submitted,

KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General /s/ Lawrence M. Daniels LAWRENCE M. DANIELS Supervising Deputy Attorney General Attorneys for Respondent


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1

MEMORANDUM OF POINTS AND AUTHORITIES

PROCEDURAL HISTORY

On September 20, 2004, in case number BA255233, the Los Angeles County

District Attorney filed a grand jury indictment charging Petitioner with murder, in

violation of California Penal Code section 187(a). (6CT at 1104.)1 The indictment

further alleged that Petitioner personally used a firearm within the meaning of

California Penal Code sections 12022.5(a)(1) and 12022.53(b). (6CT at 1105.)

Petitioner pleaded not guilty. (6CT at 1113.)

Trial was by jury. (15CT at 3529, 3589.) During deliberation, the jurors

became hopelessly deadlocked, after which the trial court declared a mistrial.

(22CT at 5416-17, 5452, 5513-14.) The district attorney announced that he would

retry the case. (22CT at 5515.)

After a retrial, a second jury found Petitioner guilty of second degree murder

with personal use of a firearm. (23CT at 5828, 5842; 25RT 6457-59.) On May 29,

2009, the trial court sentenced Petitioner to state prison for a term of fifteen years to

life for the murder plus the middle term of four years for the firearm enhancement.

(25CT at 6516-20.)

Petitioner appealed his conviction to the California Court of Appeal. (25CT at

6521.) On May 2, 2011, the court of appeal affirmed Petitioner’s conviction in a

published opinion. (LD 10; People v. Spector, 194 Cal. App. 4th 1335, 128 Cal.

Rptr. 3d 31 (2011).) On May 5, 2011, the court modified the opinion with no

change in judgment. (LD 11.) Again, on May 26, 2011, the court modified the

opinion with no change in judgment, and denied Petitioner’s petition for rehearing.

(LD 12, 13.) On August 17, 2011, the California Supreme Court denied

1 The Clerk’s and Reporter’s Transcripts are referred to as “CT” and “RT”

respectively. Other lodged documents are referred to as “LD” followed by a number that corresponds to the documents listed on the Notice of Lodging filed concurrently herewith.


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Petitioner’s petition for review. (LD 14, 15.) On February 21, 2012, the United

States Supreme Court denied Petitioner’s petition for writ of certiorari. (LD 16,

17.)

On June 18, 2012, Petitioner filed the instant Petition for Writ of Habeas

Corpus.

STATEMENT OF FACTS

A complete, detailed statement of the facts underlying Petitioner’s convictions

may be found in the respondent’s brief filed in California Court of Appeal case

number B216425. (LD 7.) To summarize, at trial, the prosecution introduced

evidence that at about 1:45 a.m. on February 3, 2003, Petitioner, record producer

Phil Spector, was driven to the House of Blues after drinking alcohol at three other

establishments that evening. At the House of Blues, Petitioner was introduced to

Lana Clarkson, an actress and model employed there as a VIP hostess. After

closing time, Clarkson initially refused Petitioner’s entreaties to go for drinks at his

Alhambra mansion, but she eventually relented. At about 5:00 a.m., inside his

“Castle,” Petitioner shot Clarkson in the mouth with his Colt Cobra. To prove this,

the prosecution offered evidence of Petitioner’s confession to his driver, “I think I

killed somebody,” evidence of Petitioner’s cover-up afterward, forensic evidence

that only he could have fired the fatal shot, and evidence that, under similar

circumstances, Petitioner previously committed seven assaults with a firearm on

five other women. (See LD 7 at 3-37.)

Petitioner’s primary defense at trial was that Clarkson accidentally shot herself

or committed suicide because she was distressed about her financial situation and

lack of professional success. To support this theory, Petitioner introduced expert

forensic testimony and evidence from her e-mails and personal and professional

contacts. (See LD 7 at 37-52.) In rebuttal, the prosecution introduced other

evidence showing that Clarkson was happy, busy, and productive before she died.

(See LD 7 at 52-54.)


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PETITIONER’S GROUNDS FOR RELIEF

1. Petitioner’s federal constitutional right to an impartial judge was

violated by the introduction into evidence of the trial judge’s testimonial

statements. (Pet. at 5; Petitioner’s Memorandum of Points and Authorities

(“Memo.”) at 27-44.)

2. Petitioner’s federal constitutional right to confrontation was violated

by the introduction into evidence of the trial judge’s testimonial statements. (Pet. at

5; Memo. at 45-53.)

3. The prosecution committed misconduct in closing argument by stating

that the trial judge was a witness against Petitioner. (Pet. at 6; Memo. at 53-56.)

4. The prosecution committed misconduct in closing argument by

attacking the integrity of defense counsel and arguing that Petitioner used his

wealth to purchase false testimony. (Pet. at 6; Memo. at 57-67.)

STANDARDS OF REVIEW

A. Relitigation Of The Claims In Grounds One, Two, And Four Of The Petition Is Barred By 28 U.S.C. § 2254(d), Since They Previously Have Been Rejected On The Merits By A State Court

Petitioner’s claims in Grounds One, Two, and Four were all rejected by the

California Court of Appeal in a reasoned direct-appeal opinion. (LD 10 at 27-36,

72-80.) Under 28 U.S.C. § 2254(d), relitigation of the merits of those claims in

federal court is unavailable unless the state-court decisions were grossly

unreasonable. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259, 176 L. Ed. 2d

1098 (2010) (where intermediate state appellate court denies claim on merits and

state supreme court then denies discretionary review, “relevant state-court decision”

for purposes of § 2254(d) is that of intermediate state appellate court); see also

Camper v. Workers’ Comp. Appeals Bd., 3 Cal. 4th 679, 689 n.8, 12 Cal. Rptr. 2d

101 (1992) (California Supreme Court’s denial of discretionary review is not

decision on the merits).

/ / /


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Section 2254(d) is a “threshold restriction,” Renico v. Lett, 130 S. Ct. 1855,

1862 n.1, 176 L. Ed. 2d 678 (2010), on federal habeas corpus relief which “bars

relitigation of any claim ‘adjudicated on the merits’ in state court” subject to two

narrow exceptions. Richter, 131 S. Ct. at 784. These narrow exceptions require a

petitioner to show that the state court’s previous adjudication of the claim either

(1) 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) was “‘based on an unreasonable determination of the facts in light of

the evidence presented at the State Court proceeding.’” Id. at 783-84 (quoting 28

U.S.C. § 2254(d)). Only if a petitioner can survive this threshold review as to

claims previously rejected on their merits by a state court is a federal court

permitted to reach the merits of a petitioner’s claims, reviewing them “de novo.”

See Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 168 L. Ed. 2d 662

(2007) (“When a state court’s adjudication of a claim is dependent on an antecedent

unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is

satisfied. A federal court must then resolve the claim without the deference

AEDPA otherwise requires.”); see also Howard v. Clark, 608 F.3d 563, 569 (9th

Cir. 2010); Frantz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008).

The inquiry under 28 U.S.C. § 2254(d)(1) is sharply circumscribed. First,

“clearly established federal law” is limited to Supreme Court authority that

“squarely addresses” the claim at issue and provides a “clear answer.” Wright v.

Van Patten, 552 U.S. 120, 125-26, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008); see

also Premo v. Moore, 131 S. Ct. 733, 743 (2011); Knowles v. Mirzayance, 556 U.S.

111, 121-22, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009); Carey v. Musladin, 549

U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). Second, newly proffered

evidence is irrelevant; rather, review of the state court decision is strictly “limited to

the record that was before the state court that adjudicated the claim on the merits.”

Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). And third,


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in light of the record before the state court and the clearly established Supreme

Court precedent, the state court decision must have been “objectively

unreasonable,” and not merely incorrect in the view of the federal court. Richter,

131 S. Ct. at 785; Lett, 130 S. Ct. at 1862; see also Felkner v. Jackson, 131 S. Ct.

1305, 1307, 179 L. Ed. 2d 374 (2011) (per curiam). “[E]ven a strong case for relief

does not mean the state court’s contrary conclusion was unreasonable.” Richter,

131 S. Ct. at 786.

The inquiry under § 2254(d)(2) is likewise sharply circumscribed, as it calls

for federal courts to be “particularly deferential” to the state courts. Taylor v.

Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). The Ninth Circuit has said that an

unreasonable factual determination under § 2254(d)(2) may be shown where the

state court failed to make a finding necessary to support its decision, where it relied

on an incorrect standard in making a necessary factual finding, or where the

factfinding process supporting the decision was itself defective. Id. at 1000-01.

Again, it is insufficient that the state court’s factual determination was merely

erroneous; to satisfy § 2254(d)(2) it instead must be shown that “any appellate

court” would have been unreasonable in approving the finding of fact. Id. at 1000;

see also Rice v. Collins, 546 U.S. 333, 338-39, 126 S. Ct. 969, 163 L. Ed. 2d 824

(2006). “This is a daunting standard—one that will be satisfied in relatively few

cases.” Taylor, 366 F.3d at 1000.

If this standard is difficult to meet, that is because it was meant to be.

As amended by AEDPA, § 2254(d) stops short of imposing a complete

bar on federal court relitigation of claims already rejected in state

proceedings. It preserves authority to issue the writ in cases where there

is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [the Supreme Court’s] precedents. It goes no

farther. Section 2254(d) reflects the view that habeas corpus is a guard

against extreme malfunctions in the state criminal justice systems, not a


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substitute for ordinary error correction through appeal. As a condition

for obtaining habeas corpus from a federal court, 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.

Richter, 131 S. Ct. at 786 (quotation marks and citations omitted).

B. Review Of Ground Three Of The Petition Is De Novo

The California Court of Appeal denied Ground Three of the Petition only on

procedural grounds―that Petitioner had failed to adequately present it as an

independent issue and make the complained-of photographs part of the appellate

record. Therefore, the court of appeal did not reach the merits of the claim. (LD

13.) The California Supreme Court’s denial of discretionary review also was not a

decision on the merits. Camper, 3 Cal. 4th at 689 n.8.

When a state court “did not reach the merits” of a federal claim, “federal

habeas review is . . . de novo.” Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769,

173 L. Ed. 2d 701 (2009). Under de novo review, Petitioner bears the burden of

establishing that he is “in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. §§ 2241(c)(3), 2254(a); Johnson v. Zerbst, 304

U.S. 458, 468-69, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

If the petitioner’s claims are resolvable by reference to the state-court record, a

federal habeas court may adjudicate the claims on the basis of that existing record.

