Petition for Writ of Certiorari — Duncan, Warden v. Bradley

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OFFICE OF THE CIFRK

IN THE SUPREME COURT OF THE UNITED STATES

W. A. DUNCAN, WARDEN, Petitioner,

Vv.

GARY BRADLEY

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

KRISTOFER JORSTAD

Deputy Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

Counsel of Record

300 South Spring Street

Los Angeles, California 90013

Telephone: (213) 897-2388

Fax: (213) 897-2806

Counsel for Petitioner

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QUESTIONS PRESENTED

1. May a federal habeas corpus court grant relief to a

state prisoner on the basis of its own conclusion that, contrary

to the ruling of the state court, state law required jury

instructions on an affirmative defense at the prisoner’s trial?

2. May a federal habeas corpus court consider, in

determining the prejudicial effect ofa trial error, affidavits from

trial jurors asserting how they otherwise would have voted?

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI

JURISDICTION

OPINIONS BELOW

Page

CONSTITUTIONAL AND STATUTORY PROVISIONS 2

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Certiorari is warranted to review the

Ninth Circuit’s holding that federal

habeas corpus relief may be granted on

the basis of its own determination,

contrary to that of the state courts, that

the trial judge violated state law by

declining to instruct the petitioner’s jury

on a state-law affirmative defense of

“entrapment.”

A. The Ninth Circuit’s treatment of alleged

state-law error as the basis for discerning

a violation of the Constitution conflicts with

decisions of this Court.

B. In treating instructional errors impairing

state-law affirmative defenses as violations

of the Constitution, the Ninth Circuit

opinion conflicts with decisions in other

Circuits.

BR oe

. ete at te

ill

TABLE OF CONTENTS (continued)

Page

Il. Certiorari is warranted to review the

Ninth Circuit’s holding that a federal

habeas corpus court may consider, in

determining any prejudicial effect of an

error occurring in the state trial,

affidavits from trial! jurors asserting how

they would have voted if the error had

not occurred. 16

CONCLUSION 19

TABLE OF AUTHORITIES

Cases

Allen v. Redman,

858 F.2d 1194 (6th Cir. 1988)

Baker v. Leapley,

965 F.2d 657 (8th Cir. 1992)

Barker v. Yukins,

199 F.3d 867 (6th Cir. 1999)

Blair v. McCarthy,

881 F.2d 602 (9th Cir. 198°)

California v. Trombetta,

467 U.S. 485 (1984)

Caspari v. Bohlen,

510 U.S. 383 (1994)

Clemmons v. Delo,

177 F.3d 680 (8th Cir. 1999)

Cupp v. Naughten,

414 US. 141 (1973)

Davis v. Strack, '

270 F.3d 111 (2d Cir. 2001)

Early v. Packer,

537 U.S. 3 (2002)

Page

11,12

TABLE OF AUTHORITIES (continued)

Page

Ellis v. Hargett,

302 F. 3d 1182 (10th Cir. 2002) 13

Engle v. Isaac,

456 U.S. 107 (1982) 10

Estelle v. McGuire,

502 U.S. 62 (1991) Ae S

Fetterly v. Paskett,

997 F.2d 1295 (9th Cir. 1993) 15

Fulwood v. Lee,

290 F.3d 663 (4th Cir. 2002) 18

Gilmore v. Taylor,

508 U.S. 333 (1993) 9,10

Goeke v. Branch,

514 U.S. 115 (1995) 12

Gryger v. Burke,

334 U.S. 728 (1948) ee

Herrera v. Collins,

506 U.S. 390 (1993) 15

In re Robbins,

18 Cal.4th 770 (1998) 8

In re Winship,

397 U.S. 358 (1970) 9

TABLE OF AUTHORITIES (continued)

Jackson v. Virginia,

443 U.S. 307 (1979)

Johnson v. Rosemeyer,

117 F.3d 104 (3d Cir. 1997)

Lambrix v. Singletary,

520 U.S. 518 (1997)

Levine v. Torik,

986 F.2d 1506 (6th Cir. 1993)

Lockyer v. Andrade,

123 S.Ct. 1166 (2003)

Mathews v. United States,

485 U.S. 58 (1988)

Mullaney v. Wilbur,

421 U.S. 684 (1975)

Murphy v. Tivoli Enterprises,

953 F.2d 354 (8th Cir. 1992)

Patterson v. New York,

432 U.S. 197 (1977)

People v. Box,

23 Cal.4th 1153 (2000)

People v. Santamaria,

8 Cal.4th 903 (1994)

Page

13,14

11,12

Vii

TABLE OF AUTHORITIES (continued)

Page

People v. Watson,

22 Cal.4th 200 (2000) 8

Pulley v. Harris,

465 U.S. 37 (1984) 7

Schiro v. Farley,

510 U.S. 220 (1994) 16

Silagy v. Peters,

905 F. 2d 1086 (7th Cir. 1990) 18

Sloan v. Gramley,

215 F.3d 1330 (7th Cir. 2000) 15

Smith v. Horn,

120 F.3d 400 (3d Cir. 1997) 14

Strickland v. Washington,

466 U.S. 668 (1984) 17

Tanner v. United States,

403 U.S. 107 (1987) 17

Taylor v. Withrow,

288 F.3d 846 (6th Cir. 2002) 14, 15

Teague v. Lane,

489 US. 288 (1988) 9,11

Thomas v. Peters,

48 F.3d 1000 (7th Cir. 1995) 9

Vill

TABLE OF AUTHORITIES (continued)

Townsend v. Sain,

372 U.S. 293 (1963)

Tyson v. Trigg,

50 F.3d 436 (7th Cir. 1995)

United States v. Cappas,

29 F. 3d 1187 (7th Cir. 1994)

United States v. Russell,

411 U.S. 423 (1973)

Wade v. Terhune,

202 F.3d 1190 (9th Cir. 2000)

Williams v. Taylor,

529 U.S. 362 (2000)

Wood v. Marshall,

790 F.2d 548 (6th Cir. 1986)

Statutes

28 U.S.C. § 2254

28 U.S.C. § 2254(a)

28 U.S.C. § 2254(d)

28 U.S.C. § 2254(d)(1)

28 U.S.C. § 2254(d)(2)

Page

11,15

11, 16

TABLE OF AUTHORITIES (continued)

Page

Court Rules

Fed. R. Evid. 606(b) 17

Fed. R. Evid. 1101(b) 18

Other Authorities

PRICE WATERHOUSE COOPER,

COST OF PRIVATE PANEL REPRESENTATION IN

FEDERAL CAPITAL HABEAS CORPUS CASES

(Feb. 1999) 17

IN THE SUPREME COURT OF THE UNITED STATES

No.

—

W. A. DUNCAN, WARDEN, Petitioner,

GARY BRADLEY

PETITION FOR WRIT OF CERTIORARI

Warden W. A. Duncan hereby petitions this Court for a

writ of certiorari to review the judgment of the Ninth Circuit

Court of Appeals affirming the district court’s grant of habeas

corpus relief to state prisoner Gary Bradley.

JURISDICTION

The judgment of the Court of Appeals issued on December

24, 2002, and re-hearing was denied on May 14, 2003. This

Court has jurisdiction over the instant petition, filed timely

within ninety days of the denial of rehearing. 28 U.S.C. §§

1254(1), 2101(c); Sup. Ct. R. 13.1, 13.4.

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported as Duncan v. Bradley, 315 F.3d 1091 (9th Cir. 2002),

and is reprinted in Appendix A to this petition. The report of

the magistrate judge, and the judgment of the district court

adopting it, are unpublished, and are reprinted in Appendices B

and C. The opinion of the California Court of Appeal in People

v. Bradley is unpublished, and excerpts from it are reprinted in

Appendix F.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourteenth Amendment provides, in part,

. nor shall any state deprive any person of life,

liberty, or property, without due process of law. . .

Section 2254(a) of Title 28 of the United States Code

provides:

The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the

grounds that he is in custody in violation of the

Constitution or laws or treaties of the United States.

Section 2254(d) provides, in pertinent part,

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim—

sina mdasecatuan

. resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceedings.

Federal Rule of Evidence 606(b) provides,

Inquiry into validity or verdict or indictment. Upon

an inquiry into the validity of a verdict or indictment,

a juror may not testify as to any matter or statement

occurring during the course of the jury’s deliberations

or to the effect of anything upon that or any other

juror’s mind or emotion as influencing the juror to

assent or dissent from the verdict or indictment or

concerning the juror’s mental processes in connection

therewith, except that a juror may testify on the

question whether any extraneous prejudicial

information was improperly brought to the jury’s

attention or whether any outside influence was

improperly brought to bear upon any juror. Nor may

a juror’s affidavit or evidence of any statement by the

juror concerning a matter about which the juror would

be precluded from testifying be received for these

purposes.

STATEMENT OF THE CASE

1. In 1996, two undercover policemen approached Jose

Flores and asked him for help in buying drugs. Flores sought

out respondent Gary Bradley; and Bradley, in turn, obtained

some cocaine and delivered it to Flores and the policemen for

twenty dollars. The officers then arrested Bradley for selling

the cocaine.

At his first trial in the California superior court, Bradley

presented a defense of “entrapment,” based upon his own

testimony and other evidence that the police had dealt with him

through an intermediary whose sickly appearance played on

Bradley’s sympathies. As recognized in cases such as People

v. Reliford, 28 Cal.4th 647 (2002), entrapment under California

law is not a question of the defendant’s subjective criminal

intent or disposition; it is instead an objective question, as to

which the defendant bears the burden of proof, of whether the

police conduct would have induced even a “normally law-

abiding person” to commit the crime. The trial judge instructed

the jury on entrapment, and the jury deadlocked 11-to-1 in favor

of a verdict of guilt.

In Bradley’s re-trial, a different judge determined that the

evidence—although much the same as in the first trial given that

the prosecution relied on Bradley’s testimony from that

trial—was insufficient to raise the entrapment defense. In the

absence of entrapment instructions, the new jury found Bradley

guilty, and the court sentenced him to a “three strikes” recidivist

term of life imprisonment.

On appeal, Bradley argued that the evidence sufficed under

state law to require the entrapment instructions. But the

California Court of Appeal held that there was no “substantial”

evidence, as required by state law, to support instructions on the

defense. Instead, the evidence showed a “run of the mill”

undercover operation involving a decoy in which the policemen

“did not conduct themselves improperly” by badgering or

cajoling. The appellate court declined to take judicial notice of

affidavits, submitted by Bradley, in which two jurors asserted

that entrapment instructions would have changed the verdict.

App. F4-F7.

In a petition for discretionary review to the California

Supreme Court, Bradley argued that state law required the

instructions and that failure to give them therefore violated the

United States Constitution too. The California Supreme Court

denied review without comment.

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2. Bradley initiated federal habeas corpus proceedings,

and the district court granted relief on his entrapment-

instruction claim. The Ninth Circuit affirmed in a 2-to-1

opinion authored by Judge Ferguson. Disagreeing with the state

appellate court, and asserting that the state court had engaged in

an “unreasonable determination of the facts” under 28 U.S.C. §

2254(d)(2), the panel majority opined that the evidence at trial

indeed had been sufficient to support the state-law entrapment

defense so as to require the instructions. The panel discerned

what it viewed as cajoling on the part of the decoy Flores. And

it disputed the state court’s evaluation of what a “normally law

abiding person” would have done under such circumstances. As

the federal panel saw it, the California courts had “ignored the

purpose” of the California policy reflected in the California

entrapment defense. In addition, the panel opined that

California “law of the case” doctrine also required the judge in

the re-trial to adhere to the ruling of the judge who had given

the instructions in the first trial. App. A5-A10.

The majority then held that refusing the state-law

instructions had violated Bradley’s federal due-process right to

present “any recognized defense,” a right assertedly recognized

by this Court in Mathews v. United States, 485 U.S. 58 (1988),

and California v. Trombetta, 467 U.S. 485 (1984). Further, the

majority deemed the constitutional violation to be prejudicial in

light of the prior deadlock and affidavits from two jurors

claiming that the jury otherwise would have voted to acquit.

From there, the majority finally concluded that the state

appellate court’s opinion could be discarded, even under

AEDPA~ amendments to 28 U.S.C. § 2254(d), because the state

decision had amounted to an “unreasonable application of

clearly-established federal law.” App. Al0-A15.

Judge Graber dissented. In her view, the majority’s

grudging AEDPA analysis repeated mistakes for which this

Court already had criticized the Ninth Circuit. She concluded

I. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

104-132, 110 Stat. 1217.

F i i |

that federal courts lacked authority to second-guess California

courts on state-law questions, and that the AEDPA deferential

standard of review prohibited relief because no Supreme Court

precedents required the defense instructioris © a constitutional

matter in state cases. App. Al8-A27.

The Warden’s petition for re-hearing, and hearing en banc,

was denied. App. El. Bradley has been released from prison

custody pending this appeal. j

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REASONS FOR GRANTING THE WRIT

Certiorari is warranted to review the Ninth Circuit’s

holding that federal habeas corpus relief may be granted on

the basis of its own determination, contrary to that of the

state courts, that the trial judge violated state law by

declining to instruct the petitioner’s jury on a state-law

affirmative defense of “entrapment.”

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opinion, basing habeas corpus relief upon the omission of

instructions on a state-law affirmative defense of entrapment,

conflicts with many of this Court’s clear precedents. This Court

broadly has recognize that federal courts may not override state-

court rulings on questions of state law and that federal habeas

corpus relief may not be predicated upon mere errors of state

law. And it has expressed grave doubt about the propriety of

federal relief on state affirmative-defense claims specifically.

The Ninth Circuit’s holding, that the federal Constitution

guarantees instructions on state-law affirmative defenses, also

conflicts with decisional law in other Circuits. And, in any

event, it violates this Court’s well-established doctrine

prohibiting the retroactive invocation of debatable “new rules”

of law to grant relief in habeas corpus cases.

Certiorari should be granted because the Ninth Circuit’s |

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A. The Ninth Circuit’s treatment of alleged state-law

error as the basis for discerning a violation of the

Constitution conflicts with decisions of this Court.

1. In Estelle v. McGuire, 502 U.S. 62, 67-68 & n. 2, 71-

72 (1991), this Court reversed the Ninth Circuit’s grant of

habeas corpus relief to a California prisoner, explaining that the

Circuit had exceeded the proper scope of federal habeas corpus

by premising relief on its own conclusion, in contradiction of

the ruling of the California appellate court, that the trial judge

had committed an error under state law that had prejudicially

affected the result of the petitioner’s trial. In reversing

McGuire, tais Court also was constrained to reach out and

repudiate a similar excess of power by the Ninth Circuit in the

earlier case of Blair v. McCarthy, 881 F.2d 602 (9th Cir. 1989).

McGuire, at 69 n. 2. McGuire in this way enforced long-

standing Supreme Court doctrine restricting federal second-

guessing of state-court interpretations of state law and, more

important, limiting habeas corpus relief to federal constitutional

claims rather than mere state-law claims. See Pulley v. Harris,

465 U.S. 37, 41 (1984) (“A federal court may not issue the writ

based upon a perceived error of state law.”); Mullaney v.

