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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

AARON LYNDALE COOPER,

Petitioner,

v.

JEANNE S. WOODFORD,

Respondent. /

No. C 08-1516 SI (pr)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS 

INTRODUCTION

This matter is now before the court for consideration of the merits of Aaron Lyndale

Cooper's pro se petition for writ of habeas corpus concerning his conviction in the Alameda

County Superior Court. For the reasons discussed below, the petition will be denied. 

BACKGROUND

The habeas petition here challenges Cooper's conviction of kidnapping and murder at a

2004 trial. The trial was the second trial for Cooper, and was held after this court granted his

habeas petition challenging his conviction after the first trial. 

To summarize, the evidence showed that three men (identified by some witnesses as

Cooper, Cross and Kingdom) were in a parked blue car near an intersection in Oakland looking

for a man named "Coco." A Corvette pulled up with Coco in the passenger seat. Coco exited

and talked to the three men briefly and was then put in to the trunk of the blue car at gunpoint.

The blue car drove away with Coco in the trunk and the Corvette was driven away by a man

(identified by a witness as Cooper). Coco's dead body was found two weeks later in the Oakland

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hills. He had been gagged and shot in the head. Cooper was arrested in Oakland seven hours

after the abduction, Cross was arrested in Mississippi about a week after the abduction and

Kingdom was arrested in Mississippi about three months after the abduction. Cross and Cooper

were tried jointly and both were convicted. Kingdom, who was arrested just about a month

before the trial of Cross and Cooper, was tried separately. Cross' conviction was set aside on

direct appeal, and Cooper's conviction was set aside in his federal habeas action. 

A. The Crimes

The California Court of Appeal described in detail the evidence presented at trial. 

On August 16, 1995, the “very decomposed” body of William Highsmith, known by the

nickname “Coco,” FN7 was discovered in a wooded area of the Oakland hills near

Skyline Reservoir. The “bottom part” of the victim's short-sleeve T-shirt had been torn

away. A piece of cloth, apparently from the T-shirt, had been tied around his face and

mouth so that it separated his teeth; a cloth gag had also been pushed into his mouth. The

victim's jacket had been pulled down in the back and around his wrists to restrict the

movement of his arms. His pants and boxer shorts had been pulled down to the level of

his thighs. Scissors were found a few feet away from the body on the ground.

FN7. We will sometimes refer to the victim William Highsmith as Coco, as was

often done during trial.

An autopsy revealed that the victim had died from “a gunshot wound to the head.”

The bullet entered through the left cheekbone of the victim, passed through the skull, and

lodged between the right side of the skull and the scalp behind the ear. The “extensive

fracturing of the skull” suggested a “contact wound,” although no gunshot residue or

splitting of the skin was detected. Due to the advanced state of decomposition of the

body, a forensic pathologist offered the opinion that Highsmith had died “very near the

time that he was last seen alive,” nearly two weeks before on August 3, 1995, perhaps

“the same day.”

Witnesses had observed the abduction of Highsmith by three men at the

intersection of 12th and Market Streets in Oakland on August 3, 1995. That morning,

Zanetta Hodges talked with Highsmith, whom she had known most of her life, in the

common area behind her residence in West Oakland. Highsmith told Hodges that he

intended to “beat up the person” who had accused him of stealing a car. Highsmith added

that he “was going to meet” with people “at the store” to discuss the stolen car

accusation.

After speaking with Highsmith, Hodges went to East Oakland with her close

friend Juanita “Goodie” Walton to get a food stamp card. As they returned to the area of

12th and Market Streets on their way to pick up “food stamps in West Oakland,” Walton

saw “people she knew” sitting in a blue Oldsmobile Delta 88 parked at the side of the

Mingleton Temple church. At Walton's request, Hodges backed up her car and stopped

across the street in front of Bottles Liquors to talk to the three men seated in the

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Oldsmobile: the driver Cross, the front seat passenger Miltonous Kingdom, and the rear

seat passenger defendant. Hodges was acquainted with defendant and Cross, but had not

met Kingdom before. Hodges testified that defendant was wearing black leather gloves,

and Walton noticed black gloves on all three of the occupants of the Oldsmobile. They

were also wearing “black hoody” jackets.

Walton walked up to the Oldsmobile and asked the men inside, “what were they

doing out here” in West Oakland. Defendant said “they were coming to look for someone

who stole their drugs” and car, specifically Highsmith. Hodges heard Cross say, referring

to Highsmith, “That nigger stole my car, Goodie.” When asked by defendant, “what type

of nigger was Coco,” Walton replied: “That nigger, Coco, he ain't stealing no car. He the

type of nigger, he don't get his shoes dirty. He don't steal cars. He sells cars.”

A red Corvette driven by K.K. Parker,FN8 with Highsmith in the passenger seat,

then pulled up and parked on the street near the driveway of the church behind the

Oldsmobile. Defendant said, “All right then,” and Walton was told to “get away from the

car.” Walton returned to Hodges's car, whereupon Hodges drove away as the men in the

Oldsmobile left that car and met in the parking lot by the church. As she drove away, in

the rear view mirror Hodges observed defendant touch Highsmith “on the shoulder.”

FN8. The red Corvette was owned by Parker's girlfriend Tisha Williams, but was

often driven by Parker.

Rodney Love was also present at the scene of the abduction.FN9 While Love was

standing outside the Bottles Liquor store at 12th and Market Streets, a tall Black man

about 20 years old – whom he neither knew nor identified – got out of a “blue four door

Delta,” approached him, and asked if he was “Coco.” FN10 Love saw a large revolver

“pokin' out” of the man's shirt. Love said that he was not Coco, and the man walked back

to the blue Oldsmobile, in which two other men were sitting. The occupants of the

Oldsmobile wore black “puffy” jackets, and at least two of them wore gloves. Love

thought they all had guns. According to Love, soon thereafter K.K. Parker drove up in

a red Corvette, with Highsmith in the passenger seat, and parked behind the Oldsmobile.

Love unsuccessfully attempted to “motion” to his friend Highsmith to warn him. Parker

and Highsmith got out of the Corvette and began talking to the men from the blue

Oldsmobile, one of whom briefly grabbed Parker by the neck but then released him.

Parker ran into the liquor store. After Highsmith admitted to the men that he was “Coco,”

they “pull[ed] the guns out,” five or six shots were fired, and they forcibly pushed the

victim into the trunk of the blue Oldsmobile. One of the three men from the Oldsmobile

got into the red Corvette, then both the Oldsmobile and the Corvette were driven off in

the same direction.

FN9. At trial, Love testified that he did not have “any memory at all” of the details

of the events he witnessed on August 3, 1995. An “hour or two after the event,”

however, Love gave a statement which was an accurate recitation of his

observations. A tape of Love's statement to the police was admitted in evidence

at trial and played for the jury, as was a portion of his consistent testimony at the

first trial in 1995.

FN10. Love was acquainted with Coco.

An employee at Bottles Liquor store, Musa Hussein, testified that at about 4:00

p.m. on August 3, 1995, he saw Highsmith outside the store engaged in an argument or

heated conversation with three other men across the street by the church. Highsmith was

a regular customer of the liquor store, but the other three men were not known to Hussein

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and he could not identify them, although he gave descriptions of them to the police.

Hussein also noticed two vehicles, an “old American” car and a red Corvette, parked near

the men. According to Hussein's statement given to the police immediately after the

kidnapping, which was read to the jury, one of the men arguing with Highsmith “had a

long gun.” Another man opened the trunk of the vehicle, while a third man grabbed

Highsmith. Hussein then ran back into the store to call the police, but heard “gunshots”

outside. Customers yelled, “they're putting him in the trunk.”

Douglas Wright, an investigator for the Alameda County District Attorney's

Office, testified that at around 4:00 p.m. on August 3, 1995, he was driving on 12th

Street, approaching Market, when he heard what he “thought were two gunshots ahead”

of him. He then observed a red Corvette parked on the right side of the road facing the

same direction Wright was traveling. A man was standing behind the Corvette who was

described by Wright as “male Black, about 5' 11" in his mid-20's, 170 to 180 pounds.”

Wright was unable to identify the man, but testified that he was “consistent” in size and

build with defendant. As Wright drove by, the man quickly ran to the driver's side of the

Corvette, jumped in, “took off, squealed and accelerated around the corner.” Wright “got

a partial plate” on the Corvette, YOK953, but the last three numbers were incorrect.

Across the street, Wright noticed people “ducking down” behind a parked car as if they

were “trying to get out of the way.” To his left, in the Bottles Liquor store parking lot,

Wright saw an “Arabic looking gentleman” who was staring in the direction of the fleeing

Corvette, and a “male Black” who was “hustling into the store.” Wright “knew something

was wrong,” so he asked a man in a car “what had happened.” The man, who looked

“nervous and scared,” said that “there had been a shooting and a kidnapping.” Wright

reported the crime through the “District Attorney's channel,” and asked “them to call the

police.”

Raynetta Thomas, the victim's sister, testified that on the afternoon of August 3,

1995, she visited briefly with “Coco” and K.K. Parker at her mother's apartment before

they left in a red Corvette about 3:45 or 4:00 p.m. A “few minutes” later she heard that

a kidnapping had occurred at 12th and Market.

Oakland Police Officer Michael McArthur received a call of “a shooting” at 12th

and Market at 4:08 p.m., and arrived there within two minutes. As Officer McArthur

spoke with Musa Hussein, K.K. Parker interrupted and began to “talk over him.” Parker

“seemed to be eager” to tell Officer McArthur “what had happened.” During the

conversation, however, Parker's attitude changed; he “decided he didn't want to talk” or

“cooperate anymore.” Parker refused to sign his statement to the officer, and “started to

walk away.” Parker was then arrested on outstanding warrants and taken into custody.

After Hodges and Walton procured their food stamps at 4:09 p.m., they returned

directly to 12th and Market Streets. Police officers were “all over the place.” People on

the street were quite agitated and concerned over the abduction of Highsmith, as he was

a well-liked figure in the West Oakland neighborhood. After speaking with the police,

Hodges and Walton, along with “various people,” searched for Highsmith, defendant,

Cross and Kingdom for hours without success.

About 7:00 on the night of the abduction of Highsmith, George Archambeau was

driving westbound across the San Mateo bridge toward Foster City when he observed a

“small, blue car” that was stopped with a red Corvette in front of it. As Archambeau

passed the two cars, he noticed an African-American man standing outside the red

Corvette, and another in the driver's seat. The man standing outside the Corvette threw

an object that appeared to be a “folded over” grocery bag over the bridge into the bay.

Archambeau drove on, but the Corvette “came driving by” him “extremely fast” with two

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occupants in the vehicle, both African-American men. As the Corvette “got caught in the

traffic” ahead, Archambeau “wrote down the license plate,” 2YQK292, along with the

notation “red ‘vette,” and contacted the highway patrol.

At around 9:00 the same night, Moamer Mohamed was working at the Bottles

Liquor store. As he was leaving the store he observed a red Corvette in front of the

parking lot that blocked his exit. The engine of the Corvette was running and the window

was open, but no one was inside. Mohamed saw an African-American man wearing a

checkered shirt and dark gloves running away from the parking lot toward downtown

Oakland. Mohamed moved the Corvette and called the police. The only identifiable

fingerprints found on the red Corvette belonged to K.K. Parker or the victim.

When Walton returned to her residence later that night with Hodges, Kingdom's

blue Oldsmobile Cutlass was parked on the street in front of the house. She was

frightened, and did not look in the car or immediately contact the police. The vehicle was

located by the police, however, in front of Walton's house at 9962 Voltaire in East

Oakland at about 10:00 that night.

Walton was then taken into custody and transported to the Oakland Police

Department for questioning. She testified at trial that she fallaciously told investigating

officers that she saw defendant, Kingdom and Cross force Highsmith into the car trunk.

Walton admitted that she told “lies” to the officers, but testified that she did so to try to

help her friend Highsmith. Walton also testified that she received a telephone call from

defendant from jail during which he said to her, “Don't go to court.” Defendant offered

her money not to testify. Walton also received “death threats” from other people

unknown to her.FN11

FN11. Walton testified at the preliminary hearing before the first trial, and at

Kingdom's trial, but did not testify at defendant's first trial.

Defendant was arrested about an hour after Walton was taken into custody. He

was a passenger in a blue 1985 Oldsmobile Royale driven by Carl Anderson that was

detained around 11:00 p.m. for expired registration tags.FN12 Anderson was taken into

custody on a “no-bail misdemeanor warrant,” and after defendant was identified he was

arrested in connection with the carjacking and kidnapping of Highsmith that afternoon.

Defendant was wearing a green plaid shirt – like the one Mohamed had seen earlier that

evening worn by the man who ran away from the red Corvette – and green pants; his

“hair was in corn rows.” Black leather gloves were found on the right front passenger seat

which had been occupied by defendant, and a black leather jacket was left in the back

seat of the vehicle. Both of the gloves subsequently tested positive for gunshot residue,

as did the left sleeve of the jacket. No blood was detected on the jacket or gloves. No

gunshot residue was found on defendant's hands.

FN12. The 1985 Oldsmobile Royale driven by Anderson in which defendant was

arrested is not the same vehicle as the blue Oldsmobile Delta Cutlass registered

to Kingdom that was observed at the scene of the kidnapping of Highsmith and

seized from in front of Walton's residence.

During the interview of Walton very early the next morning, defendant was

confined in a locked interview room nearby. When Walton saw defendant in the hallway

she identified him as one of the men in the blue Oldsmobile at 12th and Market just

before the abduction of Highsmith. She subsequently identified photographs of Cross and

Kingdom from a lineup as the other two men.

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The blue Oldsmobile registered to Kingdom was processed for evidence and

photographed on August 5, 1995. The exterior was clean, and did not appear to have been

driven on a dirt road. The top side of the muffler in the trunk was shiny and clean, and

had wipe marks on it, but the bottom side was dirty. The trunk did not have indications,

such as hair, blood, or fingerprints, that a person had been transported in it. No

identifiable fingerprints were found anywhere on the car.

