Marilyn Freeman v. Matthew Cate ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN KAYE FREEMAN, No. 13-55872
Petitioner-Appellant, D.C. No.
3:10-cv-01987-DMS-MDD
v.
MATTHEW CATE and EDMUND G. MEMORANDUM*
BROWN, Jr.,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted July 10, 2017
Pasadena, California
Before: PREGERSON, REINHARDT, and WARDLAW, Circuit Judges.
Marilyn Kaye Freeman appeals the denial of her 28 U.S.C. § 2254(d)
petition for a writ of habeas corpus challenging her state convictions for stalking,
burglary, solicitation to commit kidnapping, misdemeanor battery, and child
endangerment. We granted a Certificate of Appealability on two issues: (1)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
whether the reinstatement of a previously disqualified judge deprived Freeman of
due process; and (2) whether trial or appellate counsel rendered ineffective
assistance in connection with the issue of judicial bias. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
We review Freeman’s petition under the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104–132, 110 Stat. 1214. We may grant habeas relief only if “it is shown that the
earlier state court’s decision was contrary to federal law then clearly established in
the holdings of [the Supreme] Court; or that it involved an unreasonable
application of such law; or that it was based on an unreasonable determination of
the facts in light of the record before the state court.” Harrington v. Richter, 562
U.S. 86, 100 (2011) (citations omitted) (internal quotation marks omitted).
Furthermore, “[f]actual determinations by state courts are presumed correct absent
clear and convincing evidence to the contrary,” or unless the factual determinations
were “objectively unreasonable in light of the evidence presented in the state-court
proceeding.” Miller–El v. Cockrell, 537 U.S. 322, 340 (2003). We review a
district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition de novo.
Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014).
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1. The California Supreme Court’s conclusion that Judge O’Neill’s
reinstatement in Freeman’s case did not rise to the level of a constitutional
violation was neither contrary to nor an unreasonable application of clearly
established law.
A state court decision is contrary to federal law if the court either “applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or
if it “confronts a set of facts that are materially indistinguishable from a decision of
[the Supreme] Court and nevertheless arrives at a result different from . . .
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The California
Supreme Court surveyed decades of Supreme Court precedent analyzing judicial
bias, and found that Freeman’s case did “not implicate any of the
concerns—pecuniary interest, enmeshment in contempt proceedings, or the amount
and timing of campaign contributions—which were the factual bases for the United
States Supreme Court’s decisions in which it found that due process required
judicial disqualification.” The state court acknowledged that these decisions did
not preclude the possibility that other types of conduct might also require judicial
disqualification under the Due Process Clause. However, it also observed that the
Supreme Court had emphasized that judicial bias implicates due process only in
“extraordinary” circumstances and in the context of “extreme facts,” and so
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declined to extend existing precedent to novel factual scenarios. Accordingly, the
state court concluded that the facts of Freeman’s case did not create a
constitutionally intolerable “risk of actual bias or prejudgment.” Caperton v. A.T.
Massey Coal Co., Inc., 556 U.S. 868, 884 (2009). We decline to hold that the state
court’s decision was “contrary to” federal law, because it arrived at neither a legal
conclusion that “contradicts” governing law nor a different result on facts
“materially indistinguishable” from a relevant precedent.
A state court decision unreasonably applies federal law if it “either 1)
correctly identifies the governing rule but then applies it to a new set of facts in a
way that is objectively unreasonable, or 2) extends or fails to extend a clearly
established legal principle to a new context in a way that is objectively
unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). The
unreasonable application must be “objectively unreasonable, not merely wrong;
even clear error will not suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(internal quotation marks omitted). In this case, the California Supreme Court
correctly identified Tumey v. Ohio, 273 U.S. 510 (1927), and Caperton, 556 U.S.
868, as the sources of the governing federal rules. It then held that the facts of this
case did not arise to the kind of “extraordinary” or “extreme” facts involved when
a judge’s personal interest in the outcome of a proceeding requires judicial
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disqualification under the Due Process Clause. Here, Judge O’Neill did not have a
personal interest in the outcome of Freeman’s case. Of course, when Judge
O’Neill believed that Freeman was possibly stalking Judge Elias, Judge O’Neill’s
colleague and close friend, he appropriately recused himself because his concern
for Judge Elias’s safety may have created an intolerable risk of judicial bias.
However, once he realized that the basis for recusal was untrue, the intolerable risk
of bias was nullified. Therefore, it was not “objectively unreasonable” for the
California Supreme Court to conclude that Freeman’s claims did not rise to the
level of “extreme facts” that would require judicial disqualification under the
Fourteenth Amendment.
We recognize, as did the California Supreme Court, that Judge O’Neill’s
reinstatement likely violated California’s judicial disqualification statutes.
