Romero v. California Department of Corrections & Rehabilitation ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 09 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JOSE DAVID ROMERO, No. 09-16776
Petitioner - Appellant, D.C. No. 1:06-cv-01866-JLS-JMA
v.
MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; JAMES E. TILTON;
DERRAL G. ADAMS,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted November 29, 2010
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
Jose David Romero (“Romero”) appeals the district court’s denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus challenging his California state
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court conviction for first degree felony murder. We have jurisdiction pursuant to
28 U.S.C. § 2253, and we affirm.
Romero first claims that the trial court’s dismissal of the robbery count at the
close of evidence violated his due process right to a fair trial because it “gutted” his
defense that his lack of knowledge of the victim’s presence made him guilty of
theft and not felony murder. Romero does not cite, nor have we identified, any
United States Supreme Court authority clearly establishing a constitutional right to
the retention of a particular charge and corresponding jury instruction on a lesser
offense in a non-capital case. Cf. Beck v. Alabama, 447 U.S. 625, 627 (1980)
(holding that the death penalty may not be imposed when the jury was not
permitted to consider a verdict of guilt of a lesser included non-capital offense).
Further, the jury was instructed on the elements of felony murder, as well as the
underlying felonies of robbery, kidnapping, and carjacking, including the
requirement of specific intent, and therefore had to find that Romero knew of the
victim’s presence to convict him of murder. See Richardson v. Marsh, 481 U.S.
200, 206 (1987) (noting the assumption of the law that jurors follow their
instructions). The absence of the robbery charge did not deprive him of the
opportunity to present his defense of lack of knowledge. Nor did the absence of
the robbery charge render the trial fundamentally unfair. See Crane v. Kentucky,
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476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984))). The rejection of Romero’s claim by the
California Court of Appeal was not contrary to, nor an unreasonable application of,
clearly established federal law as determined by the Supreme Court. See 28 U.S.C.
§ 2254(d).
Next, Romero argues that his trial counsel was ineffective, in several
different respects, in violation of his Sixth Amendment rights. The California
Court of Appeal stated the proper standard under Strickland v. Washington, 466
U.S. 668 (1984), and rejected Romero’s claims of ineffective assistance of counsel,
holding that trial counsel had plausible tactical reasons for his decisions.
Counsel’s lack of objection to alleged misconduct by the prosecutor1 in
characterizing the timeline of events was not unreasonable; counsel may have had
a strategy to accept the prosecutor’s reconstruction of the timeline, to focus the jury
on Romero’s central contention, for which the timeline was irrelevant. Similarly,
counsel was not ineffective merely because counsel did not object to hearsay
1
Romero concedes that he has waived any claim based on prosecutorial
misconduct. To the extent Romero asks the court nevertheless to review the claim
under an exception to procedural default, see Coleman v. Thompson, 501 U.S. 722,
749–50 (1991), no exception is warranted.
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statements introduced during Deputy Toscana’s testimony. Trial counsel
reasonably may have concluded that the testimony was favorable to the defense
case because it reinforced Romero’s version of events and showed that Romero
consistently denied involvement in the shooting.
Counsel was not ineffective in opting not to request additional jury
instructions to support the defense theory. The California Court of Appeal’s
conclusion that the instructions were adequate as a matter of state law binds us.
See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation
of state law . . . binds a federal court sitting in habeas corpus.”). Because the
instructions were proper under state law, and included sufficient reference to the
requirement of specific intent to permit a successful defense on Romero’s theory,
there was no constitutional ineffective assistance of counsel when counsel declined
to seek additional instructions.
Finally, Romero contends that the trial court’s failure sua sponte to instruct
the jury on certain matters violated his right to a fair trial. The lack of additional
instructions on knowledge, specific intent, and theft did not so infect the outcome
of the trial that the resulting conviction violates due process. Cupp v. Naughten,
414 U.S. 141, 147 (1973); see also Estelle v. McGuire, 502 U.S. 62, 71–72 (1991).
The instructions on felony murder, robbery, kidnapping, and carjacking—all
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proper under state law—permitted the jury to acquit Romero based on the defense
theory of lack of knowledge. Romero has not met the “heavy” burden to show that
the omission of instructions was so prejudicial as to violate due process. See
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
AFFIRMED.
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