The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Kaleokalani Yamada ("Petitioner" or "Yamada") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 29, 2009. Pursuant to this Court's order, Petitioner filed an amended petition on July 8, 2009 ("Amended Petition"). Respondents Todd Thomas, Warden, Saguaro Correctional Facility, Clayton A. Frank, Director, Department of Public Safety, State of Hawai`i, and Tommy Johnson, Deputy Director of Corrections, Department of Public Safety, State of Hawai`i (collectively "Respondents") filed their Answer to the Amended Petition on September 3, 2009. Petitioner filed a Reply Brief on October 23, 2009. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 8 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, and Rule 7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawaii ("Local Rules"). After careful consideration of the parties' submissions and the relevant case law, this Court DENIES the Amended Petition for the reasons set forth below.
In 2003, Petitioner was charged with two counts of robbery in the first degree (Counts One and Three) and one count of assault in the first degree (Count Two) in connection with a February 14, 2003 incident. The circuit court conducted a jury trial on November 25 and 26, and December 1, 2, and 3, 2003. The jury returned a guilty verdict on all three counts. Petitioner moved for a new trial based on a number of grounds. The circuit court granted the motion based solely on the fact that one of the jurors admitted to sleeping through approximately twenty percent of defense counsel's closing argument.
The government appealed. The Hawai`i Supreme Court held that the juror misconduct was harmless beyond a reasonable doubt. State v. Yamada, 108 Hawai`i 474, 482, 122 P.3d 254, 262 (2005) ("Yamada I"). The supreme court vacated the order granting a new trial and remanded the case for sentencing. Id.
On remand, the circuit court sentenced Petitioner to concurrent terms of twenty years of imprisonment each for Counts One and Three and ten years of imprisonment for Count Two. In addition, the circuit court ordered Petitioner to pay restitution of $760.72 for Count One and $6,981.31 for Count Three. Judgment was entered on January 25, 2006. State v. Yamada, 116 Hawai`i 422, 431, 173 P.3d 569, 578 (Ct. App. 2007) ("Yamada II").
Petitioner appealed. On December 6, 2007, the Intermediate Court of Appeals of Hawai`i ("ICA") issued an opinion affirming the judgment of conviction and sentence. Id. at 445, 173 P.3d at 592. Yamada filed an application for writ of certiorari to the Hawai`i Supreme Court. The supreme court denied the application on April 1, 2008. 117 Hawai`i 332, 180 P.3d 473 (2008). Yamada did not apply for certiorari to the United States Supreme Court, and he has not filed a petition for post-conviction relief pursuant to Rule 40 of the Hawai`i Rules of Penal Procedure.
II. Factual and Procedural Background
A. February 13, 2003 Incident
On the evening of February 13, 2003, Nicholas Kaneta ("Kaneta") and his friend, Quinton Yoza ("Yoza"), were robbed and severely beaten at the Diamond Head lookout by two male assailants, one of whom wielded a baseball bat.
That night, Kaneta finished work at around 10:00 p.m. and met Yoza to rehearse for an upcoming concert. Before practice, the two stopped by a local bar for drinks. [Transcript of Proceedings held November 25, 2003 ("11/25/03 Trans."), at 29-35.*fn1 ] Kaneta said that he had four beers at the bar, but he felt "perfectly fine" when they drove to one of the Diamond Head lookouts to play. [Id. at 35-36.] At the lookout, they sang and played guitar in peace for about an hour and a half. [Id. at 37-38.]
At some point, Kaneta went to his car for a cigarette, when a vehicle rapidly pulled up behind his. [Id. at 38-39.] Still leaning into his car, Kaneta heard Yoza say "oh, oh, oh," and somebody yell "something like you talking shit." [Id. at 39.] The last thing Kaneta saw as he turned to see the source of the commotion was a blunt object coming toward his face; he was knocked out as a result. [Id. at 39, 45.] The blow broke his jaw, lacerated his ear, caused bleeding on the right side of his brain, and knocked him unconscious. Kaneta required surgery on his ear and jaw. [Id. at 50-52, 58, 60.] After the attack, he suffered from "bad dizzy spells" and panic attacks. [Id. at 57.] Though these episodes subsided, at the time of the trial, Kaneta still periodically experienced them. [Id. at 58.] When Kaneta regained consciousness, Yoza told him, "brah, we just got jacked." [Id. at 48.]
