Alberni v. McDaniel

• Decision Date: 09 August 2006
• Docket Number: No. 05-15570.,05-15570.
• Citation: 458 F.3d 860
• Parties: Jose Enrique ALBERNI, Petitioner-Appellant, v. E.K. McDANIEL; Frankie Sue del Papa; State of Nevada, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

458 F.3d 860

Jose Enrique ALBERNI, Petitioner-Appellant, v. E.K. McDANIEL; Frankie Sue del Papa; State of Nevada, Respondents-Appellees.

No. 05-15570.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2006.

August 9, 2006.

Paul G. Turner, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellant.

John M. Warwick, Office of Attorney General, Criminal Justice Division, Carson City, NV, for the respondents-appellees.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-01-00725-DWH.

Before ARTHUR L. ALARCÓN and M. MARGARET McKEOWN, Circuit Judges, and H. RUSSEL HOLLAND,^* Senior District Judge.

ALARCÓN, Circuit Judge.

Petitioner José Enrique Alberni appeals from the order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Alberni was convicted of Second Degree Murder With Use of a Deadly Weapon in Nevada state court. He argues that his Fourteenth Amendment due process rights were violated by the introduction of character evidence at his trial and that his Sixth Amendment right to conflict-free counsel was violated by his trial counsel's cross-examination of a prosecution witness who had been his attorney's client. The Nevada Supreme Court's conclusion that Mr. Alberni's right to due process was not violated was not contrary to and did not involve an unreasonable application of federal law. We vacate and remand for an evidentiary hearing to determine whether Mr. Alberni's right to conflict-free counsel was violated.

I

We first consider whether Mr. Alberni's due process rights were violated by the introduction of propensity evidence at his trial.

A

On Christmas Day, 1994, Mr. Alberni shot and killed his friend Dennis McElroy. At trial, Mr. Alberni claimed that the shooting was accidental. The jury was persuaded that it was deliberate and convicted Mr. Alberni of second degree murder.

During the trial, the prosecutor introduced evidence of Mr. Alberni's past violent actions and explosive temper and relied heavily on that evidence in his closing argument. In his direct appeal to the Nevada Supreme Court, Mr. Alberni argued that the admission of the propensity evidence and the prosecutor's argument violated his right to due process. The Nevada Supreme Court concluded, without an explanation of its rationale, that no constitutional error had occurred. The Nevada Supreme Court determined that a photograph of Mr. Alberni with a gun was relevant to show Mr. Alberni's familiarity with guns, in order to rebut his claim that the shooting was accidental. As to the other evidence of bad acts, it held that the admission of such evidence was harmless in "light of the overwhelming evidence of Alberni's guilt." The Nevada Supreme Court also concluded, without analysis, that the prosecutor did not engage in misconduct in alluding to the prior acts evidence in his argument to the jury.

B

Mr. Alberni argues that the introduction of the propensity evidence, and the prosecutor's comments on that evidence, violated his due process rights under the Fourteenth Amendment. A district court's decision to grant or deny a petition for habeas corpus is reviewed de novo. Daniels v. Woodford, 428 F.3d 1181, 1196 (9th Cir.2005).

Under the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), a state prisoner is entitled to relief under § 2254 regarding a claim adjudicated on the merits in state court if the decision of the state's highest court either is contrary to or involves an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 402-04, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "A decision is `contrary to' federal law when a state court applies a rule of law different from that set forth" in Supreme Court holdings or when it makes a contrary determination based on "`materially indistinguishable facts.'" Earp v. Ornoski, 431 F.3d 1158, 1182 (9th Cir.2005) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495). An "unreasonable application" occurs when the state court applies Supreme Court holdings to the facts of the petitioner's case in a manner that is "objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495). "Clearly established federal law `as determined by the Supreme Court, refers to the holdings, as opposed to the dicta of [the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Id. (quoting Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir.2004)) (internal citation omitted).

