Bradley v. Duncan

• Decision Date: 24 December 2002
• Docket Number: No. 01-55290.,01-55290.
• Parties: Gary BRADLEY, Petitioner-Appellee, v. W.A. DUNCAN, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.3d 1091

Gary BRADLEY, Petitioner-Appellee, v. W.A. DUNCAN, Warden, Respondent-Appellant.

No. 01-55290.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2002.

Filed December 24, 2002.

COPYRIGHT MATERIAL OMITTED

Jeffrey S. Kross, Oakland, CA, for the petitioner-appellee.

J. Michael Lehmann (argued), Corey J. Robins, Office of the Attorney General of the State of California, Los Angeles, CA, for the respondent-appellant.

Appeal from the United States District Court for the Central District of California; Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-00-00527-VAP.

Before FERGUSON, TASHIMA, and Graber, Circuit Judges.

Opinion by Judge FERGUSON; Dissent by Judge GRABER.

OPINION

FERGUSON, Circuit Judge:

Warden William A. Duncan ("the State") appeals the District Court's conditional grant of Defendant/Petitioner Gary Bradley's ("Bradley") 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction on the grounds that the state trial court's refusal to instruct the jury on the defense of entrapment violated his federal due process rights. The District Court adopted the recommendations of the Magistrate Judge, who found that the refusal to instruct effected prejudicial constitutional error, and that the California appellate court's denial of his claim was contrary to and involved an objectively unreasonable application of controlling federal law. We affirm the District Court's conditional grant of habeas relief.

Defendant/Appellee Gary Bradley ("Bradley") was arrested and charged with one count of selling cocaine in violation of California Health and Safety Code section 11352(a). Bradley's only defense at trial was that he was entrapped by the police into committing the offense.

At the conclusion of trial, the state trial court instructed the jury on the defense of entrapment pursuant to the defense's request. The instructions are set forth in the appendix to this opinion. During deliberation, the jury requested two clarifications regarding the entrapment instructions. After three days of deliberations, the jury still could not reach a verdict as to Bradley's guilt, and a mistrial was declared.

Bradley was retried before another state court judge. During the second trial, Bradley's testimony from the first trial was read into evidence during the prosecution's case-in-chief. Bradley had admitted that he facilitated the sale of cocaine, but testified that his sole purpose was to help an unwitting police agent, Jose de Jesus Flores, who was suffering greatly due to drug withdrawal. At the close of evidence, the defense again requested an entrapment instruction. This time, the trial court denied the request without explanation.

Not surprisingly, the jury found Bradley guilty. He was sentenced to twenty-five years to life imprisonment pursuant to California's "three strikes" provisions. CAL. PEN. CODE §§ 667(b)-(i), 1170.12(a)-(d).¹

The state claims that Bradley did not present sufficient evidence to deserve an instruction on entrapment. Its reasoning is simply fallacious. The evidence presented at the first trial warranted an instruction. The same evidence was adduced at the second trial. Yet, Bradley was deprived of an instruction on entrapment at his second trial.

To demonstrate why the District Court was correct in granting habeas corpus relief, we review the facts underlying Bradley's arrest. Next, we analyze these facts in light of the governing state law and find that Bradley was entitled to an entrapment instruction. Third, we determine that the failure to instruct on Bradley's only defense violated his due process right to present a full defense. Finally, we conclude that Bradley is entitled to habeas relief under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").

A. Factual Background

On January 8, 1996, while conducting an undercover narcotics operation, Officers Servando Pena and Melissa Town observed Jose de Jesus Flores standing on the sidewalk. Officer Pena pulled the unmarked car over and motioned for Flores to approach the car. Flores came over to the car, smelling of alcohol. Officer Pena asked Flores if he could "hook" him up with twenty dollars worth of cocaine. Flores stated that he did not have any, but he would take the officers to obtain drugs. Flores got into the car and directed Officer Pena to drive toward a particular intersection, but he did not state that he was looking for any specific person.

