1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 This action is proceeding on the first amended petition filed February 14, 2005. 1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANSAR EL MUHAMMAD, also

known as CHEVAL WRIGHT,

Petitioner, No. CIV S-04-1856 FCD JFM P

vs.

JEANNE WOODFORD, et al.,

 

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding through counsel with an application for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on

charges of first degree murder, attempted second degree robbery, and second degree robbery,

with true findings as to lesser included allegations of use of a firearm and that the murder was

committed while petitioner was engaged in a robbery. Petitioner is serving a sentence of five

years plus life in prison without parole. 

1

Petitioner raises six claims in the instant action, including a claims of

prosecutorial misconduct (Claim IV), ineffective assistance of trial counsel (Claim V), and 

ineffective assistance of appellate counsel (Claim VI). This matter is before the court on

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 1 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 This court heard oral argument on the motion on May 26, 2005. A.J. Kutchins, Esq. 2

appeared as counsel for petitioner. Tami Warwick, Deputy Attorney General, appeared as

counsel for respondents.

 On March 30 and May 17, 2005, respondents lodged as “Items” several documents 3

from state court proceedings.

 The remittitur is issued to the trial court at the conclusion of petitioner’s direct appeal. 4

See Rule 26, California Rules of Court.

2

respondents’ motion to dismiss for failure to exhaust state remedies as to two allegations of the

prosecutorial misconduct claim and as to the claims of ineffective assistance of trial and appellate

counsel.2

PROCEDURAL BACKGROUND

Petitioner was first convicted of first degree murder and robbery in the crimes at

bar in 1995. On December 7, 2000, the district court granted petitioner’s application for writ of

habeas corpus in Case No. CIV S-98-1173 FCD JFM P. Thereafter, the Sacramento County

District Attorney elected to retry petitioner. Petitioner was found guilty by a jury on July 9,

2001, and sentenced on August 6, 2001.

Petitioner timely appealed from the judgment of conviction. (Appellant’s

Opening Brief, Item No. 9.) On December 11, 2002, his conviction was affirmed by the 3

California Court of Appeal for the Third Appellate District. (Appendix to Item No. 1, Petition

for Review.) On January 17, 2003, petitioner filed a petition for review in the California

Supreme Court. (Item No. 1.) On February 19, 2003, that petition was denied. (Item No. 2.). 

On February 24, 2003, the California Court of Appeal for the Third Appellate District issued its

remittitur. 

4

On May 12, 2004, petitioner filed in the state court of appeal a motion to recall the

remittitur. (Item No. 3.) In that motion, petitioner raised his present claims of ineffective

assistance of appellate counsel and ineffective assistance of trial counsel. On June 4, 2004, the

state court of appeal denied petitioner’s motion with the following order: “Appellant’s motion to

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 2 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

 The petition for writ of habeas corpus filed in the superior court is not part of the record 5

before this court. 

3

recall remittitur is denied without prejudice to file a petition for writ of habeas corpus in the

superior court.” (Item No. 5, App. B.)

On June 15, 2004, petitioner filed in the California Supreme Court a petition for

review of the denial of his motion to recall the remittitur. Therein, petitioner presented four

issues for review, as follows: (1) whether the trial court violated his constitutional rights by

failing to give a cautionary accomplice testimony instruction where the “key prosecution

witness” was an accomplice as a matter of law; (2) whether the trial court violated his

constitutional rights by ordering the jury, in the middle of deliberations, to separate for eleven

days without giving any cautionary instructions against misconduct during the separation; (3)

whether he received constitutionally ineffective assistance of counsel when his trial attorney

failed to (a) request accomplice testimony instructions, (b) seek an admonition against juror

misconduct prior to the eleven-day separation ordered by the trial court, and (c) object to

instances of prosecutorial misconduct in jury argument; and (4) whether he received

constitutionally ineffective assistance of appellate counsel when his appellate attorney failed to

raise the other three claims on direct review. (Item No. 5.) 

On September 1, 2004, the California Supreme Court summarily denied the June

15, 2004 petition for review without comment. (Item No. 6.)

In the interim, on July 26, 2004, petitioner filed a petition for writ of habeas

corpus in the Sacramento County Superior Court, in which he raised claims that the trial court

had erred in not admonishing the jury before the eleven-day recess and that his trial counsel had

been ineffective in failing to seek such an admonition and in failing to request a cautionary

accomplice instruction. (Item No. 7 at 4, and Appendix 3 thereto.) On July 28, 2004, petitioner 5

filed in the superior court a motion for release of juror information. By order filed August 27,

2004, both the petition and the motion were denied. (Item No. 7, App. 3.) The petition was

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 3 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

denied as untimely. (Id. at 1-2.) In addition, petitioner’s first claim was rejected “for failure to

give specific detail supported by reasonably available documentary evidence” showing that an

admonition the jurors had received at the start of deliberations was insufficient to cover the

eleven-day hiatus. (Id. at 2.) Petitioner’s second claim was denied on the ground that any failure

to give a cautionary accomplice instruction was not prejudicial. (Id. at 3.)

