Timothy Joseph McGhee v. Kevin Chappell

Filing 113

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge John A. Kronstadt. The Court accepts and adopts the Magisrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the First Amended Petition with prejudice. (Attachments: # 1 Report and Recommendations) (sp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

TIMOTHY JOSEPH McGHEE,

) NO. CV 12-3578-JAK(E)
)
Petitioner,
)
)
v.
) REPORT AND RECOMMENDATION OF
)
KEVIN CHAPPELL, Warden,
) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
)
______________________________)

17
18

This Report and Recommendation is submitted to the Honorable

19

John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C.

20

section 636 and General Order 05-07 of the United States District

21

Court for the Central District of California.

22
23

PROCEEDINGS

24
25

On April 25, 2012, Petitioner, who then was proceeding pro se

26

with assistance from the California Appellate Project, filed a

27

“Petition for Writ of Habeas Corpus By a Person in State Custody,”

28

accompanied by an attached memorandum (“Pet. Mem.”).

See Pet. Mem.,

1

p. 3, n.1.

Petitioner concurrently filed a “Motion to Stay and Hold

2

in Abeyance Federal Proceedings Pending Exhaustion of Federal Claims

3

in State Court” (“Motion to Stay”).

4

order holding this action in abeyance because certain grounds for

5

relief therein assertedly were unexhausted (Motion to Stay, p. 5).

The Motion to Stay sought an

6
7

On August 29, 2012, Respondent filed an “Answer to the Petition

8

for Writ of Habeas Corpus and Response to Petitioner’s Motion to Stay,

9

etc.” (the “Answer”).

The Answer asserted that the Motion to Stay

10

should be denied because all the claims then were exhausted, and that

11

the Petition should be dismissed because the claims allegedly were

12

untimely.

13

filed a reply to the Answer.

See Answer, pp. 1, 4-11.1

On March 4, 2013, Petitioner

14
15

On March 15, 2013, the Court issued an order: (1) denying the

16

Motion to Stay as moot; (2) denying without prejudice Respondent’s

17

request to dismiss the Petition as untimely; and (3) ordering

18

Respondent to file a Supplemental Answer addressing the merits of the

19

claims alleged in the Petition.

20

of Limitations Issues, and Further Briefing” (Docket. No. 31).

21

March 27, 2013, the Court appointed the Federal Public Defender’s

22

Office to represent Petitioner.

23

///

24

///

See “Order Re Motion to Stay, Statute
On

See Minute Order (Docket No. 33).

25
26
27
28

1

Respondent concurrently lodged documents. Herein, the
Court refers to these documents, as well as other documents
lodged by Respondent on September 11, 2013, and March 21, 2017,
as “Respondent’s Lodgments.”
2

1

On April 17, 2013, Petitioner filed a “Motion for Leave to File

2

Amended Petition, etc.” (“Motion to Amend”), unaccompanied by a

3

proposed amended petition.

See Motion to Amend (Docket No. 38).

On

4

April 19, 2013, the Magistrate Judge denied the Motion to Amend.

On

5

June 26, 2013, the District Judge denied Petitioner’s “Motion for

6

Review of the April 19, 2013 Order of United States Magistrate Judge

7

re Leave to Amend.”

See Docket Nos. 41, 49.

8
9

On September 11, 2013, Respondent filed a Supplemental Answer

10

addressing the merits of the claims alleged in the Petition.2

11

December 12, 2013, Petitioner filed a Supplemental Reply.

On

12
13

Meanwhile, on November 14, 2013, Petitioner filed a “Renewed

14

Motion for Leave to File Amended Petition for Writ of Habeas Corpus”

15

(“Renewed Motion to Amend”), and lodged a proposed amended petition

16

containing new evidence and exhibits.

17

intended to move for a stay of this action pending exhaustion of his

18

state court remedies if the Court granted leave to amend the Petition

19

to add the new evidence.

20

opposition to the Renewed Motion to Amend.

Petitioner advised that he

On December 12, 2013, Respondent filed an

21
22

On January 9, 2014, the Court ordered the parties to address the

23

propriety of a stay as it related to the Renewed Motion to Amend.

24

Docket No. 78.

On January 30, 2014, in accordance with the Court’s

25
26
27
28

See

2

Respondent concurrently lodged documents, including the
Clerk’s Transcript (“C.T.”) and Reporter’s Transcript (“R.T.”).
Respondent also lodged under seal the Reporter’s Transcript of a
July 21, 2008 hearing.
3

1

order, Petitioner filed a “Motion to Stay Federal Habeas Action, etc.”

2

(“Renewed Motion to Stay”).

3

response in which Respondent indicated that he did not oppose a stay

4

under Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 538 U.S.

5

1042 (2003).

6

Status of the State Court Exhaustion Proceeding,” advising that

7

Petitioner had filed a habeas petition and supporting exhibits with

8

the Los Angeles County Superior Court on February 6, 2014.

9

March 19, 2014, Petitioner filed a “Notice of New Case Law, etc.” in

10

On March 7, 2014, Respondent filed a

On March 11, 2014, Petitioner filed a “Report on the

On

support of the Renewed Motion to Stay.

11
12

On April 1, 2014, the Court issued an order: (1) denying without

13

prejudice the Renewed Motion to Amend; and (2) granting the Renewed

14

Motion to Stay the proceedings under Kelly v. Small, so that

15

Petitioner could exhaust claims not presented in the Petition and

16

later move to amend the Petition to include the newly-exhausted

17

claims.

18

Motion to Stay” (Docket No. 86).

19

any future amendment to include newly-exhausted claims would be

20

appropriate (id.).