Wilbur, 421 U.S. 684, 691 (1975) (“This Court . . . repeatedly

has held state courts are the ultimate expositors of state

law ....”); Gryger v. Burke, 334 U.S. 728, 731 (1948) (“We

cannot treat a mere error of state law, if one occurred, as a

denial of due process; otherwise, every erroneous decision by a

State court on state law would come here as a federal

constitutional question”); see id. (“We are not at liberty to

conjecture that the trial court acted under an interpretation of the

State law different from that which we might adopt and then set

up our own interpretation as a basis for declaring that due

process has been denied”’).

As evidenced by the 2-to-1 majority opinion in this case,

however, this Court’s McGuire message has worn off in the

Ninth Circuit. As Judger Graber properly condemned in her

dissent, the majority opinion below explicitly rejected the

California Court of Appeal’s legal conclusion that the evidence

at Bradley’s trial had not made out a case of the state-law

affirmative defense of entrapment. App. A6-A9. The panel

further perceived an additional state-law error under what it

incorrectly and eccentrically conjured to be California “law of

the case” doctrine governing jury instructions in the retrial of a

criminal case. See App. A9-A10, A26-A27; People v. Watson,

22 Cal.4th 200, 223 (2000). Compounding that second-

guessing, the majority then granted relief, in essence, to

vindicate a mere state-law affirmative defense not otherwise

required by the Constitution.”

The vice of the Ninth Circuit’s opinion in this regard i is not |

simply that it got state law wrong yet again—although the

Circuit’s errors in this regard have created much mischief in

California. See, e.g., People v. Box, 23 Cal.4th 1153, 1188 fn. 7

(2000) (rejecting misinterpretation of California law employed

by Ninth Circuit to grant habeas corpus relief in Wade v.

Terhune, 202 F.3d 1190 (9th Cir. 2000)); People v. Santamaria,

8 Cal.4th 903, 923 (1994) (rejecting misinterpretation of

California law employed by Ninth Circuit to grant habeas :

corpus relief in Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.

1991)); In re Robbins, 18 Cal.4th 770, 793 (1998) (rejecting

misinterpretation of California law employed by Ninth Circuit

2. In ruling that the California state courts erred in their application

of state law, the Ninth Circuit invoked 28 U.S.C. § 2254(d)(2)—an

exception to the general AEDPA rule prohibiting habeas corpus relief that

is triggered where the state-court adjudication of the merits of a federal

claim “was based on an unreasonable determination of the facts.” The panel :

majority never claimed, however, that Congress had intended to overturn

McGuire through § 2254(d)(2). -or is there a basis for any such

suggestion. The statutory language in Congress’ AEDPA habeas-corpus

reforms in every respect appear to restrict and nowhere appear to expand the

availability of the writ for state prisoners. Moreover, 28 U.S.C. § 2254(a)

provides that habeas corpus relief may be granted to a state prisoner “only

on the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.” Not surprisingly, then, no court in the

nation has held that AEDPA diminishes the force of the principles

announced in McGuire.

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in habeas corpus case of Ashmus v. Calderon, 123 F.3d 1199

(9th Cir. 1997)). The worse harm is that granting federal habeas

corpus relief to a state prisoner on a State-law claim violates

Congress’ habeas corpus plan and undermines federalism and

State-federal comity. The insult is particularly sharp where, as

Judge Graber pointed out in her criticism of the majority

opinion, the federal court has actually overridden state-court

rulings on state-law questions. Unless reviewed, the Ninth

Circuit’s opinion will open the doors to numerous similar

challenges based on alleged state-law errors, with similarly

deleterious results, in the future.

2. Certiorari is justified, further, because the Ninth

Circuit adopted, under a “right to present a defense” rubric, a

due-process rule as to which this Court has expressed grave

doubt. According to the Ninth Circuit, the Constitution requires

jury instructions on state-law affirmative defenses that embrace

facts beyond the elements of the charged crime. In Gilmore v.

Taylor, 508 U.S. 333, 343 ( 1993), however, this Court rejected

a prisoner’s claim that his due-process rights were violated

because the instructions at his trial had frustrated the jury’s

consideration of evidence supporting his state-law affirmative

defense. This Court’s 7, aylor opinion, to be sure, was based in

significant part on the habeas corpus policy ground that the

prisoner’s claim impermissibly sought the retroactive

application of a “new rule” of law. See Teague v. Lane, 489

U.S. 288, 310 (1988) (plurality op.). But the opinion also

Clearly indicates that the Constitution did not require that rule

anyway. See Thomas v. Peters, 48 F.3d 1000, 1009-1010 (7th

Cir. 1995) (Easterbrook, J -, concurring) (discussing 7% aylor).

Refusing to apply the line of cases developed under Jn re

Winship, 397 US. 358 (1970), which recognized the

prosecution’s due-process burden of proving the elements of the

charged crime beyond a reasonable doubt, the Taylor Court

explained that “the most that can be said of the instructions

given at respondent’s trial is that they created a risk that the jury

would fail to consider evidence that related to an affirmative

defense, vith respect to which Winship’s due process guarantee

does not apply.”’ 508 U.S. at 343 (emphasis added). In re-

affirming that the due-process rules governing the state’s proof

of the elements of a crime, see Jackson v. Virginia, 443 U.S.

307 (1979) (federal review of sufficiency of evidence of

elements of state-law crimes), do not extend to state-law

affirmative defenses comprising additional facts that do not

merely negate the existence of those elements, this Court cited

its precedents allowing the States to place upon defendants the

burden of proving such defenses. /d. (citing Martin v. Ohio,

480 U.S. 228 (1987)); Patterson v. New York, 432 U.S. 197

(1977); see Engle v. Isaac, 456 U.S. 107, 119-121 (1982)

(treating claim of error in instruction on a state-law affirmative

defense as not cognizable in habeas corpus); but see id., at 341.

Taylor distinguished, from the different context of state-law

affirmative defenses in non-capital cases, Supreme Court

precedents recognizing a special need to allow the jury to

consider mitigating evidence as “constitutionally relevant”

under the Eighth Amendment at the sentencing phase of a

death-penalty case. /d., at 342. Taylor also distinguished this

Court’s other precedents, insofar as they recognized a due-

process right to “a meaningful opportunity to present a complete

defense,” as exclusion-of-evidence cases that did not involve

restrictions on a defendant’s ability to present state-law

“affirmative defenses.” /d., at343. And Taylor recognized that

expanding the “right to present a defense” cases to cover jury

instructions on State affirmative defenses “would make a nullity

of the rule reaffirmed in Estelle v. McGuire .°. . that

instructional errors of state law generally may not form the basis

of federal habeas relief.” /d., at 344.

So, just as it disobeyed McGuire, the Ninth Circuit opinion

below ignoréd this Court’s jurisprudence, as reflected in Taylor,

on state-law affirmative defenses. Moreover, in holding that

federal law “clearly established” a constitutional rule requiring

proper instructions on state-law affirmative defenses, App. Al4-

A15, the opinion below invoked a “new rule” of the very kind

that Taylor itself recognized to be impermissible under this

Court’s habeas corpus non-retroactivity doctrine. See Williams

EES :~'S 9

v. Taylor, 529 U.S. 362, 412 (2000) (equating AEDPA “clearly

established federal law’ standard with “new rule” standard); see

generally Lambrix v. Singletary, 520U.S. 51 8, 527-528 (1997):

Teague v. Lane, 488 U.S. at 310. See fn. 4, post.

It is true, as this Court indicated in Cupp v. Naughten, 414

U.S. 141, 146 (1973), that state-law error in jury instructions,

and perhaps other trial procedures or rulings that coincidentally

violate state law, also mi ght render a trial fundamentally unfair

and violate due process. Accord, Estelle v. McGuire, 502 U.S.

at 72. But it hardly follows from Naughten that a mere state-

law error—an error that by definition affects only protections

that the Constitution treats as unnecessary—can be

“bootstrapped” into a fundamental due-process violation simply

because the error impairs some non-constitutional interests that

might be perceived as valuable or desirable or otherwise affects

the trial result. See id. (“It must be established not merely that

the instruction is undesirable, erroneous, or even “universally

condemned,’ but that it violated some constitutional right’”’)

(citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)):

Allen v. Redman, 858 F.2¢ 1194 (6th Cir. 1988) (discussing

Naughten). The question in this case is whether Naughten

should be read to mean, unremarkably, that a procedure

unauthorized by state-law may warrant federal habeas corpus

relief if it also is condemned under a specific provision of the

Constitution—or whether, as the Ninth Circuit would have it,

Naughten instead means that an error impairing an affirmative

defense that only the State guarantees is itself fundamentally

unfair so as to be condemned by the Constitution.

Although the panel below denied that it was granting the

writ for state-law error, App. A10, the protest is untenable.

Nothing in the panel’s opinion—and, certainly nothing in this

Court’s cases—-purports to enshrine California’s entrapment

defense as a constitutional right for all criminal defendants

nationwide. See United States v. Russell, 411 U.S. 423, 433

(1973) (entrapment defense is “not of constitutional

dimension”); see also Mathews v. United States, 485 U.S. at 66.

Instead, the panel went to great lengths to establish that, in its

view, it was the specific entrapment defense recognized by

California law that had been raised by the evidence in

petitioner’s case, and that the failure to instruct on that

affirmative defense had affected the result. App. AS-A9. The

true theory of the panel’s grant of relief—the formula of “state-

law error” on affirmative defenses equals “unfairness” equals

“violation of Constitution’”—is functionally indistinguishable

from the theory it tried to disclaim. If Naughten indeed

supports that formula, federal habeas corpus courts then would

function as super state appellate courts—a novel proposition

indeed and one that would appear to conflict with the rule in

Estelle v. McGuire. In addition, to base a finding of

unconstitutional unfairness simply in the violation of the law of

one State would be tantamount to constitutionalizing the

policies of that State for the rest of the country as well.

The panel in this case relied on Mathews v. United States,

485 U.S. 58, and California v. Trombetta, 467 U.S. 485, to find

- aviolation of Bradley’s “right to present a defense.” App. A10-

All. But neither case validates the panel’s holding. A!though

involving instructions on entrapment as defined in federal

criminal law, and stating that the defendant is entitled to

instructions on defenses made out by the evidence, Mathews

appears at most to be merely an exercise of this Court’s

supervisory powers over the federal courts rather than an

interpretation of the Constitution. Cf. Goeke v. Branch, 514

U.S. 115 (1995). Trombetta involved, not instructions on an

affirmative defense, but a claim of intentional destruction of

exculpatory evidence that might have negated the existence of

an element of the charged crime itself.

——— ee Oe SO

B. Jn treating instructional errors impairing state-law

affirmative defenses as violations of the Constitution,

the Ninth Circuit opinion conflicts with decisions in

other Circuits.

1. The Ninth Circuit’s opinion conflicts with decisional

law in other Circuits. In the Third Circuit case of Johnson v.

Rosemeyer, 117 F.3d 104 (3d Cir. 1997), for example, the

petitioner claimed that the state judge in his homicide trial had

erroneously introduced “added elements” to the jury

instructions on his state-law defense of “justification” for the

use of deadly force. Noting that Estelle v. McGuire prohibited

relief for mere state-law error, the Third Circuit in Johnson

observed that the petitioner was seeking to circumvent McGuire

by arguing—like Bradley in the case at bar—that the alleged

instructional error violated due process “because it deprived him

of an opportunity to present his defense.” Id., at 109. The Third

Circuit discerned, however, that the claim would be cognizable

only if the instructional error relieved the state of its

constitutional obligation to prove an element of the crime or “if

it deprived the petitioner of a defense the state had to afford him

under federal law.” Id., at 110. The appellate court explained,

Johnson’s problem is that he cannot point to a federal

requirement that jury instructions on the elements of

an offense when justification is at issue must include

particular provisions, nor can he demonstrate that the

Jury instructions deprived him of a defense which

federal law provided to him.

Id. (emphasis added). Absent an independent requirement that

States must afford such a defense as a federal constitutional

matter, the Johnson court concluded that the instruction claim

in essence concerned merely a question of state law that could

not be addressed in federal habeas corpus proceedings. /d. at

110-111; see Ellis v. Hargett, 302 F. 3d 1182, 1188-1189 (10th

Cir. 2002) (claim that self-defense instructions on self-defense

had violated Oklahoma law was “not cognizable in a federal

habeas action’”’); cf. Smith v. Horn, 120 F.3d 400 (3d Cir. 1997)

constitution requires proper instruction on justification where it

negates malice element of offense). Indeed, as Johnson also

correctly perceived, the question whether state law was violated

is irrelevant to the habeas corpus court’s determination of

whether the instructions violated the Constitution. Johnson, at

111-113.

2. In several other Circuits, opinions on this issue go

both ways—further highlighting the need for this Court’s

intervention. Compare Taylor v. Withrow, 288 F.3d 846 (6th

Cir. 2002) (relief based on error in self-defense instructions)

with Wood v. Marshall, 790 F.2d 548, 551 (6th Cir. 1986)

(instructional error on burden of proving affirmative defense of

irresistible impulse not cognizable as due-process claim in

federal habeas corpus); and Clemmons v. Delo, 177 F.3d 680

(8th Cir. 1999) (dicta)-(distinguishing purported cognizability

of claims of erroneous self-defense instruction from those based

on complete absence of instruction) with Baker v. Leapley, 965

F.2d 657, 658 (8th Cir. 1992) (per curiam) (claimed error in

burden-of-proof instructions on insanity not remediable in

federal habeas corpus where state court found no state-law

error). It therefore is true that some Circuits occasionally have

endorsed a federal habeas corpus remedy for erroneous

instructions on some affirmative defenses in state trials. But

they have done so on vague and varying grounds and in any

event without adequate explanation of how such relief might be

squared with Estelle v. McGuire or with this Court’s

affirmative-defense jurisprudence.

Some courts assume that, where the state-law error was so

significant that it determined the outcome of the case, the error

therefore reaches the level of a “due process” violation

rendering the trial unfair. See, e.g., Davis v. Strack, 270 F.3d

111 (2d Cir. 2001) *(failure to instruct on state-law

“Justification” defense creates prejudice rising to level of due-

process violation); Barker v. Yukins, 199 F.3d 867, 873 (6th Cir.

1999) (offering no explanation why error was unconstitutional,

Farrer a

but treating effect of error on outcome as sufficient “prejudice”

warranting habeas corpus relief). Another court has simply

inferred, from the constitutional right to present evidence

negating the elements of charged offense, a ri ght to instructions

on an affirmative defense. Tyson v. Trigg, 50 F.3d 436 (7th

Cir. 1995) (mistake defense in rape case) (dicta). It is hard, to

say the least, to reconcile such seemingly circular reasoning

with Estelle v. McGuire’s conclusion that even prejudicial

errors of State-law dimension cannot support habeas corpus

relief under 28 U.S.C. § 2254, or to ignore the appellate courts’

tendency in the cited cases to conflate the defendant’s rights

concerning proof of the elements of the crime with his interest

in litigating affirmative defenses beyond those elements.”

Review of the question presented in the case at bar is

warranted in order ensure the vindication of this Court’s Estelle

v. McGuire rule, to resolve the conflict in the Circuits, and to

properly account for the federalism concerns implicated in an

expanding area in which federal courts employ dubious theories,

bottomed in unusual ways on state-law claims, in service of

federal-court review of final state-court judgments.”

