STATE v. AGUERO

SANDSTROM, Justice.

[¶ 1] Billy Joe Valdez Aguero and Joseph Daniel Moncada appeal from criminal judgments entered after a jury found they were each guilty of two counts of murder and two counts of conspiracy to commit murder. We affirm the judgments.

[¶ 2] At approximately 11:45 p.m. on September 7, 2001, the bodies of Robert Belgarde and his son, Damien Belgarde, were found in a rural area near Grand Forks. Robert and Damien Belgarde each had several gunshot wounds, and Robert Belgarde suffered from a blunt force injury to his head. Law enforcement recovered a broken beer bottle, a partially smoked cigarette, unspent 9 mm cartridges, bullet casings, and fired bullets from the crime scene.

[¶ 3] In August 2008, Aguero and Moncada were each charged with two counts of murder in violation of N.D.C.C. § 12.1-16-01, a class AA felony, and two counts of conspiracy to commit murder in violation of N.D.C.C. § 12.1-06-04, a class AA felony, for the deaths of Robert and Damien Belgarde. The State alleged the Belgardes contacted Moncada to purchase drugs, Aguero and Moncada met the Belgardes at a grocery store, and Aguero and Moncada took the Belgardes to a rural area near Grand Forks where they hit Robert Belgarde on the head with a beer bottle and shot the Belgardes multiple times.

[¶ 4] The cases were joined for trial. Moncada was in prison in Minnesota at the time he was charged with the murders and he filed a request for final disposition under the Agreement on Detainers, requesting speedy disposition of the detainer under N.D.C.C. § 29-34-01. On January 30, 2009, the State moved to extend the time for the detainer, and Moncada objected. The court granted the State's motion. Before trial, Moncada's attorney requested the defendants wear non-visible restraints, and the court granted the request. A jury trial was held June 15-25, 2009. Moncada and Aguero wore leg restraints during the trial. The jury found Aguero and Moncada were both guilty as charged.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

[¶ 6] After the appeal was filed, the defendant moved to remand the case to the district court to correct the record to reflect that restraints were visible to the jury. This Court remanded to the district court to hear the motion. After an evidentiary hearing, the district court denied the motion to amend the record.

[¶ 7] Aguero and Moncada argue they were denied the right to a fair trial because they were required to wear leg restraints during the trial. They claim the leg restraints were visible and the court did not make any findings that the restraints were necessary for courtroom security.

[¶ 8] We review a district court's decision whether to use physical restraints during court proceedings for an abuse of discretion. State v. Kunze, 2007 ND 143, ¶ 14, 738 N.W.2d 472. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶ 9] In Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the defendant was shackled with leg irons, handcuffs, and a belly chain that were visible to the jury, and the United States Supreme Court held that the Constitution forbids the routine use of visible shackles during the guilt phase of a criminal trial, unless the use is justified by an essential state interest:

[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.

[¶ 10] State interests justifying the use of visible restraints include physical security, escape prevention, and courtroom decorum. Deck, 544 U.S. at 628, 125 S.Ct. 2007. In deciding whether restraints should be used, a trial court should consider various factors, including the accused's record, temperament, desperateness of his situation, his physical condition; the security situation in the courtroom and court-house; and whether there was an adequate means of providing security that was less prejudicial. Kunze, 2007 ND 143, ¶ 18, 738 N.W.2d 472. If visible restraints are used, the court must make case-specific findings and explain its reasons on the record, justifying the use. Id. at ¶ 18, 21, 24. When a court, "without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove `beyond a reasonable doubt that the shackling error complained of did not contribute to the verdict obtained.'" Deck, at 635, 125 S.Ct. 2007 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

[¶ 11] In a pretrial motion Moncada requested the court order the defendants wear non-visible restraints:

counsel for the Defendant is requesting that Joseph Daniel Moncada be allowed to appear before the finder of fact without visible restraints and in non-jail garb. There is a restraint that may be worn underneath the clothing of an accused that is more than adequate for security and still allows sedate movement to and from the witness stand with nothing more than a limp.