See “Order Re Renewed Motion for Leave to Amend and [Renewed]
The Court declined to decide whether

21
22

On February 17, 2017, Petitioner filed an unopposed “Application

23

to Lift Stay of Proceedings Imposed Pursuant to Kelly v. Small”

24

(“Application to Lift Stay”).

25

Motion and Motion for Leave to File Amended Petition for Writ of

26

Habeas Corpus” (“Post-Stay Motion to Amend”), and lodged a proposed

27

amended petition with supporting exhibits, some of which were filed

28

under seal.

Petitioner also filed a “Notice of

See Docket Nos. 90-93.
4

On February 23, 2017, the

1

Magistrate Judge granted the Application to Lift Stay.

2
3

On March 21, 2017, Respondent filed a response to the Post-Stay

4

Motion to Amend, which indicated that Respondent did not oppose the

5

motion.

6

response.

7

Stay Motion to Amend.

Respondent concurrently lodged multiple documents with the
On March 22, 2017, the Magistrate Judge granted the Post-

8
9

On March 22, 2017, Petitioner filed the operative “Amended

10

Petition for Writ of Habeas Corpus” (“First Amended Petition” or

11

“FAP”), which had been lodged with the Post-Stay Motion to Amend.

12

First Amended Petition references the exhibits Petitioner lodged with

13

the Post-Stay Motion to Amend (“FAP Exh.”).

14

Respondent filed an Answer (“FAP Answer”).

15

filed a Reply.

The

On April 19, 2017,
On May 3, 2017, Petitioner

16
17

BACKGROUND

18
19

A jury found Petitioner guilty of one count of conspiracy to

20

commit assault, one count of conspiracy to commit vandalism, three

21

counts of resisting executive officers in the performance of their

22

duties, and two counts of assault by means likely to produce great

23

bodily injury (FAP, p. 8; Respondent’s Lodgment 1, p. 2; C.T. 288-92,

24

295-97).3

25

in a jail riot in which multiple inmates threw multiple objects at

26

their jailers.

These convictions arose out of Petitioner’s participation

See Respondent’s Lodgment 1, pp. 3-6.

The trial court

27
3

28

The jury found Petitioner not guilty of one count of
assault on Deputy Gordon McMullen. See C.T. 293-94.
5

1

sentenced Petitioner to 75 years to life (Respondent’s Lodgment 1, p.

2

2; C.T. 322-27; R.T. 3306-10).

3
4

On June 23, 2010, the California Court of Appeal affirmed in a

5

reasoned decision (Respondent’s Lodgment 1).

On October 13, 2010, the

6

California Supreme Court summarily denied review (Respondent’s

7

Lodgment 3).

8
9

On October 19, 2011, Petitioner constructively filed a habeas

10

petition with the Los Angeles County Superior Court, alleging claims

11

similar to those asserted herein.

12

Lodgment 4.4

13

petition in a reasoned decision (Respondent’s Lodgment 5).

14

Superior Court indicated that many of Petitioner’s claims had been

15

raised and rejected on direct appeal.

16

pp. 2-3 (citing, inter alia, In re Waltreus, 62 Cal. 2d 218, 225, 42

17

Cal. Rptr. 9 (1965) (“Waltreus”) (an issue raised and rejected on

18

appeal may not be asserted in a subsequent state habeas petition) and

19

In re Clark, 5 Cal. 4th 750, 765-66, 21 Cal. Rptr. 2d 509, 855 P.2d

20

729 (1993) (“Clark”) (absent justification, successive and/or untimely

21

habeas petitions will be summarily denied)).

22

observed that “[m]any of the arguments made . . . are nearly, word for

23

word, the same arguments raised in the direct appeal”).

24

The Superior Court found that Petitioner had not shown prejudice with

25

respect to the ineffective assistance of counsel claim.

Compare FAP with Respondent’s

On December 7, 2011, the Superior Court denied the
The

See Respondent’s Lodgment 5,

The Superior Court

See id. at 3.

See id. at 3-

26
27
28

4

Petitioner’s first round of state habeas petitions were
filed without counsel and without the evidence that Petitioner’s
public defenders since have presented.
6

1

5 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).

2
3

On March 21, 2012, Petitioner constructively filed a habeas

4

petition with the California Court of Appeal, alleging claims similar

5

to those asserted herein (Respondent’s Lodgment 6).

6

2012, the California Court of Appeal issued a brief but reasoned

7

decision (Respondent’s Lodgment 6).

8

claims with citations to Clark, Waltreus, and Hagan v. Superior Court,

9

57 Cal. 2d 767, 769-71, 22 Cal. Rptr. 206 (1962) (court may refuse to

On April 12,

The Court of Appeal denied some

10

consider repetitious applications).

11

Petitioner’s ineffective assistance of counsel claim with citations

12

to, inter alia, Strickland v. Washington, 466 U.S. 668 (1984)

13

(Respondent’s Lodgment 6).

The Court of Appeal denied

14
15

On May 9, 2012, Petitioner constructively filed a habeas petition

16

with the California Supreme Court, alleging claims similar to Grounds

17

One, Five and the cumulative error claim raised herein (Respondent’s

18

Lodgment 8).

19

the petition without comment (Respondent’s Lodgment 9).

On August 15, 2012, the California Supreme Court denied

20
21

On February 6, 2014, Petitioner filed a habeas petition with the

22

Los Angeles County Superior Court, presenting his expanded claim of

23

ineffective assistance of trial counsel (asserted as Ground One

24

herein) and an updated cumulative error claim similar to Ground Six

25

herein.

26

2014, the Superior Court denied the petition in a reasoned decision.

27

See id. at 511-27.

28

///

See Respondent’s Lodgment 20, pp. 466-509.