3. Other courts have embraced still other problematic theories in this —

area. Compare Taylor v. Withrow, 288 F.3d 846 (finding a “fundamental

right” to self defense), with United States v. Russell, 411 U.S. 423 (federal

entrapment defense “is not of constitutional dimension”); and compare Sloan

v. Gramley, 215 F.3d 1330 (7th Cir. 2000) (suggesting self-defense

instructional error raises question of habeas corpus relief for actual

innocence), with Herrera v. Collins, 506 U.S. 390, 404 (1993) (no

freestanding habeas corpus claims of innocence); Townsend v. Sain, 372

U.S. 293 (1963) (same). Cf. Fetterly v. Paskett, 997 F.2d 1295 (9th Cir.

1993) (habeas corpus relief lies for state-law errors if they deprived

petitioner of a “liberty interest”); Fetterly, 15 F.3d 1472, 1475 (diss. op. on

denial of rehearing); Levine v. Torik, 986 F.2d 1506, 1515 (6th Cir. 1993)

(rejecting “liberty interest” theory).

4. As reflected in Judge Graber’s dissent, see App. A18, the Bradley

majority’s treatment of 28 U.S.C. § 2254(d), the fundamental AEDPA

reform ordinarily precluding relief for federal claims “adjudicated on the

merits in State proceedings,” repeats errors for which this Court already has

reversed the Ninth Circuit in Lockyer v. Andrade, 123 S.Ct. 1166 (2003),

Il.

Certiorari is warranted to review the Ninth Circuit’s

holding that a federal habeas corpus court may consider, in

determining any prejudicial effect of an error occurring in

the state trial, affidavits from trial jurors asserting how they

would have voted if the error had not occurred.

This Court should grant certiorari, also, to decide whether

federal habeas corpus courts may consider affidavits from jurors

about the potential effect an unconstitutional error might have

exerted on their deliberations. The Ninth Circuit’s reliance on

juror affidavits to undermine the state-court verdict in this case,

App. Al2-A13, departs widely from normal judicial procedure

and from federal policies protecting both jurors from

harassment and state criminal judgments from reversal based

and Early v. Packer, 537 U.S. 3 (2002) (per curiam). The Warden, however,

has concluded that certiorari review of the panel interpretations of the

narrow exceptions to that reform is unavailable. For, it appears that—despite

the assumption of the parties and the courts below—the state courts never

adjudicated the merits of Bradley’s purported federal constitutional claim.

The California Court of Appeal, the focus of the panel’s § 2254(d)(1)

analysis in the opinion below, adjudicated on the merits only what Bradley

presented to it: an unadorned state-law claim for entrapment instructions.

See App. F. Although Bradley later presented the California Supreme Court

with the new and improved claim he now presses in federal court—that the

Constitution somehow guaranteed entrapment instructions if otherwise

warranted under state law—the state supreme court merely denied

discretionary review of that claim without reaching its merits.

Review on the equivalent Teague v. Lane “new rule” issue, see p. 11,

ante, however, should not be deemed foreclosed. Cf. Caspariv. Bohlen,

510 U.S. 383, 389 (1994); Schiro v. Farley, 510 U.S. 220, 228 (1994). In

arguing before the Ninth Circuit, the state’s representatives relied on

Gilmore v. Taylor, supra, a case that extensively discussed Teague’s

application to a claim based on affirmative-defense instructions; the panel’s

adoption of a rule requiring affirmative-defense instructions as “clearly

established federal law” in effect answered the Teague “new rule” question,

see Williams v. Taylor, 529 U.S. at 412; and the Warden explicitly relied on

the Teague doctrine in his rehearing petition.

upon new and debatable rules of law. Not surprisingly, then, it

also conflicts with the holdings of other Circuits.

Here, in gauging whether the alleged entrapment-

instruction error was harmless, the Ninth Circuit panel relied on

affidavits from two jurors who claimed that they and the other

jurors would have voted to acquit Bradley under entrapment

instructions. This case thus presents, at the outset, a serious

question of whether such hypothetical and after-the-fact

affidavits are of sufficient reliability that they should be used to

overturn State judgments. Use of such affidavits probably will

have an especially pronounced impact in capital cases—where,

even after state collateral proceedings, federal-court funding

remains available to the petitioner, see PRICE WATERHOUSE

COOPER, COST OF PRIVATE PANEL REPRESENTATION IN

FEDERAL CAPITAL HABEAS CORPUS CASES (Feb. 1999), vi-

vill, V40-43, V70-76, VIII-119 ($175,000 average for initial

petition and evidentiary hearing), and where there has

developed a culture of trying to enlist in the petitioner’s cause

jurors who over time might well be more likely than other jurors

to have grown dissatisfied with their death-penalty vote.

At least equally important, reliance on such affidavits

Seems. inconsistent with federal policies, reflected in Rule

606(b) of the Federal Rules of Evidence and'in precedents of

this Court such as Zanner v. United States, 403 U.S. 107

(1987), against embroiling jurors in continuing disputes about

their service and their deliberations. Rule 606(b), indeed,

specifically prohibits receiving juror affidavits on “the effect of

anything upon that or any other juror’s mind or emotion in

influencing the juror to assent to or dissent from the verdict.”

Moreover, in the related area of gauging prejudice caused

by attorney incompetence at trial, this Court has endorsed

objective consideration of the likely effect of the error on a

reasonable decision-maker, as opposed to positing a unique or

idiosyncratic decision-maker as the reference point. See

Strickland v. Washington, 466 U.S. 668 (1984). Consideration

of affidavits from individual jurors would seem inconsistent

with the preference for objective harmless-error review. See

United States v. Cappas, 29 F. 3d 1187, 1191 (7th Cir. 1994).

The panel’s casual reliance on juror affidavits for harmless-

error review of errors other than those pertaining to jury

misconduct itself is novel in the federal habeas corpus system

and perhaps in the federal system entirely. See Murphy v.

Tivoli Enterprises, 953 F.2d 354 (8th Cir. 1992). Such use has

been assumed to be impermissible. E.g., Cappas, 29 F.3d at

1192. Other Circuits have enforced, in habeas corpus

proceedings, the general rule prohibiting use of juror affidavits,

outside the context of inquiring into improper external

influences on the jury, to undermine state-court judgments.

E.g., Fulwood v. Lee, 290 F.3d 663, 684 (4th Cir. 2002); Silagy

v. Peters, 905 F. 2d 1086, 1008-1009 (7th Cir. 1990); see Fed.

R. Evid. 1101(b).

For these reasons, the petition for writ of certiorari should

be granted.

CONCLUSION

Dated: August 12, 2003

Respectfully submitted,

BILL LOCKYER

Attorney General of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

KRISTOFER JORSTAD

Deputy Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

Counsel of Record

Counsel for Petitioner

CC 7 _— > =

A-1

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY BRADLEY, No. 01-55290

D.C. No.

Petitioner-Appellee, | CV-00-00527-VAP

OPINION

W. A. DUNCAN, Warden,

Respondent-Appellant.

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

February 14, 2002—Pasadena, California

Filed December 24, 2002

Before: Warren J. Ferguson, A. Wallace Tashima, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Ferguson;

Dissent by Judge Graber

COUNSEL

Jeffrey S. Kross, Oakland, California, for the petitioner-

appellee.

J. Michael Lehmann (argued), Corey J. Robins, Office of the

Attorney General of the State of California, Los Angeles, Cal-

ifornia, for the respondent-appellant.

OPINION

FERGUSON, Circuit Judge:

Warden William A. Duncan (“the State”) appeals the Dis-

trict 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 Dis-

trict Court adopted the recommendations of the Magistrate

Judge, who found that the refusal to instruct effected prejudi-

cial 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). Brad-

ley’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

A-3

opinion. During deliberation, the jury requested two clarifica-

tions 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. Dur-

ing 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).¥

The state claims that Bradley did not present sufficient evi-

dence 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 grant-

ing habeas corpus relief, we review the facts underlying Brad-

ley’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 Brad-

ley is entitled to habeas relief under the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”).

1. The prior convictions were for a 1980 and a 1988 burglary.

A-4

A. Factual Background

On January 8, 1996, while conducting an undercover nar-

cotics operation, Officers Servando Pena and Melissa Town

observed Jose de Jesus Flores standing on the sidewalk. Offi-

cer Pena pulled the unmarked car over and motioned for Flo-

res 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 say-

ing, “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 peo-

ple 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, Flo-

A-5

res 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 walk-

ing 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 do!lars 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 imper-

missible police conduct. People v. Barraza, 591 P.2d 947, 956

n.5 (Cal. 1979); People v. Holloway, 55 Cal. Rptr. 2d 547,

551 (Ct. App. 1996), overruled on other grounds by People

v. Fuhrman, 941 P.2d 1189, 1199 n.11 (Cal. 1997). In adopt-

ing an objective test of entrapment, the California Supreme

Court reasoned, “the function of law enforcement manifestly

‘does not include the manufacturing of crime.’ ” Barraza, 591

P.2d at 954 (quoting Sherman v. United States, 356 U.S. 369,

372 (1958)).

[1] It is permissible for the police to offer “the simple

opportunity to act unlawfully,” by the use of decoys or other-

wise. 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.” /d. 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.” Jd.

A-6

[2] Entrapment is a jury question because of “its potentially

substantial effect on the issue of guilt.” /d. at 956 n.6; see also

People v. Lee, 268 Cal. Rptr. 595, 598 (Ct. App. 1990)

(“Entrapment is ordinarily a fact question.”) (citations omit-

ted). The defendant is entitled to an entrapment instruction if

he presents sufficient evidence for a reasonable jury to con-

clude that he was entrapped. See People v. Watson, 990 P.2d

1031, 1032 (Cal. 2000) (citing substantial evidence standard

from People v. Flannel, 603 P.2d 1, 10 (Cal. 1979). “Doubts

as to the sufficiency of the evidence to warrant instructions

should be resolved in favor of the accused.” Flannel, 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

Califoriia law. However, its decision involved “an unreason-

able determination of the facts in light of the evidence pre-

sented.”” 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 unrea-

sonabie 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 “[nJeither officer badgered, cajoled, nor did any

other affirmative act likely to induce a normally law-abiding

person to commit the crime.”

{3} 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, 591 P.2d 527, 530 (Cal. 1979).

[4] Flores, the unwitting police agent, targeted Bradley

individually and begged him for drugs. Flores’ appeal,

“Please, please, big man, would you help me out?”—despite

A-7

Bradley’s statements that he neither had drugs nor sold them

—could certainly be found by a jury to constitute “badgering”

or “cajoling.” WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY UNABRIDGED 161 (1966) (defining “badger” as to

“pester . . . in a manner likely to confuse, annoy, or wear

down’); id. at 313 (defining “cajole” as “to persuade with

deliberate flattery esp[ecially] in the face of reasonable objec-

tion or reluctance”). In light of the urgency of Flores’

requests, his conduct also constituti d “importuning” in the

ordinary meaning of the term. /d. at 1135 (defining “impor-

tune” as “to press or urge with . . . unreasonable requests”).

Moreover, the California Court of Appeal’s determination

that the police merely offered the opportunity to act illegally

was unreasonable in light of the record. Officers Pena and

Town chose as their “hook” a drug addict who was going

through withdrawals and was very ill. This was not a case in

which the police merely used an underage decoy to purchase

alcohol, see Provigo Corp. v. Alcoholic Beverage Control

Appeals Bd., 869 P.2d 1163 (Cal. 1994), or to respond to an

ad soliciting sex with a female of any age. See People v. Reed,

61 Cal. Rptr. 2d 658 (Ct. App. 1996). This was a case in

which the police used a decoy whose physical suffering

would appeal to the sympathies of most people.

{5} Second, the California Court of Appeal failed to resolve

its doubts as to whether a normally-!aw-abiding person would

have been induced to commit the crime out of sympathy for

Flores in favor of Bradley. See Flannel, 603 P.2d at 10. The

court denied Bradley’s claim, reasoning that “the average per-

son would not ... purchase illegal drugs to aid a stranger,

even if the stranger appeared to be a drug addict going

through withdrawal.”” What a normally-law-abiding person

2. The California Court of Appeal’s statement that Flores was a “strang-

er” is also unreasonable in light of the record. At the very least, Flores was

an acquaintance. The record reflects that Bradley had seen Flores in pass-

ing. Moreover, Officer Town testified at trial that Bradley assured the offi-

cers that he would not ‘rip them off because Flores knew where to find

A-8

would do under the circumstances should have been left to the

jury. A reasonable jury could find that a normally-law-abiding

person would feel sympathy for Flores in his desperate state

and decide to help him obtain drugs to relieve his suffering.

The Court of Appeal compounded its error by speculating

that a normally-law-abiding person confronted by an evi-

dently ill drug-addicted stranger in the throes of withdrawal

would not purchase drugs for Flores, but would opt for a legal

alternative. Of course, calling the police is an alternative to

acquiescing in illegal activity, and it is conceded that taking

a drug addict to a clinic is preferable to enabling his drug

addiction. But one could always speculate about a legal alter-

native to the illegal action ultimately taken.”

A normally-law-abiding person does not always take the

high road in the face of pressures or inducements by the

police or their agents. As Justice Frankfurter observed in

Sherman: “Human nature is weak enough and sufficiently

beset by temptations without government adding to them and

generating crime.” 356 U.S. at 384 (Frankfurter, J., concur-

ring). The state ignores the purpose of the entrapment

defense, which is to curb unsavory police conduct. Instead of

focusing on the impermissible police conduct, the state

chooses to blame Bradley and to point out what he should

have done differently. This argument is circuitous and leaves

no situation where the defendant can assert entrapment as a

defense.

Moreover, in faulting Bradley for failing to call the police

or take Flores to a treatment center, the state turns a blind eye

to the fact that the officers did not do so either. Not only did

the officers in this case fail to help Flores, they isolated him

him. Thus, Flores was not a stranger to Bradley.

3. Further, the state’s reliance on People v. Graves, 113 Cal. Rptr. 2d

708 (Ct. App. 2001), for the proposition that Bradley should have chosen a

“lawful alternative,” is misplaced. In that case, the defendant responded

illegally to a legal request. /d. at 713. Here, Bradley acquiesced in an ille-

gal request.

eA eR Re

A-9

from any potential assistance, using him as a decoy and then

arresting him as a co-defendant in this case. If anyone in this

case had a duty to assist Flores, it was the officers, not Brad-

ley. This is especially true because Bradley was on a bicycle

(and could not transport Flores anywhere), whereas the offi-

cers were in a vehicle and had control over Flores as a passen-

ger. However, instead of taking him to get help, the officers

decided to exploit Flores’ addiction as a tool to induce another

person’s participation in a drug sale. Under Barraza and its

progeny, this is impermissible.

[6] It is important to remember that at Bradley’s first trial,

the trial judge found that the evidence presented required that

the jury be given an entrapment instruction. The evidence pre-

sented at the second trial was exactly the same as the first

trial, yet the second trial judge refused to give the instruction.

As the District Court below observed:

By refusing to instruct the jury on entrapment, the

trial judge essentially left the jury with petitioner’s

confession to the offense, without ever allowing

them to consider petitioner’s preclusive defense. By

rejecting petitioner’s request for an entrapment

instruction, the trial court effectively deprived peti-

tioner of his only defense. (ER 77)

This kind of manipulation of the jury is simply not permissi-

ble. “The trial judge is . . . barred from attempting to override

or interfere with the jurors’ independent judgment in a man-

ner contrary to the interests of the accused.” United States v.

Martin Linen Supply Co., 430 U.S. 564, 573 (1977).

