Diaz v. Covello

Background

Surial Diaz filed a petition under 28 U.S.C. § 2254 challenging the validity of his state criminal conviction. The California Court of Appeal’s factual summary stated that Diaz was charged with nine counts involving forcible or nonforcible lewd acts against Jane Doe 1 and Jane Doe 2. The jury convicted him of four counts involving Jane Doe 2, could not reach a verdict on one count involving Jane Doe 2, acquitted him of the three counts involving Jane Doe 1, and found the alleged multiple-victim allegations untrue. The trial court imposed a total sentence of 34 years in prison by ordering full consecutive terms.

The California Court of Appeal otherwise affirmed the judgment while ordering an amended abstract of judgment to reflect Diaz’s presentence credits. The California Supreme Court summarily denied review. Because the state high court gave no reasoned decision, Judge Tigar reviewed the last reasoned state-court decision under the Antiterrorism and Effective Death Penalty Act, which limits federal relief 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.

Claims and analysis

Exclusion of evidence. Diaz argued that excluding evidence about Jane Doe 2’s earlier accusation of abuse violated his rights to confront witnesses, present a defense, and receive due process. The earlier accusation involved conduct when Jane Doe 2 was about two or three years old. She said she may have identified the wrong person, but she did not say that no assault had occurred. The trial court excluded the evidence under California Evidence Code section 352 because deciding whether the earlier accusation was false would require a separate trial about that incident. The California Court of Appeal upheld the ruling.

Judge Tigar held that the state court’s decision was not contrary to or an unreasonable application of clearly established federal law and was not based on an unreasonable factual determination. The court explained that the United States Supreme Court had not held that the confrontation right entitled a defendant to introduce outside evidence for impeachment. The court also concluded that the evidence had limited relevance, that Diaz had other opportunities to challenge Jane Doe 2’s credibility, and that excluding the evidence did not have a substantial and injurious effect on the verdict. The court therefore denied habeas relief on the confrontation claim.

The court separately rejected the due process claim. It applied factors concerning the evidence’s value, reliability, usefulness to the fact-finder, whether it was cumulative, and whether it formed a major part of the defense. For the reasons given in its confrontation analysis, the court concluded that excluding the evidence was not arbitrary or disproportionate and denied habeas relief on this claim.

Consecutive sentences. Diaz argued that his Sixth Amendment rights were violated because the judge, rather than a jury, decided that the offenses occurred on “separate occasions,” a finding that allowed full consecutive sentences under California Penal Code section 667.6(d). Judge Tigar concluded that the Supreme Court’s decision in Oregon v. Ice remained controlling for consecutive sentences imposed for multiple offenses, even after the Supreme Court’s decision in Alleyne v. United States. Under the federal habeas standard, the state court’s rejection of this claim was not erroneous, so the court denied relief.

Diaz also argued that the evidence was insufficient to support the separate-occasions finding. Judge Tigar stated that the California Court of Appeal had identified forfeiture and concession issues, but the district court did not need to decide those issues. Instead, the court addressed Diaz’s actual argument—that the judge could not make the finding without knowing precisely which acts supported the jury’s convictions—and held that Diaz had not adequately supported that proposed rule. The court denied this claim.

Motion to add materials to the appellate record. Diaz challenged the state appellate court’s refusal to add a transcript of jury selection and a blank or redacted jury questionnaire to the record. The court explained that federal law does not require states to provide appellate review, but when a state permits a direct appeal, it must provide an indigent defendant with a sufficiently complete record when needed for an effective appeal. California’s rule required a defendant to show with some certainty how the requested material might be useful.

Judge Tigar concluded that the state court’s rejection of Diaz’s request did not unreasonably apply clearly established Supreme Court law. Diaz had not identified a Supreme Court rule establishing that the reasons he gave—possible errors in jury instructions or the need to understand remarks during closing argument—required adding the materials. He also had not shown that the missing materials prejudiced his appeal; his assertion that they might reveal an unknown error was speculative. The court denied habeas relief on this claim.

Disposition

The court denied Diaz’s petition for a writ of habeas corpus. It also denied a certificate of appealability because Diaz had not made the required substantial showing that a constitutional right had been denied. The court directed the clerk to enter judgment in favor of the respondent and close the file.