7

On March 28,

1

On April 23, 2014, Petitioner filed a habeas petition and

2

accompanying exhibits with the California Court of Appeal, presenting

3

Grounds One and Six asserted herein (Respondent’s Lodgments 15-17).

4

On August 27, 2014, the Court of Appeal summarily denied the petition

5

as procedurally barred.

6

order citing In re Reno, 55 Cal. 4th 428, 452, 460-61, 146 Cal. Rptr.

7

3d 297, 283 P.3d 1181 (2012) (habeas petitioner challenging final

8

criminal judgment must prosecute case without unreasonable delay)).

See Respondent’s Lodgment 20, p. 549 (copy of

9
10

On September 19, 2014, Petitioner filed a habeas petition and

11

accompanying exhibits with the California Supreme Court, presenting

12

Grounds One and Six asserted herein (Respondent’s Lodgments 18-20).

13

On January 18, 2017, after informal briefing, the California Supreme

14

Court denied the petition “on the merits,” citing Harrington v.

15

Richter, 562 U.S. 86, 99-100 (2011), and Ylst v. Nunnemaker, 501 U.S.

16

797, 803 (1991) (Respondent’s Lodgments 21-23).

17
18

SUMMARY OF TRIAL EVIDENCE

19
20

In January of 2005, Petitioner was housed in the 3300 A-Row (“A-

21

Row”) of the Men’s Central Jail (R.T. 647, 744).

22

subject to high security measures, including being handcuffed before

23

leaving their cells and being handcuffed when escorted to and from

24

their cells (R.T. 640).

25

just under a year as of January of 2005 (R.T. 642-43).

26

testified that he had been trained to identify who stands out as a

27

“ring leader” in a group (R.T. 643).

28

contact with the inmates on A-Row (including Petitioner), Ibarra

A-Row inmates are

Deputy Raul Ibarra had worked on A-Row for

8

Ibarra

Based on his training and

1

opined that Petitioner was the ring leader, or “shot caller” (R.T.

2

644-46, 696).

3

such things as go on passes or use the phone (R.T. 644, 725).

4

had heard inmates on the row screaming out that they were going on a

5

pass and Petitioner responding with a “yes” or a “no” (R.T. 645).

Inmates must ask the shot caller for permission to do
Ibarra

6
7

The Removal of Inmate Gonzalez from A-Row

8
9

Around 4:00 p.m. on January 7, 2005, Ibarra observed inmate

10

Rodolfo Gonzalez intoxicated in Gonzalez’ cell, and Ibarra spoke with

11

his partners (Deputies Taylor, Orosco, and Argueta) regarding a plan

12

to remove Gonzalez from the cell (R.T. 651-54, 684).

13

cause Gonzalez to leave the row voluntarily, the deputies planned to

14

tell Gonzalez he had an attorney pass (R.T. 654-55, 692).

15

announced over the loud speaker to the entire module that Gonzalez had

16

an attorney pass and that he had five minutes to get ready (R.T. 655-

17

56, 694).

18

behind and Orosco manning the gates (R.T. 656-57, 699).

19

offering any resistance, Gonzalez submitted to being handcuffed and he

20

walked (staggered) out of his cell and toward the gate, escorted by

21

the deputies (R.T. 657-59, 727).

22

cell, however, Petitioner said to Gonzalez, “Hey, I didn’t give you

23

permission to go on this pass, what are you doing?” (R.T. 659-60, 697,

24

699-700).

25

his cell (R.T. 660, 700).

26

get Gonzalez off balance, and told Gonzalez he was going to walk off

27

the row (R.T. 660, 701).

28

Ibarra and Argueta each grabbed Gonzalez by an arm and started

As a ruse to

Ibarra

Ibarra and Argueta then went to Gonzalez’ cell, with Taylor
Without

When Gonzalez reached Petitioner’s

Gonzalez replied, “I’m sorry,” and started walking back to
Ibarra yanked Gonzalez by the handcuffs to

Gonzalez struggled “a little bit,” but

9

1

dragging Gonzalez backward from the row (R.T. 660-61, 701-03).

2
3

Ibarra testified that, as the deputies removed Gonzalez,

4

Petitioner screamed “Dale gas la juras,” meaning, to assault the

5

deputies with whatever liquids the inmates had at their disposal (R.T.

6

661-62, 703, 707).

7

and Gerardo Reyes, then pelted all four deputies on the row with

8

oranges, apples, and liquids (such as urine or bleach) R.T. 662-64,

9

704, 707, 731-32).

Inmates including Petitioner, Francisco Morales,

Gonzalez dropped to the floor and began kicking

10

the deputies (R.T. 665, 704-05, 709).

Ibarra sprayed Gonzalez in the

11

face with “O.C. spray” to cause Gonzalez to comply, and removed him

12

from the row (R.T. 665-66, 709-10).

13
14

Ibarra testified that he later went into “the pipe chase” behind

15

Petitioner’s cell, where Ibarra heard Petitioner telling Reyes that,

16

if they jumped on the sinks in their cells, they could break the sinks

17

and use the porcelain to throw at deputies (R.T. 668-72, 720-22, 734).

18

Reyes reportedly “agreed” (R.T. 672, 734).

19

chase a few seconds, and then, as he started to walk off, he heard

20

what sounded like glass or porcelain hitting the ground and breaking

21

(R.T. 672-75, 722).

22

deputies (R.T. 675-79).

23

Reyes throwing porcelain (R.T. 679).

Ibarra stayed in the pipe

Inmates then started throwing porcelain at the
Ibarra saw Petitioner, Francisco Morales and

24
25

The Fire on A-Row

26
27

Deputy Joseph Morales (referred to herein as “Deputy Morales” to

28

avoid any confusion with inmates Francisco Morales and Erick Morales)
10

1

testified that he and his partner, Deputy Gordon McMullen, came to the

2

gate of A-Row around 10:00 p.m. that day.