According to Yoza, he saw a white, four-door car, with its lights off and its front license plate covered with a towel or T-shirt, approach the lookout quickly from the Waikiki direction and stop next to Kaneta's car. Yoza did not recognize the two people in the car. [Id. at 98-99.] Petitioner, who Yoza identified as the passenger in the white car, jumped out of the vehicle, and angrily yelled "you guys were talking shit, you guys were talking shit. I told him I don't know what you're talking about, never seen you before, you know, trying to calm him down. And he proceeded to walk right past me as I was sitting on the wall and sw[u]ng the bat" at Kaneta. [Id. at 100, 116-17.] Eventually, the assailant struck Yoza on the crown of his head, leaving Yoza dazed, and demanded his money. Yoza attempted to block the blows, but was struck at least seven times. At that point, he estimated that their faces were within six inches of each other. After Yoza gave the assailant all of his money, he pleaded with the assailant to leave him alone. [Id. at 105-10.] "And he said you want to die tonight - exact words were you want to fucking die tonight? And he lifted up his shirt. [Yoza] didn't bother looking, but it was a gesture as if . . . he . . . had a gun." [Id. at 110.]
Yoza then wrestled the assailant to the ground, causing the assailant to drop his bat, at which time Yoza heard the sound of "[l]ike an aluminum bat hitting the ground versus a wooden bat." [Id. at 101-02.] Yoza was on top of the assailant, who was struggling and face down on the road, but when car headlights became visible and the assailant's companion yelled out "we got to go," he "just sprung [Yoza] off his back like nothing. . . . and took off[.]" [Id. at 113.] Yoza flagged down a passerby in a black truck, which sped after the assailants' car in the Kahala direction. Yoza then checked on Kaneta to make sure he was breathing, told Kaneta he was going to call for an ambulance, and ran to the next lookout. After calling 911 from a nearby payphone, Yoza smoked half a marijuana cigarette to calm down. The police arrived in about five minutes, after which he and Kaneta were taken to the Queen's Medical Center where Yoza gave the police a statement and a description of the assailant. [Id. at 118-24, 129-31.]
On February 20, 2003, Yoza met with a police artist to assist in the preparation of a "composite sketch" of his assailant. [Id. at 133-35.] Then, on March 21, 2003, Detective Gordon Makishima contacted Yoza to have him view a photographic lineup. [Id. at 137.] It took Yoza two seconds to identify his assailant from the six-photograph lineup, and he was certain that the person depicted in photograph number three of the photographic lineup was their assailant. [Id. at 140-41.]
On February 14, 2003, at about 12:30 a.m., Oliko Cookman ("Cookman"), picked up his friend Alika, and drove along Diamond Head Road towards Waikiki. [Transcript of Proceedings held November 26, 2003 ("11/26/03 Trans."), at 13-14.*fn2 ] Cookman drove past two males at a lookout; they were sitting on a wall next to a car and playing music. One of the males had a guitar, and Cookman had heard them playing music at the lookout two weeks earlier. Cookman decided to turn his car around and drive back to the lookout. As Cookman drove back to the lookout, one of the men, who appeared bloody, ran into the road, waved them down, and asked for help. [Id. at 14-18.] Cookman parked his truck ten to twenty feet behind another car parked at the lookout with his headlights shining on that car. Two men saw him, got in their car and sped away. Cookman got a good look at the passenger before chasing the men in the car for several blocks toward Kahala. [Id. at 18-19.] Cookman lost sight of the car, and drove back toward the lookout. Cookman subsequently identified Petitioner from a six-photograph lineup shown to him by Detective Makishima. [Id. at 31-45.]
B. March 21, 2003 Incident
On March 21, 2003, Petitioner was arrested by police at the University of Hawai`i shortly after he and an unknown accomplice used a baseball bat to rob two tourists in the parking lot of the Honolulu Zoo. Police used photographs taken of Petitioner after this arrest to assemble the photographic lineup that they showed to Kaneta, Yoza, Cookman.