Schriro v. Landrigan, 550 U.S. 465, 474-75, 127 S. Ct. 1933, 167 L. Ed. 2d 836

(2007). Factual development of a state prisoner’s federal habeas claim is prohibited

unless the petitioner exercised diligence in attempting to develop its factual basis in

state court first. 28 U.S.C. § 2254(e)(2); see Williams v. Taylor, 529 U.S. 420, 437,

120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) (“Diligence will require in the usual case

that the prisoner, at a minimum, seek an evidentiary hearing in state court in the


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manner prescribed by state law”). And a claim that cannot be resolved without

factual development must be denied if factual development is precluded under

§ 2254(e)(2). See Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001).

Petitioner cannot meet his burden of establishing entitlement to federal habeas

corpus relief in Ground Three.

ARGUMENT

I. THE CALIFORNIA COURT OF APPEAL REASONABLY REJECTED PETITIONER’S CLAIMS IN GROUNDS ONE AND TWO THAT THE TRIAL COURT IMPROPERLY ADMITTED PART OF A VIDEOTAPED HEARING OF THE FIRST TRIAL

Petitioner contends that he is entitled to habeas relief because the trial judge

improperly allowed into evidence a depiction of himself on a videotape of a hearing

from the first trial. He argues that doing so violated his federal constitutional rights

to confrontation (Ground Two; Pet. at 5; Petitioner’s Memorandum of Points and

Authorities (“Memo.”) at 45-53) and to an impartial judge (Ground One; Pet. at 5;

Memo. at 27-44). As shown below, however, the state court of appeal reasonably

rejected Petitioner’s claims in Grounds One and Two because the trial court’s

statements and conduct were admitted to clarify the record and were not

testimonial.

A. Factual Background

One important piece of physical evidence showing that Clarkson could not

have shot herself was the testimony of criminalist Jaime Lintemoot that she saw

blood spatter on the outside of the back of Clarkson’s wrists, in a circular area

between the joint and middle of the wrist. The location of this spatter rendered it

impossible for Clarkson to have been holding and pointing the gun during the

discharge. It also supported the conclusion that the bruises on her wrists resulted

from attempting to defend herself from Petitioner’s hand forcing the gun into her

mouth. (LD 10 at 11, 14, 21-24, 27-31; 17RT at 3264, 3266-67; 18RT at 3382-83;

21RT at 4030-37; 25RT at 4976-78, 5060-63.)


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Because of the significance of this evidence, Petitioner attempted to show that

Lintemoot actually saw the blood spatter in a different area, namely on a more

lateral portion of her hand near her thumb. To this end, during recross examination

of Lintemoot, defense counsel asked, “And in both cases, with respect to both

hands, the spots that you saw were on what you would now describe as the forward

portion of my right hand, the forward portion of my left hand?” Lintemoot

contradicted defense counsel, testifying, “Not the finger region.” Upon further

questioning, however, Lintemoot agreed when defense counsel stated that the blood

spots were located “above the webbing of the thumb opposite the palm . . . .”

(18RT at 3329-30.)

The prosecution later recalled Lintemoot to clarify where she saw the blood on

the back of Clarkson’s hands. Lintemoot demonstrated the shape and location of

the blood on the back side of Clarkson’s hands: in a circle with a two-to three-inch

radius from the joint toward the middle of the wrist. Lintemoot testified that the

blood spatter was not where defense counsel had pointed to during his cross-

examination of her––the area around the web between the thumb and the index

finger. Again cross-examining Lintemoot, defense counsel asked her whether she

had earlier agreed with his description that the blood spatter was on the “web, back

of hand, opposite of palm.” Lintemoot agreed that she had done so. (18RT at

3382-85.)

Petitioner next attacked the reliability of Lintemoot’s description of the

location of the blood spatter on Clarkson’s wrists by eliciting testimony from Dr.

Lakshmanan, the coroner in this case.2 (28RT at 5583; 32RT at 6234.) Dr.

Lakshmanan testified that in a meeting with members of the district attorney’s

office on February 26, 2004, he discussed potential errors by members of his staff

2 With his consent, the parties at trial referred to the coroner, Dr. Lakshmanan Sathyavagiswaran, as Dr. Lakshmanan out of convenience. On appeal, the parties and the court of appeal continued this practice. (LD 10 at 24 n.6.)


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regarding the collection of evidence, including Lintemoot’s failure to pinpoint the

exact location of the collection of blood on three swabs from Clarkson’s wrists and

Dr. Pena’s failure to describe the blood spatter on Clarkson’s hands in his report.

(28RT at 5597-5602; 32RT at 6290, 6294-95; 33RT at 6322, 6329.)

In response, during cross-examination of Dr. Lakshmanan, the prosecution

introduced a videotape of Lintemoot’s testimony during a hearing from the first

trial about where she saw the blood spatter and collected the blood on Clarkson’s

wrists. (32RT at 6309-11; 24CT at 6300-01; LD 3.) On this videotape, Lintemoot

testified in response to the prosecution’s questioning that the mist-like blood spatter

was in a two- or three-inch radius on the outside of each of Clarkson’s wrists.

(LD 3 [Peo. Exh. 243]; 24CT at 6300-01.) With her right wrist facing away from

the camera, Lintemoot demonstrated the location of the blood spatter, pointing with

her left hand apparently to the middle of the back (dorsal area) of the right wrist.

(LD 3.) The trial court on the videotape also questioned Lintemoot about the

location of the blood and indicated on his left wrist the area that Lintemoot had

demonstrated on her right wrist. Answering the prosecution’s and trial court’s

questioning, Lintemoot clarified that she meant the “exterior” or “outside” of the

wrist area. Again with her right wrist facing away from the camera, Lintemoot

appeared to circle with her left fingers an area on the back of her right wrist from

the middle toward the pinky side. (24CT at 6300-01; LD 3.) The prosecution later

replayed this videotape during its cross-examination of the defense forensic

pathologist Dr. Werner Spitz. (34RT at 6620-22, 6624-26; LD 3.)

B. The State Court Reasonably Decided That There Was No Confrontation Clause Violation

On direct appeal, the California Court of Appeal rejected Petitioner’s claim

that the admission of the videotape violated his Sixth Amendment right to

confrontation. The state court found that “‘the trial court’s questions, clarifications,

and gestures on the videotape . . . were admissible for the non-hearsay purpose of


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giving context and meaning to Lintemoot’s responses.’” Further, the court

reasoned, “it was Lintemoot who ‘had the final word and final demonstration on

this issue, as the trial court directed. Its questions merely facilitated the gathering

of information from this witness and were not the evidence itself.’” The court

concluded that “[b]ecause the trial court’s words and actions on the videotape were

not admitted for their truth, they did not constitute hearsay, they were not

‘testimonial,’ and they did not violate Crawford [v. Washington, 541 U.S. 36, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004)].” (LD 10 at 35.)

The right to confrontation under the Sixth Amendment to the United States

Constitution is inapplicable to the introduction of out-of-court statements for

nonhearsay purposes. Crawford v. Washington, 541 U.S. at 59 n.9. Further, “it is

in the final analysis the declarant’s statements, not the interrogator’s questions, that

the Confrontation Clause requires us to evaluate.” Davis v. Washington, 547 U.S.

813, 822 n.1, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

Additionally, a hearsay statement does not violate the confrontation clause

unless it is “testimonial.” Crawford v. Washington, 541 U.S. at 51-52. In

Crawford, the United States Supreme Court articulated a minimum threshold for

those statements that may be deemed testimonial in nature, including prior

testimony and statements elicited during police interrogations. Id. The Court

defined testimony as “a solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Id. at 51 (internal quotation marks omitted).

Subsequently, in Davis v. Washington, the high court fleshed out the meaning of

“testimonial,” noting that the domestic abuse victim’s statements in an emergency

911 call were not testimonial in that she “was speaking about events as they were

actually happening, rather than describ[ing] past events . . . .” Davis, 547 U.S. at

827 (internal quotation marks omitted). The Court further explained that this

declarant “simply was not acting as a witness; she was not testifying. What she said

was not a weaker substitute for live testimony at trial . . . .” Id. at 828 (internal


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quotation marks omitted).

Here, the trial court’s questions and clarifying gestures on the videotape did

not violate Petitioner’s confrontation rights because they served the nonhearsay

purpose of giving meaning and context to Lintemoot’s prior testimony. Also, the

trial court’s statements and gestures did not violate the right to confrontation

because they were interrogatory in nature.

In addition to these bases that the confrontation clause was not implicated, the

trial court’s statements and gestures were also not “testimonial.” The trial court

was not a witness under oath. While at the videotaped hearing, the trial court was

describing what was actually happening, not past events. Critically, the trial court

was not clarifying where Lintemoot really saw the blood spatter on Clarkson––the

ultimate fact sought to be proved at the videotaped hearing––it was seeking to

pinpoint where Lintemoot testified she saw it. The court’s actions in this regard

were similar in function to a court reporter’s recording of the events at trial. The

trial court’s conduct at issue not being testimonial, the state court of appeal

reasonably determined that there was no Sixth Amendment violation.3 In any

event, there is no clearly established Supreme Court law prohibiting the admission

of a videotaped hearing that includes the trial court’s clarification of the witness’s

testimony for the record. See Anderson v. United States, 417 U.S. 211, 220 n.11,

94 S. Ct. 2253, 41 L. Ed. 2d 20 (1974) (“Nor is there any right-of-confrontation

problem here, since petitioners did not suggest below that the transcript read at the

3 Petitioner’s complaint that the trial court’s failure “to give a cautionary

instruction that ‘nothing the court did or said was intended to be evidence in the case’” demonstrated that he was a witness (Memo. at 49-50) only begs the question presented. Because the trial judge’s statements did not render him a witness, this instruction was unnecessary. In any event, the same substance was effectively conveyed by the trial court’s admonition: “Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.” (25CT at 6452.)


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§ 241 trial did not accurately reflect the testimony actually given at the election

contest hearing.”).

Petitioner contends that the California Court of Appeal’s “context” reasoning

is faulty because it could apply to any witness’s statement. (Memo. at 47-49.) But

his argument presupposes that the trial judge itself acted as a witness in

questioning. It did no such thing; instead, it acted within its permissible role of

interrogation and clarification at trial. See United States v. Lopez-Martinez, 543

F.3d 509, 513 (9th Cir. 2008) (“it is already well established that the judge may

question the witness directly”). It was the court’s questioning that put Lintemoot’s

testimony in context, unlike in cases where the testimonial statements of declarants

themselves were deemed to violate the right to confrontation. And again, the

admission of the court’s clarifying gestures and statements on the videotape did not

speak to where Lintemoot saw the blood on Clarkson’s wrists―the litigated

issue―but to where Lintemoot was testifying that she saw the blood on Clarkson’s

wrists.