3

that the inmates (including Petitioner, Reyes, Francisco Morales,

4

Tafoya, Trujillo and Cortez) immediately began throwing objects,

5

including porcelain from their sinks, at Deputy Morales and the other

6

deputies (R.T. 737-45, 1210-11, 1220, 1227; see also R.T. 2139-45,

7

2183-86 (McMullen similarly testifying in rebuttal)).5

8

Deputies Morales and McMullen used a water hose to put out a fire on

9

A-Row from an adjacent row (C-Row), the inmates (including Petitioner)

10

“constantly” “bombarded” the deputies with porcelain (R.T. 1212, 1215-

11

16, 1226, 1228-31; see also R.T. 2146-57, 2160-62, 2187-95, 2205

12

(McMullen similarly testifying)).

13

piece of porcelain that hit McMullen in the hand (R.T. 1214, 1217-18,

14

1230; see also R.T. 2157-58, 2195-96, 2202 (McMullen testifying that

15

he was hit in the hand with porcelain).6

16

numerous pieces of porcelain were thrown at him and McMullen as they

17

tried to put out a fire on A-Row, and that a piece of porcelain larger

18

than a golf ball “whizzed” by him, coming within a half inch of

19

hitting him in the eye (R.T. 765-69; see also R.T. 2158, 2163, 2204-05

20

(McMullen testifying regarding the piece of porcelain that almost hit

21

Deputy Morales)).

22

which of the inmates throwing porcelain threw that particular piece

23

(R.T. 765-66, 2158-59).

Deputy Morales testified

Later, when

Deputy Morales saw Reyes throw a

Deputy Morales said that

Neither Deputy Morales nor Deputy McMullen saw

Deputy Morales and McMullen left the row when

24
25
26
27

5

Deputy Morales later clarified that Cortez was not in
his regular cell but rather was in the shower during the incident
(R.T. 1202-03, 1207, 1232; see also FAP Exh. 17 (diagram of
row)). The showers did not have sinks (R.T. 1232).
6

28

As noted above, the jury found Petitioner not guilty of
assaulting Deputy McMullen (C.T. 293-94).
11

1

it became too dangerous to stay (R.T. 765).

2
3

The Extraction of Inmates from A-Row

4
5

Sergeant Thomas Wilson testified that he started his shift at 10

6

p.m. that day and, after briefing and preparation, led an

7

approximately 15-person emergency response team and a four-person

8

extraction team into A-Row to quell the riot (R.T. 932-34, 970-71).

9

Both teams immediately were pummeled with pieces of porcelain (R.T.

10

934-35, 972).

11

Deputy Alfredo Alvarez, while he was filming (R.T. 935; see also R.T.

12

921-23 (Deputy Alvarez testifying that he videotaped the “riot

13

suppression”)).

14

were the main aggressors (R.T. 936-37).

Some of the pieces “nearly struck” the cameraman,

Two or three inmates, including Petitioner and Reyes,

15
16

Sergeant Wilson testified that, in an effort to suppress the

17

resistance, two of the deputies involved in the extraction fired

18

pepper ball guns into the cells from where the porcelain was being

19

thrown (R.T. 938, 973-75; see also R.T. 1238-46 (Deputy John Coleman

20

testifying regarding firing a pepper ball gun at cells where the

21

inmates were not complying (including Petitioner’s cell))).

22

deputy or two were spraying from a large fire extinguisher-sized

23

canister of pepper spray primarily at cells 6-8 (Reyes’, Petitioner’s

24

and Trujillo’s cells; see FAP Exh. 17) (R.T. 942-45, 973-74).

25

eventually gave up and came out of his cell as commanded (R.T. 942-

26

43).

27

More than 30 pepper balls were fired into Petitioner’s cell, and five

28

or more bursts from the canisters were also sent into his cell (R.T.

Another

Reyes

Petitioner did not give up despite being commanded to do so.

12

1

944, 975-76).

2

overcome by pepper spray and pepper ball powder (R.T. 946-47).

3

Meanwhile, after slamming his mattress against the bars of his cell

4

and yelling profanities, Petitioner went to the back of his cell,

5

where he used his mattress as a shield (R.T. 947-48, 980-81).

6

team removed the rest of the inmates on A-Row and then returned to

7

Petitioner’s cell and extracted Petitioner (R.T. 948-49, 974; see also

8

R.T. 1250-58 (Deputy Hector Beltran testifying Petitioner resisted

9

until handcuffed forcibly)).

10

Trujillo had to be taken from his cell because he was

The

A videotape of these events was played

for the jury (R.T. 938-51, 976-77, 981-83).

11
12

The Defense

13
14

Gonzalez testified that he was housed on A-Row on January 7,

15

2005, and had been drinking that day (R.T. 1274-75).

16

his name called out over the loud speaker for a visit or “pass,” but

17

he did not hear the type of pass (R.T. 1275-76).

18

himself to leave his cell, and Deputy Ibarra supposedly came alone to

19

the cell and cuffed Gonzalez from the front with handcuffs and a waist

20

chain (R.T. 1276-77, 1297-98).

Ibarra walked away from the cell and

21

toward the gate (R.T. 1298-99).

Gonzalez’ cell door was opened and

22

Gonzalez walked out onto A-Row where he saw Ibarra standing in front

23

of Petitioner’s cell talking to Petitioner (R.T. 1278, 1300-02, 1307-

24

08).

25

hear Petitioner (R.T. 1278, 1304, 1307).