At the scene of the kidnapping at 12th and Market, three spent shell casings were

recovered: two were brass nine-millimeter “Lugar caliber” casings fired from the same

weapon, “an S.W.D.-type firearm;” the other, apparently of older vintage, was a brass

.45-caliber semi-automatic cartridge fired from another type of weapon. A criminalist

also examined the bullet extracted from the victim's head, and determined that it was fired

from one of two similar size firearm calibers: a .40-caliber Smith and Wesson, or a

10-millimeter auto caliber.FN13

FN13. Probably the former, which, the criminalist observed, is a more popular

weapon.

Warrants were issued for the arrest of Cross and Kingdom after they were

identified by investigating officers as the other two men associated with the abduction of

Highsmith. The Oakland Police Department was notified on August 10, 1995, that Cross

had been arrested in Mississippi. Two taped statements were subsequently taken from

him by investigating officers of the Oakland Police Department early the next morning.

Kingdom was arrested on November 6, 1995, in Mississippi. Two days later when he was

confronted with the statements made by Cross, he gave a statement to an Oakland police

officer which was found inadmissible in the second appeal before this court and the

federal habeas corpus proceeding.

Both taped statements made by Cross, and his testimony given at the first trial,

were admitted in evidence and read to the jury at the second trial. FN14 In his first

statement Cross told the officers that he moved to California in 1992, and lived with his

aunt on 55th Avenue in Oakland until a few months before his arrest, when he stayed in

motels in Oakland. He stated that Kingdom is his cousin, and he met defendant through

one of his drug selling partners after he began living in Oakland.

FN14. Cross refused to testify at the second trial and was found unavailable as a

witness. The jury was aware that he was serving a life term for an unrelated

murder. The jury also heard through stipulation that Kingdom was convicted after

trial in 1998 for the first degree murder of Highsmith with a special circumstance

of kidnapping, and was serving a sentence of life without parole.

Cross reported that the Sunday before the abduction of Highsmith, his 1988 “blue Iroc” Chevrolet, which contained cash in the amount of $6,700, clothing, and other

valuables, was stolen in Emeryville while he was visiting a girlfriend. He and a

companion “drove around” West Oakland looking for the car. Youngsters told Cross that

they had seen “some fool from Ghost Town” driving his Iroc around, so he continued to

look for the car in the Ghost Town area of Oakland. Someone else told Cross that

“Coco,” a man with two gold teeth who lived on Adeline and “steals cars,” was the one

who was seen driving the Iroc around. The next day, Cross and Kingdom drove through

West Oakland in the blue Oldsmobile looking for the Iroc. They heard that Coco was on

12th and Market, so they drove there. When a man named “Lon” said that he knew Coco,

Cross gave him his pager number for Coco to call him.

The following day between noon and 2:00 p.m., Cross heard from Coco, who

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denied that he stole the Iroc. They agreed to meet at 12th and Market to discuss the matter

further. With Cross driving, he, Kingdom and Cooper went to 12th and Market in the blue

Oldsmobile. Cross did not find Coco among the people on the street, then walked back

to the Oldsmobile. As he did, two men approached the car and one of them said, “I'm

Coco.” After Coco said, “I don't take cars,” Cross began to “walk off.” He returned to the

Oldsmobile, and they drove away. He took a flight to Memphis later that night. Cross

denied that they kidnapped Coco.

In his second statement taken a few hours later, Cross admitted that when he,

defendant and Kingdom arrived at 12th and Market in the blue Oldsmobile, they all had

nine-millimeter handguns, although he denied that he owned any of the guns or had one

in his immediate possession at the scene. Cross said he was outside the car when Coco

appeared with another man in a red Corvette. While he and Coco were “talking” on the

sidewalk, “everything jumped off.” Suddenly, Kingdom and Cooper, with guns drawn,

escorted Coco to the rear of the car and forced him into the trunk. Someone fired shots,

but Cross claimed it was not he.

Cross and Kingdom then got in the Oldsmobile, while defendant jumped into the

red Corvette. They drove both cars to East Oakland, around 109th and Foothill, where

defendant left the red Corvette and got back in the blue Oldsmobile with them. Coco was

still in the trunk. They “drove around” for a while, then returned to the E-Z 8 motel,

where Cross was staying. Cross and Kingdom went into the motel room, but defendant

drove away with Coco. Cross claimed that Coco was alive in the trunk when he and

Kingdom left the Oldsmobile for the hotel room. Cross was in the motel room for 40

minutes to an hour packing his clothes until defendant returned in the car. Cross and

Kingdom then joined defendant, and with Kingdom driving they returned to the location

at 109th and Foothill where they previously parked the red Corvette. Defendant left the

Oldsmobile and returned to the Corvette. Defendant drove off in the Corvette, and Cross

did not see him thereafter. He and Kingdom drove the Oldsmobile to Voltaire and 100th,

where they parked it. While Cross was in the Oldsmobile, he did not hear any noise or

look inside the trunk.

When they left the car at Voltaire and 100th, Cross thought Coco was still alive

in the trunk, and someone would find him later, although he acknowledged the

“possibility” that the victim had been shot during his abduction. Cross and Kingdom also

left the guns in the car and began to walk back toward MacArthur when a friend drove

by and gave them a ride to the E-Z 8 motel. Cross said he traveled to Memphis the next

morning. He did not know Coco was still missing until later, and “didn't think it was that

serious.” Cross also told the officers he did not know where Coco was.FN15

FN15. At that time Highsmith's body had not yet been found.

In his testimony at the first trial, Cross added details to his second statement and

changed some of his account of the events. Cross testified that his blue Iroc was stolen

on July 30, 1995. Taken with the car were its contents: $600 to $700 in cash,FN16 large

amounts of marijuana and powder cocaine that were worth thousands of dollars if sold

on the street, jewelry and clothes. The drugs had been purchased the same day from

defendant's friend at 100th and MacArthur. Cross financed a small portion of the drug

purchase, but defendant contributed much more, between $2,000 and $4,000. Cross had

intended to drive the Iroc to Greenville, Mississippi to visit his mother and sell the drugs.

The theft of the car altered those plans. Defendant was “upset” when he learned the car

and drugs had been stolen. He accompanied Cross and Kingdom when they searched in

West Oakland for the Iroc the day before the abduction of Highsmith. Defendant used

“threatening words” to someone they encountered in a green station wagon.

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FN16. Not $6,700 as was mistakenly reported in his prior statement to the police.

Cross testified that he accepted Coco's word by telephone on August 3, 1995, that

he “didn't have” the car, but defendant was insistent upon going to 12th and Market

Streets to meet Coco. Defendant said: “Let's go out there,” so Cross agreed. Cross drove

the blue Oldsmobile to 12th and Market Streets, Kingdom sat in the front seat, and

defendant was in the rear passenger seat. They parked across the street from the liquor

store, near the church. Cross testified that he got out of the Oldsmobile to talk to people

on the street in an effort to locate Coco, but left his gun on the front seat of the car. He

claimed that he did not see or talk to Walton and Hodges. As he “was walking toward the

car,” a red Corvette driven by K.K. Parker drove up and parked behind the Oldsmobile.

Parker went to the liquor store, and the other man in the Corvette walked up to Cross on

the sidewalk and said, “I'm Coco.” Coco said, “I don't take cars,” and claimed he had not

seen the Iroc. While holding a gun in one hand, defendant then grabbed Coco from

behind and backed him into the trunk of the Oldsmobile. Cross got in the front passenger

seat of the car as defendant told Kingdom to get the keys from the ignition and open the

trunk. Cross “heard shots” from behind the car, probably “about six,” and ducked down.

He did not know if Coco was shot, but thought it was “a possibility.” The trunk was then

shut and Kingdom ran to the front passenger side of the Oldsmobile. Cross “scooted” into

the driver's seat, took the keys from Kingdom, and drove away after Kingdom exclaimed,

“be out.” Defendant drove off in the red Corvette.

When they reached 100th and Voltaire Streets, the red Corvette was abandoned.

They drove in the Oldsmobile to the E-Z 8 motel, where Cross and Kingdom left the car.

Cross went to his room to pack for his planned trip to Mississippi. Defendant returned to

the motel and they all drove to 100th and MacArthur. Cross did not know if Highsmith

was still in the trunk of the car. Cross exited the car there before defendant and Kingdom

“drove off” without him. After a few minutes, one of Cross's partners named Jay “pulled

up” in a blue Toyota. Cross and Jay “drove around” and smoked some joints for a while

before they returned to 100th and MacArthur and saw Oakland police officers “all over

the place.” Cross asked Jay to take him back to the E-Z 8 motel. Kingdom arrived later

at the motel room without his car. They did not discuss the fate of Highsmith or events

that occurred earlier that day. Cross left the next morning for Mississippi, where he was

arrested a few days later. He testified that he “wasn't being truthful” entirely in his two

statements to the police to “cover” for defendant and Kingdom.

Cal. Ct. App. Opinion, ¶. 6-16.

B. Procedural History

At the first trial, in 1995, the jury found Cooper guilty. Cooper was convicted of first

degree murder, kidnapping, carjacking, and being a felon in possession of a firearm. The jury

found true the allegations that Cooper was armed with a firearm in the commission of the

murder, carjacking and kidnapping. The trial court found in a separate proceeding that Cooper

had served a prison term for a prior conviction and had been convicted of a serious felony that

qualified as a prior strike conviction under California's Three Strikes law. Cooper was sentenced

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to a total term of 71 years to life. Cooper's conviction was upheld on appeal. 

Cooper then filed a federal petition for writ of habeas corpus, which this court granted.

In the order granting petition for writ of habeas corpus filed on April 14, 2004 in Cooper v.

McGrath, 314 F. Supp. 2d 967 (N. D. Cal. 2004) (the “2004 order”), this court determined that

there was a Confrontation Clause violation (i.e., the admission of non-testifying co-perpetrator

Kingdom's statement to police) that was not harmless error, that there was a due process

violation because there was insufficient evidence to support the murder conviction, and that there

was prosecutorial misconduct that was harmless considered alone but contributed to the

determination that there was cumulative error. 

Cooper was then tried again in late 2004. On November 10, 2004, the jury found Cooper

guilty of murder and kidnapping, and found him not guilty on the charge of being a felon in

possession of a firearm. Cooper admitted the truth of the prior conviction allegations. On

December 3, 2004, Cooper was sentenced to 58 years to life in prison. His conviction was

affirmed by the California Court of Appeal and his petition for review was denied by the

California Supreme Court in 2007. His state habeas petitions were unsuccessful. 

Cooper then filed this action. The court issued an order to show cause on eighteen issues.

Respondent filed an answer and Cooper filed a traverse. The case is now ready for review on

the merits. 

JURISDICTION AND VENUE

This court has subject matter jurisdiction over the petition for writ of habeas corpus under

28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged

conviction occurred in Alameda County, within this judicial district. 28 U.S.C. §§ 84, 2241(d).

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas

proceedings either the fact or length of their confinement are required first to exhaust state

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judicial remedies, either on direct appeal or through collateral proceedings, by presenting the

highest state court available with a fair opportunity to rule on the merits of each and every claim

they seek to raise in federal court. 28 U.S.C. § 2254(b), (c). State judicial remedies have been

exhausted for the claims presented in the petition.

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus “in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

petition may not be granted with respect to any claim that was adjudicated on the merits in state

court unless the state court's 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).

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the] Court has on a set of materially

indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ

if the state court identifies the correct governing legal principle from [the] Court’s decision but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[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.” Id. at 411. A

federal habeas court making the “unreasonable application” inquiry should ask whether the state

court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409.

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Cooper asserts, in each of his eighteen claims, that the error violated his rights to equal

protection and due process, as though those two protections are inseparably paired. Cooper makes no

effort to develop any equal protection violation argument. Except as specifically noted in the text, none

of his claims implicate his right to equal protection and the court therefore does not specifically discuss

the equal protection claims.

2

Cooper argues in his traverse that respondent mischaracterized his claims as challenges to the

state's power to hold a retrial and urges that his claims are instead challenges to the power to convict

him again. For analytic coherence, this court – as did the California Court of Appeal – considers

whether the retrial was barred as well as whether the second conviction was barred. 

11

DISCUSSION

A. Collateral Estoppel and Law Of The Case As Potential Bars

To The Second Murder Conviction (Claims 12 and 13) 

Cooper argues that this court's 2004 order requires a determination that the evidence was

insufficient for the murder conviction at the second trial. He argues that he was denied due

process, equal protection1

 and a fair trial “when the collateral estoppel doctrine was not adhered

to during petitioner's trial and subsequent direct appeal and was double jeopardy violation.”

Petition, p. 51 (errors in source). He also argues that his constitutional rights were violated

“when law of the case doctrine was not adhered to” during his trial and appeal. Id. at 53. The

gist of his argument is that, because the evidence was substantially the same at the first and

second trials, this court's determination in the 2004 order that the evidence was insufficient at

the first trial compelled the same result the second time through state court. 

As relevant to these claims, the 2004 order determined that the admission of Kingdom's

statement was a Confrontation Clause violation, determined that the Confrontation Clause

violation was not harmless error, and determined that the evidence was insufficient to support

the murder conviction.2

 This court explained that retrial was permitted. Two important points

in the insufficient evidence analysis in the 2004 order lead to the conclusion that the earlier

determination did not bar a new trial and did not require a finding as a matter of law that the

evidence was insufficient at the second trial. First, the insufficient evidence analysis was done

by setting aside the Kingdom statement, consistent with then-controlling Ninth Circuit authority:

In determining the sufficiency of the evidence, the court excludes the improperly

admitted statement of Kingdom which should not have been admitted at trial because

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It turns out that a recent Supreme Court case has clarified that an insufficient evidence

claim should be analyzed differently, i.e., by including (rather than excluding) the improperly

admitted evidence when deciding whether the evidence was sufficient to support the verdict.

See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010) (“Respondent therefore correctly concedes

that a reviewing court must consider all of the evidence admitted at trial when considering a

Jackson claim.”) McDaniel reversed a Ninth Circuit decision which, like the 2004 order, had

excluded evidence in doing the sufficiency of the evidence analysis.

If the McDaniel decision existed in 2004, this court would have done the sufficiency of

the evidence analysis including (rather than excluding) Kingdom's statement. Had Kingdom's

statement been in the pile of evidence, the insufficient evidence claim would have been rejected.

