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November 7, 2011
FREDRICK ANDERSON, PETITIONER,v.JAMES WALKER, WARDEN, RESPONDENT.
Anderson, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue are his 2007 convictions in the Sacramento County Superior Court, case number 06F02395, for which he is serving an aggregate sentence of 26 years and four months in state prison.
During a 48-hour crime spree, Anderson and his co-defendants, David Bustamante and Christian Rangel, robbed multiple victims at three different locations. Miguel Rangel, (Christian Rangel's brother) was additionally involved in one of the robberies; he pleaded no contest and his case was severed. Christian Rangel was tried separately. At the joint trial of Anderson and Bustamante, evidence was adduced as follows:
March 16 Wu robbery
At approximately 10:00 p.m. on March 16, 2006,FN3 Ronald Wu went to use the Wells Fargo ATM located at Howe and University Avenue in Sacramento. As he stood in front of the machine, Wu heard someone approach and turned to see a gunman (later identified as Rangel's brother), pointing a gun at him. Rangel followed his brother to the ATM while Anderson (the driver) waited in the car. As Wu fumbled through his wallet, Rangel's brother said, "Get it now. I will shoot you. I will kill you now." Rangel said, "This guy is too slow. Shoot him now. We need to go." Rangel's brother then struck Wu in the back of his head. Wu finally managed to withdraw $200 from the ATM and handed it over to the robbers, along with his driver's license. Rangel's brother threatened to kill Wu and his family if he called the police or canceled the ATM card. Rangel and his brother then got into the car driven by Anderson, who was waiting for them in the parking lot, and drove off.
FN3. All further calendar references are to the year 2006. Six days after the robbery, Sacramento City Police Detective Sheila Bergquist interviewed Anderson in jail. After waiving his MirandaFN4 rights, Anderson stated that around 10:00 p.m. on March 16, he picked up two of his friends in his mother's 1991 gray Acura Legend and drove them to a Wells Fargo ATM on Howe and University Avenue. He saw both friends go up to a man using the ATM, knew that some "criminal activity" had occurred, and drove away with them. Anderson identified Rangel and his brother from surveillance photos as the friends he had picked up.
FN4. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. [March 17] St. Patrick's Day robbery The night after the Wu robbery, March 17 at around 11:00 p.m., Pete Timm, Matthew Gray, Jonathan Flores, and Cory Thomas drove to a Wells Fargo ATM machine near the intersection of Howe and Fair Oaks. Timm and Gray went up to the ATM, while Flores and Thomas stayed in the car. While using the machine, Timm noticed three males walk up behind him, two of whom were later identified as Bustamante and Rangel. After Timm and Gray had both used the ATM machine, they began to walk back to Flores's car. Before they could get in the car, Rangel pulled out a gun and pointed it at Timm's chest, saying, "Give me your shit." He also held the gun to the heads of Flores and Thomas, threatening to kill Thomas. All the victims handed over their wallets and cash. The robbers escaped in a gray Acura Legend with paper-covered dealer license plates.
Sacramento County Sheriff's Deputies Matthew Burton and Duncan Brown responded to a 911 call about the robbery and interviewed the victims.
March 18 house robbery A few hours later, at approximately 1:00 a.m., three males, later identified as Anderson, Bustamante, and Rangel, and a female arrived uninvited to a party at David Fink's house. Bustamante grabbed Fink's laptop computer and cords from the living room, and tried to punch Fink when Fink confronted him. Rangel pulled out a gun and pointed it at Fink and other party guests. Bustamante and Anderson grabbed two Samurai swords from a display mantle as the group left the house. Fink called the police, who arrived around 2:00 a.m. to take a report.
Apprehension of the robbers Around 4:00 a.m. that morning (March 18), Deputy Brown stopped a gray Acura Legend with paper-covered license plates that matched the description of the car given to him by the victims of the St. Patrick's Day robbery. Anderson was driving the car with Bustamante, Rangel, and a female as passengers. After determining that Anderson was on probation, the deputy conducted a search of the car and found a laptop computer, two Samurai swords in sheaths, and an empty wallet, identified later as some of the items stolen from victim Fink's house a few hours earlier. The deputy also found cash in Anderson's possession that was similar in denominations to the money Thomas reported giving to the robbers on March 17.
People v. Anderson, No. 2623972, 2008 WL 2623973, at 1 -2 (Cal. App. 3rd Dist. 2008).
On this evidence, a jury convicted Anderson of four counts of first degree robbery and two counts of second degree robbery. The trial court sentenced him to an aggregate state prison term of 26 years and four months.
Anderson appealed his convictions to the California Court of Appeal, Third District, where judgment was affirmed in an unpublished opinion. Petition for review to the California Supreme Court was denied. Anderson filed multiple state habeas corpus petitions which were likewise denied. The parties agree that Anderson exhausted state remedies with respect to grounds one through six; respondent asserts, however, that ground seven is unexhausted and therefore barred in this court. Respondent additionally asserts that ground four is procedurally barred for Anderson's failure to object to the alleged constitutional violation at trial.
Anderson claims:
A. Insufficient evidence supported his conviction for the Wu robbery under a theory of aiding and abetting;
B. Insufficient evidence supported conviction for the St. Patrick's day robbery;
C. The trial court erred in instructing with CALCRIM No. 1603;
D. The prosecutor committed prejudicial misconduct;
E. The trial court erred in imposing consecutive sentences based on facts not found true by a jury beyond a reasonable doubt;
F. Both trial and appellate counsel rendered ineffective assistance; and
G. The trial court erred in declining to instruct the jury with proposed Defense Special Instruction No. 1.
For the reasons that follow, the grounds are without merit and relief should be denied.
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded for any claim decided on the merits in state court proceedings 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A. Sufficiency of the Evidence- Wu Robbery
Anderson claims there was insufficient evidence that he aided and abetted the March 16 robbery of Ronald Wu. He points out that he did not appear in any of the surveillance photographs, that he was not identified by Wu as having been present at the scene of the crime, and that Wu did not accurately describe the car he was subsequently stopped driving.
The Due Process Clause of the Fourteenth Amendment protects an 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). On habeas corpus review, sufficient evidence supports a conviction so long as, "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 also Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988) (per curiam).
The Jackson standard is applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Davis v. Woodford, 384 F.3d 628, 639 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 319.) The dispositive question is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Under the AEDPA, thisstandard is applied with an additional layer of deference. Juan H. v. Allen, 408
F.3d 1262, 1274-75 (9th Cir. 2005). This court must ask "whether the decision of the California Court of Appeal reflected an 'unreasonable application of' Jackson and Winship to the facts of this case." Id. (citing 28 U.S.C. § 2254(d)(1)).
In California, "[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code § 211. To prove commission of this crime on an aiding and abetting theory of liability, the prosecution must prove that the defendant, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. People v. Beeman, 35 Cal.3d 547, 561 (1984). Aider and abettor liability is established if the getaway driver forms "the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety." People v. Cooper, 53 Cal.3d 1158, 1165 (1991) (italics and footnote omitted). Intent to aid and abet may be inferred from a defendant's presence at the scene of the crime, his failure to take steps to prevent the commission of the crime, his companionship with the perpetrator(s), and his conduct before, during, and after the crime. People v. Jones, 108 Cal.App.3d 9, 15 (1980); People v. Eskew, 206 Cal.App.2d 205, 206-07 (1962). The jury was instructed on these elements, and also as to prosecution's reasonable doubt burden of proof. (Reporter's Transcript ("RT") at 1277-78, 1288-94.)
As he did in state court, Anderson cites in support of this claim Opper v. United States, 348 U.S. 84, 89 (1954), Smith v. United States, 348 U.S. 147 (1954), and United States v. Lopez-Alvarez, 970 F.2d 583, 589-93 (9th Cir. 1992), among other authorities, for the proposition that his admissions to Detective Bergquist were insufficient to prove his guilt because they were not sufficiently corroborated. Considering this claim on direct appeal, the California Court of Appeal held in the last reasoned state court decision:
The federal cases that Anderson cites are inapposite as they pertain to the admissibility of a defendant[']s extra-judicial statement or confession, not the sufficiency of the evidence to support a conviction. However, Anderson is not claiming that the trial court erred in admitting his statement. His argument is that the statement, even supplemented by the other evidence in the record, is not sufficient to sustain his conviction. [....]