Prior to trial, the State moved in limine for an order allowing the introduction at trial of the March 21, 2003 arrest. Specifically, that Petitioner: (1) was in the Honolulu Zoo parking lot with an unknown accomplice and in possession of a baseball bat; (2) smashed the body and windows of a car that did not belong to him with his baseball bat; (3) yelled at the two occupants of the car to "Get out" and to "Give us money[;]" (4) stole the occupants' car and personal belongings after the occupants fled; and (5) on November 12th, 2003, pled guilty to the offense of Robbery in the First Degree. Yamada II, 116 Hawai`i at 426-27, 173 P.3d at 573-74. Petitioner, in his motion in limine, asked for the exclusion of his guilty plea and all evidence of the March 21st incident. Id. at 426-27, 173 P.3d at 573-74.
The circuit court permitted the State to present evidence that (1) "on Friday, March 21, 2003, at approximately 0215 hours, the Defendant was at the Honolulu parking lot[,]" and (2) "on Friday, March 21, 2003, at approximately 0215 hours, the Defendant was in possession of a baseball bat at the Honolulu Zoo parking lot." Id. at 427 n.5, 173 P.3d at 574 n.5. The circuit court also permitted the following stipulation (to which a photograph of one of the recovered aluminum bats was appended) containing the facts to which University of Hawai`i security guard Albert Teixeira would testify concerning the March 21, 2003 incident:
1. On March 21, 2003, at approximately 2:30 a.m., Albert Teixeira, a University of Hawaii security officer, accompanied by a female security officer, saw two males standing to the rear of a car in a University of Hawaii dormitory parking lot located at 2579 Dole Street.
2. Teixeira and the other female security officer approached the two males.
3. Teixeira asked both males what they were doing there, and neither male gave any response.
4. Upon request, one of the males, later identified as the Defendant Kaleokalani Yamada (Yamada), followed closely by Teixeira, walked over to the car's passenger door to retrieve the car's registration documents.
5. Yamada open[ed] the car's passenger-side front door, bent over, and reached into the car.
6. Teixeira's flashlight was getting weak and he could not see clearly what Yamada was doing inside the car.
7. Yamada straightened up and, as he did so, turned around to face Teixeira.
8. Teixeira noticed that Yamada was now holding an aluminum baseball bat in both hands.
9. [9 was struck by agreement]
10. When the police arrived, Teixeira briefed the police on what he had observed and done, whereupon Honolulu police officers then took charge of Yamada and recovered the aluminum baseball bat shown in Exhibit "1", attached hereto.
11. Later on March 21, 2003, the police took the photograph of Yamada that appears as photograph number 3 in the six-person photographic lineup shown by the police to Nicholas Kaneta, Quinton Yoza and Oliko Cookman.
Id. at 428-29 n.7, 173 P.3d at 575-76 n.7 (some alterations in original).
Petitioner's trial took place on November 25--26 and December 1--3, 2003. Defense witness and Petitioner's girlfriend, Lindsey Johansen ("Johansen"), testified that Petitioner arrived at her home between 9:30 and 10:00 p.m. on the evening of February 13, 2003, they watched movies and television, and Petitioner stayed the night. [Transcript of Proceedings held December 1, 2003 ("12/1/03 Trans."), at 13-14, 16, 19.*fn3 ] Four other people lived in her home, but Johansen did not know if those people were at home on the evening of February 13, 2003 and she did not see any of them the next morning when she and Petitioner woke up. [Id. at 12, 18-19.]
Greg Ho ("Ho"), the director of the Sack 'n Save store where Petitioner was employed at the time of the February 13, 2003 incident, testified that employees were required to be clean-shaven with short hair, but could have mustaches. Ho stated that Petitioner never had the hairstyle depicted in the police sketch while working for his store. [Id. at 54-58.]
Petitioner also testified that he was at home during the evening of February 13, 2003, until he drove to Johansen's house, where he remained during the early morning hours of February 14. He testified that he neither struck Kaneta and Yoza with a baseball bat nor robbed them, and he opined that the State was prosecuting the "wrong guy." [Id. at 71-74, 76.]
On December 2, 2003, Petitioner moved for a mistrial based on statements made by the prosecutor during closing arguments, in which he highlighted the similarities between the March 21st and February 13th incidents. Outside the presence of the jury, the circuit court ruled as follows:
THE COURT: Let me tell you what the court intended. I think I've been crystal clear. I got after [the prosecutor] the other day and said I feel like we've been talking past each other and I made it clear again. It came in only - the only relevance was to show the context of how the police got the photograph of - to explain to the jury.