Aguero joined Moncada's motion. In the March 19, 2009, pretrial conference the court granted Moncada's motion, stating, "we'll grant the Defendant's Motion for street attire and non-visible restraints." The defendants requested the court order non-visible restraints, and the court granted the motion. Because the defendants requested restraints, they waived any claim that the court violated their constitutional rights by failing to make the required findings about the necessity of restraints. Cf. State v. Klose, 334 N.W.2d 647, 651 (N.D. 1983) ("a person legally should not be permitted to benefit from an error resulting from or through the action that he promoted or instigated"; a defendant cannot complain and use to his advantage an error caused by the court's actions at the defendant's request).

[¶ 12] We have also said a court's findings on the necessity of restraints should include "the reason for not accommodating a request for one type of restraint rather than the other when the reason is not obvious on the record." Kunze, 2007 ND 143, ¶ 24, 738 N.W.2d 472. If Moncada's pretrial motion can be interpreted as a request for a specific type of restraint, the court granted the motion as requested. Although Moncada and Aguero were later restrained with leg shackles instead of restraints worn under clothing, the court did not make any findings about the reason for not accommodating the defendants' request. The defendants objected to the leg shackles, arguing they were potentially visible to the jury. Although an argument that there should have been findings about the reason for not accommodating the defendants' request for a certain type of restraint could have been raised more clearly, it was error to use another type of restraint without the required findings.

[¶ 13] The Deck standard applies "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury," Deck, 544 U.S. at 635, 125 S.Ct. 2007, but failure to make findings about the court's reason for not accommodating a request for a specific type of restraint is harmless when there is no evidence the jury saw the restraints or the restraints interfered with a defendant's defense. See People v. McWhorter, 47 Cal.4th 318, 97 Cal.Rptr.3d 412, 212 P.3d 692, 732 (2009) (an unjustified or unadmonished shackling is harmless when there is no evidence the jury saw the restraints); Mendoza v. Berghuis, 544 F.3d 650, 654-55 (6th Cir. 2008) (Deck applies only to visible restraints). In this case, there is no evidence in the trial record that the jury saw the restraints. It is not clear from the record what type of restraints the defendants were wearing, only that they were leg restraints with chains. There is evidence in the record that the tables the defendants sat at during the trial blocked the view the jury had of their feet and that boxes were placed around the table to further obstruct the jury's view. The court specifically found the view of the defendants' feet was properly obstructed. Although Aguero claims jurors may have seen or heard the restraints when they were unexpectedly brought into the court-room on one occasion and the defendants rushed to their seats, the parties did not approach the court during the trial with any concerns or request the record reflect the jury saw or heard either of the defendants' restraints. There was no evidence from jurors that they saw the restraints. Cf. Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) (five jurors testified they saw the restraints during the trial). There is nothing in the record supporting the defendants' claims that the restraints were visible, and the defendants do not claim the leg restraints interfered with their defense or prevented them from communicating with their attorneys. Moreover, the evidence in the record is overwhelmingly in support of the guilty verdicts. We conclude the error was harmless. N.D.R.Crim.P. 52(a).

[¶ 14] On the basis of this record, we conclude there was no reversible error in requiring that Aguero and Moncada wear restraints during the trial.

[¶ 15] Moncada argues his Sixth Amendment right to confront witnesses against him was violated when the district court allowed a witness to testify about Damien Belgarde's statement that he was meeting Moncada at a grocery store on the night of the murders. He contends the United States Supreme Court limited the right to use any of a decedent's out-of-court statements in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), and a decedent's out-of-court statements are not admissible unless the statements are a dying declaration or the accused had a prior opportunity to cross-examine the declarant.

[¶ 16] We apply a de novo standard of review to a claim of a constitutional violation. State v. Sorenson, 2009 ND 147, ¶ 16, 770 N.W.2d 701. Under the Confrontation Clause of the Sixth Amendment of the United States Constitution, an accused has a right to confront the witnesses against him. The United States Supreme Court has held the Sixth Amendment prohibits the admission of testimonial statements against an accused unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause does not apply to non-testimonial statements. Sorenson, at ¶ 16. The United States Supreme Court has not specifically defined what a testimonial statement is, but has said, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Crawford, at 51, 124 S.Ct. 1354. This Court has held statements made to friends or family generally are not testimonial statements, and the Confrontation Clause does not apply. Sorenson, at ¶ 20.