The court made that exact point in the 2004 order: “[t]his piece of evidence is critical because

if it was included in the evaluation, the court would find that there was sufficient evidence to

support the murder conviction.” Cooper, 314 F. Supp. 2d at 998. Although the insufficient

evidence claim would have been rejected, the petition still would have been granted and retrial

required because of at least the Confrontation Clause violation. Thus, while McDaniel would

have changed the outcome for one claim, it would not have changed the 2004 order's overall

outcome or remedy. 

12

Cooper was unable to confront him. See Wigglesworth v. Oregon, 49 F.3d 578, 582 (9th

Cir. 1995). This piece of evidence is critical because if it was included in the evaluation,

the court would find that there was sufficient evidence to support the murder conviction.

314 F. Supp. 2d at 998.3

 Second, this court explained that the remedy under the circumstances

was retrial and such a retrial was not barred by the Double Jeopardy Clause.

When, as here, the evidence is determined to be insufficient when the improperly

admitted evidence is excluded from the equation but sufficient when the improperly

admitted evidence is included in the equation, the remedy is affected. In such a case,

retrial rather than acquittal is the remedy. "[T]he Double Jeopardy Clause allows retrial

when a reviewing court determines that a defendant's conviction must be reversed

because evidence was erroneously admitted against him, and also concludes that without

the inadmissible evidence there was insufficient evidence to support a conviction."

Lockhart v. Nelson, 488 U.S. 33, 40 (1988). In other words, the Clause "does not bar

retrial after a reversal based on the erroneous admission of evidence if the erroneously

admitted evidence supported the conviction." United States v. Chu Kong Yin, 935 F.2d

990, 1001 (9th Cir. 1991) (citing Lockhart, 488 U.S. at 40); see also Wigglesworth, 49

F.3d at 582. 

314 F. Supp. 2d at 998-99. 

The 2004 order specifically allowed a retrial. At the retrial, the prosecutor was free to

– and apparently did – buttress some evidence to make up for the gap left by the Kingdom

statement. Although this court will not do a line by line comparison of the two trials, there were

differences in the evidence presented, as exemplified by a few points. First, the prosecutor's

time-of-death evidence improved. The forensic pathologist at the first trial was unable to state

when Coco was killed, while the same forensic pathologist at the second trial gave testimony

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The forensic pathologist was less definite about the time of death at the 1995 trial. In

1995, Dr. Herman testified the victim's body was "very markedly decomposed" and "had been

dead for sometime." 1995 RT 694. When asked on cross-examination if he could estimate the

approximate time of death, Dr. Herman again noted extensive decomposition and said, "I have

no idea when the time of death was." 1995 RT 705. 

In the 2004 trial, Dr. Herman again testified to the extensive decomposition. RT 369-70,

365. When asked his opinion on how long the victim – who was last seen alive on August 3 and

whose body had been found on August 16 – had been dead, Dr. Herman testified: "Well, the

body was very markedly decomposed. Frankly, I would have thought he had been dead perhaps

even longer, between the time he when he was found and when he was last seen alive, so I think

he died very near the time that he was last seen alive." RT 376-77. "[I]t certainly could have

been the same day." RT 377. This increased certainty helped the prosecution because Cooper

had only a short window of opportunity on August 3 to take part in the killing before he was

arrested late that night. 

5

Love was less impeachable at th 1995 trial, when he had testified that Cooper was not one of

the abductors and that Goodie Walton was not present at the scene before or after the abduction. 

13

indicating that Coco was killed on the day he was abducted. RT 376 (“I think that he died very

near the time that he was last seen alive.”)4

 Second, Rodney Love had acquired a felony

conviction and prison term that could be used to impeach him by the time of the second trial.

RT 763-64.5

 Third, Goodie Walton showed up at the second trial. Her absence from the first

trial deprived that jury of the helpful tool of looking at the demeanor of a witness whose stories

had numerous inconsistencies. In trying to sort out which, if any, of her statements were

truthful, her demeanor was an important factor for the jury. See 3A Wigmore, Evidence § 946

("the demeanor of the witness on the stand may always be considered by the jury in their

estimation of his credibility."); see also id. at § 996 (demeanor not an available tool to evaluate

the absent witness) (Chadbourn rev. 1970). In her testimony at the second trial, Cooper offered

a plausible explanation for the inconsistencies in her previous statements: she said she had been

present before the abduction, returned to the scene after the abduction at which time she heard

what other people said about the abduction, and then told the police some things as though she

had been present when in fact she was relaying the story she had heard from others. Fourth, the

evidence was stronger at the second trial about Cooper's motive of wanting redress for his stolen

drugs. Fifth, Walton's testimony that Cooper called her from jail to tell her not to come to court

in 1995 suggested his consciousness of guilt. It also would make more believable her testimony

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that she saw him in the Oldsmobile at the scene of the abduction, because his request that she

not testify suggests that he believed she had harmful testimony to offer. 

The California Court of Appeal's decision that constitutional collateral estoppel did not

require dismissal of the murder count based on this court's 2004 order was clearly correct. The

2004 order was not intended to “have any preclusive effect or prevent the retrial of defendant,”

and instead “clearly contemplated and mandated the very retrial which occurred." Cal. Ct. App.

Opinion, p. 21, 22. The constitutional basis for collateral estoppel would be the Double

Jeopardy Clause, but that provision does not apply for the reasons explained in the portion of the

2004 order quoted above. See Cooper, 314 F. Supp. 2d at 998-99.

The law of the case doctrine also provides no help to Cooper. It is not clear how he could

obtain federal habeas relief under that doctrine because it is not constitutionally based. In any

event, the doctrine would not be of any use to him. This court determined that the evidence at

the first trial was insufficient to support the murder conviction. This court did not direct that a

second jury look at the exact same evidence, and instead determined that a retrial was necessary.

Cooper has not proven that the exact same evidence presented at the first trial was presented at

the second trial. In the retrial, the prosecutor was free to present additional evidence and change

his emphasis to plug the hole that existed if Kingdom's statement could not be used. There was

a legally required do-over, but a do-over is not usually and was not here an exact replication.

Thus, the determination in the 2004 order that the evidence at the first trial was insufficient says

nothing about the sufficiency of the evidence at the second trial. 

As the California Court of Appeal explained in rejecting Cooper's law of the case

argument, “of most significance” was the fact that the “second jury was presented with different

evidence to assess.” Cal. Ct. App. Opinion, p. 28. Law of the case principles would only

impact Cooper's case if, at the second trial, the prosecution attempted prove the same crime

“using the substantially same evidence.” Id. The state appellate court then explained:

Upon comparison of the first and second trials, we find that the evidence presented was

not the same. Kingdom's statement had been excluded, so it was of course not considered

in the second trial. . . . Critical testimony from Juanita Walton was received at the second

trial, rather than read from her prior statements or abbreviated preliminary hearing

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testimony as it had been at the first trial. Walton corroborated the testimony of Hodges

that identified defendant and placed him at the scene of the kidnapping of Highsmith only

moments before the crime occurred. Walton's testimony also provided corroborated

testimony from Cross that Highsmith was confronted and abducted because defendant,

along with Cross and Kingdom, believed he had stolen a vehicle containing their drugs

– thereby providing a motive for the abduction and killing. . . . The accounts of the

kidnapping given by Hodges, Rodney Love and Musa Hussein varied from the first trial,

although not materially so. The defense evidence at the second trial also did not include

alibi testimony from defendant or his wife. Given the context of the federal court's

finding of insufficiency of the evidence and upon our review of the record, we conclude

that a retrial of defendant was not precluded and the jury was not estopped by law of the

case principles from convicting defendant of the murder of Highsmith. 

Cal. Ct. App. Opinion, ¶. 28-29. The California Court of Appeal's decision that the law of the

case doctrine did not require dismissal based on this court's 2004 order was correct. Cooper is

not entitled to habeas relief on his claims that collateral estoppel and law of the case doctrines

barred the 2004 trial or conviction. 

B. Sufficiency Of The Evidence (Claims 4 and 11)

Cooper contends that there was insufficient evidence to support the murder and

kidnapping convictions.

The Due Process Clause "protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged." In re Winship, 397 U.S. 358, 364 (1970). A federal court reviewing collaterally a

state court conviction does not determine whether it is satisfied that the evidence established

guilt beyond a reasonable doubt, but rather determines whether, "after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307,

319 (1979); see Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Only if no rational trier of

fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See

Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338. The "prosecution need not affirmatively 'rule

out every hypothesis except that of guilt,'" and the reviewing federal court '"faced with a record

of historical facts that supports conflicting inferences must presume – even if it does not

affirmatively appear in the record – that the trier of fact resolved any such conflicts in favor of

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the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97

(1992) (quoting Jackson, 443 U.S. at 326). The Ninth Circuit has explained that

"[c]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a

conviction. . . . Nevertheless, 'mere suspicion or speculation cannot be the basis for creation of

logical inferences.'" Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). A federal habeas

court applies the standards of Jackson with an additional layer of deference under the AEDPA,

generally asking whether the state court's decision reflected an unreasonable application of

Jackson and Winship to the facts of the case. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir.

2005); see, e.g., McDaniel v. Brown, 130 S. Ct. 665, 673-74 (2010) (per curiam) (finding Ninth

Circuit erred by failing to review all of the evidence in light most favorable to the prosecution

when it resolved inconsistencies in testimony in favor of petitioner). 

The California Court of Appeal rejected Cooper's challenge to the sufficiency of the

evidence to support the conviction.

[D]efendant was convincingly identified as one of the three men who abducted Highsmith

at gunpoint, forced him into the rear of the blue Oldsmobile, and sped away. Witnesses

testified that the men who kidnapped Highsmith, and specifically defendant, wore black

gloves and jackets. Shots were fired during the kidnapping. Contrary to the federal

court's finding, persuasive evidence connects defendant to the murder of the victim

discovered two weeks later with a fatal bullet wound to the head. The victim was found

gagged and somewhat bound when he was killed, which suggests that the murder was

part of a forced abduction and subsequent execution by more than one person. The

pathologist testified that the victim was probably killed on the day he was kidnapped, not

some time later. Nothing suggests that the kidnappers released the victim, as he was not

seen alive again. Cross' testimony, corroborated partially by Walton – which we must

accept on appeal – not only provides defendant with a strong motive to commit the

murder, but also places him in the car with Highsmith after the kidnapping with the

opportunity to kill the victim. . . . A few hours after the abduction, a witness observed two

men in the red Corvette driven away from the kidnapping scene by defendant engaged

in throwing something off the San Mateo-Hayward bridge. Three or four hours later that

night, defendant was arrested in a vehicle in which black gloves and a black jacket were

found. Gunshot residue was detected on the gloves and one sleeve of the jacket.

Defendant was also wearing a checkered shirt similar to the one worn by the man who

was seen earlier running from the red Corvette abandoned at the kidnapping scene. We

conclude that the murder conviction is supported by substantial evidence.

Cal. Ct. App. Opinion, ¶. 47-48. 

The state appellate court highlighted some of its disagreement with some of this court's

reasoning in the 2004 order, most notably disagreeing with this court's determination that there

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was insufficient evidence at the 1995 trial to connect Cooper to the murder. See Cal. Ct. App.

Opinion, p. 47. Whether there was sufficient evidence at the 1995 trial does not control whether

there was sufficient evidence to support the conviction at the 2004 trial. This court focuses on

the part of the California Court of Appeal's opinion that deals with the 2004 trial evidence.

Doing so, this court concludes that the California Court of Appeal's rejection of the insufficient

evidence claim was not contrary to or an unreasonable application of Jackson v. Virginia. 

There was plenty of evidence to support the kidnapping conviction. Cooper does not

dispute that a kidnapping took place, but instead challenges whether there was sufficient

evidence that he was one of the kidnappers. Cooper was identified by Walton, Hodges, and

Cross as being in the blue Oldsmobile at the abduction site mere moments before the abduction.

There was testimony from Hodges and Walton that Cooper was wearing gloves and had a gun.

Walton testified that Cooper told her that they were looking for the man who stole their drugs

and Cross' car. Cooper was identified by Cross as one of the three men who put Coco into the

trunk of the blue Oldsmobile at gunpoint. Shots were fired during the abduction. The

Oldsmobile with Coco in the trunk then sped away. Cooper left in the red Corvette, according

to Cross. There was evidence that Cooper was driving in coordinated manner with the

Oldsmobile in which Coco was in the trunk. And there was evidence that he later rejoined Cross

and Kingdom while Coco was still in the trunk of the car, and later still returned to the Corvette

and dumped the Corvette back at the abduction site. Viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have found the essential elements of

a kidnapping by Cooper proven beyond a reasonable doubt. 

The evidence connecting Cooper to the murder was hardly overwhelming but was

sufficient evidence for a rational trier of fact to conclude that he was guilty of murder. Cooper

does not dispute that a murder occurred, but only whether there was sufficient evidence that he

was one of the murderers. The victim was last seen alive by witnesses when he was shoved into

the trunk of a car at gunpoint – dire circumstances by anyone's standard. As mentioned earlier

at pages 13-14, the evidence in favor of the prosecution's case improved in several respects at

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the 2004 trial. Most notably, the forensic pathologist gave testimony that would allow a rational

trier of fact to conclude that the victim died shortly after he was abducted and therefore was

killed at the time when Cooper had the opportunity to participate in the killing. The pathologist's

testimony brought together the time of death and Cooper's window of opportunity. Also, Fred

Cross' testimony from the earlier trial and his statements to police put Cooper in the car with the

victim in the trunk after the abduction. According to Cross, Cooper had driven the Corvette

away from the abduction scene and shortly thereafter reunited with Cross and Kingdom and got

back into the blue Oldsmobile. This re-connected Cooper with the victim in the trunk of the car.

Also, there was testimony from which a reasonable trier of fact could conclude that Cooper was

in the red Corvette when someone emerged from that car and threw something off the San Mateo

bridge a few hours after Coco was abducted. There also was testimony from which a rational

trier of fact could conclude that it was Cooper who later returned the Corvette to the scene of the

kidnapping. Cooper was arrested wearing a green plaid shirt like the one the liquor store owner

saw on the man who dumped the Corvette near his store earlier that night. There was evidence

that Cooper had a motive to harm Coco: Coco was thought to be the man who stole the drugs

in Cross' car, and Cooper had paid for a substantial part of those drugs. Cooper was arrested

in a car in which he sat on a pair of gloves that had gunshot residue on them. Certainly there

was some evidence that pointed away from Cooper being one of the murderers, but this court

does not reweigh the evidence. This court concludes that the state court of appeal's

determination that there was sufficient evidence was not an unreasonable application of or

contrary to Jackson and Winship. Cooper is not entitled to the writ on this claim. 