Petitioner nonetheless argues that the trial judge was testifying as a witness

because “the prosecution exhibited three still photos of Judge Fidler along with

photos of the prosecution’s other witnesses in making its final argument that the

judge provided crucial evidence against petitioner . . . .” (Memo at 49-53.) But as

the California Court of Appeal found in declining to address that claim on the

merits, Petitioner never “made [these photos] part of the appellate record” in state

court. (LD 13 at 2.) And,“[a]s the Supreme Court has recently held, review of such

claims ‘is limited to the record that was before the state court that adjudicated the

claim on the merits.’” Runningeagle v. Ryan, 686 F.3d 758, 773 (9th Cir. 2012)

(quoting Pinholster, 131 S. Ct. at 1398). Thus, because the alleged photos were not

part of the state-court record, this Court may not consider them in its review of

Petitioner’s confrontation claim. Pinholster, 131 S. Ct. at 1411 n.20. Further, the

fact that the state court found Petitioner’s argument about the photos to be


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procedurally barred does not change this result. Runningeagle, 686 F.3d at 773-74

(“Even if the Arizona courts had not denied this claim on the merits, but had found

the claim procedurally defaulted under state law, Runningeagle would not be

entitled to a hearing, because the state court’s decision would not be reviewable in

federal court.”).4

C. The State Court Reasonably Decided That There Was No Due Process Violation Based On Judicial Bias

The California Court of Appeal on direct appeal also rejected Petitioner’s

claim that “allowing the prosecution to show the videotape violated the ‘impartial

tribunal’ principle of due process, which directs that a trial court may not serve as

both witness and judge in the same case.” The court of appeal explained that the

trial court never acted as a witness: “Judge Fidler did nothing more than seek to

clarify Lintemoot’s testimony. Even then, as the videotape makes clear, Judge

Fidler ended up turning the whole matter back to Lintemoot by saying, ‘Why don’t

you show us. That would be best.’ The trial court never became a witness against

Spector.” The court of appeal determined that as a result, Petitioner’s reliance on

4 If, hypothetically, Pinholster did not require rejection of Petitioner’s

Crawford “photo” argument under 28 U.S.C. § 2254(d), the state court’s finding that Petitioner forfeited that claim from failing to adequately present it on appeal in his merits briefing (LD 13) would likely foreclose this Court’s consideration on the merits. See Beard v. Kindler, 130 S. Ct. 612, 614, 175 L. Ed. 2d 417 (2009) (a federal court may not review a claim if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support it); T.P. v. T.W., 191 Cal. App. 4th 1428, 1440 n.12, 120 Cal. Rptr. 3d 477 (Cal. Ct. App. 2011) (state court would not hear claim that “is not stated under a separate heading, is not sufficiently developed, and is unsupported by citation of authority”); City of Oakland v. Public Employees’ Retirement System, 95 Cal. App. 4th 29, 51-52, 115 Cal. Rptr. 3d 151 (Cal. Ct. App. 2002) (“The failure to head an argument results in a waiver.”); Cal. Rules of Ct. 8.204(a)(1)(B) (briefs must “[s]tate each point under a separate heading”); Arg. II.A., infra; cf. Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (recognizing procedural bar based on failure to object at trial).


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precedents for the “‘impartial tribunal’ principle of due process” was “inapposite

because they involved situations in which a judge actually played both roles.”

(LD 10 at 35-36.)

“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of

course requires an absence of actual bias in the trial of cases. But our system of law

has always endeavored to prevent even the probability of unfairness.” In re

Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 2d 942 (1955). As a

consequence, “no man can be a judge in his own case and no man is permitted to

try cases where he has an interest in the outcome.” Id. “To safeguard the right to a

fair trial, the Constitution requires judicial recusal in cases where ‘the probability of

actual bias on the part of the judge or decisionmaker is too high to be

constitutionally tolerable.’” Hurles v. Ryan, 650 F.3d 1301, 1309 (9th Cir. 2011)

(quoting Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712

(1975)).

The state appellate court here reasonably determined that Petitioner’s right to

an impartial judge was not violated. As explained in the previous argument, the

trial court’s questions and gestures merely put Lintemoot’s testimony into context,

were not themselves testimony, and did not convert the trial judge into a witness for

the prosecution. As such, the cases that Petitioner cites regarding the

impermissibility of a trial court making factual recollections about disputed past

events are inapplicable. See In re Murchison, 349 U.S. at 138-39 (the presiding

trial judge testified at the contempt trial about the defendant’s past “insolence” at

issue); Brown v. Lynbaugh, 843 F.2d 849, 849-51 (5th Cir. 1988) (the presiding

trial judge testified about facts he witnessed relating to the escape charge).

The other cases Petitioner relies on are also inapposite. Quercia v. United

States, 289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321 (1933), involved a trial

court telling the jury that the defendant was lying in his testimony. The trial judge

did no such thing here; he expressed no opinion about whether Lintemoot was


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telling the truth when she testified on the videotape about the location of the blood

spatter on Clarkson’s wrists. Rather, much like a court reporter does, the judge at

the videotaped hearing was simply recording where the witness Lintemoot was

testifying that she saw the spatter. There was therefore no improper commentary

on the evidence. Contrast Hurles, 650 F.3d at 1314 (the trial judge showed

“unconstitutional potential for bias” based on: “(1) her unnecessary and improper

participation in the special action to defend her own ruling against the defendant;

(2) her troubling comments about the simplicity of his case and the overwhelming

evidence of guilt that she made before a single witness had testified; and (3) her

comments questioning the competence of Hurles’s attorney” (footnotes omitted));

Smith v. Curry, 580 F.3d 1071, 1080 (9th Cir. 2009) (the trial judge’s one-sided

summary of the evidence to the holdout juror constituted jury coercion).5

In any event, Petitioner’s claim must fail because there is no clearly

established Supreme Court constitutional law prohibiting as judicial bias the

admission of a videotape of a prior hearing at which the trial judge described for the

record the witness’s physical gestures. (See Memo. at 40 (where Petitioner

acknowledges, “It is doubtful whether a situation quite like this has ever arisen”).)

Despite Petitioner’s protestations that the Supreme Court principles regarding

judicial bias were nevertheless unreasonably applied in this case, that general law is

too readily distinguished to afford habeas relief. See, e.g., Van Patten, 552 U.S. at

125-26 (“Our precedents do not clearly hold that counsel’s participation by speaker

phone should be treated as a ‘complete denial of counsel,’ on par with total

absence. . . . Because our cases give no clear answer to the question presented, let

alone one in Van Patten's favor, ‘it cannot be said that the state court

5 As in Petitioner’s confrontation claim, his argument relying on the

prosecution’s alleged display of a photograph of the trial judge during summation fails under Pinholster because that evidence was not part of the record on appeal and was never presented to the state court. (See Arg. I.B. supra.)


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“unreasonabl[y] appli[ed] clearly established Federal law.”’”); Musladin, 549 U.S.

at 76 (finding no clearly established Supreme Court law allowed relief where, “[i]n

contrast to state-sponsored courtroom practices, the effect on a defendant's fair-trial

rights of the spectator conduct to which Musladin objects is an open question in our

jurisprudence. This Court has never addressed a claim that such private-actor

courtroom conduct was so inherently prejudicial that it deprived a defendant of a

fair trial.”). Petitioner’s judicial bias claim should be rejected.

D. Any Error In Admitting The Trial Court’s Statements And Gestures On The Videotape Was Harmless

To the extent that the California Court of Appeal unreasonably determined

that the trial court did not commit constitutional error with regard to the admission

of a videotaped hearing from the first trial, the alleged error did not have a

substantial and injurious effect or influence in determining the jury’s verdict. See

Fry v. Pliler, 551 U.S. 112, 121-22, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007) (even

if state court does not have occasion to apply the test for assessing prejudice

applicable under federal law, the Brecht standard applies uniformly in all federal

habeas corpus cases under § 2254); Brecht v. Abrahamson, 507 U.S. 619, 637-38,

113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); see also Larson v. Palmateer, 515 F.3d

1057, 1064 (9th Cir. 2008) (review for harmless error under Brecht is “more

forgiving” to state court errors than the harmless error standard the Supreme Court

applies on its direct review of state court convictions); Clark v. Brown, 450 F.3d

898, 916 (9th Cir. 2006) (reviewing under Brecht whether there was “a reasonable

probability” that the jury would have reached a different result but for the alleged

error).6

6 Petitioner argues that the alleged errors should be considered structural and

not subject to a prejudice analysis, analogizing them to that of a biased judge. (Pet. at 63-64.) Petitioner’s claims are evidentiary in nature, however, and do not implicate the trial judge’s actual impartiality. As a result, the authority he relies on

(continued…)


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For several reasons, there was no prejudice from the admission of the trial

court’s statements and gestures on the Lintemoot videotape. First of all, the

videotape shows, from a different perspective, Lintemoot pointing to the same spot

on her wrist as the trial judge specified on his wrist, both before and, especially

clearly after, his statements and gestures. Although the back of Lintemoot’s right

wrist is turned away from the camera, it can be unmistakably discerned from the

direction in which her left fingers are pointing that she was indicating the middle to

exterior (ulnar, pinky side) on the back of her right wrist. (LD 3 [Peo. Exh. 243].)

The jury therefore would have come to the same conclusion about the location of

the spatter even without the trial court’s questioning and gesturing.7

Furthermore, the trial court instructed the jury, “Do not take anything I said or

did during the trial as an indication of what I think about the facts, the witnesses, or

what your verdict should be.” (48 RT at 9689; 25CT at 6452; see CALCRIM

3550.) The jury is presumed to have followed this instruction and not to have taken

the trial court’s questions and gestures on the videotape as its opinion on

Lintemoot’s credibility. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, (…continued) for his proposition is inapplicable. See Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (“We have found structural errors only in a very limited class of cases”); Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) (citing, as an example of structural error, Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 2d 749 (1927), which reversed a conviction because the judge had a financial interest from receiving a portion of the fine collected).

7 Even apart from the videotape, Lintemoot’s testimony in the second trial, after she refreshed her recollection with her first-trial testimony, definitively established that the blood spatter was in a circular area with a two- to three-inch radius starting from the joint of the wrist. (18RT at 3383, 3391.) Lintemoot further clarified that the blood spatter was not where defense counsel had pointed during his examination of her––the area around the web between the thumb and the index finger. (18RT at 3383-84.) In her investigation notes, Lintemoot had also specified the location as being on Clarkson’s outer wrists. (18RT at 3391-92.)