On September 7, 2004, petitioner filed a petition for writ of mandate in the

California Court of Appeal for the Third Appellate District, seeking an order requiring the

superior court to release juror information. (Item No. 7 at 8.) On September 23, 2004, the court

of appeal summarily denied the petition. (Item No. 7, App. 4.) On September 30, 2004,

petitioner filed a petition for writ of mandate in the California Supreme Court, seeking the same

relief. (Item No. 7.) On November 10, 2004, the California Supreme Court summarily denied

that petition. (Item No. 8.) 

ANALYSIS

The exhaustion of state court remedies is a prerequisite to the granting of a

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). To satisfy the exhaustion

requirement, a state prisoner must give “the State the opportunity to pass upon and correct

alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(internal citations and quotations omitted.) “To provide the State with the necessary

‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court

(including a state supreme court with discretionary powers of review) thereby alerting that court

to the federal nature of the claim.” Id. (citations omitted). The state court’s opportunity to

consider petitioner’s claims must be “full and fair.” Picard v. Connor, 404 U.S. 270, 276 (1971);

see Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 

Petitioner must fairly present the claim to that court, meaning he must describe the operative

facts and legal theory on which his claim is based. Picard, 404 U.S. at 277-78. 

\\\

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 4 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

Whether petitioner’s ineffective assistance of appellate and trial counsel claim are

exhausted turns on whether raising claims in a motion to recall the remittur and petition for

review thereof amounts to a “fair presentation” in the California Supreme Court. Respondents

do not contest that these claims were presented to the California Supreme Court in petitioner’s

June 15, 2004 petition for review of the state court of appeal’s denial of petitioner’s motion to

recall the remittur. Respondents contend that the June 15, 2004 petition for review did not effect

presentation of those claims to the California Supreme Court for decision on the merits. See

Castilles v. Peoples, 489 U.S. 346 (1989) (alleging a claim in a petition for allocatur before the

Pennsylvania Supreme Court was not “fair presentation” of that claim, for exhaustion purposes);

Pitchess v. Davis, 421 U.S. 482, 488 (1975) (California’s writ of prohibition is an extraordinary

writ, requiring little or no review of the underlying merits, does not serve to exhaust a habeas

petitioner’s available state remedies). 

Petitioner counters that the question before the court is not governed by these

general holdings, but rather by more precise Ninth Circuit precedent set forth in Hayward v.

Stone, 496 F.2d 844 (9th Cir. 1974) and Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976). In

Hayward, the court reviewed California law and concluded, in a case strikingly similar to this

one, that, without question, a motion “to recall the remittitur may be used to bring [an ineffective

assistance of appellate counsel claim] before the California Appellate and Supreme Courts.” 

496 F.2d at 846. Thus, the claim was exhausted. In Gonzales, the court concluded that a

California application to recall the remittitur, and petition for review thereof, were sufficient to

exhaust claims petitioner received ineffective assistance of trial counsel. 546 F.2d at 807-08

(ineffective assistance of counsel claim and lack of substantial evidence were exhausted through

application to recall the remittitur and petition for review, but other claims were unexhausted and

the mixed petition required dismissal).

In reply, respondents concedes that the motion to recall the remittitur “was once

considered” an appropriate vehicle for asserting claims of ineffective assistance of appellate

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 5 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

counsel, but argues that the rule changed with the California Supreme Court’s issuance of People

v. Pope, 23 Cal.3d 412, 426 (1979), overruled on other grounds in People v. Berryman, 6 Cal.4th

1048, 1081 n.10 (1993); accord People v. Sakarias, 22 Cal.4th 596, 636-37 (2000); People v.

Mendoza Tello, 15 Cal. 4th 264, 266-67 (1997). These cases stand for the rule that ineffective

assistance of trial counsel claims should be raised in a petition for habeas corpus rather than

through appeal, where the record fails to reflect the reasons for the challenged acts or

ommissions, “unless there simply could be no satisfactory explanation.” Pope, 23 Cal.3d at 426. 

They do not specifically reject the holding in Hayward, or the California law upon which it rests,

and indeed the use of the motion to recall the remittitur appears to survive Pope. See People v.