Gonzalez heard

Gonzalez readied

Gonzalez heard Ibarra say, “He’s not refusing,” but could not

26
27
28

Gonzalez walked toward Ibarra and asked what type of pass he had
(R.T. 1277-78, 1302-04).

Gonzalez stopped walking at or near
13

1

Petitioner’s cell (R.T. 1284, 1302).

When Ibarra said the visit was

2

for an attorney, Gonzalez refused to go because Gonzalez was in jail

3

for a parole or probation violation, had already been found in

4

violation, and did not have an attorney (R.T. 1278-81, 1284, 1306-08,

5

1315-18, 1334-36, 1342).

6

happen because Gonzalez had been involved in a riot against officers

7

at a different facility and he feared retaliation (R.T. 1279-80, 1312-

8

14).

9

outside and toss him around, slap him, “ruffle” him up, or talk down

Gonzalez supposedly was afraid of what might

Specifically, Gonzalez feared the deputies would take him

10

to him (R.T. 1281).

Gonzalez denied asking Petitioner for permission

11

to go on the pass (R.T. 1285-86).

12
13

Gonzalez turned to walk back to his cell and felt Deputy Ibarra

14

grab him by the neck in a choke hold and take him to the ground (R.T.

15

1281-82, 1284-85, 1318-19).

16

free himself, while Ibarra told Gonzalez to stop resisting and

17

punched, kicked, and did “everything he could do” to regain control

18

(R.T. 1285-86, 1320-21).

19

single-handedly dragged Gonzalez from the row, where Ibarra and other

20

deputies beat Gonzalez, hitting him 20 to 30 times and kicking him, as

21

they tried to subdue him and as Gonzalez fought to defend himself

22

(R.T. 1286-91, 1321, 1327-31, 1337-41).

23

passed out (R.T. 1291-93, 1327, 1337).

24

bruises from the supposed beating because he has a dark complexion

25

(R.T. 1340-41).

26

///

27

///

28

///

Gonzalez struggled, kicked, and fought to

Ibarra grabbed Gonzalez by the neck and

Gonzalez was maced until he
Gonzalez claimed he had no

Gonzalez agreed he had received no medical treatment,

14

1

but denied having refused medical treatment (id.).7

2

testified that, as he was being dragged from the row, he heard other

3

inmates (including Petitioner) screaming (R.T. 1321-22, 1331-32,

4

1348).

Gonzalez

5
6

The day after the incident, Gonzalez gave a statement saying he

7

did not recall what had happened during the incident (R.T. 1344-45,

8

1349).

9

purported memory of details concerning what supposedly had happened

Gonzalez admitted that the first time he came forward with a

10

during the incident was two days before Petitioner’s trial (R.T. 1323-

11

24, 1345-49).

12

Petitioner had done something wrong could get the testifying inmate

13

killed (R.T. 1333-34).

Gonzalez also admitted that an inmate’s testimony that

14
15

Petitioner testified that he had problems with his jailers from

16

the first day he arrived on A-Row in 2003 (R.T. 1530–36).

When he was

17

being processed, a deputy reportedly threatened Petitioner and took

18

Petitioner down a hallway where the deputy and others beat Petitioner

19

(R.T. 1531-33).

20

(R.T. 1534, 1536).

21

in these run-ins with his jailers (R.T. 1592-93).

22

being a shot caller on his row, denied other inmates ever asked his

Petitioner also testified concerning other beatings
Petitioner agreed that he “always” was the victim
Petitioner denied

23
24
25
26
27
28

7

Deputy Richard Thompsen testified in rebuttal that he
and a nurse addressed Gonzalez’ medical needs after Gonzalez was
removed from A-Row (R.T. 2252-55). Gonzalez had redness on his
face, neck, and upper torso indicative of exposure to pepper
spray (R.T. 2256). Thompsen observed no other injuries (e.g.,
bruises or cuts), but did not recall if he looked under Gonzalez’
clothing for injuries (R.T. 2257, 2260). Gonzalez reported no
problems other than exposure to pepper spray (R.T. 2257-58).
Gonzalez refused any treatment (R.T. 2259).
15

1

permission to leave their cells, and denied he told Gonzalez that

2

Gonzalez did not have Petitioner’s permission to leave the row on the

3

day of the riot (R.T. 1536-37, 1539, 1695).

4
5

Regarding the riot, Petitioner testified that he watched Deputy

6

Ibarra handcuff Gonzalez and walk away from Gonzalez’ cell (R.T. 1542-

7

44).

8

the row (R.T. 1543).

9

from how Gonzalez was walking (R.T. 1544-46).

According to Petitioner, there were no other deputies then on
Petitioner could see that Gonzalez was drunk
Petitioner called

10

Ibarra to Petitioner’s cell and told Ibarra that Gonzalez was in no

11

condition to walk down the escalator, and that Ibarra would get

12

himself in trouble if Ibarra walked a drunken inmate past the

13

sergeant’s office (R.T. 1546-49, 1691-96).

14
15

Petitioner described the events leading up to Gonzalez’ removal

16

from the row in a manner consistent with Gonzalez’ testimony (i.e.,

17

Gonzalez refused to leave and turned to go back to his cell; Ibarra

18

grabbed Gonzalez by the neck and pulled Gonzalez back; Ibarra and

19

Gonzalez ended up on the floor; Ibarra hit and kicked Gonzalez and got

20

Gonzalez back into a choke hold; Ibarra dragged Gonzalez from the row)

21

(R.T. 1549-57, 1700, 1849-50).

22
23

Petitioner said that he and other inmates yelled at Ibarra and

24

then at the deputies who were beating Gonzalez in the “sally port

25

area” (R.T. 1552-53, 1557-58).