Here, Anderson's admission to Detective Bergquist that he drove his "friends" Rangel and his brother to the bank in his mother's Acura Legend placed him at the scene of the Wu robbery as the driver of the getaway car. The next day Anderson and Rangel, two of the identified perpetrators of the Wu robbery, along with Bustamante and a female, were stopped driving a similar Acura Legend containing loot stolen from two subsequent robberies.
The jury could find from this evidence that, contrary to Anderson's denial of criminal intent, he was in league with the other robbers throughout the crime spree, and in fact willingly served as the getaway driver during the Wu robbery. Anderson's claim of insufficient evidence must be rejected.
People v. Anderson, supra, 2008 WL 2623972, at 3.
As the state court held, the federal authorities cited by Anderson do not advance his sufficiency of the evidence claim. In addition, viewing all 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.
Although Wu identified only Rangel as the gunman in a photographic lineup, Anderson's own admissions placed him at the scene as the getaway driver and his intent to aid and abet could be reasonably inferred from that presence, his conduct before, during, and after the crime including his apparent failure to take steps to prevent the commission of the crime, and his companionship with Rangel, the perpetrator identified by Wu. That Wu described a "dirty white" vehicle leaving the scene of the crime (RT at 231), while Anderson was later stopped driving a dark gray Acura Legend, is of no moment. The state court's decision that sufficient evidence supported the verdict was a reasonable application of the Jackson/Winship standards.
B. Sufficiency of the Evidence- St. Patrick's Day Robbery Anderson also claims insufficient evidence showed that he participated in the St. Patrick's Day robbery against victims Timm, Gray, Flores, and Thomas. In particular, he argues the only evidence against him was his presence in the car several hours after the robbery and the similarity of the denominations of the stolen cash to the money that found on his person. The California Court of Appeal rejected this claim:
Although he was not identified by any of the victims, there is substantial evidence that Anderson participated in the robbery. The victims testified that the robbers drove away from the scene in a dark Acura Legend with paper over its license plates. Anderson was stopped driving a car that matched that exact description just hours after the robbery, along with Rangel and Bustamante, whom the victims positively identified as the robbers. Anderson[']s height and build also matched the victim[']s description of the third male involved in the robbery. Finally, Anderson was found in possession of currency remarkably similar in denominations to the cash Thomas had given the robbers. Thomas told police he gave the robbers four $20 bills, one $10 bill, one $5 bill, and five $1 bills. Anderson was apprehended several hours later carrying two $20 bills, one $10 bill, one $5 bill, and five $1 bills.
Based on the foregoing, we find substantial evidence to support Anderson's convictions for the ATM robbery of March 17.
People v. Anderson, supra, 2008 WL 2623972, at 3-4.
One of the victims in the St. Patrick's Day robbery (Timm) positively identified Rangel and Bustamante as two of the perpetrators. As the state court set forth, Timm was unable to positively identify Anderson as the third suspect, but did recognize him as having the same height and build as the third perpetrator. (RT at 441.) Anderson's car also matched each of these victims' descriptions. (RT at 359-61, 676, 757.) Considering in addition the similarity of denominations of cash found in Anderson's possession just a few hours later (RT at 691-92), the state court's determination that sufficient evidence supported his conviction on this count was a reasonable application of the Jackson/Winship standard.
C. Instruction with CALCRIM No. 1603
The jury was instructed with CALCRIM No. 1603 as follows: To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety.
A perpetrator has reached a place of temporary safety with the property if he has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property.
(RT at 1293.) Anderson claims the instruction erroneously focused on reaching a "place of temporary safety" as a successful escape, because the evidence showed his participation was limited to driving the actual perpetrators away from the bank, a theory he asserts has been rejected by the California Supreme Court as proving liability as a principle or accomplice.
On appeal, the state court agreed that the trial court had erred under state law but concluded that the error was harmless and could not have contributed to the jury's finding of accomplice liability in Anderson's case:
In People v. Cooper (1991) 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742 (Cooper), the California Supreme Court held that "[f]or purposes of determining liability as an aider and abettor, the commission of a robbery continues so long as the loot is being carried away to a place of temporary safety." The court declined to adopt the "escape rule" for purposes of determining accomplice liability, reasoning that an instruction referring to "escape" could mislead the jury into believing that a getaway driver could be guilty as an accomplice for helping the perpetrators escape to a place of temporary safety even if the loot was not being carried away during the escape. Such a notion would "eliminate the distinction between aider and abettor liability and accessory [after the fact] liability in the context of getaway drivers in a manner both contrary to statute, and out of step with reasonable concepts of culpability...."
Under the reasoning of Cooper, the "escape" language in
CALCRIM No. 1603 was improper insofar as it may have led the jury to believe that a defendant could be found guilty as an accomplice by helping the perpetrators escape the scene, even if the loot was not being carried away during the escape.
However, an instructional error that improperly describes an element of an offense does not require reversal if the court finds it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Flood (1998) 18 Cal.4th 470, 503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)
The error here was harmless beyond a reasonable doubt because there was no evidence that the carrying away of Wu's property did not coincide with the robbers' escape.
The evidence at trial established that the escape and carrying away of the loot occurred at the same time. Thus, "if the jury found that [a] defendant formed the intent to facilitate or encourage commission of the robbery prior to or during the escape to a place of temporary safety, then such intent was also necessarily formed prior to ... [reaching] a place of temporary safety."
For the foregoing reasons, the wayward language in CALCRIM No. 1603 could not have contributed to the jury's finding of accomplice liability and any error was certainly harmless.
People v. Anderson, 2008 WL 2623972, at 4-5 (citations omitted).
A claim of instructional error does not raise a cognizable federal claim unless the error, considered in context of all the instructions and the trial record as a whole, "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Henderson v. Kibbe, 431 U.S. 145, 152-55, n.10 (1977); Cupp v. Nauhten, 414 U.S. 141, 146-47 (1973). In addition, on federal habeas corpus review, no relief can be granted without a showing that the instructional error had a "substantial and injurious effect or influence in determining the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Thus, in order to grant habeas corpus relief where a state court has determined that a constitutional error was harmless, a reviewing court must determine: (1) that the state court's decision was contrary to or an unreasonable application of Supreme Court harmless error precedent, and (2) that the petitioner suffered prejudice under Brecht from the constitutional error. Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005).
Here, for the reasons set forth by the state court, there is no reasonable likelihood that the challenged portion of the instruction affected the verdict. The evidence adduced at trial did not permit the jury to find Anderson guilty based on a theory that he helped the perpetrators escape the scene without the stolen money. Because it is clear that the error of state law recognized by the court of appeal did not substantially and injuriously affect or influence the jury's verdict, no relief is available. See Brecht, 507 U.S. at 638; Hart v. Stagner, 935 F.2d 1007, 1012-13 (9th Cir. 1991) (defective instruction on aiding and abetting which allowed jury to infer intent and relieved prosecution of burden of proving mens rea of charged crime was harmless where facts did not permit a rational conclusion that defendant did not have the requisite intent).
D. Prosecutorial Misconduct
Anderson claims the prosecutor committed prejudicial misconduct by vouching for a key prosecution witness during rebuttal argument. Presented with this claim on direct appeal, the state court held that the issue was forfeited for defense counsel's failure to object in the trial court. Respondent asserts this claim is procedurally barred because its rejection in state court was based on application of California's contemporaneous objection rule, an independent and adequate state procedural bar.
As a general rule, a federal habeas court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). For a state procedural rule to be independent, the state law basis for the decision must not be interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To be deemed adequate, it must be well established and consistently applied. Poland v. Stewart, 169 F.3d 575, 577 (9th Cir. 1999). An exception to the general rule exists if the prisoner can demonstrate either cause for the default and actual prejudice as a result of the alleged violation of federal law, or that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Once the state has pleaded the existence of an independent and adequate state procedural ground as an affirmative defense, the burden shifts to petitioner to place the adequacy of that procedural rule in issue, as "the scope of the state's burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner." Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If placed in issue, the state retains the ultimate burden of proving adequacy of the asserted bar. Id. at 585-86.
