Allen Hassan v. Fred Morawcznski , 405 F. App'x 129 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ALLEN HASSAN, No. 09-17169
Petitioner - Appellant, D.C. No. 2:05-cv-02144-MCE-
DAD
v.
FRED MORAWCZNSKI, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted November 1, 2010
San Francisco, California
Before: GOULD, IKUTA, Circuit Judges, and MAHAN, District Judge.**
Allen Hassan ('Hassan') appeals the district court's denial of his 28 U.S.C.
y 2254 petition for a writ of habeas corpus challenging his California state court
convictions for obstructing an executive officer, resisting a peace officer, speeding,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
driving without possession of valid registration, and assault on a peace officer. We
have jurisdiction pursuant to 28 U.S.C. y 2253, and we affirm.
There are four certified issues in this appeal. Hassan first argues that
because the California trial court did not give sua sponte a special unanimity
instruction, Hassan was denied his right to a unanimous jury. The Appellate
Department's conclusion--in the last reasoned decision in this matter--that there
was no error in the omission of the instruction is a binding interpretation of state
law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). Further, the
Supreme Court 'has never held jury unanimity to be a requisite of due process of
law.' Johnson v. Louisiana, 406 U.S. 356, 359 (1972). Thus, the state court's
rejection of Hassan's claim was not contrary to, nor an unreasonable application of,
clearly established federal law as determined by the Supreme Court. See 28 U.S.C.
y 2254(d).
Hassan next contends that the jury instructions on assault, in light of expert
testimony and argument by the prosecutor, violated his due process rights, and that
additional clarifying instructions should have been given. However, Hassan has
not met his 'heavy' burden in these circumstances, Henderson v. Kibbe, 431 U.S.
145, 155 (1977), to show that the omission 'so infected the entire trial that the
resulting conviction violates due process.' Cupp v. Naughten, 414 U.S. 141, 147
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(1973). The judge gave instructions on assault in accordance with California law,
and further instructed the jury that, 'If anything concerning the law said by the
attorneys in their arguments or at any other time during the trial conflicts with my
instructions on the law, you must follow my instructions.' These instructions,
which we presume were followed, Fields v. Brown, 503 F.3d 755, 782 (9th Cir.
2007), show that any potential confusion from testimony or argument did not so
infect the outcome of the trial and resulting conviction as to violate due process.
The state court's rejection of this claim was not contrary to, nor an unreasonable
application of, clearly established federal law.
Third, Hassan claims that misconduct by the prosecutor in closing argument
violated his due process rights. This claim also fails because the prosecutor's
argument did not so infect the trial with unfairness as to deprive Hassan of due
process. See Hein v. Sullivan, 601 F.3d 897, 912 (9th Cir. 2010) (quoting Darden
v. Wainwright, 477 U.S. 168, 181 (1986)). The argument that is the subject of this
claim was an unfinished, ambiguous remarµ at the end of the closing statement that
was not emphasized by the prosecutor. Furthermore, Hassan cannot show he
suffered prejudice from any improper suggestion by the prosecutor on assault
because the jury instructions cured any confusion.
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Finally, Hassan argues that his trial counsel rendered ineffective assistance
in a number of different respects, in violation of his Sixth Amendment rights. The
Appellate Department, citing Stricµland v. Washington, 466 U.S. 668 (1984),
determined that counsel's representation did not fall below an objective standard of
reasonableness. Trial counsel's failure to object at several junctures in the
testimony was not unreasonable, as some of the testimony was arguably
admissible, and counsel might have elected not to object for acceptable or strategic
reasons. Trial counsel's decision not to introduce evidence of prior complaints
against the officer in exchange for the prosecutor's promise not to introduce
evidence of prior incidents involving Hassan was a reasonable tactical choice.
Counsel's decision not to introduce additional expert testimony was similarly
reasonable given that several experts had already testified on the subjects in
question. On both these issues we must give deference to the proper scope of
strategic decision-maµing by counsel. See Stricµland, 466 U.S. at 690-91;
Rompilla v. Beard, 545 U.S. 374, 380-81 (2005). As to each of these claims of
ineffective assistance of counsel, the state court did not unreasonably apply clearly
established federal law in determining that the performance of Hassan's counsel
met an objective standard of reasonableness.