C. Statute of Limitations And The Kidnapping Count (Claim 10)

Cooper contends that his rights to due process and equal protection were violated when

he was charged and convicted of kidnapping because the charge was time-barred. He reasons

that, since the kidnapping occurred in 1995, and he was re-charged and convicted in 2004, the

prosecution was barred by the statute of limitations. 

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The information was filed on September 26, 1995. The California Supreme Court denied the

petition for review on October 25, 2000. 

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The California Penal Code has two statutes of limitations that could apply to a kidnapping

charge, depending on the punishment to which the defendant is exposed. If the offense is

punishable by death or life imprisonment, the prosecution “may be commenced at any time,” and

if punishable by imprisonment for eight years or more, the prosecution “shall be commenced

within six years of the commission of the offense.” Cal. Penal Code §§ 799, 800. Simple

kidnapping is punishable by imprisonment for 3, 5 or 8 years, and aggravated kidnapping is

punishable by life imprisonment. Cal. Penal Code §§ 208, 209. 

Assuming arguendo that a time-barred prosecution would violate due process, Cooper’s

claim may be easily rejected because his prosecution was commenced within weeks of the

commission of the kidnapping on August 3, 1995. The information charging him with

kidnapping was filed on September 26, 1995. The 2004 retrial was not a new prosecution but

was instead further activity in the prosecution first commenced in 1995. The amendment of the

information in 2004 did not mean that nine years had lapsed between crime and the

commencement of prosecution because both the original and amended charging documents

charged Cooper with kidnapping. See In re Davis, 13 Cal.App.2d 109, 112 (Cal. Ct. App. 1936)

(charging document may be amended after the limitations period expires without being time

barred as long as it charges the same offense or a lesser-included offense). Alternatively, if the

2004 proceedings were viewed as a separate prosecution, it would have been timely because the

five years6

 during which the first prosecution was pending for the same conduct would not be

counted as part of the limitations period. See Cal. Penal Code § 803(b). The claim that the

kidnapping charge was time-barred is meritless. 

Cooper’s assertion that counsel was ineffective for failing to make this argument falls

with the argument: an attorney does not engage in deficient performance in not making a

meritless argument and no prejudice results from a meritless argument not being made. 

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D. Inconsistent Verdicts (Claim 2)

Cooper contends that he was denied equal protection of the law by the inconsistent

verdicts in his case. He contends that the acquittal on the felon-in-possession-of-a-firearm

charge was inconsistent with the guilty verdicts on murder and kidnapping. He reasons that this

is so because an “[e]x felon in possession of a gun is a necessary element of the theory argued

by the prosecutor for the murder and kidnap.” Petition, p. 20. 

Cooper errs in suggesting that being a felon-in-possession is an element of either murder

or kidnapping. Neither murder nor kidnapping has such an element. See Cal. Penal Code §§

187, 209. The jury did not need to find that Cooper possessed a gun or fired the fatal shot into

the victim for the jury to find him guilty of murder and kidnapping. 

The prosecutor's argument included an aiding and abetting theory for the murder and the

kidnapping, as well as a felony murder theory for the killing in the course of the kidnapping.

RT 911, 912, 932-935. The prosecutor plainly conceded that the circumstances of the murder

made him unable to explain which of the three men did what to the victim at the murder site. RT

927, 928. The instructions given to the jury included instructions on aiding and abetting

liability. RT 893-94. Based on the evidence presented at trial, Cooper could have been found

guilty of murder and kidnapping based on aiding and abetting liability, regardless of whether he

had gun in hand. The guilty verdicts on murder and kidnapping were not inconsistent with the

acquittal on the felon-in-possession count.

Even if Cooper could show that the verdicts were inconsistent, that inconsistency alone

would not permit habeas relief under § 2254(d) because he does not show that the state court's

rejection of his claim was contrary to or an unreasonable application of any clearly established

law from the U.S. Supreme Court. Indeed, the weight of Supreme Court authority is against

Cooper, as the Supreme Court has determined that inconsistent verdicts do not make a trial

fundamentally unfair. See Standefer v. United States, 447 U.S. 10, 25-26 (1980); cf. Harris v.

Rivera, 454 U.S. 339, 344 (1981) (assuming arguendo that bench trial verdicts were facially

inconsistent, “there is no federal requirement that a state trial judge explain his reasons for

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Cross’ testimony from the first trial, plus his taped statements that had been admitted at

the first trial as "part of that testimony," were admitted. RT 792-793. Defense counsel stated

that the defense thought "it's crucial that the jury hear those prior taped statements, so we are

definitely in agreement they should come in," RT 792. That is, the defense was interested in the

impeachment value of those taped statements. RT 792.

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acquitting a defendant in a state criminal trial; even if the acquittal rests on an improper ground,

that error would not create a constitutional defect in a guilty verdict that is supported by

sufficient evidence and is the product of a fair trial”). Inconsistent verdicts may stand when one

of the verdicts is a conviction and the other an acquittal. Ferrizz v. Giurbino, 432 F.3d 990, 992

(9th Cir. 2005) (citing United States v. Powell, 469 U.S. 57, 65 (1984); Dunn v. United States,

284 U.S. 390, 393 (1932)). The rationale for this rule is that the acquittal may be an exercise of

leniency by the jury not necessarily grounded in its view of the evidence. Id. at 993. Cooper

is not entitled to the writ on this claim.

E. Lack Of Second Preliminary Hearing (Claim 5)

Cooper contends that he was denied his right to due process when the superior court

refused his request for a second preliminary hearing after this court granted his petition for writ

of habeas corpus. The trial judge stated that Cooper already had his preliminary hearing nine

years earlier. 

Cooper identifies no federal case in support of his claimed right to a second preliminary

hearing. Indeed, the case law is to the contrary: "[T]he preliminary hearing itself is not

constitutionally mandated." Peterson v. State of California, No. 09-15633, slip op. 7033, 7038

(9th Cir. May 17, 2010). There being no federal constitutional right to one preliminary hearing,

it follows that there is no federal constitutional right to two preliminary hearings. 

F. Admission of Prior Testimony (Claim 3)

Cooper contends that his rights to due process, equal protection and confront witnesses

were denied when the trial court admitted the testimony from co-perpetrator Fred Cross from the

first trial after Cross refused to testify at the second trial.7

 Cooper argues that "the prior

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8

At that time, defense counsel did not object to the finding that Cross was unavailable as a

witness. RT 789. When the trial resumed after the weekend break, defense counsel relayed Cooper's

objection that the witness was not physically unavailable. RT 798. The court explained to Cooper that

the court had not found the witness to be physically unavailable, but instead to be "legally unavailable"

in that he refused to testify and that holding him in contempt would be a futile act for a witness like

Cross who was already in custody for life. RT 798-799. 

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testimony must be weighed to find whether it has the particularized guarantees of trustworthiness

and reliability," Petition, p. 23, and that Cross' testimony could not have been found to be

trustworthy and reliable because it had been impeached. 

The Confrontation Clause applies to all out-of-court testimonial statements offered for

the truth of the matter asserted, i.e., "testimonial hearsay." See Crawford v. Washington, 541

U.S. 36, 51 (2004). Testimony given at an earlier trial is testimonial hearsay and is barred under

the Confrontation Clause unless (1) the witness is unavailable, and (2) the defendant had a prior

opportunity to cross-examine the witness. Id. at 59. 

The admission of Cross' prior testimony did not violate Cooper's Confrontation Clause

rights. Cross was unavailable. He was brought to the courtroom and refused to testify even

when granted use immunity. RT 781-785. Cross was adamant that he would not testify and did

not want to aid the prosecutor to obtain a conviction of Cooper. RT 786. He was serving a life

sentence for another conviction. RT 787-88. Based on his persistent refusal to testify even

when immunized plus the fact that he was already in prison for life, the court believed there was

no meaningful way to compel him to testify and made a finding that the witness was unavailable.

RT 789. The trial court reasonably determined that Cross was unavailable.8

The second requirement under Crawford also was met: Cooper had a prior opportunity

to cross-examine Cross at the first trial. Cooper urges that the requirement that the defense have

had an opportunity to cross-examine the witness refers to the "specific lawyer representing his

client," Petition, p. 23, and that this criteria for the admission of prior testimony was not met

because he was represented by a different attorney at the first trial. He offers no legal authority

for this unusual idea that essentially would allow a defendant to create a Confrontation Clause

problem by switching attorneys whenever there was testimonial hearsay he wanted to keep out

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of trial. The fact that Cooper was represented by a different lawyer at the second trial is legally

irrelevant to the analysis. The defense had an opportunity to cross-examine Cross at the first

trial and did in fact extensively cross-examine him, including examination about the taped

statements to police. See Resp. Exh. J at 2207-2506. 

G. Evidentiary Rulings (Claim 6)

Cooper next complains that several rulings by the court denied him his rights to due

process and equal protection. 

A district court may not collaterally review a state court evidentiary ruling unless it

violates federal law, either by violating a specific constitutional provision or by infringing upon

the due process right to a fair trial. Pulley v. Harris, 465 U.S. 37, 41 (1984). Federal habeas

relief is not available for state law errors because the writ only can be issued if there was a

violation of the Constitution, laws or treaties of the United States. See Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). Exclusion of evidence does not contravene due process unless “'it

offends some principle of justice so rooted in the traditions and conscience of our people as to

be ranked as fundamental.'” Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (citation omitted).

The admission of evidence is not subject to federal habeas review unless a specific constitutional

guarantee is violated or the error is of such magnitude that the result is a denial of the

fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031

(9th Cir. 1999); but cf. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (Supreme

Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial

evidence constitutes a due process violation sufficient to warrant issuance of the writ”).

Furthermore, habeas relief for an erroneous evidentiary ruling of constitutional dimension would

only be available if the error had a “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 

First, Cooper contends that the trial judge made several rulings that were mistaken on the

law of the case doctrine. As explained in section A above and in the California Court of

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Appeal's decision discussing state law on the law of the case doctrine, Cooper's view of the

applicability of the doctrine is incorrect. The trial court did not err, let alone commit a due

process violation, in refusing to adopt Cooper's view of the law of the case doctrine.

Second, Cooper contends that the trial court erred in allowing Sergeant Krupp to testify

to hearsay. The hearsay elicited from Krupp was inconsequential, i.e., that he had learned from

witnesses the number of men involved in the abduction. RT 605. Several other witnesses

testified that there were three men, so the hearsay statement that some people at the scene told

Krupp how many men (and not even the number they told him) certainly did not make the trial

fundamentally unfair.

Third, Cooper urges that the trial court erred in allowing the district attorney to ask

leading questions of Walton. Cooper has not shown that any of the allegedly leading questions

asked of Walton so infected the trial as to make the resulting conviction a denial of due process.

See RT 263-264 (sustained objection to question of whether people were "saying things about

Coco being put in the trunk of the car?"); RT 271 (after Walton testified that Cooper phoned her

from jail and told her not to go to court, court overruled objections when prosecutor asked , "did

he offer you anything if you didn't go to court?" and "did he make any comments to you about

something what would happen to you if you would go to court?"); RT 274 (sustained objection

to question whether Walton hid from the D.A.'s office at the time of the first trial); RT 338

(overruled objection to question "are you telling us, now, that you think you were mistaken?"

after witness said she was not lying). Leading questions frequently are simply re-phrased to

avoid the leading question problem. There is no indication here that any of the information

elicited was vital and hinged on the prosecutor asking a leading question to obtain the testimony.

Fourth, Cooper argues that the trial court failed to instruct the jury that witnesses Walton,

Hodges and Cross "were impeached and suffered from moral turpitude." Petition, p. 30. Cooper

has not shown that he was legally entitled to such an instruction. The court did properly instruct

the jury as to witness credibility. See CT 811-812. And evidence was presented that allowed

the jury to find the witnesses' credibility impeached, e.g., Walton testified to her criminal

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conviction, the parties stipulated that Cross had suffered convictions, and the witnesses had

given contradictory statements. The jury had been instructed on the law, and it was up to the

jury to apply the instructions to the evidence. 

Fifth, Cooper contends that the trial judge erred in ruling Cross unavailable. As explained

in section F above, the ruling was not erroneous. 

Sixth, Cooper urges that the trial judge erred in allowing Kingdom to refuse to testify in

front of the jury but allowed Cross to refuse to testify outside the presence of the jury. He does

not show how this difference made the trial fundamentally unfair. Once it is determined that a

witness will refuse to testify if called, the defendant cannot call the witness for the sole purpose

of compelling the witness to invoke his Fifth Amendment privilege in front of the jury. See

United States v. Licavoli, 604 F.2d 613, 624 (9th Cir. 1979).

Seventh, Cooper claims that the trial judge erred in allowing the prior trial testimony of

witnesses Love and Mohammed to be read because they could not remember details of their

prior testimony. Cooper has not shown how this practice made his trial fundamentally unfair.

Seventh, Cooper contends that the trial judge denied his Wheeler motion, but fails to

show any place in the record where such a motion was made, let alone erroneously denied. 

There was a defense motion challenging the venire of 160 prospective jurors as not being a fair

cross-section, but that was not a Wheeler motion. See People v. Wheeler, 22 Cal. 3d 258, 280

(1978) (party who believes his opponent is using his peremptory challenges to strike jurors on

grounds of group bias alone may raise the point by way of a timely motion). As to the motion

that was made, the court found there was no systematic exclusion of African Americans. Sixteen

of the 160 prospective jurors had identified themselves as African American, only 12 African

Americans returned following challenges for cause, and apparently three did not show up for

further proceedings. The trial court ruled that there was no basis for dismissing the remaining

panel because there was no under- representation due to systematic exclusion of the group.

Resp. Exh. G, RT 191-192. Cooper has not shown any error in the trial court's determination

that under-representation was not due to systematic exclusion of African Americans in the jury

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Cooper states that the trial judge conceded he had erred. This court reads the trial judge's

statement that, "basically, I messed up yesterday," RT 147, to be a concession that he had erred in not

getting the parties' input on the instruction, as he had earlier indicated he would consult them before

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selection process. Thus, a challenge to the court's ruling on the motion fails because systematic

exclusion of the group is one of the required elements to establish a violation of the defendant's

Sixth Amendment right to have a jury drawn from a fair cross-section of the community.