Here, Anderson has offered no argument that the contemporaneous objection rule invoked by the state court was not an independent and adequate basis for its decision, nor has he demonstrated cause for his default or that a miscarriage of justice would result if his claim is not heard. Accordingly, review of his claim regarding the prosecutor's alleged misconduct during argument should be found to be barred. See generally King v. Lamarque, 464 F.3d 963, 967 (9th Cir. 2006) ("Bennett requires the petitioner to 'place [the procedural default] defense in issue" to shift the burden back to the government"). It is noted that the Ninth Circuit has held California's contemporaneous objection rule to be independent and adequate on various occasions, affirming the denial of a federal petition on grounds of procedural default where there was a failure to object to at trial. E.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (jury instruction claim procedurally barred for failure to object); Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002) (citing Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir. 1981); Vansickel v. White, 166 F.3d 953, 957 (9th Cir. 1999); Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999) (declining to review various prosecutorial misconduct claims as procedurally barred for failure to contemporaneously object).
In any event, this claim would fail on the merits even if it were not procedurally barred. At issue is the following portion of the prosecutor's rebuttal argument to the jury:
And also with respect to the argument defense made that maybe the defendant didn't say what [Detective Bergquist]'s saying that he said, he's -- didn't come right out and say it, but he's implying, and he's saying that Detective Bergquist is a liar and she got up on the stand and she told you something that the defendant didn't really say.
She wouldn't lie. She doesn't lie. She's doing her job. She's telling you what he said to her. He said he thought something criminal had happened and so he drove his friends out of there. And in doing so, he was aiding and abetting the robbery. (RT at 1259-60.)
Considering the merits of the prosecutorial misconduct claim in an alternative holding to the procedural bar, the state court held:*fn1
[T]here was no misconduct. Although "[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record," or to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial, nothing of the sort happened here. In response to defense counsel's suggestion that Detective Bergquist perjured herself, the prosecutor asserted that she had no motive to lie because she was simply doing her job. The remarks fell within the realm of fair argument.
People v. Anderson, 2008 WL 2623972, at 6 (internal citations omitted).
The appropriate standard for a federal court reviewing a claim of prosecutorial misconduct on habeas corpus is the narrow one of whether the conduct violated due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). "The relevant question is whether the prosecutor's error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Smith v. Phillips, 455 U.S. 209, 219 (1983) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). A challenge to a portion of a closing argument is "examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error." United States v. Young, 470 U.S. 1, 12 (1985). Factors to be considered in determining whether habeas relief is warranted include whether the prosecutor manipulated or misstated the evidence; whether the conduct implicated other specific rights of the accused; whether the objectionable content was invited or provoked by defense counsel's argument; whether the trial court admonished the jurors; and the weight of the evidence against the defendant. Darden, 477 U.S. at 181-82. Relief is available only if the misconduct rendered the trial fundamentally unfair. Id. at 181.
"The government may not vouch for the credibility of its witnesses, either by putting its own prestige behind the witness, or by indicating that extrinsic information not presented in court supports the witness' testimony..." United States v. Simtob, 901 F.2d 799, 805 (9th Cir. 1990); see also United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). Improper vouching has been found, for example, where the prosecutor "plainly implied that she knew [a Federal agent] would be fired for committing perjury and that she believed no reasonable agent in his shoes would take such a risk." United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005); see also United States v. Pungitore, 910 F.2d 1084, 1124 (3rd Cir. 1990) (prosecutor's statement that federal agents would not have coached witnesses because they would have "jeopardized our jobs, our careers, our right to practice law, they're [sic] right to continue as FBI agents..." found improper).
Here, in contrast, the prosecutor did not express her own belief in the Bergquist's credibility or imply that any information not in evidence supported Bergquist's accounts or assured her credibility. Rather, in response to the defense's suggestion, the prosecutor stated that Bergquist had no motivation to lie. Such an argument was based upon inferences that could be reasonably drawn from evidence in the record (i.e., that Bergquist was a detective doing her job with no motivation or reason to lie that was apparent from the evidence). The prosecutor's comment, taken in context of a response to the defense's argument, did not imply that she was personally aware of the Bergquist's truthfulness. The complained of portion of argument did not constitute improper vouching. See United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997) (prosecutor's argument that government witnesses had no motive to lie was not improper vouching as it did not reference extra-record facts and was not personal guarantee of witnesses' veracity).
E. Imposition of Consecutive Sentences
The trial court sentenced Anderson to consecutive terms on counts one, three and five, and to an additional consecutive term for the prior felony conviction enhancement. Citing Cunningham v. California, 549 U.S. 270 (2007) and Blakely v. Washington, 542 U.S. 296 (2004), Anderson claims consecutive sentencing in this manner violated his right to a jury trial under the Sixth and Fourteenth Amendments because the consecutive sentences were imposed based on findings made by the judge as opposed to the jury. Presented with the same claim on direct appeal, the state court disagreed, noting it was bound by the California Supreme Court's ruling in People v. Black, 41 Cal.4th 799 (2007), that consecutive sentences do not implicate the Sixth Amendment right to jury trial as discussed in Blakely and Cunningham. People v. Anderson, 2008 WL 2623972, at 8.
Subsequent to the California Supreme Court's decision in Black, the United States Supreme Court conclusively held in Oregon v. Ice, 555 U.S. 160, 169-70 (2009), that the Constitution does not prohibit judges, rather than juries, from finding facts upon which to impose consecutive sentences. Under this clearly established Supreme Court precedent, Anderson's Sixth Amendment claim fails.
F. Ineffective Assistance of Counsel
Anderson claims both trial and appellate counsel rendered ineffective assistance. To demonstrate a denial of the Sixth Amendment right to the effective assistance of counsel, a petitioner must establish that counsel's performance fell below an objective standard of reasonableness, and that he suffered prejudice from the deficient performance. Strickland v. Washington, 466 U.S. 668, 690 (1984). Deficient performance requires a showing that counsel's performance was "outside the wide range of professionally competent assistance." Id. at 687 & 697. Prejudice is found where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. The Strickland test for ineffective assistance of counsel applies to trial counsel's performance as well as appellate counsel's performance. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986). "Surmounting Strickland's high bar is never an easy task," and review under the AEDPA is doubly deferential. Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (citing Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)). The relevant question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Harrington, 131 S. Ct. at 788.
1. Trial Counsel
Anderson claims trial counsel, John Jimenez, failed to object to "important issues" and failed to call witnesses because he was having trouble getting paid. In support of this claim, Anderson identifies a portion of his trial transcript in which Jimenez informed the court of a dispute between himself and the Conflict Criminal Defenders regarding some of his claimed fees. Reviewing this claim on state habeas corpus, the Sacramento County Superior court held in the last reasoned state court opinion that
The colloquy does not support [Anderson]'s claim, however, as Mr. Jimenez did not indicate that the payment dispute was hindering his representation of [Anderson]. In fact, Mr. Jimenez stated that the dispute was not impairing his representation of [Anderson] and the court agreed. (RT 657-58 [Mr. Jimenez stating, "And I've advised my client that I'm in no way -- that my representation of him and my advocacy and degree that I do that will not in any way be affected by" the fee dispute]; RT 659 [The Court stating, "I would state for the record that I have absolutely no concerns about Mr. Anderson, I believe he has up till now been provided effective assistance of counsel, and I trust that you will continue to vigorously defend him in a competent manner as you have been doing so far."]) Moreover, [Anderson] fails to identify what important issues Mr. Jimenez did not object to or what he failed to investigate (with one exception discussed below)....
In re Frederick Anderson, No. 09F04521, slip op. at 2 (Sup. Ct. Cal. August 13, 2009).
"Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th cir. 1970) ("[a]llegations of fact, rather than conclusions, are required"). This portion of Anderson's ineffective assistance of counsel claim fails as he has not alleged what witnesses counsel failed to call, what information counsel should have obtained from those witnesses, or how the information would have changed the outcome of his trial. See United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1989).
Anderson also alleges Jimenez failed to object to the prosecutor's alleged vouching for a key prosecution witness's credibility. As discussed in subsection D, supra, the prosecutor's comment did not constitute prejudicial misconduct and accordingly, counsel did not render deficient performance by failing to object. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) ("[T]he failure to take a futile action can never be deficient performance.") Nor is prejudice shown; there is no reasonable probability that the result of the proceeding would have been different had counsel objected, even if the objection were successful. Strickland, 466 U.S. at 687-88.
Finally, Anderson contends Jimenez knew he wanted to testify in his own defense, but failed to notify the trial court. On state habeas corpus, the Sacramento County Superior Court rejected this claim for failure to state a prima facie case with regard to prejudice. In re Frederick Anderson, No. 09F04521, slip op. at 3.
In support of this portion of his ineffective assistance claim, Anderson declares he would have testified that Detective Bergquist did not read him his Miranda rights before questioning him, and that he "never drove anyone to a ATM on the nite in question the day before on and after St. Patrick's Day of 2006 [sic]." With this proposed testimony, Anderson fails to show the requisite prejudice. As discussed elsewhere herein, the evidence at trial included Anderson's detailed statement to Detective Bergquist that he drove his friends to the Wells Fargo ATM on Howe Avenue in his mother's gray Acura Legend; Anderson also told Bergquist he saw his friends near a man using the ATM and knew that some criminal activity had occurred. Anderson's friends, Bustamante and Rangel, were identified as the perpetrators of the Wu robbery and the St. Patrick's Day robbery, while Anderson himself matched the height and build of the third perpetrator. This, together with the evidence regarding the gray Acura and the cash denominations recovered from Anderson, renders his proposed trial testimony denying any involvement unbelievable and incredible. In sum, a reasonable argument exists that counsel's alleged deficient performance in this regard did not cause prejudice. The superior court's rejection of this claim for lack of prejudice was not contrary to, or an unreasonable application of clearly established federal law and no relief is available.
2. Appellate Counsel
Anderson contends appellate counsel "overlooked" trial counsel's alleged ineffective assistance based on not being paid for his legal services. Because there is no reasonable probability that such a claim would have been successful on appeal, appellate counsel's failure to raise the issue does not constitute ineffective assistance. See Jones v. Smith, 231 F.3d 1227, 1239 n. 8 (9th Cir. 2000).
G. Defense's Proposed Special Instruction
For his final ground, Anderson claims the trial court improperly refused to instruct the jury with proposed Defense Special Instruction No. 1.
Respondent asserts this claim is barred for Anderson's failure to exhaust state court remedies. Before a claim may be properly brought on federal habeas corpus, it must first be fairly presented to the highest court of the applicable state. 28 U.S.C. § 2254(b)(1). In California, that is the California Supreme Court. Castille v. Peoples, 489 U.S. 346 (1989). It is Anderson's burden to show that he has exhausted his state court remedies. See Lambert v. Blackwell, 134 F.3d 506, 513 (3rd Cir. 1997), as amended 1998, cert. denied, 532 U.S. 919 (2001); Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), cert. denied, 522 U.S. 833 (1997); Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993). He has not done so with respect to this ground. Anderson raised this claim to the state court of appeal on direct appeal but did not raise the issue in his petition for review to the California Supreme Court and did not raise the issue in a state petition for writ of habeas corpus to the California Supreme Court.
Nevertheless, it will be recommended that the claim be denied on its merits because it is clearly not colorable. See 28 U.S.C. § 2254(b)(2) ("[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (a federal court considering a habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable").
Anderson's jury was instructed with CALCRIM No. 2.24 as follows: Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.
If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and the other to guilty, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only the reasonable conclusion and rejected [sic] any that are unreasonable.
(RT at 1280.) The defense proposed a special additional instruction which would have instructed the jurors that if all the evidence in the case was equally susceptible of two interpretations, they must adopt the one pointing to innocence; and that they were duty-bound to acquit the defendant if an innocent explanation was reasonably consistent with all the facts and circumstances. The proposed instruction, if given, would have instructed:
You are instructed that if from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence, it is your duty to adopt the one of innocence and find the defendant not guilty. [¶] The law presumes the defendant to be innocent and the defendant is entitled to the benefit of this presumption at all stages of this proceeding. You must acquit the defendant if, after consideration of the evidence, it is consistent with any reasonable hypothesis of his innocence. [¶] It is not your duty to look for some theory upon which to convict the defendant but on the contrary, it is your duty and the law requires you, if you can reasonably do so, to reconcile all the facts and circumstances that have been shown with the innocence of the defendant and acquit him. [¶] If the evidence relating to any or all the circumstances in this case, is, in view of all the evidence, susceptible of two reasonable interpretations, one of which would point to the defendant's guilt and the other would admit of his innocence, then it is your duty in considering such evidence to adopt that interpretation which will admit of the defendant's innocence and reject that which would point to his guilt.
People v. Anderson, 2008 WL 2623972, at 5 (italics added by state court on appeal).
Anderson argues this instruction was necessary because CALCRIM No. 224 could have led the jury to believe that those principles regarding interpretation of evidence were only applicable to circumstantial evidence and not to direct evidence.
The state court rejected Anderson's claim of error:
We reject the [ ] argument based on our decision in People v. Anderson (2007) 152 Cal.App.4th 919, 61 Cal.Rptr.3d 903. There, as here, the defendant "contend[ed] that because [CALCRIM No. 224] is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression these principles apply only to circumstantial evidence, not direct evidence." We responded that "[d]efendant misreads the instruction. CALCRIM No. 224 does not set out basic reasonable doubt and burden of proof principles; these are described elsewhere. Although the instruction reiterates that each fact necessary for conviction must be proved beyond a reasonable doubt, the obvious purpose of the instruction is to limit the use of circumstantial evidence in establishing such proof. It cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant's guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant's guilt. [¶] The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence." [....]
The reasonable doubt standard and its application to all evidence, whether direct or circumstantial, was covered by CALCRIM Nos. 220, 222, and 224. As the italicized portions of defense Special Instruction No. 1 show (see fn. 6, ante), the proposed instruction improperly and unfairly skewed the standard instructions in a manner that would predispose the jury toward a defense verdict. Accordingly, the instruction was properly refused.
People v. Anderson, 2008 WL 2623972, at 5-6 (citations omitted).
In general, a claim of instructional error does not raise a cognizable federal claim unless the error, considered in context of all the instructions and the trial record as a whole, "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); see also Henderson v. Kibbe, 431 U.S. 145, 152-55, n.10 (1977); Cupp v. Nauhten, 414 U.S. 141, 146-47 (1973). On federal habeas corpus review, no relief can be granted without a showing that the instructional error had a "substantial and injurious effect or influence in determining the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). An error such as an omitted instruction is less likely to be prejudicial than a misstatement of the law. Kibbe, 431 U.S. at 155; Clark v. Brown, 450 F.3d 898, 904 (9th cir. 2006).
Looking at the jury instructions as a whole and each in context of the other in this case, the reasonable doubt standard was clearly and accurately conveyed to the jury. (E.g., RT at 1277-78.) The trial court's rejection of the additional requested instruction in no way rendered Anderson's trial fundamentally unfair. See Godinez, 67 F.3d at 746 ("We ask whether, under the instructions as a whole and given the evidence in the case, the failure to give the requested instruction rendered the trial so fundamentally unfair as to violate due process."). Rejection of this claim was not contrary to or an unreasonable application of clearly established federal law. No relief is available.
For the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons discussed, a substantial showing of the denial of a constitutional right has not been made in this case.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. The petition for writ of habeas corpus be denied; and
2. A certificate of appealability not issue.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 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." Failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Any reply to the objections shall be filed and served within seven days after service of the objections.