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Although the dissent points to troubling issues in the record, we are bound
by AEDPA, which establishes a 'highly deferential standard for evaluating state-
court rulings.' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal
quotation and marµs omitted). In arguing that the state court's rejection of
Hassan's due process claim was contrary to or an unreasonable application of
Supreme Court law, the dissent points only to general due process standards. But
where a Supreme Court case sets 'a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.'
Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009). Under this deferential
standard of review, the state court's decision was neither contrary to nor an
unreasonable application of clearly established federal law. 28 U.S.C.
y 2254(d)(1).
AFFIRMED.
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FILED
Allen Hassan v. Fred Morawcznsµi, No. 09-17169 NOV 30 2010
MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, dissenting. U.S . CO U RT OF AP PE A LS
Allen Hassan was convicted by a jury in California state court of obstructing
an executive officer, resisting a peace officer, speeding, driving without possession
of valid registration, and assault on a peace officer. The convictions arose out of
an altercation between Hassan and Officer Cooney following a traffic stop, the
details of which were contested at trial. The prosecutor posited during closing
argument that the jury could convict Hassan of assault based on any one of three
discrete acts by Hassan that were included in Officer Cooney's version of events:
(a) grabbing the officer's badge, (b) swinging at the officer as Hassan broµe free
from the officer's hold, or (c) 'spearing' the officer with Hassan's shoulder while
in handcuffs.
Although there is no clearly established right in Supreme Court precedent to
jury unanimity in a state prosecution, see Johnson v. Louisiana, 406 U.S. 356, 359
(1972), a prisoner may also challenge a flawed instruction through a writ of habeas
corpus on the theory that it 'so infected the entire trial that the resulting conviction
violates due process.' Cupp v. Naughten, 414 U.S. 141, 147 (1973). We must
inquire whether there is a reasonable liµelihood that the jury applied the challenged
instruction in a way that violates the Constitution. Estelle v. McGuire, 502 U.S.
62, 72 (1991).
The omission of a clarifying jury instruction in this case violated Hassan's
due process right to fundamental fairness in his trial because it permitted a
conviction for assault without agreement by even a simple majority of the jury on
the act constituting assault. Under the prosecutor's theory of the case as presented
to the jury, it is entirely plausible that the jurors split three ways, with several
jurors believing Hassan committed assault only by grabbing the officer's badge,
and not otherwise, several jurors believing Hassan committed assault only by
swinging his arms to breaµ the officer's hold, and not otherwise, and several jurors
believing Hassan committed assault only by 'spearing' the officer with his
shoulder, and not otherwise. In the serious business of a criminal trial, there
should be more certainty than this. While all twelve jurors need not agree on
'which of several possible sets of underlying brute facts maµe up a particular
element' of an offense, Richardson v. United States, 526 U.S. 813, 817 (1999), the
real possibility of a lacµ of agreement on the very act constituting the crime of
assault violated Hassan's right to a fair trial under the Due Process Clause. I would
therefore reverse and grant relief.
It's also worth stepping bacµ a bit to consider how unusual is this case. A
doctor returning home from a basµetball game at half-time to attend to matters for
a patient is stopped for speeding. One thing leads to another, and there is not only
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a speeding ticµet but potentially reciprocal assaults and finally criminal conviction
of the doctor. Add to this mix that the doctor was a United States citizen, had an
Arab name, and was stopped for his speeding ticµet in January 2002, not long after
September 11, 2001. It is also curious that in this particular case of conflicting
testimony between traffic officer and citizen, the normal video machinery of the
police car was said to have malfunctioned so there was no video record that might
have answered the conflicts between the testimony of the officer and of Hassan. In
such a context, we as appellate judges can never µnow precisely what occurred
between the police officer and Hassan, and why a seemingly routine traffic stop
escalated to such a confrontation including criminal charges. All of that is squarely
in the province of the jury. However, we are in a position to ensure that Hassan
received a fair trial, and hence my dissent. In the unusual circumstances of this
case, including the prosecutor's argument that three separate assaults occurred,
each of which is adequately separated in time and space, one cannot be confident
that even a simple majority of the jury convicted Hassan of one of the specified
assaults. In my view, that is fundamentally unfair, and a violation of due process
under established principles and Court precedent.
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