26

Ibarra to “get off” Gonzalez, and Petitioner admitted he threw a milk

27

carton and an apple at Ibarra, but Petitioner denied telling others to

28

throw things (R.T. 1553-55).

Petitioner admitted that he told

Petitioner claimed the inmate response
16

1

had been a spontaneous reaction to seeing Gonzalez being beaten (R.T.

2

1555).

3

that was capable of being thrown (R.T. 1558).

Petitioner threw from his cell everything from within his cell

4
5

Petitioner testified that “shortly after” Gonzalez was removed

6

from A-Row, Deputy Yzabal told the men on the row through the loud

7

speaker that the deputies were going to drag the inmates out and “fuck

8

[the inmates] up” (R.T. 1559).

9

speaker “for awhile” (R.T. 1561-62, 1825-26).8

These threats continued over the loud
Another deputy

10

(Argueta) sprayed the cells from the front with a “big ole” canister

11

of mace saying, “How do you like that?

12

There’s more to come,” while another deputy sprayed mace into the

13

cells through the vents from the pipe chase behind the cells (R.T.

14

1560-62, 1567-68, 1707, 1716-17, 1805-07).9

15

then began to kick their sinks and break the porcelain (R.T. 1562-63,

16

1567, 1706, 1718-19).

17

sinks, and said his sink was not the first sink broken (R.T. 1564,

That’s just the beginning.

Petitioner and others

Petitioner denied telling others to break their

18
19
20
21
22
23
24
25
26
27
28

8

Deputy Mark Yzabal testified in rebuttal that he did
not issue any threats over the loud speaker to the inmates and
that, in fact, he did not even use the loud speaker that day
(R.T. 2265-66, 2273-74). Deputy Yzabal went to the hallway
outside A-Row and observed inmates (including Petitioner)
throwing porcelain at the sally port and front door (R.T. 226769, 2270, 2275). Petitioner and Reyes were throwing porcelain in
unison and yelling, “Fuck the jura, fuck the police” (R.T. 2269,
2275-76).
9

Deputy McMullen testified in rebuttal that, when he
came on his shift at 10 p.m. on the night of the riot, there had
been no sergeant’s authorization to activate emergency response
measures (R.T. 2130). McMullen said that the deputies are not
issued canister-sized pepper spray. Such canisters are locked up
and brought in only when emergency response teams are deployed
(R.T. 2133-35, 2177).
17

1

1705-10).

2
3

Petitioner admitted he threw porcelain (R.T. 1568, 1715-16, 1725-

4

26).

Other inmates threw porcelain too, but Petitioner claimed the

5

throwing was chaotic and not coordinated (R.T. 1568-69, 1708, 1722-

6

23).

7

McMullen) later tried to put out a fire on A-Row (R.T. 1567-69, 1723-

8

26).

9

1570).

Petitioner denied throwing anything when deputies (Morales and

Petitioner heard others throwing porcelain at that time (R.T.
Petitioner claimed he did not throw porcelain in the direction

10

of the deputies until he saw that an extraction team was going to come

11

in and remove inmates from the row.

12

trying to prevent the team from coming in, supposedly because he was

13

scared (R.T. 1573-75, 1596-97, 1715, 1725-28, 1735, 1738-39, 1813-23,

14

1855; see also R.T. 1696-97 (Petitioner admitting he threw

15

approximately 10 pieces of porcelain at the deputies)).

16

claimed he stopped throwing porcelain when he knew the team was on the

17

row because he supposedly did not want to hit one of the members of

18

the team (R.T. 1575, 1739-40, 1753, 1757-61, 1818; but see R.T. 1745-

19

50, 1758, 1761 (Petitioner admitting that the video of the incident

20

showed him throwing porcelain directly at the deputies and

21

hitting/clearing the shields the deputies were holding)).

Petitioner admitted he then was

Petitioner

22
23

Petitioner claimed he did not submit when the team reached his

24

cell because he was being shot with pepper balls and sprayed with mace

25

or pepper spray (R.T. 1576-77, 1742-57, 1762-66, 1808, 1824-28, 1837).

26

Petitioner claimed he was afraid he would be beaten (R.T. 1673-74,

27

1803-04).

28

inmates being led peacefully in handcuffs from their cells, but

Petitioner admitted that the video depicted 16 other

18

1

Petitioner said he did not see any of them walking by because

2

Petitioner was behind his mattress and blinded by mace (R.T. 1835-37).

3
4

PETITIONER’S CONTENTIONS

5
6

Petitioner contends:

7
8
9
10

1.

Petitioner’s trial counsel assertedly rendered ineffective

assistance by allegedly failing to investigate and present a defense
(FAP, Ground One, pp. 18-41);

11
12
13

2.

The trial court assertedly denied Petitioner his right to

self-representation (FAP, Ground Two, pp. 41-47);

14
15

3.

The trial court assertedly violated Petitioner’s right to

16

due process and right to a fair and speedy trial by denying his motion

17

to dismiss based on the delay in charging Petitioner (FAP, Ground

18

Three, pp. 47-52);

19
20
21

4.

The prosecutor assertedly engaged in vindictive prosecution

(FAP, Ground Five, pp. 55-60);

22
23

5.

The trial court assertedly violated Petitioner’s

24

constitutional rights by using a juvenile adjudication as a “strike”

25

under California’s Three Strikes Law (FAP, Ground Four, pp. 52-55);

26

and

27

///

28

///
19

1
2

6.

Cumulative error assertedly denied Petitioner due process

and a fair trial (FAP, Ground Six, pp. 61-64).