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145 L. Ed. 2d 727 (2000) (“A jury is presumed to follow its instructions.”).

In addition, as to the confrontation claim, cross-examination of the trial court

would not have undermined what the trial court observed Lintemoot indicate during

the first trial. In denying Petitioner’s motion to strike, the trial court explained why

it made the gestures on the videotape:

Because I had the best view in the courtroom. I’m going to interrupt you.

I had the best view in the courtroom. I’m looking down on the witness.

Everybody else -- she didn’t show it where the jury can see the top. The

lawyers can’t even see it. The only person who could see it is me, and I

describe what I’m watching.

(40RT at 7883; see also 46RT at 9142 (in denying Petitioner’s objection to the

admission of the videotape as an exhibit, the trial court notes, “I had the best view

of Miss Lintemoot, so it was appropriate for me to do it.”).) Given the trial court’s

close and unobstructed view, impeachment would have been unsuccessful.

Moreover, the other evidence was compelling that Petitioner committed

second-degree murder. Under the doctrine of implied malice, Petitioner

intentionally committed an act––pointing a loaded firearm in Clarkson’s mouth––

knowing that this act was dangerous to, and consciously disregarding, her life. (See

CALCRIM 520.)

Petitioner confessed to the crime. Holding the gun that killed Clarkson,

Petitioner “very clearly” said to Adriano De Souza right after the shot, “I think I

killed somebody.” (14RT at 2532-33, 2606, 2626, 2664-65, 2682, 2694; 15RT at

2720, 2768, 2777-78; 24CT at 6112, 6122, 6138-39, 6267, 6272, 6287.) His

callous “shrug” after De Souza asked him what happened further evidenced his

conscious disregard for human life. (14RT at 2536, 2539, 2596; 24CT at 6126,

6266.)

Petitioner’s other conduct also showed his consciousness of guilt after the

killing. He wiped most of the blood off the gun. (25RT at 5019-21, 5027.) He


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moved Clarkson’s head. (25RT at 4899-4902.) He washed off some of her blood

with a cloth. (25RT at 4903-04, 4906, 4911-12, 4932.) He wiped off the cloth with

water in the bathroom. (17RT at 3118-21; 18RT at 3345-46.) He took off his

blood-spattered jacket and discarded it on the floor. (17RT at 3126-32; 18RT at

3346-50; 19RT at 2723-24.) He left the gun under Clarkson’s leg. (15RT at 2814-

16, 2850; 16RT at 2919-20, 2952-53, 2963, 3081, 3085; 17RT at 3091, 3258; 21RT

at 3992.) During the forty minutes between the time that Officer Cardella arrived at

the crime scene and the time that Petitioner was handcuffed, Petitioner never

requested aid of any kind. (15RT at 2816.) He refused to follow the officers’

commands. (15RT at 2795-98, 2805-06, 2809-12, 2814, 2816, 2845-46, 2848-49,

2875-78, 2883; 16RT at 2906-09, 2911-18, 2939-41, 2946, 2951-52, 2948, 2967-

68.)

The forensic medical examiner also determined that this was a homicide.

Among the numerous factors supporting this conclusion besides the evidence

mentioned above were that Clarkson was shot in a stranger’s home with his gun

while alone with him; Clarkson had no signs of depression, psychiatric history,

mental illness, or prior suicide attempts; the drawer containing Petitioner’s gun was

the only one opened; Petitioner put his bloody gun or hand in his pocket after the

shooting; bloodstain analysis showed Petitioner’s jacket was within one and a half

to three feet of Clarkson when the gun was discharged; and the shot occurred while

Clarkson’s purse was wrapped around her shoulder as though ready to leave. And,

significantly, Clarkson had a bruise on her tongue that was not caused by the

gunshot, but rather was the result of a blunt-force trauma consistent with Petitioner

forcefully striking her tongue with the barrel of the gun. Along the same lines,

Clarkson was bruised on her forearms consistent with having been grabbed by

Petitioner. (16RT 2958-59, 3085-86; 17RT at 3089, 3099; 21RT 3931-32, 4014-15,

4029-38; 25RT at 4894-95, 4930, 5031-32, 5062-63; 32RT at 6284-85, 6287-88;

33RT at 6361-68, 6371-75, 6377-79, 6381-83.)


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Petitioner’s prior similar assaults with a firearm on five other women for

sexual purposes also demonstrated that the shooting was a homicide rather than a

suicide, accident, or mistake. Petitioner, while intoxicated, was alone with each

woman inside his residence or a hotel room. The woman then tried to leave, after

which he become enraged, lost control, pulled a gun on her, threatened her, and did

not let her leave. (See LD 7 at 3-14.) The similarity of what happened to

Clarkson––Petitioner took her back to his Castle and was very drunk, after which

Clarkson, near the exit with her jacket on and her purse wrapped around her

shoulder, apparently attempted to leave––led to the inescapable inference, based on

all the evidence, that Petitioner reacted similarly––by pointing the gun at her head,

threatening her, and not letting her leave. The difference is that, this time,

Petitioner shot his victim.

And the defense evidence, while copious, was very weak. The defense experts

did not dispute that Petitioner was situated two or three feet from Clarkson’s mouth

when she was shot and that the shooting was consistent with a homicide. Further,

despite attempts to trump up glimpses of Clarkson’s temporary sadness or

depression through the years, Petitioner could not supply any proof that she was

suicidal; to the contrary, the evidence showed her to be an ambitious, thriving

professional actress with talent, job opportunities, and plans, and with a close

relationship with her mother and many friends. (22RT 4344-45; 23RT 4546-48;

37RT at 7178-79, 7183, 7188, 7195-97, 7199, 7208-09, 7212-14, 7216, 7272-74;

38RT 7306-10, 7317-19, 7324-25, 7337, 7482-83; 46RT 8999, 9003-07; see LD 7

at 44-54.)

Due to the inconsequentiality of the trial court’s gestures and statements on the

videotape, and, moreover, the strength of the other evidence against Petitioner, the

allegedly erroneous admission of the evidence at issue did not have a substantial or

injurious effect or influence in determining the jury’s verdict.

/ / /


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II. PETITIONER’S PROSECUTORIAL MISCONDUCT CLAIM IN GROUND THREE BASED ON THE VIDEOTAPED DEPICTION OF THE TRIAL JUDGE IS PROCEDURALLY DEFAULTED, UNEXHAUSTED, AND MERITLESS

In Ground Three, Petitioner contends that the prosecution committed

misconduct in violation of due process by arguing to the jury that the trial judge

was a witness against Petitioner and by placing before the jury photographs of the

judge with the prosecution’s other witnesses during closing argument. (Pet. at 6;

Memo. at 53-56.) But Petitioner’s claim is foreclosed by the state’s procedural

rejection of his claim on the bases that he never timely raised these claims on

appeal and never made these photographs part of the appellate record. Moreover,

under de novo review, Petitioner is not entitled to relief on the merits of his claim

because the prosecution’s argument did not amount to any assertion that the trial

judge acted as a witness or that the jury should tie the judge’s authority to the

reliability of the witness’s testimony. In any event, Petitioner does not come close

to showing the actual prejudice that would be required for habeas relief.

A. Procedural Default

A federal court may not review a claim if the decision of the state court rests

on a state law ground that is independent of the federal question and adequate to

support it. Beard v. Kindler, 130 S. Ct. 612, 614, 175 L. Ed. 2d 417 (2009) (citing

Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 115 L. Ed. 2d 640

(1991)). In other words, in all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is defaulted unless the prisoner

can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. at

750; Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1998).

/ / /

/ / /


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A habeas petitioner who has failed to meet the state’s procedural requirements

for presenting federal claims has deprived the state courts of an opportunity to

address those claims in the first instance, just as a petitioner who has failed to

exhaust state remedies. Coleman v. Thompson, 501 U.S. at 732; see also Harris v.

Reed, 489 U.S. 255, 265-66, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989) (state court

must, however, clearly and expressly invoke the default by providing a “plain

statement” of default).

A classic example of such a procedural default barring federal consideration of

an issue is failure to adequately object at trial. See Wainwright v. Sykes, 433 U.S.

72, 86-87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Paulino v. Castro, 371 F.3d

1083, 1092-93 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957 (9th Cir.

1999); Bonin v. Calderon, 59 F.3d 815, 842-43 (9th Cir. 1995). The failure to

object is a state procedural ground that is both independent and adequate, and is

also consistently applied by California courts. People v. Cleveland, 32 Cal. 4th

704, 736, 11 Cal. Rptr. 3d 236 (2004); People v. Medina, 11 Cal. 4th 694, 743-44,

47 Cal. Rptr. 2d 165 (1995); People v. Saunders, 5 Cal. 4th 580, 590, 20 Cal Rptr.

2d 638 (1993).

Similarly, California also has a longstanding rule that the failure to adequately

raise an issue in an opening brief forfeits the issue on appeal. People v. Gionis, 9

Cal. 4th 1196, 1214 n.11, 40 Cal. Rptr. 2d 456 (1995) (matters are not properly

raised if “perfunctorily asserted without argument or authorities in support”);

People v. Freeman, 8 Cal. 4th 450, 487-88 n.3, 34 Cal. Rptr. 2d 558 (1994) (issue

raised for the first time in a belated letter is forfeited because it could have been

raised in the original brief); T.P. v. T.W., 191 Cal.App.4th 1428, 1440 n.12, 120

Cal. Rptr. 3d 477 (2011) (refusing to hear claim where “it is not stated under a

separate heading, is not sufficiently developed, and is unsupported by citation of

authority”); Moore v. Shaw, 116 Cal. App. 4th 182, 200 n.10, 10 Cal. Rptr. 3d 154

(2004) (“Ordinarily, an Petitioner’s failure to raise an issue in its opening brief


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waives the issue on appeal.”); Jones v. Superior Court, 26 Cal. App. 4th 92, 99, 31

Cal. Rptr. 2d 264 (1994) (“Issues do not have a life of their own: if they are not

raised . . . we consider the issues waived.”); Cal. Rules of Ct. 8.204(a)(1)(B) (briefs

must “[s]tate each point under a separate heading . . . and support each point by

argument and, if possible, by citation of authority”).

Here, the California Court of Appeal did not address the merits of Petitioner’s

prosecutorial misconduct claim because he “did not properly raise this as an

independent issue in his opening brief” and only “briefly referred” to it in his

statement of facts and harmless error argument relating to his videotape claim. The

state court found that this “cursory treatment in [Petitioner’s] opening brief does not

constitute an adequate presentation of the issue.” It noted, too, that the alleged

photographs “have apparently not been made part of the appellate record.”