See Duren v. Missouri, 439 U.S. 357, 364 (1979); see also Randolph v. California, 380 F.3d

1133, 1141 (9th Cir. 2004) (disproportionate exclusion "need not be intentional to be

unconstitutional, but it must be systematic"). 

Eighth, Cooper contends that the judge denied defense objections in a "very abrupt and

curt way" after a contentious hearing on October 25, 2004 about the law of the case doctrine.

Cooper has not shown any erroneous ruling by the court or any way in which the alleged

negative attitude of the judge that day denied him a fundamentally fair trial. 

H. References To Cooper's Custodial Status (Claim 16)

Cooper contends that the trial court's comment that he was in custody violated his rights

to due process and equal protection. He argues that the disclosure of this information was very

harmful in light of the fact that he went to great lengths to conceal his custodial status from the

jury. He also states that the trial judge admitted that he erred in disclosing to the jury that

Cooper was in custody. 

During voir dire, and in the course of informing the jury pool of various things it was not

to consider in its decision-making, the judge informed prospective jurors that Cooper was in

custody and the fact that he was in custody was irrelevant to his guilt or innocence. The judge

explained that Cooper being in custody meant only that he was "unable to make bail," and that

his custodial status was "totally irrelevant to the question of guilt" and was not to be considered

as evidence of guilt. RT 141-142. The next day, defense counsel protested that the instruction

was prejudicial. The judge acknowledged that he had given the instruction without allowing the

parties to voice their views whether he should give such an instruction. RT 147.9

 Nonetheless,

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giving the instruction. The trial judge was not conceding that the substance of his comment was

erroneous. 

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the judge was convinced that his comments caused no harm because he was "absolutely

convinced that they would know by the end of the trial that he is in custody, and they always

figure that out. You just can't hide it. At this afforded a way to tell them that they cannot

consider that." RT 148. 

The state court of appeal rejected Cooper's challenge to the instruction. The court stated

that the test was whether there was a reasonable likelihood that the jury understood the

instruction in a manner that violated Cooper's rights. Cal. Ct. App. Opinion, p. 39. The court

agreed with the trial judge's view that the reference to Cooper's "custody was unnecessary and

best omitted from the charge to the jury, but it also did not result in prejudicial error. The

custody instruction was not comparable to imposition of a requirement upon the defendant that

he attend trial wearing jail clothing, which has been found to '"undercut the presumption of

innocence by creating an unacceptable risk that the jury will impermissibly consider this

factor."'" Id. at 40. This was true especially in light of the explicit directive that the jury was

not to consider the information in this way. The appellate court considered the custody

instruction to be similar to the pattern instruction CALJIC 1.00, which instructs the jury not to

consider evidence that a defendant was arrested, charged with a crime, or brought to trial to be

evidence of guilt. These instructions help to direct the jury to determine guilt based on the

evidence presented at trial instead of the various facts related to the prosecution itself. The state

appellate court presumed that the jurors followed the court's admonition and did not consider

Cooper's custody as evidence of guilt. This presumption was strengthened by the fact that the

prosecutor never tried to use Cooper's custody as proof of guilt. The appellate court ultimately

"conclude[d] that the custody instruction did not mislead the jurors from their proper deliberative

course or otherwise constitute prejudicial error." Cal. Ct. App. Opinion, p. 41. 

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that

the ailing instruction by itself so infected the entire trial that the resulting conviction violates due

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process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). The instruction was not an erroneous

statement of the law: the jury is not supposed to consider a defendant's custodial status as

evidence of guilt. The determination that the message was a correct statement of law does not

end the matter because Cooper's grievance is not so much the whole of the instruction but more

the part of it that let the jury know he was in custody. 

To implement the presumption of innocence to which a defendant is entitled, "courts must

be alert to factors that may undermine the fairness of the factfinding process." Estelle v.

Williams, 425 U.S. 501, 503 (1976). In Estelle v. Williams, the Court held that it violates due

process to compel a defendant to stand trial while dressed in identifiable jail clothes.

Compelling a defendant to wear jail clothes at trial furthers no essential state policy (unlike the

restraints permitted in another case) and may undermine the presumption of innocence in the

eyes of the jurors. See id. at 504-05 ("the constant reminder of the accused's condition implicit

in such distinctive, identifiable attire may affect a juror's judgment"). In another case

considering extraneous matters which might influence the jury, Holbrook v. Flynn, 475 U.S. 560

(1986), the Court held that a criminal defendant's right to a fair trial was not violated when, at

his trial with five co-defendants, the usual security force was supplemented by four uniformed

officers sitting in the first row of the gallery. The noticeable deployment of security personnel

is not the "sort of inherently prejudicial practice that, like shackling, should be permitted only

where justified by an essential state interest specific to each trial." Id. at 568-69. The extra

police presence does not have the same effect as shackling or prison clothing; while the latter

"are unmistakable indications of the need to separate a defendant from the community at large,

the presence of guards at a defendant's trial need not be interpreted as a sign that he is

particularly dangerous or culpable." Id. at 569. From Holbrook there is this general rule: A

federal habeas court should "look at the scene presented to the jurors and determine whether

what they saw was so inherently prejudicial as to pose an unacceptable threat to the defendant's

right to a fair trial; if the challenged practice is not found inherently prejudicial and if the

defendant fails to show actual prejudice, the inquiry is over." Id. at 572.

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The jurors' receipt of information that Cooper was in custody – at the same time they were

told not to consider that fact as evidence of guilt – was not so inherently prejudicial as to pose

an unacceptable threat to Cooper's right to a fair trial. See Holbrook, 475 U.S. at 572. The trial

court's approach of identifying the potential problem and specifically instructing the jurors how

to handle it was a reasonable one under the circumstances. In this case, more than others, the

jurors likely would wonder what had preceded the trial for which they were impaneled: the crime

had been committed about nine years earlier and the use of former testimony would have alerted

them that there had been at least one trial before the current one. See, e.g., RT 1006 (among

questions jurors sent to the court during deliberations was a question about the outcome of

Cooper's first trial). Jurors likely would have wondered whether defendant had been in prison.

It was not unreasonable for the court to address the issue head-on and tell the jurors to set aside

Cooper's custodial status in their deliberations. See generally Holbrook, 475 U.S. at 567 ("jurors

are quite aware that the defendant appearing before them did not arrive there by choice or

happenstance"). Unlike the jail clothing in Estelle v. Williams, this one comment before the

jury was selected was not a "constant reminder" that Cooper was in custody. And unlike the

situation where a defendant is visibly in shackles, the comment that Cooper was in custody did

not send the signal that he was especially dangerous. Rather, as the trial court explained, his

custody meant only that he could not make bail and was not to be considered as evidence of

guilt. (Actually, no one would have been able to make bail, as the defendant was held without

bail.) There is no reason to depart from the presumption that jurors have followed the court's

instructions and set aside consideration of Cooper's custodial status during their deliberations.

 See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985); Richardson v. Marsh, 481 U.S. 200, 206

(1987) (referring to "the almost invariable assumption of the law that jurors follow their

instructions"). Cooper is not entitled to the writ on this claim. 

I. Comments On Accomplice Testimony (Claim 17) 

Cooper asserts that the trial judge's comments to the jury about accomplice testimony

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violated his rights to equal protection and due process because they "exceeded what is

permissible under the 6th and 14th amendments." Petition, p. 64. He argues that, "because trial

judge was not scrupulously fair his comment came through clearly as another prosecutors

closing argument." Id. at 65 (errors in source). 

After several days of deliberations, the jury sent a note that asked the court to "talk about

how to treat accomplice testimony." RT 1010. The court first asked the jurors to clarify what

exactly they wanted to know, but the jurors did not narrow the inquiry. The court then

commented at length on accomplice testimony. The court repeated several pattern instructions

and also spoke extemporaneously about accomplice testimony. The court explained that Fred

Cross was an accomplice as a matter of law, that the jury had to decide whether Goodie Walton

was an accomplice and that the defense had the burden to prove she was an accomplice by a

preponderance of the evidence. RT 1018-1019. The court next addressed the definition of an

accomplice and the corroboration of accomplice testimony. The court explained that the jury

was to disregard testimony of an accomplice who was not corroborated but that it could consider

the testimony of an accomplice (such as Fred Cross) if the jurors decided that there was other

independent evidence they believed that tended to connect Cooper with the commission of these

crimes. 

The court then advised the jury that if Walton was found to be an accomplice, her

testimony could not corroborate Cross unless it was in turn corroborated by another,

independent source; "[y]ou cannot corroborate one accomplice with another, so you have

to look elsewhere." But if the jury found that Walton was not an accomplice, her

testimony could be used to corroborate Cross – specifically, for example, his testimony

that defendant was "one of the three people" in the blue Oldsmobile. The court also

explained to the jury that the testimony of Hodges, who was not alleged to be an

accomplice, could also corroborate both Cross and Walton. Finally, the court suggested

to the jury to "basically go through step-by-step with each witness" or "group of

evidence" to determine if it was corroborated, and if so "consider it in its entirety."

Cal. Ct. App. Opinion, p. 42. After a defense objection, the judge instructed the jury that

nothing he had just stated was intended to suggest that corroboration existed and that nothing

he had just stated was intended to express his view of the evidence. RT 1035. 

The California Court of Appeal explained that judicial comment on the evidence is legally

permissible but, to avoid invading the jury's province, the comment "must be accurate,

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temperate, nonargumentative, and scrupulously fair." Cal. Ct. App. Opinion, p. 44. Here, it was.

We find that the court's explanation of accomplice testimony did not result in a

misstatement of the law or constitute a violation of the trial court's obligation to comment

fairly and impartially upon the evidence. More importantly, we do not think the jury

interpreted the court's explanation, when read in its entirety, as any form of endorsement

of the credibility of any of the witnesses or the corroboration of any particular testimony.

As we read the entirety of the court's response to the jury, unfair comment upon the

evidence was avoided. The court did not advise the jurors that a particular witness's

testimony had been corroborated or was worthy of belief. . . . Rather, the court merely

identified the witnesses who may be accomplices – Cross, as a matter of law, and Walton

if so found by the jury – and stated the requirements for corroboration of those witnesses

before consideration of their testimony. Merely referring to Walton and Hodges as

possible corroborating witnesses was neither partial nor misleading, particularly where

the court carefully avoided any evaluation of their testimony and specifically advised the

jury that no opinion had been expressed "that corroboration exists in any particular

witness's testimony or in any particular evidence." The court properly advised the jury

upon the standards for consideration of evidence of corroboration, but left to the jury the

task of determining the issue. . . . The court did not distort the record, withdraw material

evidence from the jury's consideration, expressly or impliedly direct a verdict, or

otherwise usurp the jury's ultimate factfinding power. . . . Moreover, the court's comments

were temperate, and neither exceeded the bounds of fair and impartial judicial comment

nor suggested the manner in which the jury should consider the evidence.

Cal. Ct. App. Opinion, p. 45. Not only were the comments not impermissible, the trial court had

taken the additional precaution of instructing the jury that his comments were not meant to

suggest what facts the jury should find nor to suggest his personal view of the evidence. Id. The

appellate court saw no reason not to assume that the jurors properly followed the instructions

they were given that it was the jury’s duty to determine whether accomplice testimony was

adequately corroborated. Id. 

A criminal defendant is "entitled to the uncoerced verdict" of the jury. Lowenfield v.

Phelps, 484 U.S. 231, 241 (1988). An "instruction is unconstitutionally coercive if it denies a

defendant the due process right to a trial by a fair and impartial jury." DeWeaver v. Runnels,

556 F.3d 995, 1007 (9th Cir. 2009) (no habeas relief under § 2254 because state appellate court's

decision was consistent with Lowenfield in rejecting challenge to jury instruction about

consideration of evidence that provided a hypothetical example that the state court found was

prosecutorially slanted (because it only presented a hypothetical of a missing piece of cake in

which the suspect was guilty) but did not misstate the law and did not deprive defendant of his

right to a fair trial). The trial judge "'must be ever mindful of the sensitive role [the court] plays

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in a jury trial and avoid even the appearance of advocacy or partiality.'" Stivers v. Pierce, 71

F.3d 732, 741 (9th Cir. 1995). A trial judge may comment on the evidence so long as he makes

it clear that it is the jurors' duty to determine the facts. See Rodriguez v. Marshall, 125 F.3d 739,

749 (9th Cir. 1997), overruled on other grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir.

2002). He may call to the jury's attention specific evidence "when he believes it will assist the

jury" provided that he does not distort the evidence, add to it or present it in a one-sided fashion.

Id. The question is whether the state judge's behavior "rendered the trial so fundamentally

unfair as to violate federal due process under the United States Constitution." Duckett v.

Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (citations omitted). 

This court finds no merit in Cooper's argument that the trial judge overstepped the bounds

of permissible comment on the evidence. Particularly telling is Cooper's failure to identify any

misstatement of the law or any genuine suggestion of the court's view of the evidence. The trial

judge did identify three particular witnesses by name, but the focus on those witnesses was

entirely reasonable under the circumstances because one (i.e., Fred Cross) was an accomplice

as a matter of law, the second (i.e., Goodie Walton) was argued by the defense to be an

accomplice, and the third (i.e., Zanetta Hodges) gave testimony that was closest to Walton's as

they were in the car together during the abduction. The comments were temperate and did not

intrude on the jury's province as factfinder. Cooper faults the trial judge for, among other things,

not pointing out a view of the accomplice evidence that was in his favor. However, that would

have been non-responsive to the jury's request for help in handling this particular type of

evidence, not in summarizing the substance of any particular witness' testimony. The state

appellate court's rejection of Cooper's claim was not contrary to or an unreasonable application

of clearly established federal law as set out by the U.S. Supreme Court. 