[¶ 17] In Giles, 128 S.Ct. at 2681-82, the trial court allowed the admission of the murder victim's statements made to a police officer responding to a domestic violence call. The United States Supreme Court has held a defendant forfeits his Sixth Amendment right to confront a witness against him when his wrongful act made the witness unavailable to testify, only if the defendant engaged in the wrongful conduct with the intent to prevent the witness from testifying. Id. at 2684. Although Moncada argues this applies to all statements by a deceased declarant, the Court ruled confrontation rights apply only to testimonial statements, and the parties in that case did not dispute that the statements were testimonial. Id. at 2682. Giles did not extend Sixth Amendment confrontation rights to all statements made by a deceased declarant, including statements that are not testimonial. See id. at 2692-93 (the Confrontation Clause excludes only testimonial statements, and statements to friends and neighbors may be excluded only by hearsay rules, if at all).

[¶ 18] Here, a witness testified she was present when Damien Belgarde called Moncada at approximately 9:50 p.m. on September 7, 2001, Damien Belgarde said he was meeting Moncada at a nearby grocery store, and then the Belgardes left the apartment. Damien Belgarde's statements to the witness were casual remarks made to a friend or acquaintance. See Sorenson, 2009 ND 147, ¶ 20, 770 N.W.2d 701. We conclude the statements were not testimonial and the admission of the statements did not violate Moncada's confrontation rights.

[¶ 19] Moncada argues the district court erred in granting a continuance and failing to try him within 180 days of his request for speedy disposition of the detainer as required by N.D.C.C. § 29-34-01, the Interstate Agreement on Detainers ("IAD").

[¶ 20] We have explained the standard of review for deciding whether good cause exists to grant additional time:

Legal logic dictates sound discretion is the proper standard to be applied on the question whether or not good cause existed for extension or continuance, and that an appellate court will not reverse such decision except in instances where the trial judge abused his discretion. We have repeatedly stated that abuse of discretion is the equivalent of acting unreasonably, arbitrarily or unconscionably.

[¶ 21] "[A] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he faces pending criminal charges in another jurisdiction and requesting the institution to hold the prisoner or give notice when his release is imminent." State v. Moe, 1998 ND 137, ¶ 20, 581 N.W.2d 468. "The IAD provides a method for the orderly disposition of detainers filed by one jurisdiction on prisoners incarcerated in another jurisdiction." Id. at ¶ 8. Section 1 of Article III of the IAD, as codified in N.D.C.C. § 29-34-01, provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

[¶ 22] When deciding whether there is good cause to grant additional time, we consider the length of the delay, the reason for the delay, the defendant's assertion of his right, and whether there is prejudice to the defendant. State v. Moore, 2007 ND 7, ¶ 6, 725 N.W.2d 910. Delay is not presumptively prejudicial, and a lack of prejudice substantially weakens a claim. Id.

[¶ 23] After a hearing on the State's motion, the district court found there was good cause to grant a continuance for a reasonable amount of time:

[T]his court determines that the State has met its burden of showing good cause why the 180 disposition timeline should be continued for a reasonable amount of time after March 8, 2009. This matter has been processed without unnecessary delay, and any lengthy delays which have occurred have been as a result of the conflict discovered between the initial court-appointed counsel and the Defendant (October 8, 2008-November 10, 2008), those sought by the Defendant's counsel to afford ample preparation for the Preliminary Hearing (November 12, 2008-January 16, 2009), and those necessitated by defense counsel's unavailability for hearing the State's motion (February 6, 2009-February 27, 2009).

[¶ 24] In considering the length of time of the delay, we have said, "The allowable delay for a minor street crime is considerably less than that for a more serious and complex charge." Moore, 2007 ND 7, ¶ 7, 725 N.W.2d 910. Moncada claims the trial was required to begin on March 8, 2009. The trial began on June 15, 2009, which was approximately 100 days after the 180-day period ended. Although there was a significant delay in this case, all of the factors must be given weight, and none of the factors is controlling, including the length of the delay. Id. at ¶ 6.

[¶ 25] The second factor to consider is the reason for the delay. In August 2007, Moncada began serving a thirty-nine month sentence for a conviction of a drug-related offense in Minnesota and was scheduled to be released on May 14, 2009. Moncada was charged in this case in August 2008, and his request for final disposition was filed on September 9, 2008. Moncada's request for court-appointed counsel was approved and counsel was appointed in early October 2008, but his counsel informed the court there was a conflict in November 2008 and new counsel was appointed. A preliminary hearing was scheduled for November 12, 2008, but Moncada requested a continuance and the hearing was rescheduled for January 16, 2009. On January 30, 2009, the State moved to extend the period for the detainer, and Moncada's counsel indicated he would not be available for a hearing on the motion until the last week of February. Moncada was responsible for many of the delays in the proceedings.