(LD 13.)8 Under these circumstances, the claim is procedurally defaulted. See

Paulino v. Castro, 371 F.3d at 1092-93; cf. Martinez-Serrano v. I.N.S., 94 F.3d

1256, 1259-60 (9th Cir. 1996) (an issue referred to in the statement of the case but

not the body of the brief, or an issue raised for the first time in the reply brief, is

waived); Fed. R. App. P. 28(a)(6).

As Petitioner has failed to show cause and prejudice with respect to this

procedural default, that is, he has not shown the existence of “some objective factor

external to the defense” that impeded the defense’s efforts to comply with the

State’s procedural rules requiring adequate presentation of a claim on appeal, the

claim should be rejected. See generally Murray v. Carrier, 477 U.S. 478, 488, 106

8 Petitioner did not raise any prosecutorial misconduct claim based upon the

prosecutor’s closing argument about the trial judge, or photographic display of the trial judge, until his petition for rehearing of the court of appeal’s decision. (LD 12.) That was too late. See Hittle v. Santa Barbara County Employees Retirement Assn., 39 Cal. 3d 374, 397, 216 Cal. Rptr. 733 (1985) (noting the settled rule “since 1915” that a claim raised for the first time on rehearing will not normally be considered).


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S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Martinez-Villareal v. Lewis, 80 F.3d 1301,

1305 (9th Cir. 1996); see also McCleskey v. Zant, 499 U.S. 467, 498, 111 S. Ct.

1454, 113 L. Ed. 2d 517 (1991) (cause is external impediment such as government

interference or reasonable unavailability of claim’s factual basis); Bennett v.

Mueller, 322 F.3d 573, 586 (9th Cir. 2003).

B. Exhaustion

The United States Supreme Court has held that submitting a new claim to the

state’s highest court in a procedural context in which its merits will not be

considered absent special circumstances does not constitute fair presentation for

exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 103

L. Ed. 2d 380 (1989); see also Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir.

2004). Pursuant to California Rule of Court 8.500(c)(1), the California Supreme

Court as a matter of policy will not normally consider any issue on petition for

review that could have been but was not timely raised in the briefs filed in the

California Court of Appeal. See People v. Scott, 14 Cal. 4th 544, 553, 59 Cal. Rptr.

2d 178 (1996) (refusing to address issues not presented to court of appeal); People

v. Cookson, 54 Cal. 3d 1091, 1100, 2 Cal. Rptr. 2d 176 (1991) (same).

Here, as noted, Petitioner could have timely and independently asserted in the

California Court of Appeal that the prosecution committed misconduct by arguing

to the jury that the trial judge was a witness against him in violation of his due

process rights, but he did not. Indeed, even when Petitioner presented this claim in

his petition for rehearing to the California Court of Appeal, and in his petition for

review to the California Supreme Court, he did not supplement the record to

include the photos, which he considers to have been the “factual core” of the issue.

(Memo. at 50; see LD 12, 13, 14.) Under these circumstances, it must be presumed

that the California Supreme Court refused to decide Petitioner’s claim pursuant to

the policy reflected in rule 8.500 of the California Rules of Court. In other words,

Petitioner submitted a new claim to the state’s highest court in a procedural context


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in which its merits would not be considered. Therefore, even if this Court does not

find Petitioner’s claim in Ground Three to be procedurally defaulted, then pursuant

to Castille v. Peoples, it should find it unexhausted.9 Petitioner’s remedy would be

to file a petition for writ of habeas corpus in the California Supreme Court.10

Because the United States Supreme Court denied his petition for writ of certiorari

on direct appeal on February 21, 2012 (LD 17), it appears that he would have until

February 21, 2013, plus any additional time from tolling from the pendency of a

properly filed state habeas petition, to file another timely federal habeas petition.

See 28 U.S.C. § 2244(d).

C. There Was No Prosecutorial Misconduct

1. Prosecution’s argument

In summation to the jury, the prosecution argued that Petitioner’s attack on the

reliability of criminalist Jaime Lintemoot’s testimony was baseless. In support, the

9 In such a circumstance, the Petition should be dismissed or the unexhausted claim should be stricken. Pliler v. Ford, 542 U.S. 225, 230, 124 S. Ct. 2441, 159 L. Ed. 2d 338 (2004); but see Rhines v. Weber, 544 U.S. 269, 275-78, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005).

10 In the event Petitioner seeks further relief from the California Supreme Court on his claim, he might be foreclosed from obtaining a ruling on the merits―particularly in light of his procedural default on direct appeal in the California Court of Appeal―depending upon whether he can explain and justify any procedural impediments to merits review. Depending upon the showing, Respondent might well argue in the future, both in the California Supreme Court and upon another petition filed in this Court, that procedural default again bars these claims. See Russell v. Rolfs, 893 F.2d 1033, 1037-39 (9th Cir. 1990); see also Slack v. McDaniel, 529 U.S. 473, 489, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (noting that following the dismissal of a mixed petition, “the State remains free to impose proper procedural bars to restrict repeated returns to state court for postconviction proceedings”). Nonetheless, the fact that a procedural bar might prevent Petitioner from obtaining a state-court ruling on the merits of his unexhausted claim “in no way nullifies the fact that he had an adequate state remedy that has not been exhausted.” Tamalini v. Stewart, 249 F.3d 895, 899 n.2 (9th Cir. 2001) (citing Coleman v. Thompson, 501 U.S. at 749-50).


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prosecution relied on Lintemoot’s prior consistent testimony seen in the videotape

of the first trial where Lintemoot demonstrated that she saw the blood spatter on

Clarkson’s wrists. The location of the blood spatter supported the prosecution’s

theory that Clarkson could not have shot herself. (See also Arg. I, ante.) After

playing the videotape again for the jury, the prosecution argued:

Jaime Lintemoot clearly -- and you can see with your own eyes where

she and the judge both indicated the back spatter was on Lana’s wrist on

the outside, at the joint, a two to three-inch radius.

(47RT at 9275 (italics taken from Memo. at 53).) Later, the prosecution addressed

defense counsel’s position during trial that the videotape actually showed

Lintemoot pointing to a different part of her wrist:

Well, just so we are clear, let’s go through it in slow motion. She is

pointing to the backside of the wrist at the joint area, just like she’s

consistently testified. Now, the judge who had the best position, seated

next to the witness, looks over to what she’s done in that videotape, and

then he describes it both by words and by his own demonstration, and

this is what he did. [¶] So, when [defense counsel] gets up here and tries

to argue to you that it wasn’t here and that it’s here, remember this

videotape because then he’s going to be telling you you can’t even

believe your own eyes.

(47RT at 9295 (italics taken from Memo. at 53).) Finally, on rebuttal, the

prosecution once again argued that defense counsel’s argument that Lintemoot

recently fabricated her testimony was false because she had testified to the same

thing in the first trial:

And there’s evidence, absolutely, that Lana did not hold this gun.

That’s the way that the defense suggests she had to have killed herself.

That is the trajectory that they have to go with. That is the hand position

that they have to go with. She had broken wrists. She could not have


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cranked her wrists over and shot herself one-handed. The consistent

defense suggestion has been that’s how she shot herself.

What is wrong with that? Based on the physical evidence, it

couldn’t have happened. Jaime Lintemoot, again, the defense suggests

you cannot believe your lying eyes. Let me make something clear. Mr.

Weinberg spent a lot of time talking about Jaime Lintemoot and the fact

that she changed her testimony and came back after lunch and this, that

and the other, almost suggesting that the defense was blind-sided by what

her testimony really was.

This testimony, the video that you are seeing was taken a year

before. It was in evidence a year before this trial ever started. The

defense was fully aware that Jaime Lintemoot had testified previously,

and they were fully aware that she had testified to this, but they simply

wanted to move it. Let me see if I can just move it and see if she will

agree with that. What if I do this while she is on the stand and turn over

here and start doing this? What about that? Will that give me the

argument? What if I do that?

Well, we brought Jaime Lintemoot back specifically to clear that up.

And it’s no clearer than here. This is where she was pointing to. This is

where the court saw her pointing. That is where her finger ends up on

the back of her wrists. There is no question exactly where Jaime

Lintemoot saw high velocity back spatter.

(48RT at 9608-09 (italics taken from Memo. at 53-54).)

To warrant habeas relief, under de novo review, prosecutorial misconduct

must have been so egregious as to have infected the entire trial fatally, rendering it

fundamentally unfair and denying the petitioner due process. Davis v. Woodford,

384 F.3d 628, 644 (9th Cir. 2004); Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.

1995). The standard of review is the narrow one of due process, and not the broad


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exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.

Ct. 2464, 91 L. Ed. 2d 144 (1986); see also Thompson v. Borg, 74 F.3d 1571, 1577

(9th Cir. 1996). Thus, relief may not be granted merely because the federal court

might disapprove of the prosecutor’s behavior. See Sechrest v. Ignacio, 549 F.3d

789, 807 (9th Cir. 2008).

Under some circumstances, inappropriate comments by the prosecutor in the

presence of the jury may constitute prosecutorial misconduct. Darden v.

Wainwright, 477 U.S. at 179-80; see also Donnelly v. DeChristoforo, 416 U.S. 637,

643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); Tan v. Runnels, 413 F.3d 1101, 1112

(9th Cir. 2005). However, improper argument does not, per se, violate a

defendant’s constitutional rights. Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir.

1993). A prosecutor must be allowed wide latitude in fashioning closing

arguments. United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995).

Indeed, the prosecutor is entitled to strike “hard blows” and to draw reasonable

inferences based on the evidence. Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.

1996).

Here, the prosecutor did not commit misconduct by arguing that the trial

court’s indication on the videotape of the first trial about where Lintemoot was

pointing supported her testimony in the second trial. Contrary to Petitioner’s

argument, the prosecution was not somehow converting the trial judge’s statements

into evidence or making him a witness. The prosecution was simply relying on the

trial court’s recording of what happened during the first trial proceedings, and was

not arguing that the jury should find that the trial court believed Lintemoot about

where she indicated that she saw the spatter. Because the prosecution did not argue

that the trial judge was a witness, use the judge’s statements or gestures as evidence

of the ultimate issue, or rely on the court’s authority to bolster its position, the cases

Petitioner relies upon (Memo. at 54-56) are inapposite. See United States v.