[7] Moreover, when one judge determines, as a matter of

law and fact, that the evidence requires the giving of an

entrapment instruction, and no additional evidence to the con-

trary is proffered at a subsequent trial, the second judge may

not simply ignore the findings of the first. “It is a fundamental

principle of jurisprudence . . . that a question of fact or of law

distinctly puf in issue and directly determined by a [criminal

CURA SORRERORTER ASE eC PES NEAT SE ENS A TENET ITE ROI ACI

A-10

or civil] court of competent jurisdiction cannot afterwards be

disputed between the same parties.” Frank v. Magnum, 237

U.S. 309, 334 (1915) (internal citation omitted). California

recognizes this application of the law of the case doctrine.

The California Court of Appeal recently held that a superior

court judge lacked the authority to vacate and redetermine the

bail setting determination of another superior court judge. Jn

re Alberto, No. B158722, slip. op. 11205 (Ct. App. September

25, 2002). The decision reasoned that “for one superior court

judge, no matter how well intended, even if correct as a mat-

ter of law, to nullify a duly made, erroneous ruling of another

superior court judge places the second judge in the role of a

one-judge appellate court.” Jd. at 11206. See also, People v.

Woodard, 131 Cal.App.3d 107, 111 (Ct. App. 1982). In the

instant case, the second judge simply ignored the findings of

the previous judge, without even bothering to assert that the

earlier decision was erroneous or that the circumstances of the

case had changed. This kind of unauthorized second-guessing

is impermissibly arbitrary and can amount to a violation of

Due Process.

C. Due Process Violation

The failure to instruct the jury on Bradley’s defense theory

of entrapment was not simply a state law error. It also effected

a violation of Bradley’s due process rights.

[8] The Supreme Court has held that “[a]s a general propo-

sition, a defendant is entitled to an instruction as to any recog-

nized defense for which there exists evidence sufficient for a

reasonable jury to find in his favor.” Mathews v. United

States, 485 U.S. 58, 63 (1988) (citation omitted). We have

applied this standard to habeas petitions arising from state

convictions. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir.

1999) (“It is well established that a criminal defendant is enti-

tled to adequate instructions on the defense theory of the

case.”’).

eee

A-11

The failure to instruct the jury on entrapment deprived

Bradley of his due process right to present a full defense. The

Supreme Court has held: “Under the Due Process Clause of

the Fourteenth Amendment, criminal prosecutions must com-

port with prevailing notions of fundamental fairness. We have

long interpreted this standard of fairness to require that crimi-

nal defendants be afforded a meaningful opportunity to pre-

sent a complete defense.” California v. Trombetta, 467 U.S.

479, 485 (1984) (emphasis added).

[9] Thus, the state court’s failure to correctly instruct the

jury on the defense may deprive the defendant of his due pro-

cess right to present a defense. See Barker v. Yukins, 199 F.3d

867, 875-76 (6th Cir. 1999) (granting habeas relief under

AEDPA because the erroneous self-defense instruction

deprived the defendant’s of a “meaningful opportunity to

present a complete defense”’) (relying on Trombetta, 467 U.S.

at 485), cert. denied, 530 U.S. 1229 (2000). This is so because

the right to present a defense “would be empty if it did not

entail the further right to an instruction that allowed the jury

to consider the defense.” Tyson v. Trigg, 50 F.3d 436, 448

(7th Cir. 1997).

In this case, the refusal to instruct on entrapment deprived

Bradley of his only defense and, as a result, of due process.

Bradley testified at his first trial that he bought the cocaine for

Flores and explained that he did so out of concern for Flores’

well-being and sympathy for his plight. At the second trial,

the prosecution read Bradley’s testimony into the evidence.

During closing argument, the prosecutor pointed to the por-

tion of the record in which Bradley had confessed to the

crime. He admonished the jury not to consider the evidence

that Bradley had acted as a “Good Samaritan” or that he had

committed the crime out of sympathy for Flores. He also

reminded the jury of the court’s instruction not to acquit on

the basis of “sympathy” for Bradley. Defense counsel argued

that the officers’ “tactics” of manipulating a drug addict going

through withdrawals was “despicable” and is not “something

that should be done.” However, because of the court’s refusal

A-12

to instruct on entrapment, he could not point to a legal

grounds on which the jury could acquit Bradley if it agreed.”

[10] Under these circumstances, the failure to instruct on

entrapment prevented Bradley from presenting his full

defense. Accordingly, due process was violated. Nevertheless,

because the failure to instruct on entrapment was a trial error,

Bradley is entitled to relief only if he can show prejudice. Cal.

v. Roy, 519 U.S. 2, 5 (1996) (explaining harmless-error analy-

sis).

[11] Prejudice is shown for purposes of habeas relief if the

trial error had a “substantial and injurious effect or influence

in determining the jury’s verdict.” Jd. at 6 (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)). Moreover, we must

grant the petition if we are “ ‘in grave doubt as to the harm-

lessness of an error.’ ” Jd. (quoting O’Neal v. McAninch, 513

U.S. 432, 437 (1995)).

[12] As aforementioned, Bradley presented ample evidence

supporting the giving of the entrapment instruction. More-

over, we need only look at the differing results of the two tri-

als to find that the failure to so instruct had a substantial and

injurious effect on the jury verdict. In the first trial, an instruc-

tion was given, and a mistrial was declared after three days of

deliberation and two clarifications on the defense. In the sec-

ond trial, the same evidence was presented, but the instruction

was not given. A guilty verdict was the result. In addition, in

his appeal to the California Court of Appeals, Bradley filed

declarations from two jurors on the second jury, both of

whom stated that “the jury verdict (or the jury’s ability to

4. Use of Bradley’s testimony from the first trial, in which an entrapment

instruction was given, against him in the second trial, in which no entrap-

ment instruction was given, presents an additional element of unfairness.

Presumably, Bradley elected to testify at the first trial to support his

entrapment defense. If he knew that no entrapment instruction would be

given, he may well have elected to stand on his Fifth Amendment right not

to testify. Thus, the refusal to give an entrapment instruction at the second

trial, in effect, sandbagged Bradley into testifying and virtually confessing

guilt, even though no entrapment instruction was given.

sceesnsnisisisieiicaiaiaenltinee

A-13

reach a unanimous verdict) would have been different if these

[entrapment] instructions had been given.”

[13] Under these circumstances, the failure of the trial court

to instruct the jury as to Bradley’s entrapment defense, causes

at least a “grave doubt as to the harmlessness of the error.”

O’Neal, 513 U.S. at 437. Thus, Bradley has sufficiently

shown prejudice and is entitled to relief on his due process

claim.

D. Habeas Relief under AEDPA

Having concluded that Bradley’s due process rights were

violated, we turn to the issue whether he has fulfilled the

requirements of AEDPA. As previously discussed, the Cali-

fornia Court of Appeal’s decision that Bradley was not enti-

tled to an entrapment instruction involved an “unreasonable

determination of the facts in light of the evidence presented.”

28 U.S.C. § 2254(d)(2). However, it is the due process viola-

tion, not the state law error, that triggers our habeas relief.

Because the California Court of Appeal did not address

Bradley’s due process claim, we must conduct an independent

review of the record to determine “whether the state court’s

resolution of the case constituted an unreasonable application

of clearly established federal law.” Thomas v. Hubbard, 273

F.3d 1164, 1170 (9th Cir. 2001) (as amended) (quoting Del-

gado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)).

We have held that a state court decision must be reversed

as involving an “unreasonable application” of clearly estab-

lished federal law when we have a “firm conviction” that the

state court erred. Van Tran vy. Lindsey, 212 F.3d 1143, 1153-

54 (9th Cir. 2000) (adopting a “clear error” standard for

habeas review under AEDPA), cert. denied, 531 U.S. 944

(2000). Contrary to the dissent’s suggestion, we accept the

principles mandated by the Supreme Court in Woodford v.

Vicciotti, No. 02-137, 2002 WL 31444314 (U.S. Nov. 4,

2002) (per curiam) and Early v. Packer, No. 01-1765, 2002

WL 31444316 (U.S. Nov. 4, 2002) (per curiam), requiring

A-14

that the state court decision reflect an “objectively unreason-

able” application of federal law. However, the record is clear

that the California Court of Appeal’s decision was an “objec-

tively unreasonably” application of federal law. The Court of

Appeal failed to recognize Bradley’s right to present a com-

plete and meaningful defense to the jury under the principles

set out in Matthews and Trombetta. It failed to consider the

facts relevant to the due process prejudice prong, including

the undisputed evidence that jurors in the second trial would

not have convicted the defendant if the entrapment instruction

had been given. It failed to explain why the second judge

could unilaterally ignore the first trial judge’s findings of fact

and conclusion of law regarding the entrapment instructions

and not compose even a single sentence to explain away the

law of the case doctrine. It is clear that the California Court

of Appeal’s failure to address these issues constituted an

objectively unreasonable determination of both the law and

the facts.

The dissent would dismiss Bradley’s habeas petition on the

basis that he “has cited no United States Supreme Court case

... that would require the giving of an entrapment instruction

in a state-criminal trial when there is insufficient evidence to

support such an instruction under state law.” Dissent at 27

(citing Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993)).

However, no such case need be cited here. As shown above,

Bradley more than sufficiently supported his defense theory

of entrapment, and the fact that the entrapment instruction

was given in his first trial is further proof of this.

The dissent misconstrues the nature of our inquiry under

AEDPA. Bradley need not produce a “spotted calf’ on the

precise issue at hand to warrant habeas relief. See Van Tran,

212 F.3d at 1154 & n.16 (““AEDPA does not require an on-

point Supreme Court case for us to reverse... .”). Rather, it

is sufficient that the due process violation involved here

offends the principles previously enunciated by Supreme

Court precedent and reaffirmed by our case law. See id.; see

also Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)

A-15

(“The [Supreme] Court has made clear that its relevant prece-

dents include not only bright-line rules but also the legal prin-

ciples and standards flowing from precedent.”) (citing

Williams v. Taylor, 529 U.S. 362, 407 (2000)).

The District Court was correct to grant habeas relief.

Affirmed.

A-16

Appendix

CALJIC No. 4.60 provides:

It is a defense to a criminal charge that the commission of

the alleged criminal act, was induced by the conduct of law

enforcement agents or officers [or persons acting under their

direction, suggestion or control] when the conduct would

likely induce a normally law-abiding person to commit the

crime. [{]] To establish this defense the defendant has the bur-

den of proving by a preponderance of the evidence that the

conduct of the law enforcement agents or officers [or persons

acting under their direction, suggestion, or control] would

likely induce a normally law-abiding person to commit the

crime.

CALJIC No. 4.61 provides:

In deciding whether this defense has been established,

guidance will generally be found in the application of one or

both of two principles. First, if the actions of the law enforce-

ment agent would generate in a normally law-abiding person

a motive for the criminal other than ordinary criminal intent,

entrapment will be established. An example of this type of

conduct would be an appeal by the police 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. Second, affirmative police

conduct that would make commission of the crime unusually

attractive to a normally law abiding person will likewise con-

stitute entrapment. This conduct would include, for example,

a guarantee that the act is not illegal or the crime will go

undetected, an offer of exorbitant consideration, or any simi-

lar enticement. [{] Finally, while the inquiry must focus pri-

marily on the conduct of the law enforcement agent, that

conduct is not to be viewed in a vacuum; it should also be

judged by the effect it would have on a normally law-abiding

person situated in the circumstances of the case at hand.

Among the circumstances that may be relevant for this pur-

A-17

pose, for example, are the transactions preceding the crime,

the suspect’s response to the inducements of the officer, the

gravity of the crime, and the difficulty of detecting instances

of its commission. [{] [Matters such as the character of the

defendant, [his], [her] predisposition to commit the crime, and

[his] [her] subjective intent are not relevant to the determina-

tion of the question of whether entrapment occurred.]

CALJIC No. 4.61.5 provides:

It is permissible for law enforcement agents or officers [or

persons acting under their direction, suggestion or control] to

provide opportunity for the commission of a crime including

reasonable, though restrained, steps to gain the confidence of

suspects. It is not permissible for law enforcement agents or

officers [or persons acting under their direction, suggestion or

control] to induce the commission of a crime by overbearing

conduct such as badgering, coaxing or cajoling, importuning,

or other affirmative acts likely to induce a normally law-

abiding person to commit the crime.

A-18

GRABER, Circuit Judge, dissenting:

I respectfully dissent. The majority fails to adhere to our

standard of review. The California courts made no factual

error and no error of California law. Federal law does not,

independently, require an entrapment instruction in a state

court criminal trial when there is insufficient evidence to sup-

port it as a matter of state law. Accordingly, I would reverse

the district court’s conditional grant of habeas relief to Peti-

tioner.

The Supreme Court of the United States has just chastised

this court, in the strongest possible terms, for substituting our

judgment for that of a state court on matters of federal law,

including legal issues that involve an interpretation and appli-

cation of facts. Woodford v. Visciotti, 123 S. Ct. 357 (2002)

(per curiam); Early v. Packer, 123 S. Ct. 362 (2002) (per

curiam). We have even less justification for substituting our

judgment for that of a state court on matters of its own state

law. Indeed, we wholly lack authority to second-guess a state

court on a question of state law. Yet that is precisely what the

majority does here, in clear contravention of both AEDPA

and the Supreme Court’s interpretation of it.

Petitioner was convicted in state court on one count of sell-

ing cocaine in violation of California Health & Safety Code

§ 11352(a). At trial, he argued that he had been entrapped by

the police officers’ use of a decoy who was obviously suffer-

ing symptoms of withdrawal from drugs. Petitioner contended

that the decoy’s plight induced him to commit a crime that he

would not otherwise have committed. He requested an entrap-

ment instruction, which the state trial court refused to give.

On appeal, the California Court of Appeal held that the trial

court properly declined to instruct the jury on entrapment

because Petitioner had not presented substantial evidence in

support of that theory:

A-19

Here, there was no substantial evidence to support

entrapment instructions. This was an ordinary, run-

of-the-mill, undercover drug operation in which a

decoy was used. The officers used Flores as a

“hook” in locating a source for cocaine; [Petitioner]

expressed his willingness to assist in finding cocaine,

and [Petitioner] took actions toward accomplishing

that goal. He located a source for the drugs and

exchanged money for the drugs. The police did not

conduct themselves improperly. Neither officer bad-

gered, cajoled, nor did any other affirmative act |

likely to induce a normally law-abiding person to

commit the crime. [Petitioner] was simply offered

the opportunity to commit the crime.

. . . [TJhe average person would not, as [Peti-

tioner] contends, purchase illegal drugs to aid a

stranger, even if the stranger appeared to be a drug

addict going through withdrawal. . . . (Cf People v.

Lee (1990) 219 Cal. App. 3d 829 [sailor working

with police befriends drug dealer to assist in gaining

_ dealer’s confidence; such casual, brief, non-intimate

acquaintances does not constitute entrapment]; com-

pare with People v. McIntire [(1979)] 23 Cal. 3d 742

[facts sufficient to raise entrapment defense when

defendant acquiesces to strong and persistent pres-

sure applied by police through defendant’s younger

brother based upon sympathy aroused by family

problems].)

People v. Bradley, No. B112640 (Cal. Ct. App. filed Nov. 17,

1998) (footnotes omitted). The California Supreme Court

denied review in an unpublished decision.