[¶ 26] We must also consider Moncada's assertion of his right and any prejudice. There are three types of prejudice: oppressive pretrial incarceration, anxiety caused by the delay, and an impaired defense. Foster, 1997 ND 8, ¶ 12, 560 N.W.2d 194. Moncada does not claim there was any anxiety caused by the delay or that his defense was impaired. Moncada was not subject to oppressive pretrial incarceration. Moncada was not scheduled to be released from his incarceration in Minnesota until a month before the trial began, and his pretrial incarceration was not unreaounsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:

The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro, supra, at 473, 127 S.Ct. 1933. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").

It is through this doubly deferential lens that a federal habeas court reviews Strickland claims under the § 2254(d)(1) standard.

Petitioner bears the burden of proving that counsel's trial strategy was deficient. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" "[He] bears the heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound trial strategy." "In determining whether the defendant received effective assistance of counsel, `we will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight,' but rather, will defer to counsel's sound trial strategy." "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment."

"A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." The court must then consider those acts or omissions against "prevailing professional norms." Even then, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."

In his first ground, Woodfork claims his trial counsel was ineffective for pursuing a manslaughter defense instead of accidental murder. This argument is without merit as Woodfork has failed to satisfy either prong of Strickland.

Woodfork has failed to demonstrate that his counsel's strategy of pursuing a theory of involuntary manslaughter was not within the range of competence demanded of attorneys in criminal cases. Because, under California law, involuntary manslaughter is premised on the fact the defendant did not have the intent to kill, this theory was consistent with the evidence presented to the jury as well as Woodfork's claim that the shooting was accidental. Thus, the decision to pursue this theory of defense is not an unreasonable trial strategy.

Woodfork is also unable to show that, but for counsel's tactical decision to pursue an involuntary manslaughter theory, the result would have been different. The jury was presented with an option of finding the defendant guilty of the lesser crime of involuntary manslaughter instead of first degree murder. Nevertheless, the jury found Woodfork guilty of the more serious of the two-first degree murder. Thus, it is illogical that the jury would have been willing to find Woodfork guilty of "accidental murder." Woodfork is not entitled to relief on his first ground.

In his second ground, Woodfork claims his trial counsel was ineffective for failure to pursue the defense of "accidental murder." This is essentially the same claim made in ground one and fails for the same reasons. Because the theory of involuntary manslaughter is consistent with a theory that Woodfork lacked the intent to kill the victim, Woodfork is unable to show prejudice under Strickland. Woodfork is not entitled to relief on his second ground.

In his third ground, Woodfork claims his trial counsel was ineffective for failing to object to the jury instruction regarding first-degree murder. Although his argument is not entirely clear, it appears that Woodfork claims the instruction was unconstitutional because it allowed the jury to find him guilty of first degree murder without finding that he had the specific intent to commit murder. Accordingly, his attorney should have objected to the instruction on constitutional grounds.

As a threshold matter, California's felony-murder rule is not unconstitutional. Rather, it is a rule of substantive law establishing first-degree murder penalty for murders which occur in the course of committing another felony, and defendant's intent, which the prosecution must still prove, relates to the other felony, rather than murder. At the trial, the prosecution presented evidence that Woodfork intended to rob the victim and shot him intentionally in the course of the robbery. Thus, Woodfork is unable to show that his counsel was deficient for failing to object to the instruction either because it was unconstitutional or because the evidence submitted at trial did not justify a first-degree murder instruction. Woodfork is not entitled to relief on his third ground.

As part of his fourth ground, Woodfork claims his trial counsel was ineffective for failing to call his ex-girlfriend to the stand to challenge her credibility and the veracity of the contents of the pretext call. Woodfork presented this argument in his petition to the Sacramento County Superior Court, which rejected the claim. The court noted, that counsel's decision not to call Woodfork's ex-girlfriend could have been a tactical decision not to place emphasis on Woodfork's incriminating statements made during the call. Woodfork has failed to demonstrate that this conclusion violated clearly established federal law or constituted an unreasonable determination of the facts.

