Star Van Pool v. Ron Kenan

FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STAR MONIQUE VAN POOL, No. 10-55870
Petitioner-Appellant, D.C. No. 5:07-cv-01224-GW-JTL
v.
MEMORANDUM *
RON KENAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the
Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted March 7, 2013
Pasadena, California
Before: PAEZ and WATFORD, Circuit Judges, and KOBAYASHI, District
Judge.**
Petitioner-Appellant Star Monique Van Pool appeals the district court’s
denial of her 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus challenging her
conviction for assault with a deadly weapon and carjacking, both committed for the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
benefit of a criminal street gang. Van Pool asserts that (1) during her trial, the
prosecutor improperly vouched for the credibility of a witness, Eric Thomas;
(2) her trial counsel’s failure to object to that vouching amounted to ineffective
assistance of counsel; (3) the prosecutor committed misconduct by making an
allegedly threatening statement to a witness, Leonore Lettman, outside of the jury’s
presence; and (4) her due process rights were violated when witness Eric Thomas
was permitted to testify as to how females are initiated into the Raymond Avenue
Crips gang. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.
1. As to Van Pool’s first claim, the California Court of Appeal reasonably
concluded that the prosecutor’s statements did not rise to the level of
impermissible “vouching.” The court reasonably concluded that such statements
were an attempt to convince the jury to, in the prosecutor’s words, “look at all the
evidence in this case,” and to reject anticipated arguments that Eric Thomas was
the actual perpetrator of the crimes, who had been enticed by the plea deal to
testify against Van Pool. See United States v. Necoechea, 986 F.2d 1273, 1276
(9th Cir. 1993) (recognizing that “prosecutors must have reasonable latitude to
fashion closing arguments, and thus can argue reasonable inferences based on the
evidence . . . .”). The court correctly noted that by referencing the plea agreement,
the prosecutor did not rely upon evidence outside the record, as the plea agreement
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was disclosed to the jury during a lengthy direct and cross-examination. See id. at
1278-79 (finding no impermissible vouching where a prosecutor’s statements
about a plea agreement were truthful and did not rely upon evidence outside the
record). Thus, the California Court of Appeal concluded that the prosecutor’s
comments did not constitute impermissible vouching and did not rise to the level of
misconduct such that Van Pool’s due process rights were violated. See Darden v.
Wainwright, 477 U.S. 168, 180-83 (1986) (finding that a prosecutor’s comments,
while “improper,” were nevertheless not grounds for habeas relief, as the relevant
question is “whether the prosecutor’s comments so infected the trial with
unfairness as to make the resulting conviction a denial of due process” (internal
quotation marks omitted)). The state court’s decision was neither contrary to nor
an unreasonable application of Supreme Court precedent, 28 U.S.C. § 2254(d)(1),
nor an unreasonable determination of the facts in light of the evidence presented,
id. at (d)(2).
2. As to Van Pool’s second claim, the state court summarily denied Van
Pool’s claim that defense counsel was ineffective for failing to make an objection
to the prosecutor’s alleged vouching. Given the futile nature of such an objection,
as discussed above, this was neither objectively unreasonable nor an unreasonable
determination of the facts in light of the evidence presented. See Juan H. v. Allen,
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408 F.3d 1262, 1273-74 (9th Cir. 2005) (finding that “performance of counsel did
not fall below an ‘objective standard of reasonableness’ on account of not raising
[a] meritless objection” (citation omitted)); see also Harrington v. Richter, 131 S.
Ct. 770, 787 (2011) (“A court considering a claim of ineffective assistance must
apply a ‘strong presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance.” (quoting Strickland v. Washington,
466 U.S. 668, 689 (1984))); Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (noting
that there is a “strong presumption that [counsel acted] for tactical reasons rather
than through sheer neglect” (citing Strickland, 466 U.S. at 690)).
3. As to Van Pool’s third claim, even assuming the prosecutor made the
statements Van Pool claims he made, there are no grounds for federal habeas relief.
The prosecutor did not instruct Lettman how to testify, but simply reminded her
that she was obliged to do so, confirming what Lettman had already been told by
the trial court. Further, the prosecutor’s alleged statement did not manipulate or
misstate the evidence, nor otherwise implicate specific rights of Van Pool. See
Darden, 477 U.S. at 182. The alleged statement simply cannot be said to have
deprived Van Pool of a fair trial. See id. at 181.
4. Finally, the court likewise rejects Van Pool’s fourth claim. Because Van
Pool was charged with committing assault with a deadly weapon and carjacking
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“for the benefit of, at the direction of, or in association with” a criminal street gang,
evidence as to her ties to the Raymond Avenue Crips was relevant to showing that
she stabbed the victim and took his car to benefit the gang. See Windham v.
Merkle, 163 F.3d 1092, 1103-04 (9th Cir. 1998) (rejecting habeas challenge to
gang expert’s testimony that gangs engage in “paybacks” because it was relevant to
prove motive). Allowing Eric Thomas to testify generally about how women are
initiated into the gang may have been evidentiary error because it was prejudicial
and only minimally probative of Van Pool’s own ties to the gang. Nonetheless, it
cannot be said that this evidentiary error violated the due process clause by
“‘render[ing] the trial fundamentally unfair.’” Drayden v. White, 232 F.3d 704,
710 (9th Cir. 2000) (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1466 (9th
Cir. 1986)). The jury heard ample properly admitted evidence of Van Pool’s ties to
the gang and her participation in gang-related fights, including the stabbing of
Vincent Thomas. See id. at 710-11.
AFFIRMED.
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