Petitioner then initiated this federal habeas action. The dis-

trict court held that the California courts erted as a matter of

California law when they concluded that Petitioner had failed

to present sufficient evidence to be entitled to a jury instruc-

—$$——_—$—— Ce

A-20

tion on entrapment. Because Petitioner had been entitled to

the instruction under state law, the court concluded, the state

court’s failure to give the instruction violated Petitioner’s due

process rights. The majority agrees and, by doing so, essen-

tially reviews de novo questions of state law.

We may grant habeas relief under 28 U.S.C. § 2254(d) only

if the decision of the California Court of Appeal (1) “was con-

trary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” In

reviewing the petition, we are “bound by the state court’s

interpretations of state law,” and we must presume the cor-

rectness of the state court’s factual findings in the absence of

“clear and convincing evidence” to the contrary. Bains v.

Cambra, 204 F.3d 964, 972 (9th Cir.), cert. denied, 531 U.S.

1037 (2000); 28 U.S.C. § 2254(e)(1). Additionally, the stan-

dard for finding an unreasonable application of federal law is

a high one. See Williams v. Taylor, 529 U.S. 362, 411 (2000)

(“[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application

must also be unreasonable.”). The majority’s opinion neither

presumes the correctness of the state court’s factual findings

nor holds itself bound by the state court’s interpretation of

state law.

Here we are reviewing the California Court of Appeal’s

holding that, as a matter of California law, Petitioner failed

to present sufficient evidence to be entitled to an instruction

on entrapment. Therefore, we are bound by that holding

unless it involves “an unreasonable determination of the facts

in light of the evidence presented” or is contrary to federal

law. 28 U.S.C. § 2254(d). “A state court has the last word on

the interpretation of state law.” Mendez v. Small, 298 F.3d

1154, 1158 (9th Cir. 2002).

A-21

The majority’s contention that the California Court of

Appeal’s determination was “an unreasonable determination

of the facts in light of the evidence presented” is flawed. The

majority identifies two “factual” conclusions made by the

California Court of Appeal that the majority finds unreason-

able: (1) the Court of Appeal determined that “{nJeither offi-

cer badgered, cajoled, nor did any other affirmative act likely

to induce a normally law-abiding person to commit the

i crime,” maj. op. at 10; and (2) the “Court of Appeal failed to

resolve its doubts as to whether a normaliy law-abiding per-

son would have been induced to commit the crime out of

sympathy for Flores in favor of [Petitioner],” maj. op. at 11.

Neither of those claimed errors is sufficient to merit relief

under our standard of review, as the majority apparently real-

izes when it states that “it is the due process violation, not the

State law error, that triggers our habeas relief.” Maj. op. at 17.

Under California law, as the majority concedes, maj. op. at

9-10, a defendant must present substantial evidence of entrap-

ment to be entitled to a jury instruction on the defense. People

v. Watson, 990 P.2d 1031, 1022 (Cal. 2000). Substantial evi-

dence is “evidence enough to deserve consideration by the

jury, i.e., evidence from which a jury composed of reasonable

men could have concluded” that the defendant was entrapped.

People v. Flannel, 603 P.2d 1. 10 (Cal. 1980) (citation and

internal quotation marks omitted).

“In California, the test for entrapment focuses on the police

conduct and is objective.” Watson, 990 P.2d at 1032 (empha-

sis added); see also People v. Barraza, 591 P.2d 947, 954-55

(Cal. 1979).“ To be entitled to an instruction on entrapment,

a defendant must present substantial evidence that “the con-

duct of the law enforcement agent [was] likely to induce a

1. Notably, one of Petitioner’s requested instructions, CALJIC 4.61, is

entitled “Entrapment—Objective Test—Guidance” and cautions. among

other things, that such matters as the defendant’s “subjective intent are not

relevant to the determination of the question of whether entrapment

occurred.”

OOO

A-22

normally law-abiding person to commit the offense.” Jd. at

955. The law “presume[s] that such a person would normally

resist the temptation to commit a crime presented by the sim-

ple opportunity to act unlawfully.” Jd. (emphasis added). The

question is whether “the police or their agents . . . pressure[d]

the suspect by overbearing conduct such as badgering, cajol-

ing, importuning, or other affirmative acts likely to induce a

: normally law-abiding person to commit the crime.” /d. “[T]he

rule is clear that ruses, stings, and decoys are permissible

stratagems in the enforcement of criminal law, and they

become invalid only when badgering or importuning takes

place to an extent and degree that is likely to induce an other-

wise law-abiding person to commit a crime.” Provigo Corp.

v. Alcoholic Beverage Control Appeals Bd., 869 P.2d 1163,

1167 (Cal. 1994) (emphasis added) (citation and internal quo-

tations omitted). An appeal to a defendant’s sympathy by

police can result in entrapment but only if that appeal would

cause the “normally law-abiding person” to turn to crime.

Barraza, 591 P.2d at 955. Whether the police conduct at issue

constitutes entrapment is “judged by the effect it would have

on a normally law-abiding person situated in the circum-

stances of the case at hand.” Jd.

Viewed in the light most favorable to Petitioner, the evi-

dence shows that he was approached by a police decoy who

was demonstrating overt signs of drug withdrawal. The decoy

vomited just before approaching Petitioner, smelled like

vomit, appeared “pinkish, yellowish, sick,” and was “tweak-

ing and twitching.” The decoy asked Petitioner to “get some-

thing” and to help him get a fix because he was hurting. He

repeatedly told Petitioner that he was really ill and needed

drugs. Petitioner had seen the decoy before, but did not know

A-23

him.” Nevertheless, Petitioner decided to purchase drugs and

provide them to the decoy.

It is clear that the decoy’s withdrawal symptoms appealed

to Petitioner’s sympathy and, I expect, would appeal to the

sympathy of nearly every normally law-abiding person. How-

ever, that fact, standing alone, is insufficient to permit an

entrapment defense under California law. Instead, the appeal

to sympathy must have been to an extent and degree that were

likely to cause a normally law-abiding person to buy or sell

drugs. As the California Court of Appeal permissibly and rea-

sonably concluded, a normally law-abiding person confronted

by an ill, drug-addicted stranger (or casual acquaintance) in

the throes of withdrawal—like the decoy in this case—would

not respond by providing illegal drugs to him. That conclu-

sion is particularly reasonable in view of the fact that there are

several obvious lawful alternatives available to help a mani-

festly ill person, such as calling 911 or taking the person to

a clinic. Cf People v. Graves, 113 Cal. Rptr. 2d 708, 712-13

(Ct. App. 2001) (holding that entrapment did not apply in part

because lawful responses were available to a request for help

made at the behest of law enforcement, reasoning that a “nor-

mally law-abiding person” would opt for the lawful response).

In short, the California courts reasonably concluded that

Petitioner had not presented enough evidence to support the

giving of state-law entrapment instructions, because the facts,

even when viewed in favor of Petitioner, did not show gov-

ernment conduct likely to induce a normally law-abiding per-

son to break the law by selling cocaine. Even if we disagree

with the California courts, we are obliged to give effect. to

their reasonable determination. Packer, 123 S. Ct. at 366.

2. The majority quarrels with the state court’s reference to Flores as a

“stranger.” Maj. op. at 11 n.2. The California Court of Appeal’s distinction

between “casual, brief, non-intimate acquaintances” on the one hand and

“family” ties on the other shows that the court understood, as the majority

puts it, that Petitioner and Flores were “acquaintance[s]” who had at_least

seen each other “in passing.” /d. The state court made no factual error in

this respect.

A-24

The majority explicitly rests its holding on the conclusion

that Petitioner’s due process rights were violated by the Cali-

fornia courts’ refusal to provide an entrapment instruction.

Maj. op. at 17. It appears that the majority finds two distinct

due process violations: (1) Petitioner was entitled to an

entrapment defense as a matter of constitutional law even

though he was not entitled to it under state law; and (2) the

judge in the second trial was not permitted to give different

jury instructions than the judge in the first trial, which ended

in a mistrial. The majority fails to cite any persuasive author-

ity for the proposition that Petitioner was denied due process.

Petitioner has cited no United States Supreme Court case,

and I am aware of none, that would require the giving of an

entrapment instruction in a state-court criminal tnal when

there is insufficient evidence to support such an instruction

under state law. Cf Bueno v. Hallahan, 988 F.2d 86, 88 (9th

Cir. 1993) (per curiam) (holding that a federal criminal defen-

dant’s entitlement to an entrapment instruction is not constitu-

tionally based and that Arizona, consistent with due process,

could require that a state defendant “‘admit all of the elements

of each offense” as a prerequisite to receiving a jury instruc-

tion on entrapment); see also United States v. Russell, 411

U.S. 423, 433 (1973) (stating that the entrapment defense

itself “is not of a constitutional dimension’). Indeed, the

majority recognizes that a due process violation occurs from

the failure to instruct as to a recognized defense only in the

event that “ ‘there exists evidence sufficient for a reasonable

jury to find’ ” in accordance with the proffered defense. Maj.

op. at 14 (quoting Mathews v. United States, 485 U.S. 58, 63

(1988)).

The majority recites the proposition that “the state court’s

failure to correctly instruct the jury on the defense may

deprive the defendant of his due process right to present a

defense.” Maj. op. at 15. Relying on that principle, the major-

ity states that the California courts’ refusal to give an entrap-

ment instruction denied Petitioner due process because it

deprived tim of his “only defense.” Maj. op. at 15. But a

A-25

defendant does not have a right to present whatever defense

he or she desires, whether or not supported by the law, and a

state court may refuse to give an instruction to which a defen-

dant is not entitled even if it is the only theory that the defen-

dant wishes to advance. The California courts conclusively

held that Petitioner was not entitled to the entrapment instruc-

tion under California law, so the failure to give an instruction

was not arbitrary. The question, therefore, is whether Peti-

tioner was entitled to an entrapment instruction as a matter of

federal constitutional law.

The majority cites no meaningful authority that it is

“clearly established federal law” that a defendant in Petition-

er’s circumstance is entitled to a defense of entrapment. Much

is made of the fact that a defendant is entitled to a “complete

defense.” Maj. op. at 14. Although that statement is accurate,

it is entirely unhelpful to the present inquiry. We have author-

ity to answer only a very narrow question: Did the California

courts’ refusal to give the entrapment instruction deprive Peti-

tioner of due process? All of the cases cited by the majority

simply beg the question: It is undisputed that Petitioner had

a right to a complete defense and that California could not

arbitrarily deprive him of his chosen defense. The only matter

of moment is whether an entrapment instruction was a part of

a defense to which Petitioner was constitutionally entitled.

The majority dismisses the need for a precedent stating that

a defendant presented with the opportunity to commit a crime

by a drug-affected decoy is per se entitled to an entrapment

instruction as a matter of federal constitutional law, regardless

of the state law of entrapment. Such a “spotted calf’ is not

needed, the majority holds, because “[Petitioner] more than

sufficiently supported his defense theory of entrapment.” Maj.

op. at 18. The foregoing assertion is incorrect as a matter of

law.

We know that Petitioner did not “sufficiently support[ ]’” his

theory of entrapment as a matter of California law. We know

this because the California Court of Appeal has spoken

A-26

directly to the issue, and the California Supreme Court did not

disturb its holding.

If the majority is stating, instead, that Petitioner “suffi-

ciently supported” his defense theory as a matter of federal

law, “as determined by the Supreme Court of the United

States,” then it is necessary to find a Supreme Court precedent

that “clearly establishe[s]” that defendants who satisfy a cer-

tain evidentiary threshold in a state criminal case governed by

state law are constitutionally entitled to an entrapment instruc-

tion. As the majority concedes, no such case exists.

What those in the majority seem to be saying is that they

consider the evidence sufficient to support an entrapment

instruction. This kind of federal oversight of state-court pro-

ceedings is precisely what the Supreme Court in Visciotti and

Packer has told us not to perform.

The majority also errs when it reasons that the giving of an

entrapment instruction in the first trial shows that Petitioner

was entitled to such an instruction under California law, maj.

op. at 13, or required the California Court of Appeal to

explain “why the second judge could unilaterally ignore the

first trial judge’s findings of fact and conclusions of law

regarding the entrapment instructions,” maj. op. at 18. The

California Court of Appeal held that, on the evidence pre-

sented, Petitioner was not entitled to an entrapment instruc-

tion under California law. By clear implication, this means

that, as a matter of California law, the first trial judge erred.

Petitioner is not constitutionally entitled to perpetuate an erro-

neous instruction in his favor.

Equally unpersuasive is the majority’s assertion that the

judge’s decision not to give the entrapment instruction in the

second trial was a “kind of unauthorized second-guessing

[that] is impermissibly arbitrary and can amount to a violation

of Due Process.” Maj. op. at 14. The majority cites the Cali-

fornia Court of Appeal’s recent decision in Jn re Alberto, 125

Cal. Rptr. 2d 526, 530 (Ct. App. 2002), maj. op. at 13-14, for

the proposition that “for one superior court judge, no matter

how well intended, even if correct as a matter of law, to nul-

A-27

lify a duly made, erroneous ruling of another superior court

judge places the second judge in the role of a one-judge

appellate court.” (Internal quotation marks omitted.) The

majority fails to observe a crucial distinction between the

present case and Alberto. In Alberto, one trial judge overruled

a coequal trial judge’s in-force bail determination in the same

case. 125 Cal. Rptr. 2d at 530. In this case, Petitioner’s first

trial ended in a mistrial. The judge in a second trial is not

compelled to follow determinations of fact or law established

by the judge in an earlier proceeding that ended in a mistrial.

: To hold otherwise would undermine a basic tenet of Califor-

nia law. See Mouser v. Superior Court, 186 Cal. Rptr. 21, 23

(Ct. App. 1982) (“ ‘The granting of a new trial places the par-

ties in the same position as if no trial had been had. All the

testimony must be produced anew, and the former verdict or

finding cannot be used or referred to, either in evidence or in

argument... .’ Thus, the granting of a new trial has the same

effect as a mistrial.” (quoting Cal. Penal Code § 1180));

Veitch v. Superior Court of the County of Santa Clara, 152

Cal. Rptr. 822, 825 (Ct. App. 1979) (same).

The fact that defense counsel allowed Petitioner’s state-

ment from the first trial to be read into the record of the sec-

ond trial without first having secured the judge’s ruling

regarding an entrapment instruction may well constitute inef-

fective assistance of counsel. However, Petitioner makes no

claim of ineffective assistance of counsel. We are not at lib-

erty to distort his other claims so as to recognize this possibil-

ity.

In summary, the majority has failed to defer to the factual

findings and state-law interpretation of the California courts,

as we are required to do. When the correct standard of review

is applied, reversal with instructions to deny the petition is

required. I therefore dissent from the majority’s decision to

affirm.

B-1

APPENDIX B

FILED

SEP 14 2000

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GARY BRADLEY, ) No. EDCV 00-527

) VAP (AIJ)

Petitioner, )

) REPORT AND

V. ) RECOMMENDATION

) OF UNITED STATES

WILLIAM DUNCAN, Warden, ) MAGISTRATE JUDGE

)

Respondent. )

)

This Report and Recommendation is submitted to the

Honorable District Judge Virginia A. Phillips, United States

District Judge, pursuant to 28 U.S.C. § 636 and General Order

194 of the United States District Court for the Central District

of California.