Woodfork is also unable to show prejudice under Strickland. It is clear that the substance of the pretext phone call was Woodfork's incriminating admissions, which were freely made, not the statements or questions of Woodfork's ex-girlfriend. Thus, Woodfork is unable to demonstrate that, but for his counsel's failure to call and question his ex-girlfriend, that the result of the trial would have been any different. Woodfork is not entitled to relief on this ground.

In his sixth ground, Woodfork contends that his trial counsel was ineffective for failing to object when the judge re-issued CALJIC 17.10 following the jury's indication that it was split between first-degree murder and involuntary manslaughter. The record is clear that Woodfork's counsel actually did object to the instruction and requested the judge declare a mistrial. Woodfork is not entitled to relief on this ground.

In his seventh ground, Woodfork claims his trial counsel was ineffective for failing to object to the prosecution's motion to exclude the introduction of witness testimony concerning the victim's alleged affair and the fact that someone had threatened to kill the victim because of the affair.

Woodfork contends his trial counsel should have argued that the victim mistook Woodfork for the individual who had threatened him and attacked Woodfork preemptively. Woodfork also claims that evidence of the victim's affair would have impeached the prosecution's closing statements that the victim was a "law abiding citizen, a loyal husband, and a rightous [ sic] person."

At the time the prosecution made this motion, Woodfork's attorney did not believe that character of the parties was at issue. Woodfork has not demonstrated that this tactical decision not to pursue a defense based on the victim's character was unreasonable. Aside from the fact that the victim may have been threatened, there was no evidence to support Woodfork's theory that the victim was confused as to Woodfork's identity, i.e., that Woodfork physically resembled the person who threatened the victim. Indeed, even if the jury were to believe Woodfork's assertion that he was only panhandling, there is also no additional evidence that the victim thought Woodfork was anyone other than a stranger asking for spare change. Woodfork is unable to overcome the "heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound trial strategy."

Woodfork's claim that evidence of the victim's extramarital affair could have been used to impeach closing statements by the prosecutor and the victim's family members, is also without merit. The prosecution's closing arguments occurred at the end of trial, after the timeframe for Woodfork to submit evidence. Furthermore, Woodfork has not shown that had his counsel tried to submit evidence of the victim's affair, it would have diminished the impact of the victim statements made by the victim's daughter or sister-in-law at sentencing. Thus, Woodfork is unable to establish prejudice under Strickland. Woodfork is not entitled to relief on his seventh ground.

In his eleventh ground, Woodfork claims that his appellate counsel was ineffective for failing to raise all of the grounds he raises in his Petition to this Court. Woodfork claims there is no evidence that his appellate counsel thoroughly investigated his case. However, Woodfork bears the burden of proving that his appellate counsel did not adequately investigate the merits of his appeal, a burden which he has failed to meet. Additionally, the failure of appellate counsel to raise meritless or weak issues does not constitute ineffective assistance of counsel. Because none of the grounds Woodfork raises have any merit, his appellate counsel was not ineffective for failing to raise them.

In his fourth ground Woodfork also claims that the trial court erred by admitting the pretext phone call because it violated the Fourth Amendment, the Fifth Amendment, the Sixth Amendment and a California state law prohibiting eavesdropping. These arguments will be addressed in order.

Woodfork's Fourth Amendment argument is foreclosed by the Supreme Court decision in Stone. Under the holding in Stone, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim," federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal search or seizure was introduced at trial. The Ninth Circuit has made it clear that all Stone requires is that the State provide a state prisoner a fair and full opportunity to litigate his Fourth Amendment claim. "The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." In this case, Woodfork was provided a fair and full opportunity to present this claim. Woodfork is not entitled to relief on this claim.

Woodfork claims the admission of the pretext phone call violated his Fifth Amendment right against self-incrimination. Woodfork claims the call amounted to surreptitious interrogation which was designed to elicit incriminating remarks.

The safeguard against self-incrimination which is protected and preserved by the holding in Miranda v. Arizona, 384 U.S. 436 (1966), only applies where a suspect is in custody and subjected to interrogation. In this case, it is undisputed that Woodfork was not in police custody at the time of the call because he was not under arrest, nor was he being detained in a functional equivalent of a formal arrest. Accordingly, the Fifth Amendment's protections against self-incrimination, as articulated by Miranda and its progeny, are not applicable.

