Raymond Oubichon v. Michael Evans , 443 F. App'x 235 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 15 2011
MOLLY C. DWYER, CLERK
RAYMOND L. OUBICHON, No. 09-15325 U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 2:07-cv-00838-GEB-
CHS
v.
MATTHEW CATE, Warden, and MEMORANDUM*
MICHAEL S. EVANS, Secretary of the
California Department of Corrections and
Rehabilitations,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted July 12, 2011
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT,** District
Judge.
Petitioner Raymond L. Oubichon appeals the denial of his petition for
habeas corpus under 28 U.S.C. § 2254. The district court issued a certificate of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.
appealability with respect to several claims for relief.1 We review de novo. Kemp
v. Ryan, 638 F.3d 1245, 1254 (9th Cir. 2011). Because the Antiterrorism and
Effective Death Penalty Act of 1996 applies to this case, we ask whether the state
courts unreasonably applied clearly established federal law as determined by the
Supreme Court. 28 U.S.C. § 2254(d). For the state courts’ application of clearly
established law to be unreasonable under § 2254(d), we must conclude that no
fairminded jurist could agree with the state court’s decision. Harrington v. Richter,
131 S. Ct. 770, 786 (2011). Because we hold that the state courts reasonably
applied clearly established federal law in this case, we affirm.
1. Petitioner first argues that the state court violated due process when it
entered a conviction for attempted criminal threat without submitting the question
to a jury. But a jury already had convicted Petitioner of the greater offense of
making a criminal threat. That offense contains every element of attempted
criminal threat, People v. Toledo, 26 P.3d 1051, 1057 (Cal. 2001), and contains an
additional element: that the perpetrator actually placed the victim "in sustained
fear of his or her own safety or for his or her immediate family’s safety," Cal.
1
Petitioner’s brief argues three additional issues that the district court did
not certify for appeal. We agree with the district court that Petitioner has failed to
make a "substantial showing of the denial of a constitutional right" with respect to
those issues. 28 U.S.C. § 2253(c)(2). We therefore decline to issue a certificate of
appealability on those issues, and we do not consider them on their merits.
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Penal Code § 422. On Petitioner’s first appeal, the California Court of Appeal held
that the evidence did not necessarily establish that Petitioner’s threat put the victim
"in sustained fear" of her safety, so it remanded the case and gave the state the
option to retry Petitioner on the greater offense or to accept a judgment of
conviction on the lesser offense. The state chose the latter option, and the trial
court entered the lesser conviction. In different but related circumstances, the
Supreme Court upheld a state court’s decision to reduce an improper conviction of
a greater offense to a conviction of a lesser offense without submitting the question
to a jury when "it [was] clear that the jury necessarily found that the defendant’s
conduct satisfie[d] the elements of the lesser included offense." Morris v.
Mathews, 475 U.S. 237, 247 (1986). We hold that the state courts reasonably
applied Morris here when they rejected Petitioner’s due process claim. We
therefore hold that Petitioner’s due process claim does not warrant habeas relief
under § 2254(d).2
2. Petitioner next argues that the state courts lacked subject-matter
jurisdiction to enter a conviction of the lesser offense. He supports his argument
2
Petitioner additionally argues that his sentence violates the Eighth
Amendment’s ban on cruel and unusual punishment because the trial court lacked
the authority to enter a conviction of attempted criminal threat. Because the state
courts reasonably concluded that the trial court properly entered that conviction,
we hold that they also reasonably rejected Petitioner’s Eighth Amendment claim.
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by quoting Burks v. United States, 437 U.S. 1 (1978). But Burks has no
application here. In Burks, 437 U.S. at 10-11, the Supreme Court held that a
criminal defendant may not be put on trial again for a crime that the government
failed to prove that he committed in a previous trial. Here, by contrast, the
California Court of Appeal reversed Petitioner’s original conviction not because it
thought that the state had failed to prove its case, but because the trial court erred
when it failed to instruct the jury on the lesser offense even though the evidence
could support the jury’s verdict on the greater offense. We therefore reject
Petitioner’s assertion that, under clearly established federal law, the state courts
lacked jurisdiction to enter the conviction of attempted criminal threat without
submitting the matter to a jury.