PROCEDURAL HISTORY

A jury convicted petitioner of one count of selling,

furnishing, or giving away cocaine. (Clerk’s Transcript

(“C.T.”) 182). The court sentenced petitioner to twenty-five

years to life in state prison, pursuant to California’s “three

strikes” provisions. (C.T. 293).

Petitioner appealed, and, on November 17, 1998, the

California Court of Appeal affirmed petitioner’s conviction.

(Return, Exh. B, at 40). After the Court of Appeal denied

petitioner’s petition for rehearing, petitioner filed a petition for

review in the California Supreme Court. (Return, Exhs. C, D,

at 41-42). On January 27, 1999, the California Supreme Court

B-2

denied the petition for review without comment or citation to

authority.” (Return, Exh. E, at 73).

Petitioner filed his present federal Petition for Writ of

Habeas Corpus on March 22, 1999. Respondent filed the

Return on May 24, 1999. Petitioner filed the Traverse on July

1, 1999. The matter is now deemed submitted and ready for

decision.

STATEMENT OF FACTS

On January 8, 1996, petitioner was arrested at the conclusion

of an undercover police drug purchase. Petitioner was charged

in an information, filed on February 5, 1996, with a single

count of selling cocaine. (C.T. 54-56). The information also

alleged that petitioner suffered two prior serious felony

convictions for residential burglary in 1980 and 1988. (C.T.

54-55). Co-defendants Jose Flores and Tyrone Jennings were

also charged with selling cocaine in the same count. (C.T. 54).

A jury trial of petitioner and his co-defendants began on

August 6, 1996. (C.T. 91). Petitioner testified at his first trial.

(2 Reporter’s Transcript (“R.T.”’) at 483-519). At petitioner’s

request, Judge Albert Matthews instructed the jury on

entrapment. (2 R.T. 542; 3 R.T. 550, 632-34). During

deliberations, the jury sent out two notes with questions

regarding the entrapment instructions. (C.T. 100-01). After

three days of deliberation, the jury reached a verdict as to

petitioner’s co-defendants, Flores and Jennings. (C.T. 103; 4

R.T. 35-38”). The jury found both defendants guilty of sale,

1. Because the California Supreme Court did not provide reasons for

rejecting petitioner’s claims, this court “looks through” the highest court’s

silent denial to the last reasoned judgment. Yist v. Nunnemaker, 501 U.S.

797, 803, 111 S. Ct. 2590 (1991). In this case, that is the decision by the

California Court of Appeal.

2. The final part of petitioner’s first trial before Judge Matthews is

bound with the transcript of his second trial before Judge Fisher. In

addition, this volume of the Reporter’s Transcript on Appeal is incorrectly

captioned as volume 2 of 3 volumes, pages 34-325. To avoid confusion, the

court shall refer to this transcript volume as volume 4 of 5 volumes, pages

tnt 5 WARES as BI aA Mi Nits oad

i en eee

Ae Mle D5 ADDN ADEN Nima 6 mtr

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transportation or offer to sell cocaine. (/d.) The jury could not,

however, reach a verdict as to petitioner. (C.T. 103; 4 R.T. 38-

39). On a vote of 11-1, the jury deadlocked. (4 R.T. 39). The

trial court, thereafter, declared a mistrial as to petitioner. (C.T.

103; 4R.T. 42).

On December 19, 1996, petitioner was retried before J udge

John Fisher. (C.T. 118; 4 R.T. 66). The prosecution adduced

the following evidence. In the evening on January 8, 1996, two

Los Angeles police officers, Servando Pena and Melissa Town,

were participating in an undercover narcotics operation. (4R.T.

81). Offficers Pena and Town were driving an unmarked car in

an area known for narcotics trafficking. (4 R.T. 82, 141-42,

175). Pena pulled his car over, motioned to petitioner’s former

co-defendant, Flores, to come over, and asked Flores if he could

hook Pena up with twenty dollars worth of narcotics. (4 R.T.

83, 106-07). Flores said he did not have any drugs but could

take Pena to get some. (4 R.T. 84). When Pena said, “let’s go

get some,” Flores got in the car with the undercover officers.

(4R.T. 132).

Pena testified that Flores clearly expected to use some of the

narcotics that he was helping the undercover ‘ata (4

R.T. 108). In fact, even after Pena told him that Peha did not

intend to give any of his drugs away, Flores continued to

importune Pena for some of the drugs that he was hoping to

obtain.” (4 R.T. 108, 115, 119).

Pena knew something was physically wrong with Flores. (4

R.T. 132). After getting into the car, Flores told the undercover

officers he was desperate for cocaine, and hadn’t had any drugs

for two days. (4 R.T. 107-08, 111, 113, 119). Pena believed

Flores was visibly suffering the symptoms of drug withdrawal.

(4 R.T. 143). Flores smelled strongly of alcohol, he was pale,

his hands were visibly shaking, his head continuously jerked

34-325, and the court shall refer to the remaining transcript as volume 5 of

5 volumes, pages 326-656.

3. Although Pena testified that he later informed Flores of his intention

not to share narcotics, Pena did not tell Flores that fact immediately. (4 R.T.

119).

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from side to side and, during the ride, Flores had to leave the

car to vomit. (4 R.T. 108, 110-11, 116, 142-43).

Flores directed the undercover officers to drive toward

Magnolia and Riverton, which was about a mile away, but

didn’t tell the officers that he was looking for anyone in

particular. (4 R.T. 84-85, 132-33). At a liquor store at

Magnolia and Riverton, Flores got out of the car and vomited.

(4 R.T. 133, 301). Moments after being ill, Flores saw

petitioner and approached him. (4 R.T. 301, 314).

Walking up to petitioner, Flores said: “I’m hurting” and “IT

need a fix.” (4 R.T. 218, 244-46). According to petitioner,

Flores smelled of alcohol and vomit, was trembling “like a

junky dude” and seemed to be sick “like a dope fiend.” (4 R.T.

218-19, 222, 230). As did Officer Pena, petitioner concluded

that Flores was experiencing drug withdrawal because Flores

was sick, and was “tweaking and twitching.” (4 R.T. 222, 230).

Flores repeatedly asked petitioner to help him and said

repeatedly, “I need some, man.” (4 R.T. 246). Although

petitioner had no drugs to sell, and knew Flores only very

casually, he directed Flores to a particular location on Cleon

Street where dealers congregated. (4 R.T. 243-44, 247-48).

Petitioner, who was riding his bicycle home from work, then

rode off to the same location. (4 R.T. 220-21, 248).

After speaking with petitioner, Flores returned to the

undercover vehicle and told Pena to drive to the liquor store at

Vineland and Magnolia. (4 R.T. 136, 301). Shortly thereafter,

near the intersection of Magnolia and Cleon, petitioner waved

to Flores and signaled to the undercover car to pull over. (4

R.T. 302-03). Petitioner approached the car and Flores handed

petitioner Pena’s twenty dollar bill.” (4 R.T. 220-21, 304).

4. The testimony of the two officers differed regarding petitioner’s

statements during this encounter. According to Officer Pena, petitioner told

him not to worry about getting “ripped off” because the petitioner did drug

transactions such as this one “all the time.” (4 R.T. 90). Officer Town

recalled that petitioner had a different response to the officers’ stated

concern that petitioner would take the money and disappear. According to

Town, petitioner said that Flores knew how to reach him if he were to take

off, and that he didn’t intend to do so. (5 R.T. 340-41). Neither Officer

B-5 Pen

Petitioner then went to look for a dealer for Flores. (4 R.T.

220-21, 249-50). When petitioner was unsuccessful, he

returned to the car and gave the twenty-dollar bill back to

Flores. (4R.T. 221, 304). Shortly afterward, petitioner saw the

person he had been looking for, and he stopped and flagged

down the undercover car. (4 R.T. 221-22). Petitioner told

Flores and officers to go over to the liquor store at Magnolia

and Vineland. (4 R.T. 222, 304-05).

Petitioner rode over to the liquor store. (4 R.T. 224, 305).

Petitioner approached his former co-defendant Jennings in the

parking jot. (4 R.T. 225). Petitioner asked Jennings where

petitioner “could get something at.” (4 R.T. 225). Jennings

walked irito the store, and petitioner waited outside. (4 R.T.

225-26). When Jennings left the store, petitioner walked over

to Flores and got two ten-dollar bills from Officer Town. (4

R.T. 226, 305). Petitioner then walked back over to Jennings,

and told Jennings that he wanted to “get a 20” for Flores. (4

R.T. 227-28). Jennings and petitioner walked together for a

short distance, and then petitioner gave Jennings money in

exchange for rock cocaine.” (4 R.T. 228-29). Next, petitioner

walked back to the undercover car and handed a rock of cocaine

to Pena. (4 R.T. 229-30, 306). After that, petitioner walked

away, pushing his bicycle. (4 R.T. 230, 263).

After receiving the cocaine, Pena signaled to the back-up

Town nor Officer Pena recorded petitioner’s statements in the police report

prepared on the evening of petitioner’s arrest. (4 R.T. 122; 5 R.T. 338, 340-

41).

5. Although the testimony was contradictory, petitioner claimed that he

received no drugs or other compensation for helping Flores obtain drugs.

(4 R.T. 229-30). Although Officer Pena testified that he saw two rocks of

cocaine in petitioner’s hand, Pena never mentioned the second rock to his

partner, Town. (4 R.T. 120; 5 R.T. 340). Nor did the police report prepared

the evening of petitioner’s arrest mention a second rock of cocaine in

petitioner’s hand. (4 R.T. 120, 170). Nor did Pena testify about a second

rock of cocaine at the preliminary hearing in petitioner’s case. (4 R.T. 120,

170). The police did not recover a second rock of cocaine when they

arrested petitioner. (4 R.T. 152).

B-6

officers that he had completed a confirmed buy. (4 R.T. 306).

Petitioner was arrested almost immediately thereafter. (4 R.T.

104). When they arrested petitioner, the police found no drugs

on him. (4R.T. 292).

Petitioner’s principal defense was entrapment. During the

prosecution case, the state read into evidence petitioner’s

testimony at his first trial. (4 R.T. 214-56). In that testimony,

petitioner admitted he purchased rock cocaine from Jennings

for the sole purpose of helping Flores, who was sick. (4 R.T.

232). Petitioner testified that he had no intention of buying or

selling drugs before meeting Flores, and that he did so to help

a person in need. (4 R.T. 255).

At the conclusion of the evidence, but before closing

argument, defense counsel requested that Judge Fisher instruct

the jury on the defense of entrapment. (5 R.T. 375, 377). As

defense counsel noted, Mr. Bradley “took the stand” and

“related why he did what he did under the circumstances.” (5

R.T. 377). The state objected. (5 R.T. 377). Without

explanation, Judge Fisher denied defense counsel’s request and

refused to give any instructions with regard to entrapment.

(C.T. 176-79; 5 R.T. 377). On December 27, 1996, the jury

convicted petitioner of selling cocaine.® (C.T. 182, 192-93; 5

R.T. 426-28).

PETITIONER’S CONTENTIONS

1. The trial court’s failure to instruct on entrapment deprived

petitioner of due process. (Petition, { 10a, at 6 & attachment).

6. In petitioner’s new trial motion, he submitted two affidavits from

jurors from the second trial. (C.T. 210-11, 215-24). Jurors Ernest Rivers,

Jr., and Jose Escobido stated that, had they been given petitioner’s requested

entrapment instructions, “the jury verdict (or the jury’s ability to reach a

unanimous verdict) would have been different.” (C.T. 210,216,221). Both

jurors stated that their impression of the evidence could have supported a

finding of entrapment. (C.T. 216, 221). The Court of Appeal denied

petitioner’s request to take judicial notice of these declarations. (Return,

Exh. B, at 32, n.2).

pe en He

le a nee le ne ee EE ne ee ee

Pe ae ee, ee eG dea Rdtrs nt.

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2. The conduct of the police officers was sufficiently

outrageous to deny petitioner due process. (Petition, § 10b, at

6 & attachment).

3. Petitioner’s sentence under the “three strikes” statute is

cruel and unusual punishment. (Petition, 9 10c, at 7 &

attachment).

STANDARD OF REVIEW

This court may grant federal habeas corpus relief only if

petitioner “is in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a). State

law errors are not cognizable on federal habeas corpus. /d_;

Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480

(1991); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874

(1984). The Antiterrorism and Effective Death Penalty Act

(“AEDPA”) imposes new requirements for the granting of

habeas relief:”

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a state

court shall not be granted with the respect to any claim

that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim - (1)

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; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.

28 U.S.C. § 2254(d) (1997) (as amended).

7. Because petitioner filed the Second Amended Petition after April 24,

1996, the AEDPA’s effective date, it is subject to the AEDPA’s provisions.

See Lindh v. Murphy, 521 U.S. 320, 335, 117 S. Ct. 2059, 2068 (1997).

B-8

Further, if this court identifies a cognizable error during

petitioner’s trial, it must further determine whether that defect

constitutes a structural error or trial error. Trial errors are those

“‘which occur during the presentation of the case to the jury, and

which may therefore be quantitatively assessed” within the

context of the trial as a whole to determine whether they are

harmless. Arizona v. Fulminante, 499 U.S. 279, 307-08, 1115S.

Ct. 1246, 1264 (1991). Structural errors, by contrast, are

defects “affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself.”

Id., at 310, 111 S. Ct. at 1265.

Where atrial error is identified, the petitioner must show that

he has suffered “actual prejudice” as a result. See Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993).

However, the Supreme Court has added in reference to trial

errors that “where a judge, in a habeas proceeding, applying this

standard of harmless error, ‘is in grave doubt as to the

harmlessness of the error,’ the habeas petitioner must win.”

California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 338 (1996)

(citing O’Neal v. McAninch, 513 U.S. 432, 437, 115 S. Ct. 992,

995 (1995)). Therefore, without shifting the burden of

establishing whether the error was prejudicial, the harmlessness

standard involved places the risk of doubt on the State. O'Neal,

513 U.S. at 439, 115 S. Ct. at 996.

DISCUSSION

A. Habeas Relief Is Justified on Petitioner’s First Claim.

Petitioner’s first claim alleges that the trial court’s refusal to

instruct on entrapment precluded the jury from considering his

principal defense, thereby violating his right to due process. To

prevail on this claim in a collateral proceeding such as this one,

petitioner must establish that (1) he was entitled under

California law to an instruction on entrapment; and (2) that the

evidence supported the instruction. In addition, petitioner must

demonstrate that the omission of the instruction was so

prejudicial that it will support a collateral attack on the

Pare andl Ahr NT Rosette Lol A

—

B-9

constitutional validity of a state court’s judgment. Henderson

v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737 (1977). The

question in a habeas proceeding is whether “the ailing

instruction by itself so infected the entire trial that the resulting

conviction violates due process.” Cupp v. Naughten, 414 U.S.

141, 147, 94S. Ct. 396, 400 (1973).

Further, if the court determines that a federal constitutional

error occurred, it must then decide whether the error, if any,

was contrary to, or an unreasonable application of, clearly

established federal law. See Van Tran v. Lindsey, 212 F.3d

1143, 1155 (9th Cir. 2000) (requiring two-step inquiry to

determine whether relief may be granted under Section 2254(d),

pet. for cert. filed (No. 00-255, August 11, 2000).

1. The Trial Court’s Refusal to Give the Requested

Entrapment Instructions Deprived Petitioner of Due

Process.