Frederick, 78 F.3d 1370, 1379-80 (9th Cir. 1996) (by arguing, “It is also not


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[defense counsel’s] job to ask you to look at all of the evidence. And he is asking

you to look at little bits and pieces. The Government and the Judge will be asking

you to consider all of the evidence in making your decision,” the prosecution

“implied that 1) the government and the court were allied, 2) they were allied

against the defense, and 3) the government and the court wanted the jury to seek the

truth by considering all the evidence, in contrast to the defense attorney, who was

asking the jury not to see the truth.”); United States v. Smith, 962 F.2d 923, 936

(9th Cir. 1992) (the prosecution improperly invoked the integrity of the court by

arguing, “But if I did anything wrong in this trial, I wouldn’t be here. The court

wouldn’t allow that to happen.”) In sum, the prosecutor in the second trial

appropriately relied on the trial court’s clarification of the proceedings during the

first trial. See United States v. Mostella, 802 F.3d 358, 361 (9th Cir. 1986) (“It is

entirely proper for [a trial judge] to participate in the examination of witnesses for

the purpose of clarifying the evidence”).

2. Display of photos

Petitioner also contends that “the prosecution committed prejudicial

misconduct by placing before the jury photos of the judge mixed with those of its

other witnesses during its closing arguments . . . .” (Pet. at 54.) However, as

discussed in Argument I, ante, the California Court of Appeal correctly found that

Petitioner never “made [these photos] part of the appellate record” in state court.

(LD 13 at 2.) Nor did Petitioner make any other effort to supplement the state court

record with the alleged photos. And Petitioner did not pursue this or any other

claim on collateral review. Because of Petitioner’s failure “to develop the factual

basis of [this] claim in [the] State court proceedings,” 28 U.S.C. § 2254(e)(2), he is

precluded from obtaining federal habeas relief on this basis.

Bragg v. Galaza, 242 F.3d 1082, supports this conclusion that Petitioner is

barred from relief on his photograph claim because he never developed the factual

basis for that claim in state court. In Bragg, the petitioner, a California prisoner,


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raised an ineffective-assistance claim on federal habeas after having pursued the

claim in the state courts only on direct appeal. Bragg, 242 F.3d 1082. The Ninth

Circuit found that “the record developed by Bragg in state court [did] not give

adequate factual support for [the court] to credit his claims of ineffective assistance

of counsel.” Id. at 1090. The court then went on to conclude that, despite its

“concerns about gaps in the record,” an evidentiary hearing was prohibited since

Bragg had presented his claim to the state courts “only on direct review and did not

take advantage of state collateral proceedings to develop the factual record before

he filed his federal habeas petition.” Id. Noting that “[i]neffective assistance of

counsel claims, unlike most claims alleging error at trial and sentencing, are best

presented for the first time in collateral proceedings,” id. at 1090 n.7, the court

concluded that Bragg’s presentation of his claim only on direct review amounted to

a failure to develop the factual basis of his claim in state court within the meaning

of § 2254(e)(2), id. at 1090. The court, accordingly, affirmed the denial of habeas

relief. Id.

Similar reasoning applies here. Petitioner did not diligently develop the facts

in state court in support of his claim about the display of photographs by

augmenting the record with these photographs on direct appeal, or by submitting

them as exhibits in a petition for writ of habeas corpus. Further, none of

§ 2254(e)(2)’s exceptions apply here because Petitioner’s claim about the display of

photographs relies on no retroactive “new rule of constitutional law,” depends on

facts occurring at the time of trial, and fails to show that by “clear and convincing

evidence . . . no reasonable factfinder would have found the applicant guilty of the

underlying offense.” As a result, because this claim depends upon the photographs

that Petitioner never put before the state court, this prosecutorial misconduct

argument must be rejected.

/ / /

/ / /


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D. Any Error Was Harmless

A constitutional violation arising from prosecutorial misconduct does not

warrant habeas relief if the error is harmless. See Sandoval v. Calderon, 241 F.3d

765, 778 (9th Cir. 2000). “On federal habeas review, we do not ask whether the

prosecutor[’s] remarks were undesirable or even universally condemned.

[Citation.] Improper argument does not, per se, violate a defendant’s constitutional

rights. [Citations.] If prosecutorial misconduct is established, and it was

constitutional error, then we apply the Brecht harmless error test.” Fields v.

Woodford, 309 F.3d 1095, 1108-09 (9th Cir. 2002) (internal quotation marks

omitted). Under Brecht, a petitioner is entitled to habeas relief “only if the error

had a ‘substantial and injurious effect or influence in determining the jury’s

verdict.’” Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011) (quoting Brecht,

507 U.S. at 637-38). To meet this standard, a petitioner must establish that the

error caused “actual prejudice.” Brecht, 507 U.S. at 637.

Here, any possible implication from the prosecution’s argument that the jury

should treat the trial judge as a witness would have been unrealized, for the trial

court instructed the jury, “Do not take anything I said or did during the trial as an

indication of what I think about the facts, the witnesses, or what your verdict should

be.” (48 RT at 9689; 25CT at 6452; see CALCRIM 3550.) The jury is presumed

to have followed this instruction and not have taken the trial court’s questions and

gestures on the videotape as its opinion on Lintemoot’s credibility. See Weeks v.

Angelone, 528 U.S. at 234 (“A jury is presumed to follow its instructions.”).

Moreover, the overwhelming evidence against Petitioner, including his

confession, his incriminating conduct after the shot, the other supporting forensic

evidence, and the damning similar prior conduct evidence, convincingly

demonstrated that he killed Clarkson. (See Arg. I, supra.) Thus, even were there

procedurally cognizable, federal constitutional error, Petitioner could not show the

actual prejudice necessary for habeas relief.


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III. THE CALIFORNIA COURT OF APPEAL REASONABLY REJECTED PETITIONER’S PROSECUTORIAL MISCONDUCT CLAIM IN GROUND FOUR REGARDING ALLEGED ATTACKS ON DEFENSE COUNSEL’S INTEGRITY AND PETITIONER’S WEALTH

In Ground Four, Petitioner contends that the California Court of Appeal

wrongly rejected his argument that the prosecution committed misconduct during

summation by assailing defense counsel and arguing that Petitioner used his wealth

to purchase false testimony. (Pet. at 6; Memo. at 57-67.) Respondent disagrees.

The California Court of Appeal reasonably decided that the prosecution’s

arguments merely urged the jury to believe its interpretation of what happened to

Clarkson rather than the defense interpretation. Furthermore, the state court

reasonably decided that the prosecution’s comments did not imply that the defense

suborned perjury by seeking implausible expert testimony favorable to Petitioner’s

case. As a result, Petitioner is not entitled to relief because the state court’s

decision was not contrary to or an unreasonable application of clearly established

Supreme Court law, or an unreasonable determination of the facts in the state court

proceedings.

The clearly established Supreme Court law governing the issue of

prosecutorial misconduct from comments during argument is the Court’s decision

in Darden, 477 U.S. 168. Parker v. Matthews, ___ U.S. ___ 132 S. Ct. 2148, 2153,

183 L. Ed. 2d 32 (2012). Darden “explained that a prosecutor’s improper

comments will be held to violate the Constitution only if they so infected the trial

with unfairness as to make the resulting conviction a denial of due process.”

Parker, 132 S. Ct. at 2153 (internal quotation marks omitted). Under 28 U.S.C.

§ 2254(d), however, “even if the comment is understood as directing the jury’s

attention to inappropriate considerations,” a federal habeas claim challenging the

comment must be rejected unless the state court’s denial of the claim “‘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 2154


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(quoting Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 786-87, 178 L. Ed. 2d

624 (2011)).11 Specifically, even where a closing argument could be understood to

denigrate the defense, it will not be disturbed on federal habeas if the argument

could also have been understood as challenging the defendant’s motive for making

the defense. Id. at 2154-55. A federal habeas court commits error in finding

prosecutorial misconduct “by consulting its own precedents, rather than those of

[the Supreme] Court, in assessing the reasonableness of the [state court’s]

decision.” Id. at 2155. In other words, “circuit precedent cannot form the basis for

habeas relief under AEDPA.” Id.

Here, the California Court of Appeal rejected Petitioner’s prosecutorial

misconduct claim on the merits on direct appeal.12 The state court determined that

“[t]he prosecutors did not accuse defense counsel of coaching witnesses or of

believing that his client was guilty” and that “[a]t most, [the prosecutors] suggested

that the ‘defense team’ may have sought an expert whose technical opinions would

be favorable to [Petitioner’s] case.” The court observed that “[a]n argumentative

11 Indeed, even an argument as “inflammatory” as the one in Darden did not warrant habeas relief—even before the advent of AEDPA. Parker, 132 S. Ct. at 2155 (citing Darden, 477 U.S. at 180 n.11 (“prosecutor referred to the defendant as an ‘“animal”’”); id. at 180 n.12 (“‘“I wish I could see [the defendant] with no face, blown away by a shotgun”’”).

12 The California Court of Appeal at the outset addressed Respondent’s argument that Petitioner’s prosecutorial misconduct claims were forfeited due to a failure to object. The court agreed that Petitioner did not adequately object and ask for a jury admonition, as was required to preserve a claim under California law. Yet the court of appeal, apparently, did not conclude that the claim was procedurally barred. Instead, it decided to resolve the claim solely on the merits “in the interest of judicial economy and to avert potential ineffective assistance of counsel claims . . . .” (LD 10 at 74-75 (citing People v. Yarbrough, 269 Cal. App. 4th 303, 310, 86 Cal. Rptr. 3d 674 (Cal. Ct. App. 2008) (in part to avoid future litigation on ineffective assistance of counsel, the state appellate court ruled that despite failing to object at trial, “the defendant did not forfeit the right to appellate review”)).)


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reminder that defense counsel may have chosen [a defense expert] for this reason is

not equivalent to an insinuation that counsel suborned perjury or engaged in

deception.” The court found that “[t]he prosecutor’s remarks were likely

interpreted as ‘an admonition not to be misled by the defense interpretation of the

evidence, rather than as a personal attack on defense counsel.’” Finally, the court

concluded that the record supported the “prosecution comments to the effect that

the defense was adverse to the truth.” (LD at 10.) The California Court of

Appeal’s decision was reasonable.

A. Comments Regarding Payment To Experts

The state court reasonably determined that the prosecution’s comments about

payment to experts were geared not to disparage opposing counsel but rather to

attack the credibility of the witnesses. The prosecution was entitled to strongly

argue that the defense expert testimony was unbelievable and to note that the

defense experts were well-paid. In turn, the prosecution was entitled to ask the jury

to infer that Petitioner paid these particular experts to testify because they would

make implausible allegations supporting the defense case.