3. Petitioner next claims that the trial court violated his Sixth Amendment
right to be present when the court reporter read back the testimony of a state
witness to the jury during its deliberations without giving Petitioner or his lawyer
the opportunity to observe. A readback of an eyewitness’ testimony, without
counsel’s knowledge or permission, has not been condemned by the Supreme
Court. We have observed that the Court "has never addressed whether readback of
testimony to a jury is a critical stage of the trial triggering a criminal defendant’s
fundamental right to be present. Nor has the Court considered any case with
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materially indistinguishable facts." La Crosse v. Kernan, 244 F.3d 702, 708 (9th
Cir. 2001) (internal quotation marks and brackets omitted). Without clear
guidance from the Supreme Court, we cannot say that the California court's
determination here was contrary to or an unreasonable application of clearly
established federal law.
Our decision in Fisher v. Roe, 263 F.3d 906, 916 (9th Cir. 2001), overruled
on other grounds by Payton v. Woodford, 346 F.3d 1204, 1217 n.18 (9th Cir.
2003) (en banc), overruled by Brown v. Payton, 544 U.S. 133 (2005), is not to the
contrary. The Fisher court reviewed a "‘postcard denial,’" which entailed "‘an
independent review of the record . . . to determine whether the state court clearly
erred in its application of controlling federal law.’" Id. at 914 (alteration in
original) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). Here, the
state court did hand down a reasoned decision, so greater deference is due. In
addition, Fisher relied on procedural errors that compounded the secret readback.
Id. at 910 n.1. As a result, the jurors requested and received only selected parts of
the witness’ testimony. Id. at 911. Here, though, we have no reason to suppose
that the readback of the entire witness’ testimony had a "substantial or injurious
effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507
U.S. 619, 638 (1993) (internal quotation marks omitted). We therefore hold that
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the California Court of Appeal reasonably concluded that Petitioner has failed to
show prejudice from the readback, even assuming that the trial court erred by
allowing the readback outside the presence of Petitioner and his lawyer.
4. Petitioner next argues that the record contains insufficient evidence to
prove his guilt of attempted criminal threat. Specifically, he asserts that his
intoxication at the time of the event deprived him of the capacity to form the
required intent and that the state did not produce enough evidence of an overt act
made in furtherance of the crime as required to prove attempt. We previously have
recognized the "heavy burden" that a habeas petitioner must carry to make a
successful insufficiency of the evidence claim. Juan H. v. Allen, 408 F.3d 1262,
1274 (9th Cir. 2005). Not only must Petitioner establish that, after viewing the
evidence in the light most favorable to the prosecution, no rational finder of fact
could have found the essential elements of the crime beyond a reasonable doubt,
Jackson v. Virginia, 443 U.S. 307, 319 (1979), but he also must surmount the
"additional layer of deference" owed to the state courts’ rejection of his claim
under AEDPA, Juan H., 408 F.3d at 1274.
Here, the jury heard evidence that, on the day of the crime, Petitioner
ordered a pizza and went to pick it up. After he returned, Petitioner and the victim,
his wife, engaged in a long argument that began in their apartment and continued
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outside. After someone offered to call the police, Petitioner told his wife, "If the
cops don’t get me, I’ll come back and kill you." He then went back to the
apartment, threw a bottle at the window, took a knife from a drawer in the kitchen,
and left the premises to evade the police. Although some of the witnesses disputed
that evidence, we cannot conclude that no rational finder of fact could have found
beyond a reasonable doubt that Petitioner had the capacity to form the required
intent and that he threatened his wife. Nor can we conclude that the state courts
unreasonably so held. We therefore reject Petitioner’s insufficiency of the
evidence claim.
5. Finally, Petitioner argues that his lawyer rendered constitutionally
deficient assistance by failing to make the insufficiency of the evidence argument
addressed above, during Petitioner’s direct appeal. To succeed on his ineffective
assistance of counsel claim, Petitioner must establish a reasonable probability that,
but for his lawyer’s error, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984). For the reasons stated above,
we see no reasonable probability that Petitioner would have succeeded on his
insufficiency of the evidence claim in his direct appeal. We therefore hold that
Petitioner has failed to show prejudice from his lawyer’s alleged error. He is not
entitled to relief.
AFFIRMED.
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