Officer Pena knew something was wrong with Flores and believed that he was going through drug withdrawal. Flores was pale and shaking, his head kept moving back and forth, and he said he desperately needed cocaine. As they approached the intersection, Flores spotted Bradley, whom he had previously seen in passing, and called out for him to stop. Flores told Officer Pena to pull over, exited the vehicle, and vomited audibly in front of the officers and Bradley. Moments later, he approached Bradley.

Bradley observed that Flores was going through withdrawals—he looked "pinkish, yellowish, sick"; he smelled like vomit; he was "tweaking and twitching"; and he was "shaking, like ... a junky dude." Flores implored him to help him "get something." Bradley asked him what he meant, and Flores responded "I'm hurting. I need a fix." Flores begged Bradley for drugs, asking repeatedly "Can you help me?" Flores told Bradley he was ill and appealed to him saying, "Please, please, big man, would you help me out?"

Bradley finally agreed but told Flores to wait, stating: "I have to go see because I don't, you know, do it. I know people up and down the street that does it, but I don't do it." Bradley then rode his bicycle up the street where drug dealers congregated. The officers and Flores followed him in the vehicle. When they reached the designated intersection, Flores gave Bradley the officers' twenty-dollar bill. However, Bradley did not locate anyone selling drugs and returned the money.

Bradley then proceeded homeward on his bicycle, but he stopped upon observing co-defendant Tyrone Jennings walking towards a liquor store. Bradley caught up with Flores and the officers and told them to meet him at the liquor store. Bradley obtained twenty dollars from the officers, exchanged it for cocaine from Jennings, and delivered the cocaine to the officers and Flores. Bradley was arrested minutes later. No drugs were found on his person.

B. Entrapment under California Law

The purpose of the entrapment defense is to deter impermissible police conduct. People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, 956 n. 5 (1979); People v. Holloway, 47 Cal.App.4th 1757, 55 Cal.Rptr.2d 547, 551 (1996), overruled on other grounds by People v. Fuhrman, 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189, 1199 n. 11 (1997). In adopting an objective test of entrapment, the California Supreme Court reasoned, "the function of law enforcement manifestly `does not include the manufacturing of crime.'" Barraza, 153 Cal.Rptr. 459, 591 P.2d at 954 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958)).

It is permissible for the police to offer "the simple opportunity to act unlawfully," by the use of decoys or otherwise. Id. at 955. However, "it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." Id. It is also impermissible for the police or their agents to conduct themselves in a manner that would induce a normally law-abiding person "to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose." Id.

Entrapment is a jury question because of "its potentially substantial effect on the issue of guilt." Id. at 956 n. 6; see also People v. Lee, 219 Cal.App.3d 829, 268 Cal.Rptr. 595, 598 (1990) ("Entrapment is ordinarily a fact question.") (citations omitted). The defendant is entitled to an entrapment instruction if he presents sufficient evidence for a reasonable jury to conclude that he was entrapped. See People v. Watson, 22 Cal.4th 220, 91 Cal. Rptr.2d 822, 990 P.2d 1031, 1032 (2000) (citing substantial evidence standard from People v. Flannel, 25 Cal.3d 668, 160 Cal. Rptr. 84, 603 P.2d 1, 10 (1979)). "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." Flannel, 160 Cal. Rptr. 84, 603 P.2d at 10 (internal quotation marks and citation omitted).

In this case, the California Court of Appeal found that Bradley was not entitled to an entrapment instruction under California law. However, its decision involved "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(2). Moreover, it failed to view the evidence in the light most favorable to Bradley.

First, the California Court of Appeal's decision was unreasonable in light of the record. The court characterized the police conduct as "an ordinary, run-of-the-mill, undercover drug operation in which a decoy was used." In so doing, it stated that "[n]either officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime."

Although the California Court of Appeal was correct that neither Officer Pena nor Officer Town badgered, cajoled, or importuned Bradley personally, their decoy did. The court overlooked Flores' actions in determining that the facts did not support an entrapment instruction. Yet, a decoy who is manipulated by the police also constitutes a police agent "for purposes of the entrapment defense, even [if] the third party remains unaware of the law enforcement object." People v. McIntire, 23 Cal.3d 742, 153 Cal.Rptr. 237, 591 P.2d 527, 530 (1979).

Flores, the unwitting police agent, targeted Bradley individually and begged him...