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Latest Comments
"I saw this pattern and thought it would be great to go in my gift tins for my homemade spa sets for Christmas. I started the pattern but kept having trouble with the puff stitch. When I try to pull through the loop the hook gets stuck and pull a strand or two out making it look un-neat. Is there a way to prevent this? Could it be the yarn I am using?"
"I love this pattern for making dishcloths! It is so simple and it's so easy to remember. It makes a great,durable dishcloth. Does anyone tried this pattern with that new yarn that is made for making dishcloths? I think it might be a rayon blend. I'm going to try it next time I need dishcloths."
"This is a great beginner project, it was easy to follow and gave great instruction. I was able to work up several of these for co-workers who thought it was so cute. I am going to make several more for my home for company to use when they come over and have coffee."
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Surprise Pin Cushion
By: Maria Nerius and Debbi
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These Sizzix ideas were created by Maria Nerius during our Hexagon Box Challenge on FaveCrafts 365 (our daily v-log report to you!). Debbi likes to craft items that also have an organizational value so Maria hid a pin cushion inside this box!
- Sizzix Bigz Pro Die Hexagon Box
- Die cutting machine
- Floral themed paper (shown: Die Cuts With A View)
- Medium Daisy or floral of your choice
- Leaf
- 3 Dimensional Ladybug buttons (Blumenthal Lansing)
- 1 Shank Remover tool (Blumenthal Lansing)
- Scissors
- Glue
- Buttons often come with plastic shanks on the back. To adhere these buttons smoothly to the paper surface, I've removed the shanks. You place the tool right up to the back of the button with the shank in the mouth of the tool, then just squeeze and the shank is smoothly cut from the button!
- Die cut the hexagon box, fold on scores, fold into box, adhere all connecting flaps (not that this box has 3 flaps that are inserted into the box at top to close, do not glue these flaps. Allow to dry.
- Adhere flower and leaf to top of box towards center. Adhere ladybug button with shank removed to the grouping.
- Ad here 2 more ladybug buttons with shank removed onto sides.
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Do you find this attraction suitable for families?
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Whale and Dolphin spotting trips
My family and I went on a 2-hour whale watching trip yesterday on the Bahriyeli with Captain Sam and crew (out of Los Cristianos). Captain Sam was fantastic! She really cares...
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My family and I went on a 2-hour whale watching trip yesterday on the Bahriyeli with Captain Sam and crew (out of Los Cristianos). Captain Sam was fantastic! She really cares about the dolphins and whales and knows so much about them. We really appreciate her philosophy about respecting wildlife in their own environment. She and her crew even "talked"...
We had a great couple of hours on the boat whale and dolphin watching.
The crew of the boat were very friendly and knowledgeable about all aspects of the excursion.
Scott and Lewis sold us the trip whilst we were passing their office in Los Christianos, we were not given a hard sell and were pleased that we made the...
We had read reviews from another boat trip to do this but their office was closed and only 6pm..I'm so glad! Further down the road near the port we saw these guys. Scott said that their boat was a sail boat and not many booked on it for 11am. So we booked. €20. Refreshments on board. Next morning we arrived....
This is a great thing to do when in Tenerife. The office is located next to the port and is run by Scott a very amiable chap who owns the boat you go out on. He is up front about what you may not guarantee for dolphins but they guarantee you see whales. We were very fortunate when we went...
Booked this trip online before we left for our holiday, good value at 74 Euros for 3 adults and one child. There were maybe 40 people on the boat but most were sat inside or on the top deck, it was very roomy and we had tonns of space to ourselves as it is a large boat. We positioned ourselves...
I really enjoyed my 3 hour trip watching dolphins and whales. The boat was big and not too crowded so there was plenty of room to move around and find a seat at any part of the boat. People seemed to have a lot of fun jumping off the boat for a swim. Lunch was OK. They only served one...
We made the reservations though internet. You get a 15% discount if you book through internet The boats are a little hard to find as there is no office where you meet. You meet right in the harbor at the boat. If you are not the first tour on the day, the boats might not have returned yet. So be...
Great boat trip on nice wooden boat/ship. Lots of dolphins around few whales. Great experience. Good customer service in the place of booking and on the boat :) The boat trip last 2 hours and they do it every two hours 11am, 3pm and 5pm. Great views of the island and great experience.
Absolutely fab trip we saw loads of whales and dolphins excellent crew especially Danielle great bar maid to my hubby lol well worth the 20 euros each
Booked the 3 hour trip for 30 euros each and loved it.
Boat not overcrowded so plenty of room to sit.
Saw loads of pilot whales and dolphins, lots of photo opportunities. Stopped for lunch and people could swim if they wanted to. I didnt bother with lunch but partner said ok and drinks are free during lunch.
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HIARCS Chess for iPad
By Applied Computer Concepts Ltd.
Open iTunes to buy and download apps.
HIARCS is a multiple World Championship winning chess program and the only handheld chess program in the world which has won matches and tournaments with Grandmasters. It twice won the Mercusor Cup in Buenos Aires, Argentina ahead of Grandmasters with a performance of 2900 Elo, the best chess performance rating for any handheld device in history.
In 1997 the World's strongest ever human chess player, Garry Kasparov, said "HIARCS is much better positionally than Deep Blue" and even the current World champion, Vishy Anand, in a recent 2011 interview when asked what chess program he uses to analyse with said "generally I use HIARCS".
HIARCS Chess for iPad harnesses this chess power to enable your iPad to play chess like a super Grandmaster, analyse games and chess problems with you, or play at whatever weakened chess strength you want from beginner to GM strength while offering numerous features to help you learn and improve as you play with HIARCS. An advanced set of coaching features helps players of all strengths improve their chess play.
HIARCS Chess has a full range of realistic weaker opponent strengths and playing styles catering for players of all abilities from absolute beginners to Grandmasters. On the weaker playing levels HIARCS will make human-like mistakes appropriate to the level of play and this together with the integrated coach advice, assessments and alerts allow you to learn and improve quickly. HIARCS also monitors your chess performance and provides you with an Elo chess rating which tracks your chess ability in every game. It can continuously adjust its playing strength to give you challenging but beatable opponents as you improve.
HIARCS Chess will save battery life by using much less energy on the weaker levels, allowing more playing time on long journeys etc.
You can transfer PGN game databases to and from HIARCS Chess and load/save your chess games in PGN format, it even has databases of all the games between Fischer & Spassky and Kasparov & Karpov for you to play through and enjoy.
HIARCS has a large tournament book which is up to date with chess theory with over 235,000 variations. The book moves are displayed on screen with chess symbols and the opening variations are named and ECO coded.
Key features:
+ Strongest chess program on iPhone and iPod Touch, genuine strong GM-level performance
+ Suitable for all players from absolute beginners to strong Grandmasters with many handicap levels and opponents styles and advanced coaching
+ Intuitive and friendly, iPad tailored, user interface supporting all four screen orientations with multiple high quality piece sets, colour schemes and icons
+ Multiple playing modes: play white, black, both sides in two player mode, continuous analysis and interactive replay
+ Fully adjustable Elo strengths, adaptive levels and multiple playing levels and opponents
+ All levels below maximum are low energy to increase battery life
+ Rates your chess play and gives you an Elo rating which is updated after each game
+ Advanced coaching provides move options, hints, move safety and quality highlights and watches your play to warn about mistakes
+ Transfer PGN databases to/from HIARCS chess via iTunes file sharing, load/save PGNs, email games and PGN DBs from HIARCS
+ Set up or edit a position to analyse or play from
+ Advanced game navigation with move slider and VCR buttons for rapid and precise game navigation
+ Many selectable preset blitz, incremental and average time clock settings for timed play
+ Large HIARCS tournament opening book as used by the professionals!
+ Permanent brain for enhanced playing strength
+ Numerous chess display functions for showing chess moves, analysis, book moves, coach advice, move quality even legal moves
+ Integrated Html manual and help screens
What's New in Version 13.7.5
New PGN game replace feature
New Material Balance feature
Improved handling of PGNs, email attachments and clipboard games
Improved graphics
Larger fonts for analysis, notation and book statistics
iPad Screenshots
Customer Reviews
Awesome site Awesome customer service...
