Park v. California
| Citation | 164 F.3d 1226 |
| Decision Date | 14 January 1999 |
| Docket Number | No. 96-56750,96-56750 |
| Parties | 99 Cal. Daily Op. Serv. 412, 99 Daily Journal D.A.R. 503 Don Soon PARK, Petitioner-Appellant, v. People of the State of CALIFORNIA; Attorney General of the State of California, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sharon M. Bunzel, O'Melveny & Myers, San Francisco, California, for the petitioner-appellant.
Carl N. Henry, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.
Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding. D.C. No. CV-96-02841-JMI(JR).
Before: HUG, Chief Judge, FLETCHER, and TROTT, Circuit Judges.
Don Soon Park seeks review of a decision by the District Court for the Central District of California dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254(a) (1994). Park brought five claims before the district court. The district court dismissed Park's first claim on the merits, holding that the state court's consolidation for trial of crimes committed on different occasions did not present a federal due process concern. The district court dismissed Park's remaining claims as procedurally defaulted in the California courts. Unlike the claim of improper consolidation, Park had not brought those claims on direct appeal from his conviction, and the district court concluded that Park did not qualify for relief from his default by having demonstrated either cause and prejudice or actual innocence. We have jurisdiction under 28 U.S.C. § 2253 (1994), and we affirm in part, reverse in part, and remand.
Park is incarcerated in California after convictions on five counts stemming from two separate incidents of criminal behavior. For his crimes against Munho Kim, Park was convicted of conspiracy to commit robbery, conspiracy to commit burglary, first degree residential burglary, and attempted first degree residential robbery. For his subsequent crime against Keum Kim, Park was convicted on one count of making terrorist threats but acquitted on counts of use of a destructive device and explosives to injure/destroy and arson of a structure.
The Munho Kim crimes were the result of a plan hatched by Park, Michael Nelson, and Raymond Sander to rob Munho Kim, who owed Park money. On August 20, 1991, Sander and Nelson followed Munho into his garage and attacked him while Park waited a few blocks away in his automobile. Nelson and Sander abandoned the robbery attempt when Munho's wife entered the garage and screamed, but were detained by the police while trying to flee. Park escaped.
Park's crime against Keum Kim occurred almost a year later. Park demanded money from Keum on account of a statement by her granddaughter that Park found defamatory and for a debt owed to Park by Keum's son. Keum refused to pay. Park repeatedly demanded payment over a period of several months, ultimately threatening to bomb Keum's family liquor store and kill Keum and her family. On June 8, 1992, the store owned by Keum's family was destroyed by a pipe bomb.
Nelson pled guilty to his involvement in the Munho Kim crimes and cooperated with police, participating in two inculpatory taped conversations while still in jail with Park, who was not in custody, discussing the burglary and attempted robbery. Nelson was released and continued his friendship with Park, the latter not aware of Nelson's cooperation with the police. Nelson testified that Park then informed him of Park's intention to "blow up" Keum's family store.
At Park's trial, Nelson testified against Park, and the tapes that Nelson had cooperated in making were introduced into evidence. Park's counsel discovered at trial that Nelson had been a government informant on other matters and moved for a mistrial, arguing that he had been surprised and denied the opportunity to conduct discovery with regard to possible bias. The trial court held an in camera hearing on the extent of Nelson's role as an informant for the police and denied the motion, concluding that Nelson's informant role did not involve information which might impeach Nelson's testimony. The court later gave the jury a standard instruction warning them about the suspect credibility of a cooperating witness.
The state trial court, over Park's objection, permitted the state to consolidate the two sets of crimes into one trial, and Park was convicted on all four Munho Kim counts and the terrorist threats count from the Keum Kim crimes. Park appealed the state court's refusal to sever the counts for trial. The appellate court affirmed the consolidation. The California Supreme Court denied review. Park then brought a habeas petition in the California Supreme Court, claiming prosecutorial misconduct for failing to disclose Nelson's informant status, abuse of the trial court's discretion for permitting the secret tapes to be entered into evidence, and denial of the right to a speedy trial. Park's petition variously characterized his claims as violations of both the federal and the California constitutions and California statutes, citing statutes and provisions of each constitution and caselaw pertaining to each body of law. The California Supreme Court denied the petition with only this explanation: Park then brought this habeas petition in federal district court, arguing error under California state law in consolidating the sets of counts, prosecutorial misconduct in failing to disclose that Nelson had been a government informant, abuse of discretion by the California trial court in permitting the jury to hear a secret jailhouse tape, and denial of his right to a speedy trial.
This court reviews a district court's decision to deny an application for a writ of habeas corpus de novo. United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997). Factual findings are reviewed for clear error. United States v. Span, 75 F.3d 1383, 1386 (9th Cir.1996).
Federal habeas is available for improper consolidation only if the simultaneous trial "actually render[ed Park]'s state trial fundamentally unfair and hence, violative of due process." Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.1991). This court considers each count separately, asking whether "the trial on a particular count was fundamentally unfair in light of that count's joinder with one or more other charges." Id. Park has the burden to prove unfairness rising to the level of a due process concern. See McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir.1994). We hold that Park's arguments fail to fulfill his burden and affirm the district court's decision on this claim.
Park argues first that, under California law, the crimes should not have been consolidated because evidence relevant to one set of counts would not have been admissible at a separate trial on the other set of counts. However, a violation of state law standing alone is not cognizable in federal court on habeas. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) () (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)); Featherstone, 948 F.2d at 1503. Park has failed to meet his burden of showing, in federal constitutional terms, that his state trial was fundamentally unfair. We have held that the failure of the jury to convict on all counts is " 'the best evidence of the jury's ability to compartmentalize the evidence.' " United States v. Baker, 10 F.3d 1374, 1387 (9th Cir.1993) (quoting United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir.1987)). The jury did not convict Park on two of the Keum Kim counts, strong evidence that he was not prejudiced by the admission of evidence which was possibly irrelevant with regard to some of the counts.
Park next argues that the consolidation was likely to inflame the jury against him. In order to demonstrate actual unfairness, however, Park must show that the jury was actually inflamed. See Featherstone, 948 F.2d at 1503. Park makes no such showing and, as discussed above, because the jury did not convict on all counts it presumably was able to compartmentalize the evidence. See Baker, 10 F.3d at 1387.
Park argues third that the prosecution combined two weak cases to make a stronger case in the aggregate. This circuit recognizes potential due process concerns when a poorly-supported count is combined with one that is well supported. United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir.1986). Park points out that the prosecution did not file charges on the Munho Kim counts until after the Keum Kim crimes were committed. However, if evidence regarding the Keum Kim counts was stronger than evidence regarding the Munho Kim counts Park presumably would have been convicted on all of the Keum Kim counts and not all of the Munho Kim counts, not the other way. Further, the record indicates that the jury found Nelson's testimony credible, even in the light of a limiting instruction admonishing the jury to view his testimony with distrust. Nelson's testimony was a large part of the government's case against Park on the Munho Kim counts. Park's argument that the state's case was weak is not supported by the record.
The district court held Park's remaining claims procedurally defaulted and did not consider their merits. A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). For the procedural default rule to apply, the state procedural rule must provide an adequate...
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