Chein v. Shumsky

• Decision Date: 14 March 2003
• Docket Number: No. 01-56320.,01-56320.
• Citation: 323 F.3d 748
• Parties: Edmund Y. CHEIN, Petitioner-Appellant, v. Richard SHUMSKY, Chief Probation Officer LA County; California State Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

323 F.3d 748

Edmund Y. CHEIN, Petitioner-Appellant, v. Richard SHUMSKY, Chief Probation Officer LA County; California State Attorney General, Respondents-Appellees.

No. 01-56320.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 2, 2002.

Filed March 14, 2003.

Charles M. Sevilla, Cleary & Sevilla, San Diego, CA, for the petitioner-appellant.

Brentford Ferriera (brief) and Matthew G. Monforton, Deputy District Attorneys, Los Angeles, CA, for the real party in interest, State of California.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-05296-ABC.

Before FERNANDEZ, RAWLINSON, Circuit Judges, and SHEA,^* District Judge.

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge SHEA.

OPINION

RAWLINSON, Circuit Judge:

Edmund Chein ("Chein") appeals the district court's denial of his habeas petition filed pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial on three counts of perjury.

Chein asserts that he was deprived of his due process rights under law when: (1) the judge who presided over one of the underlying civil trials testified in Chein's perjury trial; and (2) the prosecutor repeatedly referred to the facts of the underlying case in violation of an express ruling by the court. Chein also contends that there was insufficient evidence to support the perjury convictions. Because Chein's due process claims were procedurally defaulted and there was sufficient evidence to support a finding of perjury as to one of the statements, we AFFIRM the district court's dismissal of Chein's habeas petition.

I. Background

Chein faced perjury charges as a result of his testimony in a personal injury trial and his response to an interrogatory in a different civil case.

Count 1 of the Information charged Chein with testifying falsely that "he was a specialist in orthopedic surgery."

Chein's specific testimony was this:

Q: Then when the residency ends, am I correct, in layman's terms, you're a regular doctor; right?

A: No. You are a specialist.

Q: You were a specialist following that —

A: Training period.

Q: — Training period? And your specialty, what would be the correct designation?

A: Physical medicine and orthopedic surgery.

.....

A: If a doctor wants to specialize in a field, then they have to spend another four to five years, depending on a specialty, in a program called residency in a medical school affiliated hospital. And upon finishing that residency or specialty training program then he goes out and practices as a specialist.

Q: And did you receive your specialty qualifications?

A: Yes.

Q: What field is that specialty, Sir?

A: I'm board certified in December 1988 in — by the American Board of Orthopedic and Neurological Surgery.

Count 2 charged that Chein committed perjury when he testified that "he had one office location on October 9, 1989 and October 30, 1990 to November 2, 1990." Chein testified particularly as follows:

Q: Doctor, how many office locations do you have now?

A: One.

Q: How many did you have on October the 9th, 1989?

A: One.

These two counts stemmed from a personal injury trial where Chein testified as a treating physician.

Count 4 of the Information charged that Chein committed perjury when he testified "that he attended and received a medical degree from American University School of Medicine in Florida."

Chein provided the following response to an interrogatory:

"State:

a) the name and address of each school or other academic or vocational institution you have attended beginning with high school;

b) the date you attended;

c) the highest grade level you have completed;

d) the degree received."

Chein's response was "American University School of Medicine, Florida, 1979-1980 M.D."

The judge who presided over the personal injury civil trial testified during Chein's perjury trial. Although Chein filed a motion in limine prior to trial seeking exclusion of the judge as a witness, Chein failed to object to the judge's testimony at trial on the same basis (violation of due process) that he now asserts on appeal.

Chein also objected to the prosecutor's delving into the facts of the underlying personal injury case. Despite the court's sustaining of Chein's objection, the prosecutor made several references to the facts of the underlying case. Chein objected to the references on relevancy grounds.

Chein appealed to the California Court of Appeal, which affirmed his conviction. The California Supreme Court denied Chein's petition for review. Chein then filed the federal habeas petition that is the subject of this appeal.