A review of Petitioner’s cited instances of misconduct relating to defense

expert fees shows that is all that happened here. In opening summation, the

prosecution argued that Petitioner could pay witnesses to exonerate him despite his

guilt: “In Phil Spector’s world, you can commit such violence, such conscious

disregard for human life not once but seven times. And when that violence finally

catches up to you, you can write a check. You can write a check for $419,000 to

hire paid-to-say witnesses to get you out of what you have done.” (47RT at 9233-

34 (italics reflecting alleged misconduct).) In rebuttal, during its discussion of the

specific weaknesses in the various defense experts’ testimony at trial, the

prosecution also reiterated its view that the motive for their opinions was pecuniary:

“Ultimately, what the defense science told you was that they were willing to say,

when everything adds up to homicide, everything adds up, everything points to


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homicide, they are willing, for a price, folks, and wait till you get this price, they

are willing to come in and say suicide.” (48RT at 9597 (italics reflecting alleged

misconduct).) Later, the prosecution again argued that the strong evidence of

Petitioner’s guilt and the changing defense theories at trial indicated that the

defense had paid for these particular experts to obscure the truth:

This is a homicide. It’s not that difficult. Yet, for the right amount

of money, the same thing happened over and over and over in this

courtroom. How does a homicide become a suicide? You write a big, fat

check. That’s how. That’s how a homicide becomes a suicide. The

math just doesn’t make sense. It doesn’t add up.

All told, the defense ended up, basically changing everything.

When it didn’t work, they just changed it. If you can’t change the facts,

change the evidence. If you can’t change the evidence, change the

science, and if you can’t change the science, just go out and buy yourself

a scientist. That may work.

There may be some way to convince a jury or a juror of that. Don’t

let that happen. See this for what it was. This was a “pay to say”

defense. You pay it; I’ll say it, no matter how ridiculous it is. I’ll even

say blood flies around corners.

The total cost to the defense to hide the truth from you folks, a

staggering $419,000. Cogitate on that number for just a second. A

staggering 419,000 bucks to hide the truth.

(48RT at 9605-06 (italics reflecting alleged misconduct).)

Considering these remarks in context, they constituted proper argument that

Petitioner had hired witnesses for the purpose of giving implausible opinions that

were contrary to the evidence. These remarks were also fair rebuttal to defense

counsel’s arguments that the prosecution and law enforcement were biased because

all their resources were employed to prove that a homicide occurred, that they


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ignored the evidence contradicting that conclusion, that they spent unlimited time

on the case, that they had a meeting to determine how to support a homicide

finding, that the state’s experts had an “agenda” and bias to support the prosecutors

that they worked with, and that the prosecution had misrepresented the evidence.

(47RT at 9333-43, 9385.) In any event, after defense counsel objected that the

prosecution was accusing defense counsel of buying testimony, the prosecution

emphasized to the jury that it should evaluate the defense witnesses’ credibility:

Nobody cares that they are paid. Werner Spitz can make anything

he wants. Like I said, he can make a million dollars or a dollar. I

couldn’t care less. What we are after is the truth. And you can use the

amount of money that they were paid or that they were paid at all to

determine how much credibility you are going to give them. That’s what

that figure means. How much credibility are you going to give the

science experts when they have been paid this kind of money? That’s

what that number means.

Again, if you decide that any witness deliberately lied or shaded

their testimony about something significant, you should consider

disregarding their entire testimony. I don’t have to go through them

again. Mr. Pex ends up at the end of that sort of wall. It’s up to you to

determine how truthful were these folks being with you. How truthful

were they?

(48RT at 9607-08.) Any doubt that the target of the prosecution’s argument was

the defense evidence rather than defense counsel was eliminated by these

statements.

The prosecution here did not elicit testimony or make arguments unsupported

by the record. Instead, the prosecution argued that there was a causal relationship

between the well-documented large payments to the defense experts and the well-

discussed incredibility of their testimony at trial. The prosecution did not


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improperly accuse defense counsel of misconduct. Rather, based on the evidence,

the prosecution properly asked the jury to infer that the defense resorted to hiring

experts to offer implausible testimony favorable to Petitioner’s case.

B. Comments Allegedly Attacking Defense Counsel’s Integrity

Similarly, the state court reasonably determined that the prosecution’s other

statements regarding the truthfulness of the defense were proper responses to the

defense presented. The prosecution was permitted to ask the jury to find that its

theory of the case was the truth and that the defense theory was not. In doing so,

the prosecution permissibly challenged and criticized the defense tactics and

evidence.

Considering first the prosecution’s comments during opening summation, all

were reasonable arguments based on the evidence. The prosecutor, Deputy District

Attorney Truc Do, began by analogizing the changing theories of the defense

throughout the trial to the “ever-shifting” sand dunes of a beach in South Vietnam

where her family came from. (47RT at 9244-45.) Describing this analogy, the

prosecutor stated:

The hills that you see are never in the same place. They’re never

constant. You would be lost if you relied on them because they move.

They move wherever the elements take them. The defense in this case,

and what truth means to them, reminds me of this place. Nothing that

they have presented to you has been constant. Nothing that they have

presented to you has been dependable. Their evidence is evidence of

convenience. Their version of the truth shifts with whatever direction the

wind blows.

(47RT 9245 (italics reflecting alleged misconduct).)

Supporting this sand-shifting analogy, the prosecution noted that during

opening statement, defense counsel argued that Adriano De Souza was not certain

of Petitioner’s confession, and that De Souza gave eight different versions of the


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confession. But then, when defense counsel could not undermine De Souza’s

confidence at trial or show significantly different versions, the defense called a

psychologist to testify that a witness’s confidence is irrelevant in determining the

accuracy of testimony. (47RT at 9245, 9257-63.) The prosecution also noted

defense counsel had changed theories on how Clarkson got bruises on her wrists.

(47RT at 9269-75.)

Further fleshing out this analogy, the prosecution then argued that defense

counsel had also changed his theory of the case as to criminalist Jaime Lintemoot’s

testimony regarding the back spatter on Clarkson’s wrists. (47RT at 9275.) The

prosecution introduced this argument by stating:

“I expect [defense counsel] to do with this evidence what he’s done with

it all through the trial. Go through machinations of the truth to avoid it,

to change it, to move it from here to here. I mean, this is almost like an

inside joke with us because we’ve seen this moved to here.”

(47RT at 9276.) The prosecution observed that in defense counsel’s opening

statement, he argued that the jury should believe Lintemoot’s testimony about the

location of the spatter until he discovered that it was not actually where he had

thought, at which point he attempted to modify her testimony by “sl[e]ight of hand”

with his gestures, and then, when that failed, attempted to show that she was

unreliable, and then, when that failed, attempted to change Clarkson’s hand

configuration, and then, when that failed, attempted to show that blood travelled

around a corner, which, during opening statement, he had denied was possible.

(47RT at 9275-77, 9282-91, 9293-97.)

Concluding the Lintemoot section of the argument, the prosecutor reiterated

that the defense had initially relied on Lintemoot’s testimony as supportive of a

suicide theory “but the moment the evidence no longer suits their purpose, the truth,

their version of the truth begins to shift.” (47RT at 9296.) When pointing out that

defense counsel ultimately elicited evidence that the blood went around corners in


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this case after having asserting during opening statement that it “‘doesn’t travel

around corners,’” the prosecution argued: “Biggest storm of shifting sand. Why is

it that the defense needs to go through this long process of machinations of truth on

this? Because this is the single piece of evidence they cannot explain away. It is

absolutely inconclusive with Lana Clarkson holding the gun.” (47RT 9297 (italics

reflecting alleged misconduct).) As shown in context, each of the cited statements

during the prosecution’s opening summation were proper comments on the defense

evidence and tactics.

Likewise, there was nothing improper about the other prosecutorial statements

about the defense during the rebuttal argument. In one alleged instance of

misconduct at the outset of rebuttal, the prosecutor, Deputy District Attorney Alan

Jackson, summarized the prosecution’s theory of the case:

When Phillip Spector is confronted with this circumstance, the

circumstance that I just told you about, and I’m going to tick them off

real quick:

A woman; alcohol; a loss of control; he pulls a gun. He’s done it

time and time again throughout almost his entire adult life, and he did it

on February 3rd.

Mr. Weinberg said my job is to give you possibilities. That’s my

job. I’m here to just give you possibilities just regale you with all kinds

of possibilities.

That’s funny. My job, Ms. Do’s job, is to give you truth. . . .

My goodness, Jaime Lintemoot. You folks got to the point, every

one of you got to the point, where at some point in the trial testimony you

laughed. You laughed at this versus this, because it got comical. Mr.

Weinberg doesn’t like the truth. He just moves it.

(48RT at 9548-50 (italics reflecting alleged misconduct).)

/ / /


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Like the opening summation, this rebuttal argument was a fair comment on the

evidence, the prosecution exhorting the jury to find that that its interpretation, rather

than the defense interpretation, was the truth. Moreover, in this excerpt, the

prosecutor was directly responding to the defense argument that the prosecution

was not interested in the truth and that the prosecution’s role was to explain how all

possibilities other than murder did not happen. In this regard, defense counsel had

argued that the prosecution’s approach was “to probe that he did it, not

independently to investigate and to determine what happened here” (47RT at 9325);

that the jury should question whether the prosecution “clearly and unquestionably

excluded the possibility that Lana Clarkson committed that act” (47RT at 9330);

that the prosecution must “eliminate all possibilities” (47RT at 9332); that “[t]he

prosecution wants you to decide the case emotionally” (47RT at 9344); that the

prosecution decided to “choose to ignore truth and go look for an excuse” because

“[t]he prosecution has a story. We are telling you about science, about the facts and

about what the physical facts actually show” (47RT at 9353); and that the

prosecution made “an attempt to give a sinister interpretation to what may be, you

know, a completely random act” (47RT at 9426).

The prosecution thus properly retorted that it was the defense that was

avoiding the truth and that it was not the prosecution’s job to specifically disprove

all other possibilities besides guilt. The prosecution was also within its rights to

argue that the jury should accept “only reasonable and truthful conclusions.”

(48RT at 9612.) At bottom, this was a responsive answer to defense counsel’s

argument that the prosecution had to affirmatively negate all reasonable

possibilities for the jury to find Petitioner guilty.

The remaining rebuttal statement relating to the “truth” issue was also a valid

challenge to defense evidence and tactics. In this regard, the prosecution argued

that numerous times at trial, after defense counsel read part of a transcript, the

prosecution would “read the rest of the paragraph.” After making this observation,


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the prosecution argued, “When the truth doesn’t suit the defense, just move the

truth or mask the truth.” (48RT at 9553.) The prosecution then recounted the

defense suicide theory and refuted point by point what the defense supposed to have

occurred. (48RT at 9557-97.) Consequently, the argument relied on the evidence

and responded to the defense presented.