Hello fellow chess players. I'm not an advert chess player. I just like to play here and there on-line. I've really been getting pretty bad while playing other opponents, so I've decided to try and get help with my game playing. So here I am with HIARCS I have to say I'm pretty impressed with this app. The customer service is simply outstanding. With my rating of 10 out of 10!! The app owner is patient and very understanding no matter how dumb you think your questions are, and believe me I have asked him some dumb questions. even the the answer is right in front of you, the app owner broke down what was already laid out on his site and sent me a personal email to simplify the already simple wander to my question. End result this app is incredible well worth the money and so many features and options to learn. Thanks for all of your help Mark.
Mike C
Hiarcs is outstanding software
I am really pleased with the variety of options both in the board and piece appearance, but also in the great range of believable weaker playing options. This program does not hang a piece and then play like a Grandmaster afterwards to try to save the game when playing at 1300 ELO. Rather it makes a series of suboptimal moves that give you the chance to spot the opportunities it is giving you. Very nice play from a fantastic program. It even takes its time when thinking even though it is playing at a weaker level (which I asked it to do so I can have a chance at winning or even just drawing a game or two).
Long term excellence
I have been using Hiarcs for a long time, since it was only a Mac application. The opening data base is first-rate, the display options offer just what you need, and the evaluation of positions are about as good as you can expect from a chess program. I have about six chess engines on my iPad and iPhone, along with several on my Mac laptop. Hiarcs ranks near the top in all areas of evaluation criteria. You could justify getting this program just for the opening data base and use Hiarcs as a trainer to learn new openings or review ones you think you already know.
- $9.99
- Category: Games
- Updated: Nov 14, 2014
- Version: 13.7.5
- Size: 37.1 MB
- Language: English
- Seller: Applied Computer Concepts Ltd.
- © Copyright 2009-2014 Applied Computer Concepts Ltd.
Compatibility: Requires iOS 5.1.1 or later. Compatible with iPad.


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BPC4080 - 408 CID "LA" 4.00 Stroke Chrysler Stroker Shortblock Engine- For Open Chamber Heads
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Super 8 Motel Sandusky North: Find photos, reviews, information, amenities and compare prices for 2 stars hotels in Sandusky, United States.
Super 8 Motel Sandusky North provides a comfortable setting when in Sandusky. It also offers laundry facilities, a 24-hour reception and a wake-up service.
Hotel description
There are a variety of amenities at Super 8 Motel Sandusky that guests can enjoy, such as vending machine, connecting rooms and a golf course.
Equipped to ensure an enjoyable stay, rooms at Super 8 Sandusky North have a coffee maker, a private bathroom and heating. Ironing facilities, a hair dryer and cable/satellite channels are also provided.
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Cream Scones
Total Time
Prep 15 mins
Cook 10 mins
They are like biscuits, but better. I got the recipe from my 10th grade Home Ec. teacher.
Ingredients Nutrition
8-9 8-9 scones US
- 2 cups all-purpose flour
- 2 teaspoons sugar
- 1 teaspoon salt
- 1 tablespoon baking powder
- 1 cup heavy cream (approximately)
- Preheat oven to 425 degrees.
- In large bowl, sift together dry ingrediants. Gradually add enough cream to form a soft dough. Kneed lightly on a floured board; handling dough gently.
- Roll out to 1/2 to 3/4 inches in thickness. Cut into 2-inch rounds or squares with a sharp knife or cookie cutter.
- Arrange on an ungreased baking sheet. Bake for 10-12 minutes.


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Memorable Stepmothers From The Big Screen
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Supreme Court of New York, Nassau County
September 4, 2013
MSL PRODUCTIONS, INC. and Gary Cioffi, Plaintiffs,v.IMR GROUP LLC d/b/a Jack Russell Group, Ira Waks, Richard Rathe, Glenn Mark, Jonathan Waks, individually and in his capacity as Executor of the Estate of Ira Waks and Brooks Nelson, Defendants.
[971 N.Y.S.2d 193] Jaspan Schlesinger, LLP, Linda S. Agnew, Esq., Garden City, for plaintiffs.
Garvey Schubert Barer, LLP, Andrew J. Goodman, Esq., New York, for defendants.
VITO M. DeSTEFANO, J.
The Defendants move pursuant to CPLR 2221(d) to reargue that branch of their prior " motion for summary judgment dismissing the fifth cause of action" (breach of contract claim), which was denied in a Decision and Order of this court dated March 8, 2012 (" prior order" ), and, upon reargument, dismissing the fifth cause of action.
For the reasons that follow and to the extent outlined herein, the court grants reargument and, upon reargument, grants the branch of the Defendants' motion seeking dismissal of the fifth cause of action for breach of contract (CPLR 3211[a][5] ).
Initially, the court notes that in the underlying motion, the Defendants sought dismissal of the breach of contract cause of action pursuant to, inter alia, CPLR 3212. However, the court, in its prior order, denied that branch of the motion which sought summary judgment inasmuch as the Defendants failed to annex a copy of the answer to their motion papers as required by CPLR 3212(b). The instant motion, therefore, to the extent that it seeks for reargument of the branch of the prior motion for summary judgment, cannot establish that the court overlooked or misapprehended the law in this regard. [1]
In the underlying motion, the Defendants also sought dismissal pursuant to CPLR 3211(a)(7). Specifically, the Defendants argued that the oral agreement which is the subject of this action violated the Statute of Frauds insofar as it could [971 N.Y.S.2d 194] not be performed within one year. The court denied this branch of the motion, analyzing it under CPLR 3211(a)(7) in accordance with the parties' arguments and submissions. However, the correct analysis should have been under CPLR 3211(a)(5), which specifically lists the Statute of Frauds as a defense thereunder.
General Obligations Law § 5-701(a)(1) provides that every " agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith * * * if such agreement * * * by its terms is not to be performed within one year from the making thereof."
In its prior order, the court concluded that the subject agreement violated the Statute of Frauds considering that it was an oral agreement to pay commissions over a three-year period. The court, nevertheless, denied the branch of Defendants' motion seeking dismissal of the breach of contract cause of action in light of the potential applicability of the doctrine of part performance (Prior Order at pp. 4-5).
In the instant motion, the Defendants assert that the court should dismiss the breach of contract cause of action because of the numerous cases establishing that " the part performance exception does not apply to General Obligations Law § 5-701(a)(1)" (Affirmation in Support at ¶ 4).
The Defendants are correct that there is ample case law supporting the conclusion that the doctrine of part performance does not apply to General Obligations Law § 5-701, but, rather, is limited to real estate transactions (or other statutes which delineate the exception), and more specifically, to salvaging oral conveyances of real property otherwise invalid under General Obligations Law § 5-703.[2] In this regard, the Court of Appeals has explicitly stated that it has never treated the doctrine of part performance as an exception to General Obligations Law § 5-701. Specifically, in Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, fn. 1, 689 N.Y.S.2d 674, 711 N.E.2d 953 [1999] [" Messner " ], the Court of Appeals noted that the part performance exception to the Statute of Frauds is " wholly grounded upon General Obligations Law § 5-703" and " that it had not recognized a parallel judicially-created part performance exception to [General Obligations Law] § 5-701" .
In Stephen Pevner, Inc. v. Ensler, 309 A.D.2d 722, 766 N.Y.S.2d 183 [1st Dept. 2003], the First Department, citing Messner, stated that the part-performance exception to the Statute of Frauds " applies to General Obligations Law § 5-703, which deals with real-estate transactions, but it has not been extended to General Obligations Law § 5-701" ( but see Carey & Associates v. Ernst, 27 A.D.3d 261, 810 N.Y.S.2d 475 [1st Dept. 2006] [court applied a part performance exception analysis to ascertain whether the plaintiff's part performance was unequivocally referable to an oral agreement which would render the agreement enforceable notwithstanding its unenforceability pursuant to General Obligations Law § 5-701(a)(2) ]; Travis v. Fallani and Cohn, 292 A.D.2d 242, 739 N.Y.S.2d 675 [1st Dept. 2002] [parties' conduct demonstrated a non-real estate related oral agreement unequivocally referable to the agreement which was not barred by the Statute of Frauds] ).