II. Standard of Review

Our review of the district court's decision to deny habeas relief is de novo. Melendez v. Pliler, 288 F.3d 1120, 1124 (9th Cir.2002). The district court's factual findings are reviewed for clear error. Id. Under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, we will "grant habeas relief to a person in state custody only if the decision was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, or the claimed constitutional error resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. (citations omitted).¹

III. Discussion

A. Procedural Default

1. Testimony of the civil trial judge

Prior to the perjury trial, Chein filed a motion in limine objecting to the judge's appearance as a witness. Chein challenged admission of the judge's testimony on the bases of relevance and prejudice. Chein profferred no due process objection. In his motion for a new trial, Chein noted that admission of the trial judge's testimony resulted in an "unfair trial." However, Chein again failed to explicitly interpose a due process objection.

The California Court of Appeal ruled that Chein's constitutional challenge to the judge's testimony was "waived, forfeited, and procedurally defaulted" because Chein never raised constitutional objections before the judge presiding over Chein's perjury trial.

In order to find Chein's claim procedurally defaulted, we must determine whether an "independent and adequate state [procedural] ground" exists to support the state's court procedural bar. Bennett v. Mueller, 296 F.3d 752, 755 (9th Cir.2002). To constitute an adequate procedural bar, a state court procedural rule must be "clear, consistently applied, and well established at the time of the petitioner's purported default." Melendez v. Pliler, 288 F.3d at 1124 (citation omitted).

We have previously ruled that California's "contemporaneous objection rule," which requires objection at time of trial to preserve an issue for appeal, is an adequate procedural bar. See Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir.1981). Our decision in Melendez v. Pliler is not to the contrary. In that case, we simply recognized that "there are no California cases holding that the [contemporaneous objection] rule is applied consistently in situations in which an objection is made but the trial court in its discretion declines to consider it on the merits." 288 F.3d at 1125 (emphasis in the original). In Chein's case, the trial court ruled on the merits of the objections made by Chein. Unfortunately for Chein, his objections at the time of the perjury trial did not include the due process challenge presented on appeal. Chein's failure to make a contemporaneous due process objection to the testimony of the trial judge bars pursuit of the due process challenge on appeal. The California Court of Appeal's ruling to that effect was not an unreasonable application of clearly established Supreme Court precedent on procedural default. See Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (finding that exhaustion of state remedies requires that a petitioner assert his constitutional claims in state court).

2. Prosecutor's reference to the facts of the underlying civil trial

Prior to the start of the perjury trial, the district court referred to rulings it had made off the record. In seeking to clarify the court's prior rulings, Mr. Chein's counsel stated:

"As I understand the ruling, it basically was that the totality of the [personal injury] case, we are not going to retry it here ..."

The Court replied:

"I think we're very clear on that."

However, the prosecutor almost immediately delved into the facts of the underlying case:

[Prosecutor]:

The limousine stopped again and was rear-ended by the Plymouth. A trial resulted, a lawsuit in which the two occupants of the limousine alleged personal injuries as a result of being rear-ended by the Plymouth.

They sued the driver of the Plymouth and the employer of the driver of the Plymouth ... In that personal injury lawsuit, there was testimony on each side. Every issue was contested. In fact, the very fact of whether or not the accident occurred was contested.

...

[The Court]:

Please confine your remarks to the evidence of the charges before the court. We're not going to retry the civil matter.

The prosecutor continued:

We will present to you evidence that this Defendant lied because he was an expert witness, in quotes, so to speak in the personal injury lawsuit that arose from that accident. There were issues, many issues in that lawsuit, and the [sic] were claiming resulted from the accident the lawsuit was about. One of the Plaintiffs testified as the first witness. After he testified on direct examination, you're going to learn from testimony at this proceeding that the defense attorney cross-examined him —

[Defense Counsel]:

Objection Your Honor. It's not relevant to this case.

(Emphasis Added).

[The Court]:

Counsel, we're talking about trying another case. The issue is, were these statements true, are they true...