Cortez v. Callahan

Background

Arturo Veliz Cortez filed a federal petition under 28 U.S.C. § 2254 challenging his 2016 California criminal judgment. A jury convicted him on eight counts involving sexual offenses against J. and N., as well as attempting to dissuade J. from testifying. The state trial court imposed an aggregate sentence of 105 years to life consecutive to three years. The California Court of Appeal affirmed the judgment, and the California Supreme Court summarily denied review.

Cortez raised seven claims: (1) his confession was involuntary and violated the Fifth and Fourteenth Amendments; (2) an instruction stating that a child’s consent was not a defense to forcible lewd acts violated his jury-trial right; (3) an instruction concerning his intent to cause a witness to tell the truth violated his jury-trial right; (4) joining the offenses involving J. with the offense involving N. denied him a fair trial; (5) admitting N.’s out-of-court statements violated due process and the right to confront witnesses; (6) the trial court should have instructed the jury on lesser included offenses; and (7) the combined effect of the alleged errors violated due process.

Court’s analysis

The court applied the deferential federal habeas standard in 28 U.S.C. § 2254(d). Under that standard, relief generally is unavailable unless the state court’s decision was contrary to, or an unreasonable application of, clearly established United States Supreme Court law, or rested on an unreasonable determination of the facts.

Confession. The court rejected Cortez’s claim that police obtained his confession through coercion. Cortez voluntarily went to the police station, was not handcuffed or told he could not leave, received warnings about his rights, and was questioned for a little over an hour in an interview conducted almost entirely in Spanish. Officer Emilio Perez falsely exaggerated the evidence against Cortez, including by referring to nonexistent DNA and fingerprint evidence. The court nevertheless concluded that, considering all the circumstances, those tactics did not overbear Cortez’s will or make his confession involuntary. The court also held that any error in admitting the confession was harmless because the prosecution presented other evidence, including testimony and prior statements from J. and N. and testimony from other witnesses.

Consent instruction. The court held that it could not grant habeas relief based on Cortez’s challenge to the instruction stating that a child’s consent is not a defense to lewd acts on a child under fourteen. The issue concerned the meaning of a California criminal offense, and federal habeas courts generally may not reexamine state courts’ interpretations of state law. The court added that California law expressly foreclosed Cortez’s argument.

Witness-dissuasion instruction. The state appellate court found that Cortez had forfeited his challenge to the instruction stating that his intent to cause a witness to tell the truth was immaterial to guilt because he had agreed to the trial court’s response to a jury question. Judge Koh found that this state-law forfeiture rule was an adequate and independent ground barring federal review. Cortez did not show cause and prejudice or a fundamental miscarriage of justice to overcome the bar. The court also stated that, even without the procedural bar, the claim concerned a state-law question that could not support federal habeas relief.

Joinder of offenses. The court rejected Cortez’s claim that combining the six offenses involving J. with the offense involving N. denied him a fair trial. It found no clearly established Supreme Court law governing when a state court must try separate criminal charges separately. Because the state court’s decision was not contrary to or an unreasonable application of clearly established federal law, habeas relief was unavailable.

N.’s out-of-court statements. The court held that admitting N.’s earlier statements did not violate the constitutional right to confront witnesses because N. testified at trial and Cortez’s counsel cross-examined her. The court also found no due-process violation: the statements were consistent with N.’s trial testimony and were supported by testimony from N.’s parents and Officer Perez.

Lesser included offenses. The court rejected Cortez’s claim that the trial court was constitutionally required to instruct the jury on lesser included offenses. The cited Supreme Court decisions did not clearly establish such a right in a noncapital case. Therefore, the state appellate court’s decision was not contrary to or an unreasonable application of clearly established Supreme Court law.

Cumulative error. The court rejected Cortez’s claim that the combined effect of the alleged errors denied him a fair trial. Because Cortez had not established any individual constitutional error, the court found no errors to combine into a constitutional violation.

Disposition

Judge Lucy H. Koh DENIED the petition for a writ of habeas corpus. The court also DENIED a certificate of appealability, finding that Cortez had not shown that reasonable judges would debate whether his petition stated a valid constitutional claim or whether the court’s procedural ruling was correct.