[971 N.Y.S.2d 195] According to the Third Department in Valentino v. Davis, 270 A.D.2d 635, 637, 703 N.Y.S.2d 609 [3d Dept. 2000], " [t]o the extent that plaintiff attempts to avoid the Statute of Frauds defense by arguing that the doctrine of part performance should be applied, we reject this argument. The Court of Appeals has recently clarified that the doctrine of part performance cannot save contracts governed by General Obligations Law § 5-701" and that in view of the Court of Appeals' pronouncement in Messner, " we hold that part performance is not a viable option to salvage plaintiff's breach of contract claim."
And, in American Tower Asset Sub, LLC v. Buffalo-Lake Erie Wireless Systems Co., 104 A.D.3d 1212, 961 N.Y.S.2d 667 [4th Dept. 2013], the Fourth Department ruled that the doctrine of part performance was inapplicable to defeat a letter of intent agreement which was barred by General Obligations Law § 5-701(a)(1) of the Statute of Frauds. In so concluding, the Court stated that, to the extent it had held in the past that the doctrine of part performance was applicable to acts governed by section 5-701 of the General Obligations Law, " those cases are no longer to be followed" ( Id. at 1212-13, 961 N.Y.S.2d 667).
In contrast, the Second Department has applied the part performance doctrine to agreements that violated the Statute of Frauds insofar as such agreements could not be performed within one year.[3] Recently, in EDP Hospital Computer Systems, Inc. v. Bronx-Lebanon Hospital Center, 13 A.D.3d 476, 477-78, 789 N.Y.S.2d 50 [2d Dept. 2004] (" EDP " ), the Second Department held as follows:
The Supreme Court also properly denied the branch of the defendant's cross motion which was for summary judgment dismissing the plaintiff's remaining causes of action for failure to comply with the statute of frauds. In its amended complaint, the plaintiff averred that in or about December 1987 it entered into an oral agreement with the defendant to provide certain computer services. Although the original agreement allegedly was for an indefinite term and could be terminated upon reasonable notice, the plaintiff claimed that in November 1991 the parties orally agreed to continue the agreement for at least two additional years. After the defendant established it prima facie entitlement to summary judgment by tendering evidence that the alleged oral agreement failed to comply with the provisions of General Obligations Law § 5-701(a)(1), the plaintiff, in opposition, submitted evidence of partial performance in reliance upon, and unequivocally referable to, the oral agreement. Such evidence was sufficient to raise an issue of fact as to whether the oral agreement was removed from the statute of frauds ( see Gerry's Foods of Oceanside v. Blue Ridge Farms, 292 A.D.2d 417, 738 N.Y.S.2d 891 [2d Dept. 2002]; [4] [971 N.Y.S.2d 196] Brady v. Helmsley, 246 A.D.2d 486, 668 N.Y.S.2d 198 [1st Dept. 1998]; [5] cf. Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 689 N.Y.S.2d 674, 711 N.E.2d 953 [1999] ).
Under the circumstances, the court would be constrained to follow EDP, especially considering that the Second Department specifically rejected appellant's argument therein that the " doctrine of part performance does not apply to contracts, such as the alleged contract in this case, that cannot be performed within one year of their making and that are therefore governed by General Obligations Law § 5-701. Rather, it is limited to conveyances and contracts concerning real property that are governed by General Obligations Law § 5-703" (Appellant's Reply Brief in EDP at pp. 11-12, 2004 WL 3392386). Also significant is the Second Department's " cf." citation to the Court of Appeals' decision in Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, supra, thus underscoring the Second Department's expanded application of the part performance doctrine.
Notwithstanding the foregoing, the court notes that the doctrine of part performance is itself subject to an exception that precludes its application here. Significantly, it has been held that where an action " is pleaded as one at law, and seeks only money damages, without any specific prayer for equitable relief, the plaintiff cannot rely on the doctrine of part performance to defeat the statute of frauds defense" ( Zito v. County of Suffolk, 106 A.D.3d 814, 964 N.Y.S.2d 644 [2d Dept. 2013]; see also Sparks Associates, LLC v. North Hills Holding Co. II, LLC, 94 A.D.3d 864, 941 N.Y.S.2d 695 [2d Dept. 2012] [part performance may be sufficient in some circumstances to overcome the Statute of Frauds, " but only in an action for specific performance" ]; Stainless Broadcasting Co. v. Clear Channel Broadcasting Licenses, L.P., 58 A.D.3d 1010, 871 N.Y.S.2d 468 [3d Dept. 2009]; Farash v. Sykes Datatronics, Inc., 90 A.D.2d 965, 456 N.Y.S.2d 556 [4th Dept. 1982] [" equitable claim of part performance cannot be applied in an action at law" ]; AmJur Statute of Frauds § 296 [" doctrine of part performance is purely an equitable doctrine, unrecognized at law, and accordingly will not sustain an action at law based on a contract within the Statute of Frauds. Thus, the part performance exception to the Statute of Frauds is inapplicable in a suit where only money damages are sought" ] ).[6]
[971 N.Y.S.2d 197] At bar, the complaint does not seek specific performance of the relevant oral agreement but only money damages. This distinguishes the instant matter from EDP, wherein the plaintiffs advanced claims for both breach of contract and specific performance.[7]
Accordingly, it is hereby ordered that the Defendants' motion to reargue is granted and, upon reargument, the court grants that branch of the underlying motion seeking dismissal of the fifth cause of action for breach of contract and the cause of action is dismissed.
This constitutes the decision and order of the court.
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Appalachian Trail: Dennis Cove to Laurel Fork Gorge is a 2.5 mile moderately trafficked out and back trail located near Hampton, TN that features a waterfall and is rated as moderate. The trail is primarily used for hiking and walking and is accessible from May until December. Dogs are also able to use this trail but must be kept on leash.
dogs on leash
kid friendly
Wow. A very nice trail. The trail indicates a blue trail marker but the trail mainly had white ones after the trailhead. The turn off the main trail to go to Laurel Falls isn't marked with a trail name marker. You will turn left and go down the stone steps to the bottom for a spectacular view of the falls. We loved it. We also loved that they put in stone steps because it makes it easier to navigate. We will be back for another visit to hike the other trails located at this location.
Nice hike with even footing most of the way. The last bit going down to the base of the falls has many stone steps to negotiate, but the falls are magnificent and well worth the effort.
great hike down to falls. trail is well taken care of
nice bridge over water and steps along the way.
We started at our Dennis cove campsite and walked to the coon den falls starting point. Pretty steep going up to the falls. Back tracked and followed it to the AT and made a loop out of it. The falls where beautiful and there's is a beautiful spot on the AT if you go right back towards Dennis cove that looks out over the mountains. A must seen.
One of my favorite day hikes!
We hiked this trail with our children, ages 9 and 4. We started at the Dennis Cove AT Trailhead and found the overall experience to be wonderful! We found entering the left hand (of the 4 entrances) was the correct one after speaking with several other hikers. The trail was shady and offered plenty of spots for us to hike down and see the water and to climb up and see the mountains. The trail was mostly easy to follow, and an enjoyable hike until it was time to start down towards the falls. The hike down to the falls just needs to be taken slowly and carefully. Once down to the falls, we took a long water break while enjoying the sounds and sights of the waterfall, and then played in the chilly water for a bit before beginning our ascent to the top. We will definitely be back here for another day hike.
Amazing. One of my favorite day hikes.
Have done it dozens of times since 1972
Hiked to the falls. It was beautiful. The treck down to the actual waterfalls is all downhill down a stone staircase. It is a difficult trip back up those stairs to the top. Bring water and take breaks.
I only hiked from Dennis Cove to the falls but it was a pretty easy hike. the hardest part of the hike is climbing back up the main trail after going down to visit the falls. There are rocks that work as gigantic stair steps on your way back up so be prepared to get a little burn going in your quad muscles. If all you want to do is visit the falls you shouldn't even need to carry a back pack although a bottle of water might be a good thing. And don't forget your camera because this is one of the bigger waterfalls in the area. I last visited the falls in August 2012.
