Verba v. Wofford

MARK VERBA, Petitioner, v. C. WOFFORD, Warden, Respondent.

NO. CV 14-5679 (AS)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

January 11, 2016

OPINION AND ORDER ON A PETITION FOR WRIT OF HABEAS CORPUS

I.INTRODUCTION

On July 22, 2014, Mark Verba ("Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, and on July 15, 2015, Petitioner filed the pending First Amended Petition ("FAP") (Docket Nos. 1, 29). On October 2, 2015, Respondent filed an Answer with an accompanying Memorandum of Points and Authorities ("Ans. Mem."). (Docket No. 35). Petitioner filed a Reply on October 27, 2015. (Docket No. 39). The parties have consented to proceed before the undersigned United States Magistrate Judge. (Docket Entry Nos. 3, 12-13).

For the reasons discussed below, the Petition is DENIED and this action is DISMISSED with prejudice.

II.PRIOR PROCEEDINGS

On July 12, 2011, a Los Angeles County Superior Court jury found Petitioner guilty of one count of failing to register as a sex offender in violation of California Penal Code ("P.C.") § 290(b). (Clerk's Transcript ("CT") 74-76; Reporter's Transcript ("RT") 964-66). On August 10, 2011, the trial court sentenced Petitioner to four years in state prison. (CT 91-94; RT 1511-12).

Petitioner appealed his conviction and sentence to the California Court of Appeal, which affirmed the judgment in a published opinion filed October 31, 2012. People v. Verba, 210 Cal. App. 4th 991 (2012); (Lodgments 2-5). Petitioner then filed a petition for review in the California Supreme Court, which denied the petition on February 13, 2013. (Lodgments 6-7).

On or about June 26, 2012, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which was denied on August 31, 2012. (Lodgments 8-9). Petitioner then filed a habeas corpus petition in the California Court of Appeal, which denied thepetition without prejudice on March 21, 2013, so that Petitioner could file a new petition in the Superior Court. (Lodgments 10-11).

Effective April 29, 2013, Petitioner filed a second habeas corpus petition in the Los Angeles County Superior Court, which was denied on June 4, 2013. (Lodgments 12-13). Petitioner thereafter filed a habeas corpus petition in the California Court of Appeal, which was denied on June 18, 2013. (Lodgments 14-15). Petitioner then sought habeas corpus relief in the California Supreme Court, which denied his petition on December 11, 2013. (Lodgments 16-17).

Finally, on April 30, 2015, Petitioner filed a second habeas corpus petition in the California Supreme Court, which denied the petition on June 24, 2015, with citation to In re Clark, 5 Cal. 4th 750, 767-69 (1993). (Lodgments 21-22).

III.PETITIONER'S CLAIMS

Petitioner raises the following claims for federal habeas relief:¹

Ground One: Petitioner received ineffective assistance of counsel when his trial counsel: (a) failed to raisea "human error" defense; (b) dissuaded Petitioner from testifying in his own defense; (c) did not challenge the sufficiency of the evidence; and (d) failed to timely object to jury misconduct.

Ground Three: Petitioner's conviction was obtained as the result of false testimony.

Ground Five: The prosecutor committed misconduct by misstating the law and arguing facts not in evidence.

Ground Six: The sex offender registration statute is unconstitutionally vague.

Ground Eight:² Petitioner received ineffective assistance when his appellate counsel failed to raise even a single substantial allegation of error that might arguably have resulted in a reversal.

(FAP at 5-6 & Attachment ("Att.") at 1-30).

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IV.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

Respondent contends that Grounds Three and Five are untimely and procedurally barred and that part of Ground One is also procedurally barred. (Answer at 1; Ans. Mem. at 8-16). However, the Court will not address these issues since the Court retains the discretion to address and deny claims on the merits even if the claims are alleged to be untimely, see Cooper v. Calderon, 274 F.3d 1270, 1275 n.3 (9th Cir. 2001) (per curiam) (denying petition on merits rather than remanding to consider equitable tolling); Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (Court may properly deny petition on merits rather than reaching "the complex questions lurking in the time bar of the AEDPA."), or procedurally defaulted. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issueof procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits."); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar."). Rather, the Court addresses these claims de novo. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) ("Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review"); Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010) (affirming denial of habeas corpus petition when claim failed even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37 (9th Cir. 2008) (en banc) (a federal habeas court can review constitutional issues de novo before performing a § 2254(d)(1) analysis). The Court will also address the remainder of Petitioner's claims de novo since Petitioner's claims fail under any standard of review.³ Berghuis, 560 U.S. at 390; Norris, 622 F.3d at 1290; Frantz, 533 F.3d at 735-37.

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V.DISCUSSION

A. Prosecutorial Misconduct⁴

Prosecutorial misconduct rises to the level of a constitutional violation only where it "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Smith v. Phillips, 455 U.S. 209, 219 (1982) ("[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor."). Determining whether a due process violation occurred requires an examination of the entire proceedings so the prosecutor's conduct may be placed in its proper context. Boyde v. California, 494 U.S. 370, 384-85 (1990); Greer v. Miller, 483 U.S. 756, 765-66 (1987). Moreover, "[p]rosecutorial misconduct which rises to the level of a due process violation may provide the grounds for granting a habeas petition only if that misconduct . . . 'had substantial and injurious effect or influence in determining the jury's verdict.'" Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

Petitioner raises two claims of alleged prosecutorial misconduct. In Ground Three, Petitioner contends the prosecutor presented falseevidence. (FAP, Att. at 17-19). In Ground Five, Petitioner asserts the prosecutor committed misconduct by arguing facts not in evidence and misstating the law during closing argument. (Id. at 19-21).

1. False Testimony (Ground Three):

Petitioner was previously convicted of a sex offense and was required, pursuant to P.C. § 290, to register as a sex offender within five working days of changing his address as well as within five working days of his birthday every year.⁵ (RT 322-24). Law enforcement agencies use a specific form - Form 8102 - to register sex offenders. (RT 325). Los Angeles Police Department ("LAPD") Officer Marissa Ibanez testified that on April 13, 2010, she met with Petitioner and completed Form 8102 for him because Petitioner indicated he was moving to Long Beach within two days.⁶ (RT 648-52). Officer Ibanez also told Petitioner he was required to register with the Long Beach Police Department. (RT 654). In Ground Three, Petitioner asserts that Officer Ibanez's testimony was false, and the prosecution's presentation of this evidence deprived him of due process of law. (FAP, Att. at 17-19).

A "conviction obtained by the [prosecutor's] knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes omitted); see also Giglio v. United States, 405 U.S. 150, 153 (1972) ("[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice.'"); Miller v. Pate, 386 U.S. 1, 7 (1967) ("[T]he Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence."); Napue v. Illinois, 360 U.S. 264, 269 (1959) ("[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment[.]"). Moreover, "[a] prosecutor . . . has a constitutional...