Furthermore, in the context of a pretext phone call, " Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement." Woodfork is not entitled to relief on this claim.

Woodfork claims that the admission of the pretext phone call violated his Sixth Amendment right to confrontation. Specifically, Woodfork claims that he did not have the opportunity to confront his ex-girlfriend, Ms. Smith, concerning the veracity of her statements and her motives for making the call. The Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." In this case, Ms. Smith's statements were not being offered for their truth; they were being offered to give context to Woodfork's incriminating statements. Accordingly, the trial court did not violate Woodfork's Sixth Amendment right to confrontation. Woodfork is not entitled to relief on this claim.

Woodfork claims that the police officers who recorded his call with Ms. Smith violated California Penal Code §§ 632 and 632.7. To the extent that Petitioner raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." As noted above, this ground is unexhausted. When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must assume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state-court decision was objectively unreasonable. To the extent that Woodfork complains that the California trial court misapplied California state laws against eavesdropping by not suppressing the contents of the call, his claim is not properly before this Court. To the extent he claims that the misapplication of this law resulted in a violation of his Fourth Amendment rights, his claim is foreclosed by Stone. Woodfork is not entitled to relief on this claim, nor is he entitled to any claim for relief presented in his fourth ground.

Woodfork claims the court improperly permitted the prosecution to introduce evidence that he had been previously convicted of residential robbery in order to impeach him on cross-examination.

The Supreme Court explicitly declined to rule on whether the admission of evidence of prior crimes violates the constitution. Therefore, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law'" as determined by the Supreme Court.

To the extent that Woodfork's petition claims that the trial court and appellate court misapplied state law, this issue is beyond the purview of this Court in a federal habeas proceeding. It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."

In order to show that the state courts violated his constitutional rights by misapplying state law, Woodfork would have to demonstrate that "the action complained of . . . violate[d] those `fundamental conceptions of justice which lie at the base of our civil and political institutions.'" In applying this general principle, Ninth Circuit precedents as well as the precedents of several sister circuits have concluded that it could apply to the introduction of propensity evidence. Nevertheless, the precedents of federal appellate courts are irrelevant after AEDPA. "[T]he Supreme Court has explicitly reserved consideration of the issue at hand in Estelle. Thus, this Court is barred from determining whether the improper introduction of propensity evidence could rise to the level of a due process violation. Woodfork is not entitled to relief on his fifth ground.

In his sixth ground, Woodfork claims that the trial court violated the Fourteenth Amendment by giving CALJIC 17.10 to the jurors during their deliberations when they indicated they were split in their verdict. Woodfork fails to cite any Supreme Court decision to support his argument that the state trial court's deadlocked jury instruction violated his constitutional rights. He thus does not demonstrate that the state court of appeal's decision was "contrary to" or "an unreasonable application of" Supreme Court precedent.

A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. In this case, however, Woodfork argues that not only was CALJIC 17.10 itself confusing, but that the manner in which the court gave the instruction was coercive.

Woodfork reasons that by allowing the jury to convict him of a lesser crime, CALJIC 17.10 essentially deprived the jury of the ability to render a split decision. Woodfork has failed to present a federal constitutional issue to this Court. While it is true that due process and the Sixth Amendment to the Constitution require that a jury be correctly instructed as to every element of the crime with which a defendant is charged and convicted, that is not the issue before this Court. The issue before this Court is whether due process requires that a jury in a criminal trial be instructed at all or correctly instructed as to all necessarily included lesser offenses. First, Supreme Court precedent does not require a trial court to instruct the jury on a lesser included offense in a non-capital case, and the Ninth Circuit has concluded that such a claim is not cognizable on federal habeas review. It follows, a fortiori, that if a failure to instruct on lesser included charges at all does not present a federal issue, a failure to instruct on them correctly also does not present a federal issue. Furthermore, because CALJIC 17.10 is similar to Ninth Circuit Model Criminal Jury Instruction 3.14 (lesser included offense) this Court is confident that CALJIC does not present a federal, constitutional issue.

