Jacobs v. Cate

Citation: 313 F. App'x 42Docket: No. 06-15732

Court: Court of Appeals for the Ninth Circuit; February 12, 2009; Federal Appellate Court

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Harvey Barry Jacobs was convicted of second-degree murder for the death of his wife, Nadine, after a three-week trial involving over thirty witnesses. The California Court of Appeal upheld the conviction, and the California Supreme Court declined to review the case. Following unsuccessful attempts to obtain habeas relief in state courts, Jacobs sought federal habeas relief, which was recommended for denial by a magistrate judge. The district court adopted this recommendation, leading to Jacobs’s timely appeal. 

The prosecution argued that Jacobs had killed Nadine during a fight, while Jacobs contended that she died after choking on food while binge-eating and drinking wine alone. He claimed to have found her face-down and attempted resuscitation before calling 911. Jacobs alleged prosecutorial misconduct, asserting that the prosecutor made factual misrepresentations, undermined defense counsel's credibility, and sought inadmissible testimony.

The prosecutor's closing argument incorrectly stated there was testimony about lividity on the back of Nadine’s body, which Jacobs argued was crucial to refuting the prosecution's theory. Both the California appellate court and the district court acknowledged the misleading nature of this statement but concluded it did not materially prejudice Jacobs. The state's case primarily relied on evidence of injuries indicating Jacobs had struck and strangled Nadine. The courts determined that the jury was adequately instructed that counsel's arguments were not evidence and thus found no reasonable likelihood the prosecutor's isolated misstatement influenced the jury's decision.

Jacobs further contended that the prosecutor misrepresented the location and severity of Nadine’s head injuries, claiming the serious injury was mischaracterized as being on the top of her head instead of the side. The district court and appellate court found that the prosecutor's statements were consistent with autopsy findings and physical evidence, and Jacobs's criticisms amounted to disagreements with expert terminology, which did not substantiate a claim of misrepresentation.

The jury viewed diagrams and photographs of Nadine's head injuries, which mitigated any potential impact from ambiguous statements made by counsel. Jacobs argues that the prosecutor's closing remarks improperly questioned the motives and bias of defense counsel and experts, compromising his right to a fair trial. Citing Tak Sun Tan v. Runnels, the court emphasized that not all undesirable comments constitute misconduct; rather, the focus is on whether such comments rendered the trial fundamentally unfair as per Darden v. Wainwright. Both the California appellate court and the district court acknowledged that while the prosecutor's remarks about defense counsel were improper, they did not significantly prejudice the trial. The courts also deemed the prosecutor's comments regarding the defense expert's bias permissible. The district court, upon de novo review, found that the prosecutor's insinuations regarding the eating disorder experts were likewise acceptable. Jacobs failed to convincingly dispute these findings.

Additionally, Jacobs claimed prosecutorial misconduct for attempting to introduce previously ruled inadmissible testimony. Although the prosecutor's efforts were thwarted by defense objections, Jacobs argued this created an impression of concealment by the defense. The California appellate court found this conduct did not infringe on Jacobs's right to a fair trial, noting that objections were sustained, no inadmissible testimony was presented, and jurors were instructed not to infer anything from the objections.

On the issue of Brady violations, Jacobs contended that the prosecution failed to disclose that its expert, Dr. Swalwell, reviewed materials post-preliminary hearing that contradicted his earlier testimony. The district court found that Brady encompasses impeachment evidence but concluded that the withheld information was not materially significant to the defense, thus failing to establish a Brady violation.

Evidence is considered prejudicial only if it affects confidence in the trial's outcome. In Jacobs's case, the defense successfully impeached Dr. Swalwell through alternative means, including information from its own expert, which referenced articles that Dr. Swalwell had reviewed post-preliminary hearing. The magistrate noted that most actions Jacobs claimed he could not take due to lack of awareness of Dr. Swalwell's article reviews were accomplished through Dr. Schwartz. The district court found the impeachment value of the article to be minimal and agreed it was not material.

Regarding Jacobs's ineffective assistance claim, the California appellate court applied the People v. Pope standard, which the district court determined aligns with Strickland v. Washington. Although the district court acknowledged counsel's failure to challenge the prosecution's claims about lividity, it deemed this failure insufficiently prejudicial. It also found defense counsel's decision not to contest the prosecution's statements about Nadine’s head injuries reasonable, as those statements were not misleading.

Jacobs's arguments that his attorney should have better challenged state experts and supported his own were rejected. The district court maintained that Jacobs could not demonstrate that the alleged shortcomings of his counsel fell below an objective standard or that they resulted in prejudice sufficient to warrant relief. Overall, Jacobs's assertions were viewed as insufficient to establish ineffective assistance under Strickland. The conclusion was affirmed, and the disposition is not designated for publication and does not serve as precedent except as outlined by 9th Cir. R. 36-3.