3
4

STANDARD OF REVIEW

5
6

Under the “Antiterrorism and Effective Death Penalty Act of 1996”

7

(“AEDPA”), a federal court may not grant an application for writ of

8

habeas corpus on behalf of a person in state custody with respect to

9

any claim that was adjudicated on the merits in state court

10

proceedings unless the adjudication of the claim:

(1) “resulted in a

11

decision that was contrary to, or involved an unreasonable application

12

of, clearly established Federal law, as determined by the Supreme

13

Court of the United States”; or (2) “resulted in a decision that was

14

based on an unreasonable determination of the facts in light of the

15

evidence presented in the State court proceeding.”

16

2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

17

Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

18

(2000).

28 U.S.C. §

19
20

“Clearly established Federal law” refers to the governing legal

21

principle or principles set forth by the Supreme Court at the time the

22

state court renders its decision on the merits.

23

U.S. 34, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

24

state court’s decision is “contrary to” clearly established Federal

25

law if:

26

Court law; or (2) it “confronts a set of facts . . . materially

27

indistinguishable” from a decision of the Supreme Court but reaches a

28

different result.

Greene v. Fisher, 565
A

(1) it applies a rule that contradicts governing Supreme

See Early v. Packer, 537 U.S. at 8 (citation
20

1

omitted); Williams v. Taylor, 529 U.S. at 405-06.

2
3

Under the “unreasonable application” prong of section 2254(d)(1),

4

a federal court may grant habeas relief “based on the application of a

5

governing legal principle to a set of facts different from those of

6

the case in which the principle was announced.”

7

538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

8

U.S. at 24-26 (state court decision “involves an unreasonable

9

application” of clearly established federal law if it identifies the

10

correct governing Supreme Court law but unreasonably applies the law

11

to the facts).

12

application of [Supreme Court] precedent if the state court either

13

unreasonably extends a legal principle from [Supreme Court] precedent

14

to a new context where it should not apply, or unreasonably refuses to

15

extend that principle to a new context where it should apply.”

16

Williams v. Taylor, 529 U.S. at 407 (citation omitted).

Lockyer v. Andrade,

A state court’s decision “involves an unreasonable

17
18

“In order for a federal court to find a state court’s application

19

of [Supreme Court] precedent ‘unreasonable,’ the state court’s

20

decision must have been more than incorrect or erroneous.”

21

Smith, 539 U.S. 510, 520 (2003) (citation omitted).

22

court’s application must have been ‘objectively unreasonable.’”

23

at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

24

U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

25

Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

26

habeas court must determine what arguments or theories supported,

27

. . . or could have supported, the state court’s decision; and then it

28

must ask whether it is possible fairminded jurists could disagree that
21

Wiggins v.

“The state
Id.

“Under § 2254(d), a

1

those arguments or theories are inconsistent with the holding in a

2

prior decision of this Court.”

3

101 (2011).

4

2254(d)(1).”

5

Habeas relief may not issue unless “there is no possibility fairminded

6

jurists could disagree that the state court’s decision conflicts with

7

[the United States Supreme Court’s] precedents.”

8

for obtaining habeas corpus from a federal court, a state prisoner

9

must show that the state court’s ruling on the claim being presented

Harrington v. Richter, 562 U.S. 86,

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).

Id.

“As a condition

10

in federal court was so lacking in justification that there was an

11

error well understood and comprehended in existing law beyond any

12

possibility for fairminded disagreement.”

Id. at 103.

13
14

In applying these standards to a particular claim, the Court

15

usually looks to the last reasoned state court decision regarding that

16

claim.

17

denied, 558 U.S. 868 (2009); Delgadillo v. Woodford, 527 F.3d 919, 925

18

(9th Cir. 2008).

19

must determine what arguments or theories . . . could have supported

20

the state court’s decision; and then it must ask whether it is

21

possible fairminded jurists could disagree that those arguments or

22

theories are inconsistent with the holding in a prior decision of this

23

Court.”

24

quotations and brackets omitted).

See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.), cert.

Where no reasoned decision exists, “[a] habeas court

Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation,

25
26

Additionally, federal habeas corpus relief may be granted “only

27

on the ground that [Petitioner] is in custody in violation of the

28

Constitution or laws or treaties of the United States.”
22

28 U.S.C. §

1

2254(a).

In conducting habeas review, a court may determine the issue

2

of whether the petition satisfies section 2254(a) prior to, or in lieu

3

of, applying the standard of review set forth in section 2254(d).

4

Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

5
DISCUSSION10

6
7
8
9

I.

Petitioner is Not Entitled to Federal Habeas Relief on His Claim
of Ineffective Assistance of Counsel.

10
11

Petitioner contends that his trial counsel rendered ineffective

12

assistance by allegedly failing to:

13

inmate witnesses other than Petitioner and Rodolfo Gonzalez; or

14

(2) investigate and present evidence regarding the general conditions

15

in the Los Angeles County Men’s Central Jail where Petitioner was

16

housed (FAP, Ground One, pp. 23-41; Reply, pp. 4-19).

(1) interview or present any

17
18

The Los Angeles County Superior Court issued the last reasoned

19

decision denying Petitioner’s ineffective assistance of counsel claim

20

on the merits.

21

by Petitioner in detail and determined that Petitioner had not shown

22

he was prejudiced by counsel’s alleged omissions.

The Superior Court considered the evidence submitted

See Respondent’s

23
24
25
26
27
28

10

The Court has read, considered and rejected on the
merits all of Petitioner’s arguments. The Court discusses
Petitioner’s principal arguments herein. Respondent contends
Petitioner’s claims are untimely. See FAP Answer, p. 1. The
Court assumes, arguendo, the timeliness of Petitioner’s claims.
See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001),
cert. denied, 535 U.S. 950 (2002) (court may deny on the merits
an untimely claim that fails as a matter of law).
23

1

Lodgment 20, pp. 521-26.

For the reasons discussed below, this

2

determination was not unreasonable.