However, this fact alone does not warrant a conclusion that Freeman’s due process
rights were violated. See Caperton, 556 U.S. at 876 (recognizing that “most
matters relating to judicial disqualification [do] not rise to a constitutional level”
(alternation in original)); Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“[T]he Due
Process Clause of the Fourteenth Amendment establishes a constitutional floor, not
a uniform standard. Instead, these questions [of judicial disqualification] are, in
most cases, answered by common law, statute, or the professional standards of the
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bench and bar.” (citation omitted)). Here, there is no evidence that the higher
standard required to demonstrate a due process violation was met. Accordingly,
the California Supreme Court’s holding was not an unreasonable application of
federal law.
2. Under AEDPA’s doubly deferential standard of review, trial counsel
did not render ineffective assistance of counsel in connection with Judge O’Neill’s
reinstatement. Because there is no reasoned opinion from the state courts
regarding Freeman’s claim that her trial counsel was ineffective, we conduct an
independent review of the record to determine whether the state court’s denial of
Freeman’s ineffective assistance claim was contrary to, or an unreasonable
application of, Strickland v. Washington, 466 U.S. 668 (1984). Greene v. Lambert,
288 F.3d 1081, 1088–89 (9th Cir. 2002). Although we conduct our own review,
we nevertheless must accord 28 U.S.C. § 2254(d) deference to the state court’s
denial of the claim. Harrington, 562 U.S. at 99 (“There is no merit to the assertion
that compliance with § 2254(d) should be excused when state courts issue
summary rulings. . . .”). “The standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in tandem, review is doubly so.”
Id. at 105 (citations omitted) (internal quotation marks omitted). “When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The
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question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
Here, there is “[a] reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. Freeman argues that her trial counsel was ineffective for
failing to challenge Judge O’Neill’s reinstatement or file various motions she
wished to file. But as Freeman explained to the trial court on October 18, 2004,
her counsel believed that O’Neill was “a decent judge,” and that the alternative
judges were “really terrible” in comparison. There is no evidence in the record that
this belief was an unreasonable one. Therefore, there is a “reasonable argument”
that trial counsel declined to challenge Judge O’Neill as part of his trial strategy.
We acknowledge that Freeman clearly disagreed with her trial counsel’s failure to
challenge Judge O’Neill. But trial tactics are clearly committed to the discretion of
counsel. United States v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003). And we
are required to “indulge a strong presumption . . . that, under the circumstances, the
challenged action might be considered sound trial strategy.” Strickland, 466 U.S.
at 689 (internal quotation marks omitted). Therefore, we conclude that Freeman’s
claim of ineffective assistance cannot overcome AEDPA’s doubly deferential
review. Because Freeman has failed to demonstrate deficient performance, we
need not reach the question of prejudice. Id.7
3. Finally, we conclude that under AEDPA’s doubly deferential standard
of review, appellate counsel did not render a deficient performance. In reviewing
this claim, we look to the last reasoned decision of the state courts; here, the 2010
decision of the Court of Appeal. McCormick v. Adams, 621 F.3d 971, 975–76 (9th
Cir. 2010). Again, we accord the state decision both Strickland and § 2254(d)
deference; therefore, “[t]he question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at
105.
Freeman alleged that her appellate counsel was ineffective because he did
not raise to the California Supreme Court the argument that the entire San Diego
County Superior Court bench was recused from her case during the time the court
believed that Freeman might have been stalking Judge Elias. The Court of Appeal
denied the claim, reasoning, “Because the recusal of the entire bench was premised
on the same grounds as Judge O’Neill’s recusal, it follows that [in light of the
California Supreme Court’s decision] there is no viable statutory or constitutional
argument premised on recusal of the entire bench.” The Court of Appeal
concluded that Freeman had failed to state a prima facie case for relief on this
claim, and summarily denied it. The Court of Appeal’s denial of Freeman’s claim
was neither contrary to nor an unreasonable application of Strickland. The
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California Supreme Court had already concluded that due process did not mandate
Judge O’Neill’s disqualification from Freeman’s case. It was thus reasonable for
the Court of Appeal to conclude that Freeman’s appellate counsel could not have
raised any viable claim as to the disqualification of any other San Diego Superior
Court judge. Therefore, there is a “reasonable argument that counsel satisfied
Strickland’s deferential standard,” Harrington, 562 U.S. at 105, and this claim
provides no basis for § 2254 relief. Again, because Freeman has failed to
demonstrate deficient performance, we need not reach the question of prejudice.
Strickland, 466 U.S. at 697.
Accordingly, we must affirm the district court’s denial of Freeman’s 28
U.S.C. § 2254 petition for a writ of habeas corpus.
AFFIRMED.
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