J. Inspector Wright's Identification Testimony (Claim 8)

Douglas Wright testified for the prosecution about what he saw and heard on September

3, 1995. At the time, Wright was a retired policeman who worked as an inspector for the District

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Attorney’s office. He was driving through Oakland, thought he heard two gunshots, and went

to the corner of 12th and Market. There, he saw a man standing next to a red Corvette, then the

man quickly got into the Corvette and then the Corvette sped away. Wright described the man

as Black, about 5'11" tall, in his mid-20s, and weighing about 170-180 pounds. RT 463. Wright

was unable to identify the particular man next to the Corvette, but did testify that he had

previously testified that Cooper’s size and build were consistent with that of the man Wright saw

by the Corvette. RT 464. At the second trial, he did not have an independent recollection of the

man; his description was based on his notes prepared the day after the abduction and his earlier

testimony. RT 497. At the second trial (as at the first trial), Wright was unable to identify the

particular man at the Corvette and could only say that Cooper "was consistent in size and build"

with the person he saw at the Corvette. RT 464. 

Cooper contends that he was denied due process, equal protection and a fair trial when

Wright was allowed to testify that Cooper was not inconsistent with the person he saw at the

crime scene. Cooper argues that the evidence was not probative of anything and therefore

should not have been admitted. He argues further that the testimony was “very suggestive”

because Cooper was the only Black male in the courtroom when Wright testified and because

Wright was an ex-Oakland police officer. Petition, p. 39. He further suggests that Wright’s

testimony was unreliable because the second trial took place almost ten years after the first one.

(The court's analysis of this claim very similar to its analysis of the claim when Cooper raised

it with regard to Wright's testimony at his first trial because the law has not changed and only

a few facts have changed.) 

"A conviction which rests on a mistaken identification is a gross miscarriage of justice."

Stovall v. Denno, 388 U.S. 293, 297 (1967). Procedures by which the defendant is identified

as the perpetrator therefore must be examined to assess whether they are unduly suggestive. "It

is the likelihood of misidentification which violates a defendant's right to due process." Neil v.

Biggers, 409 U.S. 188, 198 (1972). Due process protects against the admission of evidence

deriving from suggestive identification procedures. See id. at 196; cf. Manson v. Brathwaite,

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432 U.S. 98, 106 n.9 (1977) (standards are not different for pretrial and in-trial identifications).

Unnecessarily suggestive identification procedures alone do not require exclusion of in-court

identification testimony, however; reliability is the linchpin in determining the admissibility of

identification testimony. See id. at 114. In determining whether in-court identification

testimony is sufficiently reliable, courts consider five factors: (1) the witness' opportunity to

view the defendant at the time of the incident; (2) the witness' degree of attention; (3) the

accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness

at the time of the identification procedure; and (5) the length of time between the incident and

the identification. See id. at 114; Neil, 409 U.S. at 199-200.

To obtain habeas relief, Cooper must show that the in-court identification was

unnecessarily suggestive and not sufficiently reliable. An in-court identification of a defendant

who looks different from everyone else around him and is clearly the person on trial may be

suggestive. See United States v. Rogers, 126 F.3d 655 (5th Cir. 1997) ("it is obviously

suggestive to ask a witness to identify a perpetrator in the courtroom when it is clear who is the

defendant"). Asking Wright if he had previously identified Cooper was suggestive if Cooper

looked different from those around him -- a fact that this court cannot determine from the trial

record but which Cooper states was the situation -- although for the reasons mentioned later,

Wright's "identification" was so generalized that it was of little value. In any event,

suggestiveness alone is not enough. Cooper has not shown that the identification testimony was

unreliable. Consideration of the factors identified in Manson regarding the reliability of the

identification leads to the conclusion that the evidence was not unreliable. First, Wright had just

a fleeting opportunity to observe the man as Wright drove by him, but Wright also had seen the

man standing next to the car where his general physique would have been visible. Second,

Wright was likely more attentive than an average citizen because he was a retired police officer

alerted by gunshots. Cf. Manson, 432 U.S. at 108 (trained police officer who realized he would

have to find and arrest the person with whom he was dealing was paying attention to the identity

of the person). Wright's attention had been drawn to the scene because he heard what sounded

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like two gunshots; he scanned the scene to try to figure out what was going on. This was not a

situation where a person observed what appeared to be neutral facts but later turned out to be

relevant to a criminal act. When Wright heard the gunshots in the urban locale, he doubtless was

thinking it was a crime scene. And this was not a situation where the witness was the distressed

and distracted victim of a crime. Third, Wright's prior descriptions had been general but so was

his trial testimony. Fourth, the level of certainty demonstrated by Wright was adequate at trial.

As to both the third and fourth points, the facts cut against Cooper because Wright's description

was rather general, but so was his trial testimony. He did not actually identify Cooper as the

man who drove the Corvette, but only that Cooper had characteristics consistent with those of

that man. The testimony was far less damaging to the defense than if Wright had said Cooper

actually was the man. Fifth, only about three months had lapsed between the observation of the

witness and the identification at the first trial. The "identification" at the second trial was not

an independent identification but only a confirmation that he had made the identification at the

first trial. Three months is not a long time in light of the generality of the description and the

identification testimony given. It is far easier to believe that a witness could keep in his mind

for three months an image of the general type of person he saw rather than the exact person he

saw. Cooper's argument that the ten year gap between the crime and the second trial made the

identification unreliable is unpersuasive because, as noted above, Wright specifically stated he

had no independent recollection and was working from his notes made one day after the event

and his testimony given in 1995. A ten year gap between crime and identification of the

perpetrator would be cause for concern if that identification was the only identification and was

purportedly based on an independent recollection of a crime, but those are not Cooper's facts.

A person's ability to read and repeat old reports and old testimony would not dissipate with the

passage of time. Considering the various factors together, this court finds that the in-court

identification was sufficiently reliable.

The court hesitates to even call Wright's testimony an identification because, unlike the

cases on due process requirements of identification testimony, Wright's "identification" was so

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10Though weak, the evidence was relevant in that it had some tendency in reason to prove

Cooper's presence at the kidnapping scene, as the California court of appeal found. Because the

evidence had some relevance to an issue in dispute, it was properly admitted.

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very general. Wright did not say that Cooper was the man, but only that Cooper's height, weight

and appearance were consistent with those of the man he had seen at the crime scene. RT 464.

Bearing in mind that the body of law about identification testimony is aimed at avoiding

mistaken identification, one can say with confidence that there was no likelihood of mistaken

identification by Wright. The vice of the admission of Wright's testimony was its weakness,

rather than that it may have been mistaken: one can reasonably guess that hundreds or thousands

of men in the Bay Area would have an appearance consistent with the description of a Black

male in his mid-20s, about 5'11" tall and about 170-180 pounds.10 Defense counsel made that

point on cross-examination. RT 480. 

The identification was weak and quite limited in that the witness only said Cooper's

appearance was consistent with that of the man observed earlier. The defense obtained

testimony that established the witness' limited opportunity to observe, the commonness of

defendant's size, and the absence of a gun in the man's hands. Cooper's right to due process was

not violated by the admission of Wright's testimony that Cooper's appearance was consistent

with that of the man he saw driving the red Corvette. Cooper is not entitled to the writ on this

claim.

K. Prosecutorial Misconduct Claim (Claim 7)

Cooper contends that the prosecutor engaged in misconduct at his trial in several different

ways. 

The appropriate standard of review for a prosecutorial misconduct claim in a federal

habeas corpus action is the narrow one of due process and not the broad exercise of supervisory

power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's due process rights

are violated when a prosecutor's comments render a trial fundamentally unfair. See id.; Smith

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v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). 

First, Cooper contends that the prosecutor "knowingly presented false evidence to jurors

when he introduced co-defendant Cross['] impeached prior testimony." Petition, p. 36. The

presentation of evidence that had been impeached in some respects does not amount to

prosecutorial misconduct. The prior testimony of Cross that was read to the jury included

extensive cross-examination of Cross. Cross has not shown that the introduction of Cross' prior

testimony made his trial fundamentally unfair.

Second, Cooper argues that the prosecutor "knowingly elicited hearsay from Sergeant

Krupp" and "asked leading questions of Walton." Petition, p. 36. Neither of these activities

made the trial fundamentally unfair. During the testimony of Krupp and Walton, the court

sustained some objections and overruled others. Those objections that were sustained resulted

in the evidence not being before the jury. As to those instances where the objections were

overruled, Cooper has not shown how any of them so infected the trial as to make the resulting

conviction a denial of due process. The hearsay elicited from Krupp was inconsequential, i.e.,

that he had learned from witnesses the number of men involved in the abduction, RT 605.

Several other hearsay objections that were overruled were properly overruled because the

evidence was not hearsay: testimony that K.K. Parker and his girlfriend told Krupp to talk to a

woman named Goodie Walton was not offered for the truth of the matter but instead to explain

Krupp's later actions, RT 607, 615; and testimony that Krupp was looking for the red Corvette

when he went to East Oakland and that he was looking for Goodie Walton on the evening of the

abduction was not based on a statement by an out of court declarant, RT 612, RT 619. Similarly,

Cooper has not shown that any of the allegedly leading questions asked of Walton so infected

the trial as to make the resulting conviction a denial of due process. See RT 263-264, 271, 274,

338. Leading questions frequently can be rephrased to avoid the leading question problem.

There is no indication here that any of the information elicited was vital and hinged on the

prosecutor asking a leading question to obtain the testimony from Walton. 

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Third, Cooper complains that the prosecutor improperly commented in closing argument

"that jurors had not heard from petitioner as to his whereabouts, and told jurors that if petitioner

had not done the crime, he would have testify (sic) to that fact." Petition, p. 28. The prosecutor

addressed the defense that Cooper was not present at the scene of the crime, arguing: "Where's

the evidence that he was somewhere else? There's no evidence in this trial that he was

somewhere else." RT 940. The court overruled the defense objection that this misstated the

defendant's obligation at trial. The prosecutor did not commit Griffin error, as his comments

did not ask the jury to draw an adverse inference from Cooper's silence or to treat Cooper's

silence as substantive evidence of guilt. See Griffin v. California, 380 U.S. 609, 615 (1965).

His comment was a permissible comment on the defense's failure to present exculpatory

evidence rather than an impermissible comment on Cooper's failure to testify. See United States

v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995). In addition to the comment not being Griffin

error, it was not otherwise fundamentally unfair as it was a reasonable comment on the evidence

at trial, rather than a misstatement of the burden of proof. The defense was free to and did argue

that the defendant had no burden to prove Cooper was elsewhere at the time of the crime. See

RT 949. Further dissipating any impact of the prosecutor's comment was the fact that the jury

was properly instructed on the burden of proof. There was no due process violation in the

closing argument.

Fourth, Cooper contends that, during jury selection, the prosecutor "called up a black

[prospective] juror who was 50 positions down the list," then told defense counsel that "he would

not seat another black juror." Petition, p. 36. Cooper has not identified any place in the record

where this alleged event occurred, or that the court allowed the prosecutor to select the order in

which jurors were voir dired. This unsupported speculation does not warrant habeas relief. 

Fifth, Cooper contends that the prosecutor told the jury that Cooper had been in prison

twice and that Cooper had told Cross about his prior bad acts. This part of the prosecutor's

closing argument was fair comment on the evidence at trial, as Cross' testimony had included

such information. In fact, the parties had even stipulated that Cooper had been in custody for

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almost a year – a fact which was helpful to the defense efforts to undermine Walton's testimony

that she saw Cooper frequently during the many months before the crime. 

Cooper has not shown that there was prosecutorial misconduct at his trial. Bearing in

mind that the prosecutor's conduct must render the trial "fundamentally unfair" for federal habeas

relief to be granted, see Darden, 477 U.S. at 181, it can be said with confidence that Cooper has

failed to meet that standard. 

L. Assistance of Trial Counsel (Claim 9)

The Sixth Amendment's right to counsel guarantees not only assistance, but effective

assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark

for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied upon as having produced a

just result. Id. In order to prevail on a Sixth Amendment ineffectiveness of counsel claim,

Cooper must establish two things. First, he must demonstrate that counsel's performance was

deficient and fell below an "objective standard of reasonableness" under prevailing professional

norms. Id. at 687-88. Second, he must establish that he was prejudiced by counsel's deficient

performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at 694. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. Id. The relevant

inquiry under Strickland is not what defense counsel could have done, but rather whether his

choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). A

lawyer need not file a motion or make an objection that he knows to be meritless on the facts and

the law. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999); Rupe v. Wood, 93 F.3d 1434,

1445 (9th Cir. 1996) (failure to take futile action is not deficient performance).

Cooper contends that he received ineffective assistance of trial counsel. He identifies

numerous problems with counsel's performance, which this court puts into groups for

convenience. Although he presented a lengthy list of complaints, he failed to provide any

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citations to the record for almost all of his claims, and thus left it to respondent and this court

to attempt to find that which he has not bothered to identify. 

He contends that counsel failed to present his alibi defense. The record shows that

counsel had considered and chosen not to present the alibi defense because she thought it was

a bad defense that could actually harm him. At a Marsden hearing several months before the

trial, counsel explained that the alibi defense that Cooper thought was “uncontroverted” was in

fact "terrible” in that it “sounded like a lie” and would not help him. 7/6/04 RT 14. Counsel

explained that the two alibi witnesses were interested parties (i.e., Cooper’s wife (who didn’t

have a receipt to back up her alibi story of a shopping trip) and Carl Anderson (who was with

Cooper when he was arrested just a few hours after the victim was put in the trunk of the car)).

The Marsden hearing judge agreed, noting that “alibi witnesses are the most suspect witnesses

in a trial,” 7/6/04 RT 18, and could backfire. An alibi defense that fails has the downside

potential to cause jurors to perceive the defendant to be a liar and from that to infer that he is

guilty. Cooper has not demonstrated that counsel's informed decision not to call the alibi

witnesses was deficient performance. And he has not demonstrated that her failure to present

the weak alibi defense resulted in any prejudice. The conclusion that no prejudice resulted is

made especially strong here by the fact that the alibi defense had been presented at the first trial

and failed to persuade that jury.

Cooper complains that counsel put on no defense. Although the defense called no

witnesses, and rested immediately after the prosecution rested its case, it mischaracterizes the

situation to say defense counsel put on no defense. Counsel's rigorous cross-examination of the

prosecution witnesses developed evidence to undermine the prosecution and to support the

defense case. Her chosen defense was that the prosecution had not carried its burden to prove

that Cooper was one of the perpetrators of the kidnapping and murder. She elicited testimony

that some prosecution witnesses were not telling the truth, such as with her lengthy crossexamination of Walton. She also elicited testimony in cross-examination that some prosecution

witnesses had not had a good opportunity to observe, which was especially important in this case

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where identity was the focus. Her closing argument was consistent with the evidence she had

developed during the cross-examination of the prosecution witnesses: some of the witnesses

were not truthful and some of the witnesses who gave testimony linking Cooper to the crimes

had not had an opportunity to adequately observe the actions or the actor. 