In California, the test for entrapment asks whether the

conduct of the law enforcement officer, or his agent, was likely

to induce a normally law abiding person to commit the

offense.” People v. Barraza, 23 Cal. 3d 675, 689-90, 153 Cal.

Rptr. 459, 467, 591 P.2d 947, 955 (1979). Although the law

presumes that a law abiding person would normally resist the

temptation to commit crime when presented with nothing more

than the simple opportunity to act unlawfully, the defense of

entrapment recognizes that 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.” Jd. Thus, if the actions of an officer or his agent

would induce a person to commit the illegal act “because of

friendship or sympathy, instead of a desire for personal gain or

8. In California, entrapment can be accomplished either directly by the

police, or indirectly through an unwitting agent. People v. McIntire, 23 Cal.

3d 742, 748, 153 Cal. Rptr. 237 (1979).

B-10

other typical criminal purpose,” the defense of entrapment will

be established. Jd.

In his second trial, petitioner adduced substantial evidence

to support a defense that he had been induced by Flores, acting

under a plan conceived of an executed by the undercover

officers, to purchase drugs for Flores out of concern for his

physical well-being, and sympathy for the his plight. Flores,

the person the police employed as their “hook,” was a drug-

addict visibly going through the physical symptoms of

withdrawal. As described by both petitioner and the police,

Flores was pale, he reeked of alcohol, luis hands were trembling,

and his head was continuously twitching. During the operation,

Flores got out of the police car, and in the presence of both the

officers and petitioner, was violently ill. Immediately after he

vomited, Flores approached petitioner and begged petitioner to

assist him in obtaining a fix. Flores told both petitioner and the

undercover officers that he was desperate. Further, the

prosecution presented scant evidence to tie petitioner into the

regular use or sale of drugs.” And, nothing in the record

suggested that Flores sought out petitioner as a known source

of drugs, nor could the prosecution establish conclusively that

petitioner obtained any personal benefit from his intercession.”

See, e.g., Sherman v. United States, 356 U.S. 369, 375, 78 S.

Ct. 819, 822 (1958). The evidence, therefore, presented the

issue of whether petitioner’s conduct had been induced, rather

than the independent product of avarice or criminal intent. /d.,

356 U.S. at 377, 78 S. Ct. at 823.

9. Although Pena testified that petitioner told the undercover officers

that he routinely engaged in drug transactions, Officer Town recalled no

such statement being made. Further, either Officer Town nor Officer Pena

recorded any statements by petitioner in the contemporaneous police report.

10. Although Officer Pena testified that petitioner received a second

rock of cocaine during the transaction, that testimony was undercut by

Pena’s failure to mention the second rock to his partner, or to include that

fact in the police report, or to testify about the second rock at the

preliminary hearing. It was, however, uncontroverted that when searched

by the police at the time of his arrest (moments after handing one rock to

Pena), petitioner had no drugs.

Ve ee

B-11

Further, petitioner has met his “especially heavy” burden of

showing that the error so infected his trial as to violate due

process.” Henderson v. Kibbe, supra, 431 U.S. at 115, 97 S.

Ct. at 1737; see also Estelle, 502 U.S. at 72, 112 S. Ct. at 482.

Petitioner’s principal defense was that he had been entrapped

by the police into providing drugs for Flores. In fact, during his

testimony at the first trial (which the prosecutor read to the jury

at petitioner’s second trial), petitioner admitted to buying

cocaine for Flores, but then went on to explain that he had been

induced to do so by the man’s obvious illness, and by his

sympathy for Flores’ plight. By refusing to instruct the jury on

entrapment, the trial judge essentially left the jury with

petitioner’s confession to the offense, without ever allowing

them to consider petitioner’s preclusive defense. By rejecting

petitioner’s request for an entrapment instruction, the trial court

effectively deprived petitioner of his only defense. That

deprivation “so infected the entire trial” that the resulting

conviction violates due process. Henderson, supra, 431 U.S. at

156-57, 97 S. Ct. at 1738.

2. The California Courts’ Decision Rejecting Petitioner’s

Claim of Instructional Error Was an Unreasonable

Application of Clearly Established Federal Law.

Having concluded that the omission of entrapment

instructions constitutes constitutional error, the court must still

determine whether that error is contrary to or involves an

unreasonable application of federal law as determined by the

11. Respondent does not address the issue of prejudice, opting instead

to rely solely on the argument that the trial court’s refusal to give

entrapment instructions was not objectively unreasonable.

aarti

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United States Supreme Court.“ 28 U.S.C. § 2254(d)(1); Van

Tran v. Lindsey, supra, 212 F.3d at 1154-55.

This court concludes that it is. It is well established that a

criminal defendant is entitled to adequate instructions on the

defense theory of the case, where that defense is supported by

some evidence and is legally permissible. See Mathews v.

United States, 485 U.S. 58, 63, 108 S. Ct. 883, 887 (1988); see

also United States v. Mason, 902 F.2d 1434, 1437 (9th Cir.

1990); Conde v. Henry, supra, 198 F.3d at 739 (state habeas

case). See also Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.

1984). The California Court of Appeal’s decision not to apply

this legal rule in petitioner’s case was objectively unreasonable.

It was not objectively reasonable for the state court to

characterize the use of a visibly ill drug addict to entreat

passers-by to alleviate his suffering as an “ordinary, run-of-the-

mill, undercover drug operation.”” (Return, Exh. B, at 31). To

rule, as did the appellate court, that the police did “nothing

more” than present petitioner with “the simple opportunity to

act unlawfully” is clearly erroneous given the record in this

case. Further, as there was a factual and legal basis for

petitioner’s defense theory of entrapment, the state court’s

refusal to consider the petitioner’s due process claim was an

objectively unreasonable application of federal law. See

12. The issue of whether the state court’s jury instructions have denied

a habeas petitioner due process is purely a legal issue which, prior to

AEDPA, was reviewed de novo. Willard v. People of the State of

California, 812 F.2d 461, 462 (9th Cir. 1987). The issue of whether the

instructional error is of constitutional dimension is a mixed question of law

and fact. Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir. 1996). The

presumption of correctness which applies to state court findings of historical

fact under 28 U.S.C. § 2254(e)(1) does not apply to the state courts’

determinations on these issues. See Thompson v. Keohane, 516 U.S. 99,

109-10, 116 S. Ct. 457, 464 (1995).

13. Ninth Circuit authority, such as that cited here, “may be persuasive

authority for purposes of determining whether a particular state court

determination is ‘an unreasonable application’ of Supreme Court law, and

may also help determine what law is ‘clearly established.’” Van Tran, 212

F.3d at 1154.

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Williams v. Taylor, _U.S.___, __, 120 S. Ct. 1495, 1520

(2000) (“[A] state-court decision that correctly identifies the

governing legal rule but applies it unreasonably to the facts of

a particular prisoner’s case certainly would qualify as a decision

‘involving an unreasonable application of . . . clearly

established federal law.’’)

3. The State Court’s Error Requires that Petitioner’s

Conviction Be Vacated.

Having concluded that the trial court’s failure to instruct the

jury on entrapment constitutes constitutional error, and that the

AEDPA does not bar relief, the question remains whether the

error requires reversal.

To be entitled to habeas relief, the petitioner must show that

he has suffered “actual prejudice” as a result of the

constitutional error.” See Brecht v. Abrahamson, supra, 507

US. at 637, 113 S. Ct. at 1722; California v. Roy, supra, 519

US. at 5, 117 S. Ct. at 338.

At a minimum, the jury’s conviction of petitioner based on

a set of instructions that omitted a preclusive defense warrants

“grave doubt as to the harmlessness of the error.” See O'Neal,

supra, 513 U.S. at 437, 115 S. Ct. at 995. Prejudice, of a nature

and degree so significant as to infect the entire trial, cannot be

avoided where, as in this case, the instructions embodied

petitioner’s principal defense. See Duckett v. Godinez, 67 F.3d

734, 745 (9th Cir. 1995) (“Whether a constitutional violation

has occurred will depend upon the evidence in the case and the

overall instructions give to the jury.”). By refusing petitioner’s

14. Although some jury instruction errors are so fundamental that they

constitute structural error and require automatic reversal, see Harmon v.

Marshall, 69 F.3d 963, 966 (9th Cir. 1995); Conde v. Henry, supra, 198

F.3d at 741, this court shall require that petitioner demonstrate actual

prejudice. See Villafuerte v. Stewart, 111 F.3d 616, 623 (9th Cir. 1997)

(applying Brecht to claims of instructional error); see also Neder v. United

States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 1833 (1999); Stanton v. Benzler,

146 F.3d 726, 728-29 (9th Cir. 1998).

B-14

requested entrapment instructions, the trial judge effectively

rendered the state’s charges uncontested.

Further, unlike many cases in which a petitioner must

hypothesize a trial in which the jury received the challenged

instructions, petitioner can point to the result obtained in his

first trial, at which the jury was instructed on entrapment and

could not reach a unanimous verdict as to petitioner.” A

comparison of the outcome in petitioner’s two trials, therefore,

creates grave doubt as to the harmlessness of the error.

In addition, the declarations of two jurors from petitioner’s

second trial support this court’s conclusion that the trial court’s

failure to instruct the jury on entrapment affected the jury’s

deliberations. Both Juror Rivers and Juror Escobedo, after

being shown petitioner’s requested instructions on entrapment,

stated that “the jury’s ability to reach a unanimous verdict

would have been different if these instructions had been given.”

(C.T. 216, 221).

In light of these facts, the court cannot conclude that the trial

court’s error did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. at 623, 113 S. Ct. at 1714 (1993). The

court, therefore, conditionally grants petitioner’s writ of habeas

corpus as to claim one.

B. The Officers’ Conduct Did Not Violate Due Process. \

Petitioner’s second claim asserts that the officers’ use of a

drug-addicted decoy to entreat petitioner to engage in a cocaine

transaction violated his right to due process. Relying on cases

in which the Supreme Court found certain police methods “‘too

close to the rack and the screw” to pass constitutional muster,

15. That the jury considered those instructions during their deliberations

is evidenced by the jury's two notes with questions regarding the law of

entrapment. Cf Villafuerte, supra, 111 F.3d at 622 (court considered jury

communications during deliberations as evidence that the jury has not felt

bound to find defendant guilty of murder if it found defendant guilty of

kidnaping).

———

B-15

petitioner asserts that the officers’ use of an apparently sick

person, who was withdrawing and desperately needing drugs,

as a hook for an undercover drug operation was outrageous and

shocking to the conscience.

The California Court of Appeal found no deprivation of

petitioner’s due process rights by the officers’ conduct.

(Return, Exh. B, at 33). This conclusion is not contrary to or an

unreasonable application of federal law. In United States v.

Russell, 411 U.S. 423, 432-32, 93 S. Ct. 1637, 1643 (1973), the

Supreme Court considered whether an undercover officer’s

infiltration of a drug ring, and his limited participation in the

illicit manufacture of drugs, viclated fundamental fairness

mandated by the due process clause. The majority noted that

gathering of evidence regarding the illicit manufacture of drugs

often requires officers to infiltrate illegal enterprises and to

offer something of value to be taken into the confidence of “the

illegal entrepreneurs.” Jd. Such law enforcement tactics neither

violated fundamental fairness nor shocked the universal sense

of justice. Jd.

The California appellate court’s decision that the officers’

conduct in this case similarly did not violate due process cannot

be said to be contrary to, or an unreasonable application of,

federai law. See Williams, supra, _,U.S.at__, 120 S. Ct.

at 1523. As noted in an earlier decision, Rochin v. California,

342 U.S. 165, 172-73, 72 S. Ct. 205, 209-10 (1952), only those

practices that go well beyond “certain decencies of civilized

conduct,” will offend due process. Thus, while this court may

consider the officers’ conduct to have created the possibility of

a claim of entrapment, the state court’s conclusion that the

officers did not offend a universal sense of justice was not

“clearly erroneous.” Weighall v. Middle, 215 F.3d 1058, 1062

(9th Cir. 2000) (citing Van Tran v. Lindsey, supra, 212 F.3d at

1152-54).

Petitioner’s second claim, therefore, must be dismissed with

prejudice.

B-16

C. Petitioner’s Sentence Does Not Violate the Eighth

Amendment Proscription Against Cruel and

Unusual Punishment.

Petitioner’s third claim is that his sentence of twenty-five

years to life violates the constitutional prohibitions on cruel and

unusual punishment.

The California Court of Appeal rejected this argument.

(Return, Exh. B, at 38). The state court concluded that

petitioner’s sentence was not disproportionate when considered

in light of the nature of the offense and the offender, and in

light of punishments imposed in California and in other

jurisdictions. (/d., at 39-40). Specifically, the Court of Appeal

noted petitioner’s extensive criminal history, including

convictions for two burglaries, a narcotics offense, and grand

theft auto. (/d., at 39). “[Petitioner’s] recidivism and the

severity of his past and present crimes justify the term

imposed.” (/d.) Further, petitioner’s long criminal history

makes his current sentence proportional to those imposed on

criminal recidivists, both in California and in other

jurisdictions. (/d., at 40).

- The California Court of Appeal’s conclusion is neither

contrary to, nor an unreasonable application of, federal law. 28

U.S.C. § 2244(d). The Eight Amendment does not demand

strict proportionality between crime and sentence. “Rather, it

forbids only extreme sentences that are “grossly

disproportionate’ to the crime.” Harmelin v. Michigan, 501

U.S. 957, 1001, 111 S. Ct. 2680, 2705 (1991) (Kennedy, J.,

joined by O’Connor and Souter, JJ., concurring, constituting the

holding of the Court). Petitioner’s sentence, when considered

in light of his prior court of criminal conduct, is not “grossly

disproportionate.” Solem v. Helm, 463 U.S. 227, 296, 103 S.

Ct. 3001, 3013 (1983) (“a state is justified in punishing a

recidivist more severely than it punishes a first offender’).

Nor is petitioner’s twenty-five years to life sentence as a

recidivist disproportionate when compared to other sentences

which the Supreme Court has affirmed in face of constitutional

challenges. See Harmelin, 501 U.S. at 1002, 111 S. Ct. at 2704

(affirming a sentence of life without parole for a first offense of

possession of 672 grams of cocaine); Hutto v. Davis, 454 U.S.

370, 370-71, 375, 102 S. Ct. 703, 703-04, 706 (1982) (rejecting

challenge to a forty-year sentence for possession of less than

nine ounces of marijuana); Rummel v. Estelle, 445 U.S. 263,

265-76, 100 S. Ct. 1133, 1134 (1990) (upholding life sentence

under recidivist statute for uttering “no account” check for

$100, where two earlier felonies involves theft of less than

$129).

Petitioner’s third claim, therefore, must be dismissed with

prejudice.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED

that the court issue an Order: (1) approving and adopting this

Report and Recommendation; and (2) directing that Judgment

be entered: (a) conditionally granting the writ of habeas corpus

on claim one and directing that, unless, within sixty days of the

issuance of the mandate in this case, the State of California

grants petitioner a new trial at which petitioner may present,

and the jury shall be instructed on, petitioner’s entrapment

defense, petitioner be released from custody; and (b) denying

petitioner’s second and third claims with prejudice.

DATED: September 13, 2000.