If your looking for a great hike with all different terrain types then this is for you. This hike gives you a bit of everything you want. I have hiked this trail many times in my life, as I was born and raised in the town the hiking location is at. The changes in terrain keeps you on your toes and lets you enjoy the full experience of an actual hike as well as a wonderful reward at the end with a beautiful view of the falls at all times during the year. The hike can be made by almost anyone, there are few uphill challenges but they can be easily conquered. All in all, wonderful hike.
I hiked to Laurel Falls from the Hampton side and was really impressed with the trail and all of the different things to see. The waterfall is very impressive and definitely plan on going back in warmer weather and also to hike in from the Dennis Cove end. Great hike and wonderful waterfall.
Everytime I Hike this trail I feel Like I find another offshoot to explore which typically takes me to a nice tranquil environment of solitude.
The trail from Dennis Cove to Laurel Fork Falls (the Appalachian Trail) is probably my all-time favorite, and I've hiked it probably 15-20 times. Today was another great experience; it had snowed a couple of days ago, so going down the stone steps to the falls was a nervous affair for a 58-year-old guy, but well worth it. The falls today were as full as I've ever seen them, and the trail itself is worth the hike. One of the loveliest stretches of hiking I know. Highly recommended!
Another of my favorites! Have done this one twice in recent months as an in/out trail with visitors, and numerous times as a pass-thru section on the AT.
Can be VERY crowded in the summer months! and challenging in the winter.
Love this area!!
Overall a pretty good hike. Probably 3/4 of the trail is cleared and easy hiking. The last 1/4 of the hike is fairly demanding unless your in awesome shape. You have a climb down to the falls and back up, pretty steep and rocky, almost like steps. Once at the falls, there is a very scenic, woodsy area and swimming hole.


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National Service Blog
Posted on May 20, 2016
Earlier this week I traveled to Joplin, Missouri, for a trip I will never forget. The Joplin story is one of a community that never gave up, that demonstrated steely resolve in the face of tragedy, and that is coming back stronger and better than before. It is also the story of volunteers – 130,000 strong and counting – whose selfless service has lifted up an entire community when it needed it most.
For many residents, the one year anniversary was a painful reminder of the devastating EF-5 tornado that ripped through Joplin, killing 161 people, destroying 7,500 homes and buildings, and leaving a trail of destruction through the heart of the city.
But even more so, the anniversary was a symbol of hope, pride, optimism, and unity. The people of Joplin did not let themselves be defined by what happened on May 22, 2011. Instead they defined themselves by what happened after - their extraordinary resilience and desire to rebuild.
As President Obama told the graduating seniors at Joplin High School, "Here in Joplin, you've also learned that we have the power to grow from these experiences. We can define our own lives, not by what happens to us, but by how we respond. We can choose to carry on, to make a difference in the world."
Posted on Feb 26, 2013
Recognizing the work AmeriCorps and Senior Corps programs perform in communities across the nation, the National League of Cities (NLC) will join more than 275 city leaders to shine a spotlight on their service during the Mayors Day of Recognition for National Service on April 9.
Posted on Feb 25, 2013
The Corporation for National and Community Service (CNCS) and U.S. Department of Education announced a new collaborative effort today to strengthen and accelerate interventions in our nation's lowest-performing schools. The new School Turnaround AmeriCorps program will support a dedicated unit of AmeriCorps members that will provide additional support and resources in persistently underachieving schools.
Posted on Feb 21, 2013
Disasters like Hurricane Sandy not only cause physical damage, but they can leave confusion and anger in their wake for weeks and months. So it must have surprised FEMA Corps Team Leader Cassie Murray to be declared "an angel" only a few hours after she was angrily confronted by one of the storm's survivors.
Posted on Feb 19, 2013
The Service News Digest is a regular feature on the Serve.gov blog. In this series, we showcase articles that feature national service and Corporation for National and Community Service (CNCS) programs. Take a look at some of the great stories that had people talking recently.
Posted on Feb 15, 2013
Posted on Feb 14, 2013
The cliché is that opposites attract, but we've learned that some members of our national service family found enough in common to build relationships that led all the way to the altar. These are their stories.Names:Libby and Bobby Hite (Libby, currently serving as a Corporation for National and Community Service state program specialist in New Hampshire, provided the answers.)Length of Marriage:1 year, 6 monthsNumber of Children:One furry, four-legged friend – a black lab named Cash.
Posted on Feb 14, 2013
In his State of the Union address, President Obama vowed to "make high-quality preschool available to every single child in America," and he traveled to Georgia today to discuss the need for early childhood education. Improving education is a priority at the Corporation for National and Community Service (CNCS) that we support through proven national service efforts that make a difference in the lives of millions of students.
Posted on Feb 13, 2013
So, tomorrow is Valentine's Day and florists will be scrambling to fill orders and chocolate consumption is expected to rise by maybe a jillion percent. Suppose we take this day dedicated to love and use it to show that we have big hearts by serving or giving to others?
Posted on Feb 11, 2013
The Service News Digest is a regular feature on the Serve.gov blog. In this series, we showcase articles that feature national service and Corporation for National and Community Service (CNCS) programs. Take a look at some of the great stories that had people talking recently.
Posted on Feb 11, 2013
The blizzard that whacked the Northeast last weekend paralyzed the hardest-hit areas, and created a gigantic task for workers mobilized to clear roads and restore electricity to areas that lost power. The storm is a reminder that this season can pack a punch, and we need to be prepared to handle winter's wrath.


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That New Book Smell
Posted by Conor Risch on Thursday April 19, 2012 | Celebrity, Fashion
Posted by Conor Risch on Thursday April 19, 2012 | Celebrity, Fashion
When bibliophiles celebrate print they often talk about the weight or feel of paper, about color, binding, typeface, design… but scent?
Leave it to print purists and publishers Gerhard Steidl and Karl Lagerfeld to pay attention to the often-overlooked, olfactory component of the print experience. It was Lagerfeld who first pointed out the scent of print to Steidl, which led to a collaboration between Steidl, Wallpaper* magazine and master perfumer Geza Schoen to create Paper Passion perfume—"For Booklovers."
The scent debuted this week at at the Wallpaper* Handmade exhibition in Milan, which runs through April 22 at the headquarters of men's clothing designer Brioni, and it will be available to the public on May 30.
The perfume comes hidden inside the pages of a Steidl-published book, designed by Lagerfeld, which includes various odes to the printed page and its characteristic scent.
As Lagerfeld has said, "The smell of a freshly printed book is the best smell in the world." Backlit touch-screens may be the future, but the future doesn't smell nearly as nice.
Posted by Greg Scoblete on Friday May 13, 2016 | Celebrity, Media, Social Media/Web
A photo posted by Kim Kardashian West (@kimkardashian) on May 7, 2016 at 5:45pm PDT Digiday's Shareen Pathak has published a revealing–though anonymous–interview with a social media executive about the business of finding and cultivating social media influencers to promote brands. (A subject we've tackled quite a bit — here and here.) Reading it, you'll learn... More ›
Posted by David Walker on Wednesday April 27, 2016 | Celebrity, Copyright/Legal
Photographer Lynn Goldsmith's studio says the Smithsonian Institution violated copyright of her 1993 portrait of Prince last week by distributing the image to the media without permission. The musician died April 21, and the following day, the Smithsonian displayed a print of Goldsmith's photograph at the National Portrait Gallery's In Memoriam space. The museum notified... More ›
Posted by Conor Risch on Friday April 15, 2016 | Celebrity
A negative we found of Leonardo DiCaprio. Shirtless!! And smoking! We Make Limited Edition Prints From Found Flea Market Negatives. #leonardodicaprio #oscars A photo posted by Negative Collection (@negativecollection) on Mar 3, 2016 at 9:51am PST Lost negatives from a photo shoot with a young Leonardo DiCaprio were recently returned to photographer-turned-filmmaker Alexi Tan thanks... More ›


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