In Garceau v. Woodford, 275 F.3d 769 (9th Cir.2001), rev'd on other grounds, 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), we acknowledged that the "Supreme Court has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith." Id. at 774. In fact, the Supreme Court reserved determination of this question in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). In Estelle, the defendant was accused of killing his infant daughter. Id. at 64, 112 S.Ct. 475. The prosecution introduced evidence that on prior occasions, the child suffered non-accidental injuries. Id. at 66, 112 S.Ct. 475. The evidence was intended to establish that the child suffered from "battered child syndrome" and that her ultimately fatal injuries were not accidental. Id. at 68, 112 S.Ct. 475. After the defendant was convicted and his appeals to the state court were denied, he sought habeas corpus relief. Id. at 66, 112 S.Ct. 475. He argued that the admission of the evidence of prior injuries violated the right to due process. Id. at 66-67, 112 S.Ct. 475. The Supreme Court held that the admission of the evidence did not rise to the level of a due process violation because "the prior injury evidence was relevant to an issue in the case." Id. at 70, 112 S.Ct. 475. The Court stated that "we need not explore further the apparent assumption of the Court of Appeals that it is a violation of the due process guaranteed by the Fourteenth Amendment for evidence that is not relevant to be received in a criminal trial." Id. Furthermore, the Court held there was no reasonable likelihood that the jury considered the evidence of prior injuries as propensity evidence. Id. at 74-75, 112 S.Ct. 475. It concluded: "[b]ecause we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime." Id. at 75 n. 5, 112 S.Ct. 475.

Lacking any Supreme Court authority directly on point, Mr. Alberni relies exclusively on cases we decided prior to the enactment of AEDPA to support his contention that the propensity evidence offered in his case violated due process. See, e.g., Garceau, 275 F.3d at 775; Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.1995); McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.1993); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.1991); McGuire v. Estelle, 902 F.2d 749 (9th Cir. 1990), rev'd 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). However, when the Supreme Court has expressly reserved consideration of an issue, as it has here, the petitioner cannot rely on circuit authority to demonstrate that the right he or she seeks to vindicate is clearly established. See Earp, 431 F.3d at 1184-85. Circuit "precedent derived from an extension of a Supreme Court decision is not `clearly established federal law as determined by the Supreme Court.'" Id. at 1182(quoting Duhaime v. Ducharme, 200 F.3d 597, 602-03 (9th Cir.2000)). "Circuit precedent is relevant only to the extent it clarifies what constitutes clearly established law." Id. "[P]ost-AEDPA[,] only Supreme Court holdings are binding on state courts." Earp, 431 F.3d at 1184 n. 23.

Mr. Alberni argues that even though the Supreme Court has never explicitly held that the introduction of propensity evidence may violate due process, we may apply the "general governing principles to the case at hand." Robinson v. Ignacio, 360 F.3d 1044, 1056-57 (9th Cir.2004). The Supreme Court has established a general principle that evidence that "is so extremely unfair that its admission violates fundamental conceptions of justice" may violate due process. Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Mr. Alberni argues that we can look to our own precedent to the extent it clarifies this general principle. See Robinson, 360 F.3d at 1057.

In Robinson, the trial court granted the defendant's request to represent himself at trial after extensive canvassing on the issue. 360 F.3d at 1048. After he was convicted, he sought to have counsel appointed for his sentencing hearing. Id. The trial court denied his request, concluding that "[b]ased on the extensive canvass of the Court and contrary to my suggestions to [the defendant], he elected to represent himself in this proceeding." Id. The defendant argued in federal habeas corpus proceedings that this denial of counsel violated the Sixth Amendment. Id. at 1051. We concluded that "[a]lthough the Supreme Court has never explicitly addressed a criminal defendant's ability to re-assert his right to counsel for sentencing after a previous waiver of that right during trial, its silence on this particular issue need not prevent us from identifying and applying the general governing principles at hand." Id. at 1056-57; see also Williams, 529 U.S. at 407, 120 S.Ct. 1495 ("[A] state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."). We stated in Robinson that the "...