Cooper contends that counsel was deficient with respect to Fred Cross's testimony in

numerous ways. He contends that she failed to object to the admission of his prior testimony and

taped statements played to the jury. As explained in section F, the admission of Cross'

statements did not violate the Confrontation Clause. Because the evidence was admissible,

counsel did not engage in deficient performance if she did not make that objection. Cooper also

complains that counsel failed to require Cross to refuse to testify in front of the jury, failed to

object to the court telling the jurors that Cross was unavailable, failed to tell the jurors that Cross

refused to testify even though granted immunity, and failed to object to Cross' statements that

Cooper had engaged in prior bad acts. Cooper has not shown that counsel would have had a

legal basis to urge the court to take any of these actions. He has not established deficient

performance or resulting prejudice from counsel's performance with respect to these items. 

Cooper also contends that counsel was hostile to him. For example, she reacted

negatively when he tried to give input about the law, and used a "dissatisfied voice" when she

commented to him during deliberations that he might be acquitted. Petition, p. 42. The Sixth

Amendment does not guarantee a "meaningful relationship" between an accused and his counsel;

it only guarantees effective representation of counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983).

The record shows that Cooper was a demanding and dissatisfied client from the moment counsel

was appointed. Counsel's apparent irritation with him does not demonstrate that her legal

representation of him was deficient. 

Cooper complains that counsel did not adequately prepare for trial. For example, he

complains that attorney Levy failed to prepare opening or closing statements, even though she

told him she did both. Counsel made an opening statement, but the opening statements were

not transcribed. RT 161. Counsel made a lengthy closing argument, see RT 944-973, in which

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she argued that the prosecution had failed to prove Cooper's guilt. The record would not support

a finding that counsel made that argument without any preparation. Even if counsel had not

written it out fully and in advance of her oral presentation, that does not mean she had not

organized an argument in her head. Further, the closing argument of defense counsel, as here,

frequently is largely responsive to what the prosecutor has argued in his closing argument and

therefore often will not be fully developed until the prosecutor finishes his closing argument. 

Cooper also complains about counsel's presentation on legal matters. He asserts that, in

her motion for acquittal, she "only attacked the 187" and did not mention the kidnapping charge

until "after petitioner begged her to do so." Petition, p. 42. He did not receive an acquittal on

either count, and he has not shown that the failure to obtain an acquittal was due to counsel's

performance. As discussed in section B above, there was sufficient evidence to support the

verdict on both the kidnapping and murder counts. He has not shown deficient performance or

resulting prejudice from counsel not requesting in writing that Cooper be acquitted of

kidnapping. Cooper also argues that counsel failed to inform the jury about this court's

evaluation of witnesses' credibility in the 1995 trial. This court's 2004 order would not have

been admissible evidence, so Cooper cannot show deficient performance or resulting prejudice

from counsel not attempting to introduce evidence of this court's view of the 1995 trial. He also

protests that counsel "had numerous sidebars instead of objecting," Petition, p. 41, but fails to

show any instance where an objection was not made on the record that would have been granted.

Cooper also asserts numerous complaints about counsel's handling of evidence and

conduct of the trial, such as her failures to object to several areas of unfavorable evidence and

opening the door to introduction of other unfavorable evidence. He complains that counsel

failed to object to the prosecutor's leading questions to Walton, but the record shows that counsel

did make objections that the questions were leading at several points – some of which were

sustained and some of which were overruled. He also complains about counsel's crossexamination of sergeant Krupp, such as her statement that "associated [Cooper's] name with" "a

clip filled with .45's bullets that co-defendant Cross' mother gave to police." Petition, p. 41.

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11People v. Marsden, 2 Cal. 3d 118 (1970), requires the California trial court to permit a

criminal defendant requesting substitution of counsel to specify the reasons for his request and

generally to hold a hearing. 

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Even if counsel misstated the evidence, Cooper has failed to show any resulting prejudice. He

also complains that counsel's questioning of sergeant Krupp "about what Walton had seen, which

opened the door for the district attorney to do the same," id., but fails to explain how this

amounted to deficient performance or resulted in any prejudice in light of the fact that Walton

actually testified at trial. He also objects to counsel's failure to object to the references to his

arrest for carjacking, but has not shown that any such failure resulted in any prejudice. 

Having considered the many complaints Cooper has identified with his attorney's

performance, the court concludes that he has failed to show deficient performance and resulting

prejudice on any of them. He is not entitled to the writ on this claim.

M. Motions For Substitute Counsel (Claim 15)

Cooper contends that the denial of his Marsden11 motions against attorney Deborah Levy

violated his rights to due process, equal protection and assistance of counsel. The first motion

was filed and rejected the day Levy was appointed, the second motion was heard on July 6,

2004, and the third motion was heard on September 21, 2004. 

When Levy was appointed, Cooper immediately advised the court that “antagonism” had

developed with counsel, and that counsel expressed that she did not want the case. Levy

explained that, although her relationship with Cooper was not pleasant, she was willing to take

the case within the time constraints for the case in which speedy trial time had not been waived.

The court found no grounds to discharge counsel and denied the Marsden motion. 

The second motion was heard on July 6, 2004. At the hearing, the court allowed Cooper

to explain his reasons for requesting substitution of counsel, allowed Levy to present her views,

allowed Levy to describe her extensive criminal law practice background, and then denied the

motion to substitute counsel. Cooper mentioned numerous concerns, to which counsel

responded. Cooper complained that counsel initially stated that she did not want the case. Levy

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explained that she initially told Cooper that she did not want the case in response to his

comments that she should not take the case, and that he did not want her as counsel. She also

was concerned about the severe time constraints. See 7/6/04 RT 17. She had told the presiding

judge at the time of appointment that she was prepared to accept the appointment, and remained

ready to represent Cooper. Cooper also complained that counsel had reported his “strategy” to

the court in violation of the attorney-client privilege. Levy responded that she had asserted in

court Cooper’s belief that he had to be released in 60 days, which did not violate any

confidentiality or secrets. Cooper complained that counsel’s investigator had not returned to

visit him in jail after one meeting. Levy responded that the investigator’s time was best spent

tracking down witnesses from the 1995 crime. The court saw a reasonable strategy as to witness

interviews and preparation, and noted there were particular concerns about alibi witnesses.

7/6/04 RT 19. Cooper complained that counsel had been fidgety and irritated during a motion

hearing. Levy responded that she had been frustrated with the court's ruling and that she knew

there was no jury present to be affected by her demeanor. Cooper complained that counsel failed

to object to an alleged misquotation of the law by the judge. Levy responded that she had not

allowed that to occur, and explained that Cooper had misunderstood the law which she read and

interpreted differently from him. The Marsden hearing judge explained to Cooper that a judge

(such as the judge at the earlier hearing) cannot be compelled by a defense counsel to take a

particular view of the law. The judge stated that Levy’s position on the law was the better view

of the law. Levy explained that a core concern in her relationship with Cooper from the outset

was that Cooper believed she had to file and do whatever he instructed, and did not understand

that she had control over certain tactical matters. Levy specifically addressed Cooper’s

complaint that she wouldn’t pursue his alibi defense by explaining that the allegedly

“uncontroverted” alibi defense “was terrible,” in that it “sounded like a lie” and would not help

him. 7/6/04 RT 14. The alibi witnesses were interested parties (i.e., Cooper’s wife (who didn’t

have a receipt to back up her story of a shopping trip) and Carl Anderson (who was with Cooper

when he was arrested just a few hours after the victim was put in the trunk of the car)). The

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judge agreed, noting that “alibi witnesses are the most suspect witnesses in a trial,” 7/6/04 RT

18, and could backfire. Levy also explained her reasons for not protesting when, at the bail

hearing in 2004, the prosecutor mentioned Cooper’s in-prison violence – a point the Marsden

judge thought was a non-issue because “nobody was going to let you out on bail with these kind

of charges.” RT 20. Counsel explained that she had read a minimum of 4,000 pages in Cooper’s

case for a trial that had to start within a week due to the speedy trial deadline. Cooper argued

that counsel’s repeated strong disagreements with him on so many points showed that he could

not have confidence in her. The court responded that no other attorney would be able to be

prepared to take his case to trial the following week. RT 17. The judge later explained that,

although there was a speedy trial issue, that was “not a factor on whether or not Ms. Levy gets

removed.” RT 21. When Cooper offered to consider waiving time, the judge told him that

Marsden motion results were not negotiated, and that his decision was not based on the absence

of a time waiver. RT 21. Client and counsel also disagreed about a double jeopardy motion

counsel intended to file, and the court was unpersuaded by Cooper’s statements on the legal

question. The court then denied the Marsden motion, finding that “there has not been any

breakdown” in the attorney-client relationship. 7/6/04 RT 25.

On September 21, 2004, the next Marsden motion was heard. The court allowed Cooper

to explain his reasons for requesting substitution of counsel, allowed Levy to present her views,

and then denied the motion to substitute counsel. This time, Cooper complained that counsel

“blew up” and cussed at him, and that there had been repeated run-ins with counsel from the

outset of the appointment. 9/21/04 RT 4-5. Levy admitted that she recently had become angry

at Cooper because he was arguing with her over his interpretation of the law, but also had

apologized to him for her unprofessional behavior the next time she saw him. Levy told the

court that she and Cooper could work together, that she was ready for trial, and that, “despite Mr.

Cooper’s feelings that we don’t get along,” she was confident that she “could represent him

completely and to the best that any lawyer could.” 9/21/04 RT 9. Cooper reiterated that he felt

that he could not “get anything through to her” and that she had an "attitude.” Id. Levy

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disagreed that she was not listening to Cooper. For example, she explained that she disagreed

with Cooper’s view about the admissibility of Fred Cross’ prior testimony – a legal point on

which counsel was clearly correct in the view of the state courts and this court. Levy agreed

with Cooper's assertion that she had not yet formulated her opening statement. The court denied

the Marsden motion. The court felt that Cooper’s complaints of a lack of trust in, and ability to

get along with, counsel were not sufficient to warrant substitution. 

The California Court of Appeal rejected Cooper’s argument that his Marsden motions

should have been granted. 

Defendant’s primary grievance is that counsel did not proceed with the case in the matter

he requested. His claims fall within the category of disagreement over strategy that does

not compel substitution of counsel. We cannot find fault with counsel’s resolve to retain

control over tactical matters . . . [¶] Nor do we find that the attorney-client relationship

had so deteriorated that substitution of counsel was necessary. . . . Although defendant

asserted the relationship with counsel had declined to the extent that it was

“irreconcilable,” counsel acknowledged the conflict but advised the court that she and

defendant were capable of cooperating to a degree that competent representation would

result. Moreover, defendant did not in any way establish that ineffective representation

was likely to occur.

Cal. Ct. App. Opinion, ¶. 33-34. 

The Sixth Amendment grants criminal defendants who can afford to retain counsel a

qualified right to hire counsel of their choice. See Wheat v. United States, 486 U.S. 153, 159,

164 (1988). A criminal defendant who cannot afford to retain counsel has no right to counsel

of his own choosing. See id. Nor is he entitled to an attorney who likes and feels comfortable

with him. The Sixth Amendment guarantees effective assistance of counsel, not a "meaningful

relationship" between an accused and his counsel. See Morris v. Slappy, 461 U.S. 1, 14 (1983).

The essential aim is "to guarantee an effective advocate for each criminal defendant rather than

to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."

Wheat, 486 U.S. at 159. Nonetheless, to compel a criminal defendant to undergo a trial with the

assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to

deprive the defendant of counsel. Daniels v. Woodford, 428 F.3d 1181, 1197 (9th Cir. 2005).

"[N]ot every conflict or disagreement between the defendant and counsel implicates Sixth

Amendment rights." Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000) (en banc). The

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"ultimate constitutional question" on federal habeas review is whether the state trial court's

denial of the Marsden motion "actually violated [petitioner's] constitutional rights in that the

conflict between [the defendant] and his attorney had become so great that it resulted in a total

lack of communication or other significant impediment that resulted in turn in an attorney-client

relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026.

The superior court conducted adequate inquiries into Cooper's concerns about his

appointed counsel. See Hudson v. Rushen, 686 F.2d 826, 831 (9th Cir. 1982) (state court

conducted adequate hearing when it invited defendant to make a statement and listened to

defendant's reasons for wanting new counsel). The record shows that the trial court made a

thorough inquiry into Cooper’s Marsden motions. The first inquiry was quite short, but that was

reasonable for a motion that was made immediately upon the appointment of counsel. The

second and third inquiries were quite detailed and allowed ample room for Cooper to air his

complaints with counsel and for counsel to respond to them. 

The state appellate court reasonably rejected the argument that there was an irreconcilable

breakdown in the relationship between attorney and client requiring replacement counsel.

Cooper refused to cede to the lawyer's judgment on legal questions and matters of trial strategy,

if he disagreed with it. A client's erroneous view of the law that counsel does not accept does

not provide a sufficient reason to discharge counsel. The client's unwillingness to let the lawyer

make tactical determinations is not a legitimate reason to compel appointment of new counsel.

See Schell v. Witek, 218 F.3d at 1026 & n.8. Cooper's desire to micro-manage his case and to

override his attorney's strategic decisions was evident at the Marsden hearing. 

The state court's determination that counsel was performing adequately and that no

irreconcilable conflict existed was not unreasonable. In light of the information provided at the

hearings, it was not unreasonable for the trial court to think that Cooper’s frustration with

appointed counsel's exercise of her professional judgment would continue with new counsel and

therefore did not warrant new counsel. Bearing in mind that the "purpose of providing

assistance of counsel 'is simply to ensure that criminal defendants receive a fair trial,'" Wheat,

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486 U.S. at 159, this court sees no evidence that purpose went unfulfilled in this case or that a

Sixth Amendment violation occurred. Cooper has not shown that counsel provided ineffective

assistance on any particular matter. And he has not shown that there was an impediment that

resulted in an attorney-client relationship that fell short of that required by the Sixth

Amendment. The California Court of Appeal's rejection of Cooper's claim was neither contrary

to nor an unreasonable application of clearly established federal law as set forth by the U.S.