Because the jury would have understood the prosecution’s remarks in context

as argument not to be misled by the defense interpretation of the evidence, rather

than as a personal attack on defense counsel, the state court reasonably determined

that there was no prosecutorial misconduct.

C. No Supreme Court Authority Supports Relief

Unavailingly, Petitioner relies on several circuit cases in support of his

arguments that the prosecution’s comments warrant habeas relief. Several of these

cases are unsupportive because they do “not constitute ‘clearly established Federal

law, as determined by the Supreme Court,’ 28 U.S.C. § 2254(d)(1).” Parker, 132

S. Ct. at 2155. (See Memo. at 59-60 (citing United States v. Wright, 625 F.3d 583,

610 (9th Cir. 2010); United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993);

and United States v. Friedman, 909 F.2d 705, 709 (2d Cir. 1990)).) Other cases are

inapplicable because they were habeas cases “decided . . . under pre-AEDPA law,”

and thus “did not even purport to reflect clearly established law as set out in [the

Supreme] Court’s holdings.” Parker, 132 S. Ct. at 2155. (See Memo. at 59-60

(citing Sizemore v. Fletcher, 921 F.2d 667, 672 (6th Cir. 1990); and Bruno v.

Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983)).)

Moreover, the cases Petitioner cites where prosecutorial misconduct was

found are distinguishable in that, unlike in this case, they did not merely involve

fair and well-supported comment on the defense evidence, tactics, and argument.

Wright, 625 F.3d at 609-13 (the prosecutor referred to facts not in evidence by

arguing that never in his years of prosecutorial experience had he ever seen a

“trifecta” of defenses as in that case); Hein v. Sullivan, 601 F.3d 897, 912-14 (9th


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Cir. 2010) (the prosecutor argued that “he did not ‘appreciate cheap lawyer tricks,’”

without any supporting evidence accused defense counsel of pressuring a defense

witness to change his testimony, vouched for the credibility of a prosecution

witness, called the defendant “‘a little punk,’” and addressed the defendant directly

and said, “‘What a tough guy[] you are’”); Kojayan, 8 F.3d at 1317-18, 1323-25

(the prosecutor did not tell the truth by arguing that the witness did not testify

because he invoked the privilege against self-incrimination, where the government

had a cooperation agreement for the witness to testify truthfully); Sizemore, 921

F.2d at 670-71 (the prosecutor appealed to class bias based on the defendant’s

wealth by referring to the defendant's “‘money’” and his “‘multitude of attorneys,’”

and arguing that the defendant “‘would rather kill two men than to give them a

raise’”); Friedman, 909 F.2d at 709 (the prosecutor made a general contrast of those

that investigate and prosecute drug dealers with those that “try to get them off,

perhaps even for high fees,” and repeatedly characterized defense counsel as a

“witness” and his opening statement as “unsworn testimony”); Bruno, 721 F.2d at

1194-95 (the prosecutor argued that defense counsel had engaged in witness

tampering, though the accusation was not supported by any evidence, and suggested

the accused’s hiring of counsel was probative of his guilt).

Nor does United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1

(1985), also cited by Petitioner, assist Petitioner’s cause. The issue in that case was

not even a federal constitutional one, but rather arose under the Supreme Court’s

supervisory power for reviewing federal criminal judgments. And the prosecutorial

error that was found did not resemble the conduct in this case. The prosecutor there

gave his personal opinion about the defendant’s guilt, and told the jury that he did

not believe it would be “doing your job” if it acquitted the defendant. Id. at 4-7.

The Supreme Court found that “the prosecutor’s comments crossed the line of

permissible conduct established by the ethical rules of the legal profession . . . .”

Id. at 14. Even still, the Supreme Court did not find the misconduct “to rise to the


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level of plain error” justifying reversal. Id. at 16.

In sum, the California Court of Appeal reasonably concluded that there was no

prosecutorial misconduct in violation of due process. See, e.g., Smith v. Campbell,

No. C-06-2972-EMC, 2012 WL 1657169, at *26 (N.D. Cal. May 10, 2012) (no

prosecutorial misconduct from argument “‘that defense counsel misstated evidence,

and intentionally lied,’” and that defense counsel was “‘doing the best they could to

avoid the truth’” because these statements “emphasized the lack of evidence on the

part of the defense, and pointed out where defense counsel may himself have

misled the jury”); Casey v. Virga, No. CV 10-4672-AG (JPR), 2011 WL 7121624,

at *13-14 (C.D. Cal. Nov. 28, 2011) (no prosecutorial misconduct from argument

“that the defense counsel ‘distorted the truth, in [an] effort to try to confuse you

jurors’ and ‘they just slowly mask over that . . . important fact, and they move on

with more misrepresentation about the evidence,’” because these statements

“related to the evidence presented by defense counsel and the prosecution’s

disagreement with the defense’s characterization of the evidence”); United States v.

Reyes, No. C 06-00556-1-CRB, 2007 WL 2462147, at *19-20 (N.D. Cal. Aug. 29,

2007) (no prosecutorial misconduct from argument, “‘Why on earth would you pay

[defense expert witness] Dr. Gulley a lot of money to prove something that you

now agree with the government, that there were look-backs? And the only reason

you do that is if you were trying to carry out the lie, to see if there was evidence to

support the lie, including to pay Dr. Gulley to support it. That’s a lawyer argument

we didn’t hear,’” because these statements permissibly contended “that the views of

the defense should not be credited”).

D. There Was No Prejudice

Even assuming for argument’s sake there to be error from the prosecutor’s

cited comments, it was harmless. As mentioned, a petitioner is entitled to habeas

relief “only if the error had a ‘substantial and injurious effect or influence in

determining the jury's verdict.’” Merolillo, 663 F.3d at 454 (quoting Brecht, 507


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U.S. at 637-38). To meet this test, a petitioner must show that the error caused

“actual prejudice.” Brecht, 507 U.S. at 637.

Here, if there was any possibility that the jury misconceived certain of the

prosecution’s comments as personal attacks on defense counsel, the jury would

have been disabused of such a construction by the prosecution’s other statements

during closing argument. In this respect, the prosecution underscored that the

jury’s role was to examine the credibility of the witnesses in light of the evidence

and observed that the fact that the defense witnesses were paid, by itself, was

something that “[n]obody cares” about. (48RT at 9607-08.) Additionally, the

prosecution’s argument centrally involved a dissection of the evidence

demonstrating the defects in Petitioner’s defense, and the isolated remarks at issue

were a relatively small aspect of its presentation. Also, any danger that the jury

misconstrued the prosecution’s argument would have been dispelled by the trial

court’s instruction to the jury that “[n]othing that the attorneys say is evidence. In

their opening statements and closing arguments, the attorneys discuss the case, but

their remarks are not evidence.” (48RT 9658; 25CT 6440.) See Wright, 625 F.3d

at 613 (improper prosecutorial comments found harmless, in part because of “final

jury instructions that ‘[a]rguments and statement by lawyers are not evidence’”);

Hein, 601 F.3d at 916 (improper prosecutorial comments found harmless, in part

because of “timely cautionary instructions to the jury, including general instructions

about the hortative nature of summation”).

And, significantly, the evidence overwhelmingly established that Petitioner

murdered Clarkson. This evidence included Petitioner’s confession to shooting

Clarkson, his prior firearm assaults on women in similar situations, his attempts to

cover up the murder, his statements that women deserved to be shot in the head (as

Clarkson tragically was), the blood spatter evidence demonstrating the impossibility

of Clarkson holding the gun to kill herself, the purse around her shoulder indicating

that she was ready to leave, and the unlikelihood of the defense narrative that after


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going to a stranger’s house for a drink, she found his gun and shot herself. (See

Arg. I, ante.) Accordingly, the alleged error had no substantial or injurious effect

on the jury’s verdict.

IV. THE PETITION IS UNVERIFIED BY PETITIONER

An application for a writ of habeas corpus “shall be in writing signed and

verified by the person for whose relief it is intended or by someone acting in his

behalf.” 28 U.S.C. § 2242. In addition, Rule 2(b)(5) of the Rules Governing

Section 2254 Cases in the United States District Court (hereafter “Federal Habeas

Corpus Rules”) requires that the petition be signed under penalty of perjury by the

petitioner. See also Local Rules of Dist. Ct. for Cen. Dist. of Cal. R. 83-16.2 (for

petitions filed under 28 U.S.C. § 2255, requiring that if a petition is verified by a

person other than the petitioner, the person signing the verification must set forth

the reason it was not signed by the petitioner).

“The district court may refuse to file, or may dismiss, an unsigned and

unverified petition.” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The

signature requirement of Rule 2(b)(5) of the Federal Habeas Corpus Rules serves

not only to assure that the contents of the petition are verified under oath, but also

to indicate that the filing of the petition itself was authorized by its purported

petitioner. In Deutscher v. Angelone, 16 F.3d 981, 982-84 (9th Cir. 1994), the

Ninth Circuit held that a habeas petitioner had not authorized a previous habeas

petition filed by an attorney on his behalf where, inter alia, the petitioner had never

signed or verified the prior petition. Thus, the prior petition was considered

“moot,” and the current petition was deemed to be the petitioner’s “first,” such that

there was no abuse of the writ. Id.

Here, the Petition was not signed by Petitioner under penalty of perjury.

Although Petitioner’s counsel signed on the “Signature of Attorney” line of the

form that “petitioner prays that the Court grant petitioner relief to which he may be

entitled to this proceeding,” left blank is the line marked “Signature of Petitioner,”


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which would attest, “I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true or correct.” (Pet. at 8.)

Under these circumstances, Respondent may suffer prejudice by Petitioner’s

failure to sign and verify the Petition even if this Court were to consider and deny

the Petition on other grounds. In subsequent habeas proceedings, Petitioner might

claim, as did the petitioner in Deutscher, that the current Petition was not

authorized, and therefore attempt to avoid the procedural safeguards against

successive petitions and abuse of the writ. Consequently, this Court should order

that Petitioner personally verify the Petition.

CONCLUSION

Wherefore, Respondent respectfully asks that the Petition for Writ of Habeas

Corpus be denied. If Petitioner fails to personally verify the Petition, however, then

the Petition should be dismissed. Dated: October 11, 2012

Respectfully submitted,

KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General MICHAEL R. JOHNSEN Supervising Deputy Attorney General /s/ Lawrence M. Daniels LAWRENCE M. DANIELS Supervising Deputy Attorney General Attorneys for Respondent

LMD:fc LA2012604286 51175534.doc


california attorney general response to phil spector's writ of habeas corpus

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