/s/

Ann I. Jones

United States Magistrate Judge

C-1

APPENDIX C

FILED

JAN 5 2001

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GARY BRADLEY, ) No. EDCV 00-527

) VAP (AIJ)

Petitioner, )

) ORDER ADOPTING

v. ) FINDINGS,

) CONCLUSIONS AND

WILLIAM DUNCAN, Warden, ) RECOMMENDATIONS

) OF UNITED STATES

Respondent. ) MAGISTRATE JUDGE

)

Pursuant to 28 U.S.C. § 636, the court has reviewed the

petition, all of the records herein and the attached Report and

Recommendation of United States Magistrate Judge. The court

approves and adopts the Magistrate Judge’s Report and

Recommendation.

IT IS ORDERED that Judgment be entered: (a) conditionally

granting the writ of habeas corpus on claim one of the petition

and directing that, unless, within sixty days of the issuance of

the mandate in this case, the State of California grants petitioner

a new trial at which petitioner may present, and the jury shall be

instructed on, petitioner’s entrapment defense, petitioner be

released from custody; and (b) denying petitioner’s second and

third claims with prejudice. -

IT IS FURTHER ORDERED that the Clerk serve copies of

this Order, the Magistrate Judge’s Report and Recommendatior.

and the Judgment herein by United States mail on petitioner

and on the attorney’s for respondent.

——- C2

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: December 20, 2000.

/s/

Virginia A. Phillips

United States District Judge

D-1

APPENDIX D

FILED

JAN 5 2001

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GARY BRADLEY, ) No. EDCV 00-527

Petitioner, ) VAP (AIJ)

)

v. ) JUDGMENT

)

WILLIAM DUNCAN, Warden, )

Respondent. )

)

Pursuant to the Order Adopting Findings, Conclusions and

Recommendations of United States Magistrate Judge,

IT IS HEREBY ADJUDGED that:

(a) The petition for writ of habeas corpus is conditionally

GRANTED on claim one. Unless, within sixty days of the

issuance of the mandate in this case, the State of California

grants petitioner a new trial at which petitioner may present,

and the jury shall be instructed on, petitioner’s entrapment

defense, petitioner shall be released from custody.

(b) The second and third claims of the petition are DENIED

with prejudice.

DATED this 20th day of December, 2000.

/s/

Virginia A. Phillips

United States District Judge

E-1

APPENDIX E

FILED

MAY 14 2003

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

1 No. 01-55290

GARY BRADLEY,

D.C. No.

Petitioner-Appellee, CV-00-00527-VAP

v. Central District of

California, Riverside

W. A. DUNCAN, Warden,

ORDER

Respondent-Appellant.

Before: FERGUSON, TASHIMA, and GRABER,

Circuit Judges.

Judge Graber has voted to grant the petition for panel

rehearing and petition for rehearing en banc. Judges Ferguson

and Tashima have voted to deny the petition for panel

rehearing. Judge Tashima has voted to deny the petition for

rehearing en banc and Judge Ferguson so recommends.

The full court was advised of the petition for rehearing en

banc. A judge of the court called for a vote on whether to

rehear the matter en banc. The matter failed to receive a

majority of the votes of the nonrecused active judges in favor

of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied.

F-l

APPENDIX F

[EXCERPTS OF STATE COURT OF APPEAL OPINION]

FILED

NOV 11 1998

NOT TO BE PUBLISHED IN

THE OFFICIAL REPORTS

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B112640

Plaintiff and Respondent,

(Super. Ct. No.

v. LA022948-01)

GARY BRADLEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County. Sandy Kriegler, Judge. Affirmed.

Jeffrey S. Kross, under appointment by the Court of

Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson,

Chief Assistant Attorney General, Carol Wendelin Pollack,

Senior Assistant Attorney General, Kenneth C. Byrne,

Supervising Deputy Attorney General, and Corey J. Robins,

Deputy Attorney General, for Plaintiff and Respondent.

a a

F-2

Appellant and defendant Gary Bradley appeals from his

conviction on one count of selling cocaine. (Health & Saf.

Code, § 11352, subd. (a).) Appellant was sentenced to prison

for 25 years to life.

Appellant contends: (1) the trial court prejudicially erred

in refusing to instruct on entrapment; (2) the conduct of the

police officers deprived him of his due process rights; (3) the

trial court prejudicially erred in refusing to instruct on the lesser

related instruction of solicitation; (4) the trial court erred in

failing to respond to an inquiry from the jury; (5) the trial court

abused its discretion in refusing to strike a prior conviction;

and, (6) appellant’s sentence constitutes cruel and unusual

punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Prosecution case.”

On the afternoon of January 8, 1996, Los Angeles Police

Officers Servando Pena and Melissa Town were working

undercover narcotics. The officers were posing as drug buyers.

Officer Pena was driving an unmarked patrol car; Officer Town

was in the front passenger’s seat. Officer Pena was wired

electronically.

Jose de Jesus Flores was walking down the street at

approximately 6 p.m. that evening. Officer Pena called Flores

over to the car and asked if Flores could “hook me up with a

20,” i.e., could Flores find $20 worth of narcotics. Flores said

he did not have any drugs, but he could take the officers to

where some could be obtained. Officer Pena wanted to use

Flores as a “hook,” or a person who would take the officers to

a drug dealer.

Officer Pena smelled alcohol on Flores’s breath. Flores

displayed drug withdrawal symptoms. His hands were shaking

1. In the first trial, appellant testified in his own defense. In the second

trial, the prosecution presented appellant’s prior testimony in the People’s

case-in-chief.

F-3

and his skin was pale. | Flores said he had not had any cocaine

in two days and was desperate to obtain some. Officer Town

moved into the back seat; Flores got in the front seat. Flores

stated he would find someone from whom cocaine could be

bought and he wanted to keep some for himself. Officer Pena

told Flores he could not receive any cocaine from the officers.

Flores directed Officer Pena to drive toward Magnolia and

Riverton Streets. As they approached that location, Flores saw

appellant riding a bicycle. Appellant had previously seen

Flores “in passing,” i.e.. when appellant went back and forth

from work. Flores directed Officer Pena to follow appellant,

indicating appellant was the person he was trying to find. The

car was stopped. Flores got out of the car and threw up. Flores

went to talk to appellant. Flores told appellant he was hurting

and needed drugs. Flores asked appellant to obtain drugs for

him. Appellant thought Flores was an addict. Flores appeared

sick; he was trembling. Appellant told Flores he would try and

obtain some drugs from people appellant knew on the street.

: Flores re-entered the unmarked patrol car and directed

Officer Pena to drive to a nearby liquor store and to follow

appellant, who was still riding his bicycle. At appellant’s

directions, the officers stopped the car. Appellant approached

the unmarked police vehicle and asked Flores for money

Officer Pena handed Flores a premarked $20, which Flores

gave to appellant. Officer Pena told appellant not to “rip [them]

off.” Appellant responded, “don’t worry, I do this all the time.”

Appellant rode off, on his bicycle. Appellant returned

approximately three minutes later and gave the money back to

Flores, stating, “The guy is not home.” Flores handed the $20

back to Officer Pena. Officer Pena began to drive away, but

was flagged down by appellant. Appellant told the officers to

meet him at a liquor store down the street.

Appellant approached Tyrone Lamont Jennings, who was

standing in front of a store. The officers stopped nearby.

Appellant approached the police car and asked for money.

Officer Town handed appellant $20 (two prerecorded $10 bills).

Appellant took the money and rode away on his bicycle.

Appellant then approached Jennings and asked if he could buy

F-4

“a $20.” Appellant and Jennings walked down the alley.

Jennings gave appellant a rock of cocaine in exchange for the

two $10 bills. Appellant went to the patrol car and handed

Officer Pena a rock of cocaine. Officer Pena thought appellant

had another rock of cocaine in his hand. Officer Pena signaled

to other officers that a buy had been made. Appellant, Jennings

and Flores were arrested.

b. The defense.

Robert Esty, a music writer, arranger, and producer, lived

in North Hollywood. He testified appellant worked for him on

January 8, 1996. Appellant moved studio equipment and did

yard work.

2. Procedure.

Appellant was tried by jury, along with Jennings and

Flores. Jennings and Flores, who are not parties to this appeal,

were each convicted on one count of selling cocaine. (Health

& Saf. Code, § 11352, subd. (a).) Appellant admitted he had

suffered a prior conviction within the meaning of Health and

Safety Code section 11370, subdivisions (a) and (c). The jury

could not reach a verdict as to appellant and a mistrial as to him

was declared.

In the second trial, appellant was convicted on one count

of selling cocaine. (Health & Saf. Code, § 11352, subd. (a).)

In two bifurcated proceedings, the jury found true that appellant

had been convicted of burglary in 1980 and again in 1988.

(Pen. Code, §§ 1170.12, subds. (a) - (d), 667, subds. (b) - (1).)

Appellant was sentenced to 25 years to life.

DISCUSSION

1. The absence of an entrapment instruction does not

warrant reversal.

a. Appellant contends the trial court refusal to instruct on

entrapment constitutes reversible error. We find this contention

unpersuasive.

— ee ——

F-5

b. Additional facts.

In the first trial, the jury was instructed on entrapment. In

the second trial, the trial court refused appellant’s request for

entrapment instructions. (CALJIC Nos. 4.60, 4.61 and 4.61.5.)

c. Discussion.

“The California entrapment doctrine is known as an

objective defense because it focuses exclusively on police

conduct and ignores the suspect’s subjective intent or any

predisposition to commit the crime. [T]he basis of the defense

is to deter police misconduct. [Citation.]” (People v. Holloway

(1996) 47 Cal.App.4th 1757, 1764-1765, overruled on other

grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn.

11.)

“(T]he proper test of entrapment in California is the

following: was the conduct of the law enforcement agent likely

to induce anormally law-abiding person to commit the offense?

For the purposes of this test, we presume that such a person

would normally resist the temptation to commit a crime

presented by the simple opportunity to act unlawfully. Official

conduct that does no more than offer that opportunity to the

suspect—for example, a decoy program-is therefore permissible;

but 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.

“Although the determination of what police conduct is

impermissible must to some extent proceed on an ad hoc basis,

guidance will generally be found in the application of one or

both of two principles. First, if the actions of the law

enforcement agent would generate in a normally law-abiding

person a motive for the crime other than ordinary criminal

intent, entrapment will be established. An example of such

conduct would be an appeal by the police that would induce

such a person to commit the act because of friendship or

sympathy, instead of a desire for personal gain or other typical

criminal purpose. Second, affirmative police conduct that

would make commission of the crime unusually attractive to a

normally law-abiding person will likewise constitute

F-6

entrapment. Such conduct would include, for example, a

guarantee that the act is not illegal... .” (People v. Barraza

(1979) 23 Cal.3d 675, 689-690, fn. omitted.)

“There will be no entrapment . .. when the official conduct

is found to have gone no further than necessary to assure the

suspect that he is not being ‘set up.’ The police remain free to

take reasonable, though restrained, steps to gain the confidence

of suspects.” (People v. Barraza, supra, 23 Cal.3d at p. 690, fn.

4.)

Courts have no duty to give a requested instruction when

there is no substantial evidence in support thereof. (People v.

Hendricks (1988) 44 Cal.3d 635, 643.) “Failure to give

entrapment instructions constitutes reversible error when

substantial evidence to sustain the defense is offered or

introduced.” (People v. McIntire (1979) 23 Cal.3d 742, 746.)

Here, there was no substantial evidence to support

entrapment instructions. This was an ordinary, run-of-the-mill,

undercover drug operation in which a decoy was used. The

officers used Flores as a “hook” in locating a source for

cocaine; appellant expressed his willingness to assist in finding

cocaine, and appellant took actions toward accomplishing that

goal. He located a source for the drugs and exchanged money

for the drugs. The police did not conduct themselves

improperly. Neither officer badgered, cajoled, nor did any

other affirmative act likely to induce a normally law-abiding

person to commit the crime. Appellant was simply offered the

opportunity to commit the crime.

Appellant contends the police improperly induced

appellant to commit the crime. He argues he was induced to

commit the criminal act because he acted only to help Flores,

an obviously ill person. According to appellant, the police

preyed on appellant’s human instincts of friendship or

sympathy.

However, the average person would not, as appellant

contends, purchase illegal drugs to aid a stranger, even if the

stranger appeared to be a drug addict going through withdrawal.

The use of such a decoy would not constitute affirmative police

conduct making commission of the crime unusually attractive

F-7

to a normally law-abiding person.” (Cf. People v. Lee (1990)

219 Cal.App.3d 829 [sailor working with police befriends drug

dealer to assist in gaining dealer’s confidence; such casual,

brief, non-intimate acquaintances does not constitute

entrapment]; compare with People v. McIntire, supra, 23 Cal.3d

742 [facts sufficient to raise entrapment defense when

defendant acquiesces to strong and persistent pressure applied

by police through defendant’s younger brother based upon

sympathy aroused by family problems].)*

Since there was no substantial evidence to support the

defense of entrapment, the trial court did not err in refusing to

instruct on that defense.

(2) The conduct of the police officers did not deprive

appellant of his due process rights.

Appellant contends the actions of the police officers were

outrageous and thus, constituted a denial of his due process

rights. (United States v. Russell (1973) 411 US. 423."

2. Attached to his motion for a new trial, appellant brought forth

declarations from two jurors who stated that had there been instructions on

entrapment, the verdict would have been not guilty. We deny appellant's

request to take judicial notice of these declarations.

3. Appellant cites People v. Lee, supra, 219 Cal.App.3d 829 to support

his argument. Lee concluded the facts did not constitute entrapment as a

matter of law. Thereafter, the appellate court stated, “the court properly

submitted the entrapment issue to the jury.” (/d., at p. 837.) In contrast to

our case, in Lee, the defendant testified she had been “badgered” into selling

drugs. (/bid.)

To support his argument that entrapment instructions were warranted in

the instant case, appellant also points to People v. Mendoza (1992) 8

Cal.App.4th 504. In Mendoza, the appellate court dealt with whether the

defendant was entitled to a special instruction on derivative entrapment.

The appellate court held such an instruction was unwarranted because there

was no evidence that an intermediary was controlled or manipulated by the

police. Mendoza concluded the evidence was insufficient to show

entrapment, even if there was an unwitting agent. The defendant was a

casual acquaintance of the intermediary whose financial needs would not

induce the normal, law-abiding citizen into selling drugs.

4. The California entrapment defense differs from the federal one.

California focuses on the actions of the police, whereas the federal defense

F-8

However, the police merely used a decoy during an undercover

operation. Appellant was a willing participant from the

beginning. Due process was not offended by the actions of the

police, which were neither “outrageous” nor “gross.”

(3) The trial court did not prejudicially err in refusing to

instruct on the lesser related instruction of solicitation.

(4) The trial court did not err in the manner in which it

responded to an inquiry from the jury.

(5) The trial court did not abuse its discretion in refusing

to strike a prior conviction.

(6) Appellant’s sentence does not constitute cruel and

unusual punishment.

DISPOSITION

The judgment is affirmed.

focuses upon the defendant’s predisposition to commit the crime. Some

California courts suggest there is no need to discuss the due process

argument now being raised by appellant, as it is superfluous under the

California concept of entrapment. (People v. Thoi (1989) 213 Cal.App.3d

689, 696; compare with People v. Holloway, supra, 47 Cal.App.4th at pp.

1763-1768 [outrageous police conduct exists in California independent of

entrapment defense].) For purposes of discussion we assume appellant’s

argument is not superfluous.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.