Supreme Court. Cooper is not entitled to the writ on this claim.

N. Faretta Claim (Claim 14)

Cooper contends that the trial court improperly denied his requests to represent himself.

He argues that his requests were unequivocal and timely and therefore should not have been

denied. 

Cooper's first mention of self-representation was on May 19, 2004, when he asked, "How

do I represent myself?" 5/19/04 RT 12. 

On July 6, 2004, the judge said there had been no time waiver, and he was ready to assign

the case for trial. Cooper responded that he would go to trial with Levy as his attorney "for right

now," but also said he wanted to represent himself. 7/6/04 RT 5. Shortly thereafter, he stated

to his attorney, "I'm going to have to hire a new lawyer, Miss Levy." 7/6/04 RT 6. Two days

later, he agreed to waive time so that his attorney could seek a writ at his request about some of

the rulings made by the court. 7/8/04 RT 1. 

On September 21, 2004, after Cooper's Marsden motion was denied in another courtroom,

the judge indicated that he was ready to send the matter out for trial and noted that Cooper had

told his attorney he wanted to represent himself. When the court questioned Cooper after telling

him he would not receive a continuance, Cooper said he wanted to go to trial and would be ready

for trial if counsel gave him everything that day. The court told Cooper to read the Faretta form

to understand the risks and put the matter over until the next day. The court reiterated that a

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12Here and elsewhere in the transcripts it appears that Cooper thought that the court had no

choice but to grant him a continuance if he waived his speedy trial rights. When the judge reminded

him that "there is a courtroom waiting for you," Cooper responded, "You ain't scaring me. I have a time

waiver on me." 9/21/04 RT 14. When the judge denied his Marsden motion as untimely the next day

because he was not ready to go, Cooper responded: "I have a time waiver anyway. What do you mean?

I have a time waiver in right now." 9/22/04 RT 19. Cooper erred in believing that only the defendant

has an interest in a timely trial. 

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courtroom was available for trial.12

The next day, September 22, 2004, the court noted that Cooper had filled out the Faretta

form. After some discussion about whether Cooper had all the discovery and after counsel noted

that Cooper had most of the file but she needed to redact about 900 pages of police reports, the

court again considered the Faretta matter. Cooper stated that one of the reasons he wanted to

represent himself was to "appeal" the Marsden motion ruling. 9/22/04 RT 17. Cooper stated,

"It wasn't my first choice to want to go pro per. The only reason I wanted to get rid of the lady,

she cussed me out." Id. When the court asked if he was ready to trial, Cooper responded that

he wanted to appeal the Marsden ruling first. 9/22/04 RT 19. Cooper also said he needed his

discovery, and needed the transcript from Kingdom's trial, which he had not started to read. Id.

Cooper agreed that he was not ready to go to trial representing himself that day. The court then

denied the Faretta motion as untimely. Id. Cooper then complained that his "only option is to

get rid of this attorney." 9/22/04 RT 20. The court referred the case to Department 2 for trial,

which prompted defense counsel immediately to request automatic recusal of the judge presiding

in Department 2 under California Code Civil Procedure 170.6. The judge then said he would

find another courtroom available for a trial. 

The next day, September 23, 2004, attorney Levy asked the court to reconsider the Faretta

motion. The judge noted that he had denied Cooper's earlier Faretta motion "as untimely,

because as I pointed out, the matter had been on for jury trial and continued by me, sometimes

by someone else, since September 13th." 9/23/04 RT 23-24. The court also noted that it had

been very difficult to find counsel for the client who did not want to waive time, and that Levy

had made the substantial effort to get ready for trial in a very short time frame. The court

observed that it was not insignificant that both defense counsel and the prosecutor "in short

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order, got ready to try a case, a complicated case and be ready. So everybody was ready to go."

 9/23/04 RT 24. Under the circumstances – i.e., having set a trial date of September 13th, having

both defense counsel and prosecutor ready to go, and having a trial courtroom available – the

court determined that the request for self-representation "which included a request to continue

the matter because he was not ready to represent himself, only desiring to represent himself, was

untimely." Id. The court then noted that the next courtroom for a trial would be available

probably the Wednesday of the following week. The court asked Cooper whether he would be

ready for trial by the next Wednesday. Once he was informed that the unread transcript of the

Kingdom trial was 1500-2000 pages and that there would be about 14 pages of new police

reports, Cooper stated that he did not know if he would be ready, even though defense counsel

had made witness binders with their earlier testimony so it would easy for him to see what

witnesses had said in earlier proceedings. 9/23/04 RT 25-26. The judge then continued the

matter to trial on the following Wednesday, but did not grant Cooper pro per status. Cooper said

he would need at least two weeks to read the transcript. 9/23/04 RT 26. Cooper complained

about his relationship with appointed counsel as he argued for a longer continuance, stating:

"This isn't my first choice to go pro per. I want counsel. I wanted counsel to represent me on

this. . . . But the thing is, I would prefer to have counsel represent myself." 9/23/04 RT 27. 

The California Court of Appeal rejected the Faretta claim in a reasoned decision. The

court explained that a request must be an unequivocal assertion of the self-representation right

and made in a timely manner. Cal. Ct. App. Opinion, p. 35. The court reasonably gave little

weight to Cooper's statements in May and July 2004, as those were not actual requests to

represent himself. The state appellate court focused on September 2004 activity, and concluded

that the trial court correctly determined that Cooper’s request for self-representation was both

untimely and equivocal. Cal. Ct. App. Opinion, p. 36. The court agreed with Cooper that “a

distinction is drawn between “an ‘equivocal’ request” and a “‘conditional’ request,” id. at 37,

but did not believe that distinction aided Cooper under the circumstances.

[T]he record strongly suggests to us that defendant sought self-representation out of the

annoyance or frustration associated with the denial of his requests to discharge his

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appointed attorney, not as a voluntary waiver of the right to counsel. . . . Defendant

moved to represent himself only after denial of his Marsden motions, and obviously with

great reluctance. He expressed on numerous occasions to the trial court that his “first

choice” was not “to go pro per,” but he felt compelled to do so due to the conflict with

his appointed attorney. Even after defendant completed the Faretta form which advised

him of the consequences of self-representation, he continued to emphasize to the court

that he preferred to “have counsel.” . . .[¶] Our reading of the record convinces us that

defendant was obviously seeking to impress upon the court just how dissatisfied he was

with his present counsel, more than he was voluntarily invoking the right to selfrepresentation. . . . We agree with the trial court that under the circumstances presented

defendant’s request to represent himself was neither voluntary nor unequivocal. . . . [¶]

Finally, the factors of the delay and stage of the trial and the disruption and delay that

would result from granting self-representation also strongly support the trial court’s

denial of the Faretta motion. 

Cal. Ct. App. Opinion, p. 38 (citations omitted). 

A criminal defendant has a Sixth Amendment right to represent himself. See Faretta v.

California, 422 U.S. 806, 818-19 (1975). The decision to represent oneself and waive the right

to counsel must be unequivocal, knowing and intelligent, timely, and not for purposes of

securing delay, see id. at 835; United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994); Adams v.

Carroll, 875 F.2d 1441, 1444 & n.3 (9th Cir. 1989). The two areas in question here are whether

the requests were unequivocal and timely.

Requiring that the request for self-representation be unequivocal ensures that the

defendant does not inadvertently waive his right to counsel and prevents him from taking

advantage of the mutual exclusivity of the rights to counsel and self-representation. See Adams,

875 F.2d at 1444. If a defendant equivocates, he is presumed to have requested the assistance

of counsel. See id.; see also United States v. Bennett, 539 F.2d 45, 49-51 (10th Cir. 1976)

(defendant who unquestionably vacillated between representation by counsel and selfrepresentation until 6 days before trial forfeited right to self-representation). A waiver is not

considered equivocal merely because defendant chooses self-representation rather than to be

represented by counsel he believes to be incompetent. See United States v. Allen, 153 F.3d

1037, 1041 (9th Cir. 1998); see also United States v. Hernandez, 203 F.3d 614, 617-18 (9th Cir.

2000), overruled on other grounds by Indiana v. Edwards, 128 S. Ct. 2379 (2008) (defendant's

statement to judge, "if you can't change [my attorney], I'd like to represent myself" may have

been conditional, but it was not equivocal).

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Like the state courts, this court views Cooper as repeatedly equivocating on his requests

to represent himself. Not only did he explicitly state that self-representation was not his first

choice, but he repeated that sentiment. Cf. Stenson v. Lambert, 504 F.3d 873, 883 (9th Cir.

2007) (state court's determination that defendant had not made an unequivocal request was not

an unreasonable determination of the facts where defendant made several statements that he

really did not want to represent himself but felt the court and his existing counsel were forcing

him to do so, defendant had tried to locate another attorney and had not included a request to

represent himself in his final written request for new counsel, and requested a particular cocounsel be retained as his counsel). Also, his statements show that his Faretta motion was the

product of annoyance with the Marsden motion ruling more than any genuine desire to represent

himself. This court sees Cooper’s Faretta requests as efforts to steer himself toward a new

attorney rather than to represent himself. Had Cooper’s Faretta request and continuance been

granted, he doubtless quickly would have changed his mind and asked for appointment of

another attorney. 

Further, Cooper’s September 21 request to represent himself was untimely. His request

was made the day set for trial to begin. The prosecutor and defense counsel had readied

themselves for trial in a very short amount of time and with the expectation that the trial date was

a firm one because Cooper had not waived speedy trial time. The case was a complicated one,

especially because it was a retrial and involved thousands of pages of transcripts from Cooper’s

first trial and preliminary hearing as well as the separate trial of Kingdom. A courtroom was

available for the trial the day the motion was heard. Cooper was not then ready to represent

himself, and would not be for at least a couple of weeks. The state court's determination that the

request was properly denied because it was untimely was not contrary to or an unreasonable

application of Faretta. See Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005) (California

court's decision was not contrary to clearly established Supreme Court law when it found that

petitioner's Faretta request on the first day of trial before jury selection was untimely); Stenson,

504 F.3d at 884 (state court's determination that request first made on 20th day of voir dire, as

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voir dire was concluding and just before jury was impaneled was untimely was not objectively

unreasonable under AEDPA). Cooper is not entitled to the writ on his Faretta claim.

O. Assistance Of Appellate Counsel (Claim 1)

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant

the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S.

387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are evaluated under

the Strickland standard, i.e., a defendant must show that counsel's advice fell below an objective

standard of reasonableness and that there is a reasonable probability that, but for counsel's

unprofessional errors, he would have prevailed on appeal. Miller v. Keeney, 882 F.2d 1428,

1433-34 & n.9 (9th Cir. 1989) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).

Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested

by the defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Miller, 882 F.2d at 1434

n.10. “The weeding out of weaker issues is widely recognized as one of the hallmarks of

effective appellate advocacy.” Miller, 882 F.2d at 1434. See also Jones, 463 U.S. at 751-52.

As the court in Miller explained: 

Like other mortals, appellate judges have a finite supply of time and trust; every weak

issue in an appellate brief or argument detracts from the attention a judge can devote to

the stronger issues, and reduces appellate counsel's credibility before the court. For these

reasons, a lawyer who throws in every arguable point - “just in case” - is likely to serve

her client less effectively than one who concentrates solely on the strong arguments.

882 F.2d at 1434.

The objective reasonableness of counsel’s failure to pursue the claims on appeal depends

upon the merits of the claims. The issues that Cooper contends counsel should have included

in his appellate brief have been rejected by this court and by the state courts for various reasons.

Therefore, it was not objectively unreasonable for appellate counsel to not pursue them. See

Miller, 882 F.2d at 1434. For similar reasons, there was no prejudice. There is not a reasonable

probability that, but for counsel’s failure to raise the claims, Cooper would have prevailed on

appeal. See Miller, 882 F.2d at 1434, n.9 (citing Strickland, 466 U.S. at 688, 694). Cooper also

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apparently was dissatisfied with counsel's requests for extensions of time to file appellate briefs,

but requests for extension of time do not show ineffective representation of the client. 

Not only were the claims not meritorious, but the inclusion of them would have

lengthened the appellate brief that was already longer than normally permitted under California

Rule of Court 8.360. Having submitted a 108-page brief with seven issues, appellate counsel

reasonably and wisely decided not to submit a much lengthier brief that included all the claims

mentioned on the 13-page "issues for reversal" document Cooper prepared. See Petition, Exh.

A. Although courts have much higher tolerance levels for briefs written by unrepresented

litigants, an appellate court would be extremely dismayed to receive an oversized brief from a

lawyer raising many of the claims Cooper identified. Many of the points he wanted raised were

inconsequential in nature (e.g., the claim that the prosecutor asked leading questions), were of

the sort he would be unable to prevail on because he did not have the necessary facts (e.g., the

challenge to the jury venire as not being a fair-cross section of the community, for which he had

no evidence of systematic exclusion), or were simply wrong on the law (e.g., the claim that the

kidnapping count was barred by the statute of limitations). Skilled attorneys prioritize issues,

raising the strongest rather than all issues. Doing so does not amount to ineffective assistance

of appellate counsel. Cooper is not entitled to the writ on this claim. 

P. Cumulative Error (Claim 18)

In some cases, although no single trial error is sufficiently prejudicial to warrant reversal,

the cumulative effect of several errors may still prejudice a defendant so much that his

conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003)

(reversing conviction where multiple constitutional errors hindered defendant’s efforts to

challenge every important element of proof offered by prosecution). Here, there were not

multiple errors to accumulate. Cooper is not entitled to relief under the cumulative error

doctrine. 

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Q. Certificate of Appealability

Petitioner has "made a substantial showing of the denial of a constitutional right," 28

U.S.C. § 2253(c)(2), and reasonable jurists would find debatable the district court’s assessment

of petitioner's claim that his right to due process was violated because the evidence was

insufficient to support the murder conviction. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Accordingly, a certificate of appealability is GRANTED on that claim. The certificate of

appealability is DENIED as to all the other claims in the petition. Cooper is cautioned that the

court's ruling on the certificate of appealability does not relieve him of the obligation to file a

timely notice of appeal if he wishes to appeal. 

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk

shall close the file.

IT IS SO ORDERED.

DATED: June 22, 2010 SUSAN ILLSTON

United States District Judge

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