Valenzuela, 175 Cal.App.3d 381, 395 (1985) (granting motion to recall remittitur on the ground

defendant was deprived of his constitutional right to the ineffective assistance of appellate

counsel), overruled on other grounds by People v. Flood, 18 Cal. 4th 470, 1998. Respondents’

reply fails to address Gonzales at all. This court is bound by the Ninth Circuit’s rulings in

Hayward and Gonzales and on that basis finds petitioner’s claims of ineffective assistance of trial

and appellate counsel exhausted. 

Turning to petitioner’s fourth claim for relief, the court finds it is fully exhausted

as well. Petitioner alleges that “an extensive pattern of deliberate misconduct by the prosecutor

in arguments to the jury violated [his] right to due process and a fair trial,” in violation of the

Fifth, Sixth and Fourteenth Amendments to the United States Constitution. He claims the

“pattern of prosecution misconduct in argument” includes, but is not limited to, eight specific

statements to the jury. 

The petition for review filed in the California Supreme Court included a claim

that petitioner’s right to due process under the Fourteenth Amendment of the United States

Constitution was violated, based on “[t]he prosecutor’s closing argument . . . in which he injected

personal opinions even after it was called to his attention.” (Item No. 1 at 8). The petition for

review continued: “The problem is that these acts of misconduct interfered with the basic fairness

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 6 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

of the defendant’s jury trial. (U.S. Const., Amends. V, VI, XIV.) The Court of Appeal notes that

not all were the subject of objections, that those that were the subject were either proper or

harmless, and that it is in disagreement with the appellant’s view that this was an unfair process

as opposed to a series of single incidents to be handled one by one.” Id. 

Petitioner attached to his petition for review the appellate court’s opinion

affirming the conviction, which included an eight-page discussion of petitioner’s prosecutorial

misconduct claim. The court of appeal reasoned thus:

Deceptive or reprehensible methods of prosecutorial argument constitute

misconduct under state law, to which we apply the familiar test for prejudice –

whether its absence would make a more favorable outcome for the defendant

reasonably likely. If the misconduct is pervasive enough to infect the trial with

unfairness, it violates a defendant’s right to due process and must be harmless

beyond a reasonable doubt. In analyzing a prosecutor’s argument, we must

discern whether it is likely that a reasonable juror would construe it in an

objectionable way.

The defendant contends the prosecutor committed prejudicial misconduct

during closing argument. While his contention takes the form of a narrative

criticism of the 70-odd pages of the argument, his general focus is on the

prosecutor’s communication of his personal beliefs, and references to facts dehors

the record. 

Unlike the defendant, we do not find any overarching pattern of

misconduct that infected the trial with unfairness. We thus will address

individually the claimed instances of misconduct to which he objected in the trial

court.

(Item No. 1, App. A at 14-15 (citations and footnotes omitted).)

In footnote 11, the court of appeal cites law precluding appellate review of

misconduct to which trial counsel fails to object, and then states “[w]e thus do not include

instances of alleged misconduct to which the defendant did not object.” Id. at 15. In footnote 12,

the appellate opinion states: “Without objection, the prosecutor later returned to the topic of the

criminal complicity of gang members in offenses that other members commit. The failure to

object precludes the defendant from including these remarks in his argument. The same is true of

his tangential suggestion that the prosecutor diluted the standard of reasonable doubt in two brief

remarks.” Id. at 19 n.12. 

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 7 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

Footnotes 11 and 12 allude to allegations in the appellate’s opening brief set forth

as items 7 and 8 of the present petition. The court of appeal did not quote the challenged remarks

because it ruled that (1) there was no pattern of prosecutorial misconduct infecting the trial with

unfairness and violating due process, and (2) it need not consider those two claimed instances of

abuse because of trial counsel’s failure to object. The first determination provides the basis of

petitioner’s federal claim, i.e., that a pattern of inappropriate prosecutorial remarks to the jury

during closing argument violated his rights to due process and a fair trial. Respondents concede

the California Supreme Court was fairly apprised of the legal theory on which petitioner’s claim

rested, and this court finds it was fully and fairly apprised of the operative facts as well. 

Petitioner’s fourth claim for relief is exhausted. 

Accordingly, IT IS HEREBY RECOMMENDED that respondents’ March 30,

2005 motion to dismiss be denied and respondents be required to file an answer.

These findings and recommendations will be submitted to the United States

District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

fourteen days after being served with these findings and recommendations, any party may file

written objections with the court and serve a copy on all parties. Such a document should be

captioned “Objections to Magistrate Judge's Findings and Recommendations.” The parties are

advised that failure to file objections within the specified time may waive the right to appeal the

District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: February 27, 2006.

7

muha1856.mtd

Case 2:04-cv-01856-JAM-JFM Document 19 Filed 02/27/06 Page 8 of 8