So it wasn't just out of the blue that five weeks later they found - they took Mr. Yamada's photograph. Only to show the taking of the photograph, not as to identity. That was what I thought in my head. That's what I thought I said crystal clear. I re-emphasized it the other day and that's why I got into this limiting instruction. Is that your understanding?
[DEFENSE COUNSEL]: That is my understanding, your Honor.
THE COURT: And now I feel badly I let any of it in at all. I thought it [sic] did it to allow [the prosecutor] an opportunity to say hey, we only learned about Mr. Yamada five weeks later. That was why I did it, not to show under 404 he was the same fellow that - or was not the - was or wasn't the same fellow up at Diamond Head.
So I want that clear and I'm not blaming you. Maybe I didn't explain it. I clearly had that in my mind. I thought I - remember in chambers I re-emphasized that in front of counsel, maybe not on the record. And then I again today and that's why I wanted that limiting instruction so clear so that's the court's ruling.
[PROSECUTOR]: If the court had - and I understood. I heard the limiting instruction and I read more into it than was there. If it's only to show where the pictures came from or how the picture came into the hands of the police, your Honor, does that go to identity?
THE COURT: No. [PROSECUTOR]: So that's the part that I completely missed because that was originally why I wanted it in.
THE COURT: I know that and I think that sometimes advocates get their own mind set a certain way. I only wanted to elect - there's going to be a mugshot coming in. Number one, I didn't have to let the mugshot in. I was going to let the mugshot in; therefore, I wanted to show where the mugshot came from, came out of an unrelated incidents [sic] five weeks later at U.H., end of story.
And perhaps in hindsight, [defense counsel] shouldn't have let all those different stipulations in about the situation, but he did and I think it explains context. I'm not faulting [defense counsel]. It goes only to show how they got the mugshot, not the bat, not the closeness in the vicinity, not the hands on the bat, not the five weeks to the day.
[PROSECUTOR]: Your Honor, now you're limiting it even more. I thought you indicated that it came in to show how they got the photograph.
[PROSECUTOR]: And now you just said not the bat.
THE COURT: Not the two hands on the bat. They recovered a bat and as a result, they took his picture. As a result, they showed it to the folks.
[PROSECUTOR]: It's just - well, your Honor, just based on the stipulation, my understanding was that it was relevant to identity.
THE COURT: I understand. [PROSECUTOR]: I apologize to the extent that I am wrong and I violated the court's order. I am apologizing. That is not something that I would do on purpose.
THE COURT: But be that as it may, I just don't want it to happen any more and it puts us all in a tough situation during closing. I thought I made it clear, but be that as it may, we need to go ahead with this. The jury's ready?
[DEFENSE COUNSEL]: Your Honor, on my motion to mistrial.
THE COURT: I'm going to respectfully deny the motion for mistrial. I've given a limiting instruction. I gave what I think was a proper curative instruction during closing and we need to go ahead. [Transcript of Proceedings held Dec. 2, 2003 ("12/2/03 Trans."), at 67-70.*fn4 ]
After closing arguments, but prior to the jury stating its verdict, Petitioner again moved for a mistrial because (1) some of the jurors appeared to be asleep during closing arguments, and (2) the prosecutor improperly discussed "identity and the zoo incident[.]" [Transcript of Proceedings held Dec. 3, 2003 ("12/3/03 Trans."), at 2.*fn5 ] Both of the motions were denied without prejudice. [Id. at 12-13.]
The jury found Petitioner guilty on all three counts. [Id. at 17-19.] Before releasing them, the circuit court questioned three jury members about whether they had slept during portions of the trial. One juror said he was "drifting" in and out through up to twenty percent of the defense's closing arguments. [Id. at 21-23.]
Petitioner then made an oral motion for a judgment of acquittal based on the sufficiency of the evidence, which the circuit court denied without prejudice to the filing of a written motion. [Id. at 30-32.]
Petitioner filed a motion for a new trial, based on the following grounds:
A. Erroneous rulings on evidence raise "legal cause" for ...