Woodfork next claims that reiterating CALJIC 17.10 to the jurors when they indicated that they were split in their verdict was coercive. Upon review of the record, this Court is satisfied that, in its context and under all the circumstances, the judge's statement had no coercive effect. The relevant Supreme Court decision is Allen v. United States, and its progeny, pursuant to which a court may instruct the jury to continue deliberating so long as the instruction is not coercive. There was no indication the jury was hopelessly deadlocked because the jury only returned one note to the judge expressing that it was split. Nor did the judge inform the jury that they "had to reach a decision in this case." Furthermore, there is no indication the judge was informed of the identity of the minority jurors or even that he knew whether the majority position was leaning toward first-degree murder or manslaughter.

The judge simply informed the jury, if it found the prosecution had not sustained its burden of proving each element of murder beyond a reasonable doubt, but found that the prosecution has sustained its burden of proving the elements of involuntary manslaughter beyond a reasonable doubt, then the jury could return a guilty verdict only for the lesser offense. Despite Woodfork's assertions to the contrary, this instruction actually ensured that he would not be convicted of the greater offense if the jury had a reasonable doubt as to its commission because it conveyed the essential principle that the jury must choose the lesser offense if it entertains any reasonable doubt as to the greater. Woodfork is not entitled to relief on this ground.

In his eighth ground, Woodfork claims the prosecutor used perjured testimony to secure a conviction in violation of the Fourteenth Amendment. Woodfork claims that Thomas' testimony that Woodfork had seen the victim getting money in the store before the robbery was inconsistent with other evidence that Woodfork had left the store before the victim received any money.

"[T]he [Supreme] Court has consistently held that a conviction obtained by the 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." There is no evidence that the prosecutor in this case knowingly used false or perjured testimony, the essential elements of prosecutorial misconduct. While Woodfork highlights one area in which the testimony of one witness appears inconsistent, that standing alone is insufficient. As a threshold matter, the testimony at issue is not necessarily inconsistent with the fact that Woodfork had left the store before the victim received any money from the cashier because Woodfork could have seen the transaction from outside the store by looking through the window. Furthermore, Thomas only testified as to what Woodfork told him, not what he had actually witnessed. Woodfork has failed to show either that the prosecutor knowingly introduced false or perjurious testimony let alone that the prosecutor knew Thomas' story was false. Woodfork is not entitled to relief on this ground.

In his ninth ground, Woodfork claims that there was insufficient evidence to sustain his conviction for first degree murder. As stated by the Supreme Court in Jackson, the constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." This Court must, therefore, determine whether the California court unreasonably applied Jackson. In making this determination, this court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Rather, when "faced with a record of historical facts that supports conflicting inferences," this court "must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution."

Woodfork was convicted of first degree murder under the theory of felony murder. The felony murder rule allows a jury to convict a defendant of first-degree murder when he or she unlawfully kills another in the commission or attempted commission of the crime of robbery. The jury need not find that the killing was pre-meditated or even intentional so long as the perpetrator had the specific intent to commit robbery. Thus, under California's felony murder statute, the prosecution did not have to prove that the killing was premeditated or that Woodfork acted with malice aforethought. Thus, Woodfork's contentions that there was no evidence that he acted with malice aforethought or that he did not intend to kill the victim are misplaced in light of California law.

To the extent that Woodfork claims that the evidence was insufficient to show he had the specific intent to commit robbery, his claim is without merit. As noted above, this Court must consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In this case, the prosecution presented significant evidence that Woodfork had the specific intent to rob the victim, and that the shooting occurred in the course of the attempted robbery. Rodney Thomas testified that it appeared very obvious to him that Woodfork was trying to take the victim's money before Woodfork shot the victim. Felton Payne also testified that Woodfork told him that he had killed a man he was trying to rob. Finally, the prosecution submitted a recorded call in which Woodfork himself admitted several times that he intended to rob the victim. Thus, if a rational trier of fact found these pieces of evidence credible, he or she could have found that Woodfork intended to rob the victim. Woodfork is not entitled to relief on his ninth ground.

In his tenth ground, Woodfork claims that the cumulative effect of the errors committed by the trial court warrant reversal. As discussed in the previous sections, Woodfork has failed to demonstrate that the trial court committed any errors. Because there are no errors to cumulate, Woodfork is not entitled to relief on his tenth ground.

Woodfork is not entitled to relief under any ground raised in the Petition. Accordingly,

IT IS HEREBY ORDERED THAT the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.

The Clerk of the Court is to enter judgment accordingly.

Dated: November 9, 2010