See 28 U.S.C. § 2254(d).

3
4

A.

Background

5
6

In February of 2003, Petitioner was arrested and charged with

7

capital murder.

8

Angeles County Men’s Central Jail.

9

riot occurred.

10

Pending trial, Petitioner was housed in the Los
There, On January 7, 2005, the

Petitioner’s capital trial began in September of 2007.

See Respondent’s Lodgment 1, p. 2.

11
12

On November 14, 2007, after the guilt phase of the capital murder

13

trial had ended in a guilty verdict and the penalty phase had ended in

14

a mistrial, the Los Angeles District Attorney filed a felony complaint

15

charging Petitioner with crimes associated with the January 7, 2005

16

jail riot.

17

charges.

18

24.

19

proceedings (R.T. 22-24).

20

for a brief time by another attorney, Petitioner’s trial counsel in

21

the capital case began representing Petitioner in the riot case (R.T.

22

22-24; see also FAP, p. 23).

In March of 2008, Petitioner was held to answer the riot

See Respondent’s Lodgment 1, pp. 2-3; R.T. 6, 22; C.T. 123-

Petitioner represented himself for the first few months of the
On February 21, 2008, after representation

23
24

The date originally set for trial in the riot case was June 30,

25

2008, but Petitioner’s counsel sought and obtained two continuances

26

until July 21, 2008 (FAP, p. 24; see also C.T. 138-43, 168).

27

then requested a third continuance, claiming that counsel still needed

28

more time to locate and interview 21 potential defense witnesses
24

Counsel

1

before counsel could announce ready (see C.T. 176-77 (motion); R.T. A-

2

5 - A-6).

3

case) denied the motion (R.T. A-6 - A-9).

4

inter alia, that counsel had known about the jail riot for a long time

5

(because the riot had been identified as one of the aggravating

6

factors in the capital case), and the prosecutor had put counsel on

7

notice of the prosecution’s intent to file charges concerning the jail

8

riot even before the guilt phase of the capital case began (id.).

The presiding judge (who also presided over the capital
The judge reasoned,

9
10

On the same day, the presiding judge transferred the riot case to

11

another judge for trial, and Petitioner’s counsel renewed his motion

12

for a continuance (R.T. A-7, A-9, 2-3).

13

renewed motion, after confirming that nothing had changed during the

14

brief time that had passed following the previous denial (R.T. 3-4,

15

28, 30).

The trial judge denied the

16
Petitioner also then requested a Marsden hearing (R.T. 13).11

17

At

18

the Marsden hearing, Petitioner complained of counsel’s performance

19

representing Plaintiff in his capital case and suggested that

20

communications had broken down (R.T. 15-16).

21

that counsel should be replaced because counsel allegedly had “assumed

22

a defeatist position” in the riot case – doing “nothing” to prepare a

23

defense (R.T. 17-19).

24

///

25

///

Petitioner also argued

26
27
28

11

See People v. Marsden, 2 Cal. 3d 118, 84 Cal. Rptr.
156, 465 P.2d 44 (1970) (establishing standards governing
requests for substitution of counsel).
25

1

Petitioner’s counsel reported that he had told Petitioner “there

2

is no defense to what you see on the [video]tape [of the jail

3

incident],” but had discussed with Petitioner “what would be a

4

defense” (R.T. 21).

5

witnesses and provided a list of those witnesses to the defense

6

investigator prior to trial (when Petitioner was proceeding pro se,

7

and again in February of 2008 when counsel started representing

8

Petitioner in the present case) (R.T. 20-22, 24-25).12

9

investigator reportedly made arrangements to see certain potential

10

Counsel said he had identified potential

The

witnesses in prison, but “[t]hat was not done” (R.T. 25).

11
12

Counsel also said that in June of 2008 the investigator reported

13

to counsel that he could not locate “other” potential witnesses

14

because the investigator did not have the witnesses’ dates of birth.

15

See R.T. 24, 26-27; see also C.T. 177 (counsel stating in motion for

16

continuance filed on July 17, 2008, that the information the defense

17

was provided included the witnesses’ jail booking numbers and housing

18

locations, but not “any other personal information, such as date of

19

birth”); C.T. 174 (declaration of prosecutor filed on July 14, 2008,

20

stating that the defense had been provided in discovery with a

21

computer printout listing the name, cell location, and booking number

22
23
24
25
26
27
28

12

The defense investigator reportedly had been looking
for these witnesses since 2006. During a chambers conference in
Petitioner’s capital case on December 5, 2006, the defense
investigator stated that he had been attempting to find other
inmates involved in the jail riot based on identifying
information Petitioner had provided. See FAP Exh. 11, pp. 43-44.
The witnesses were relevant to the capital case because the
prosecution presented evidence of Petitioner’s participation in
the riot during the penalty phase of the capital case. See R.T.
21.
26

1

of every inmate witness (discovery bates stamped 91-94) (filed as FAP

2

Exh. 18)); but see FAP Exh. 6(A) (June 8, 2008, memorandum from the

3

investigator to the California Department of Corrections (“CDC”) which

4

includes the dates of birth for each of 20 witnesses, a return fax

5

stamp dated June 11, 2008, and the locations for 16 witnesses).13

6

Counsel explained that he did not replace the investigator because

7

counsel had faith in the investigator’s ability to find witnesses

8

based on previously having worked with the investigator (R.T. 25).

9

The investigator supposedly just needed more time (R.T. 26).

10
11

The court asked what efforts the investigator had made since June

12

and also asked whether counsel had told the investigator to report to

13

counsel what the investigator was doing (R.T. 26-27).

14

responded that he had given the investigator a list and had inquired

15

of the investigator, but the investigator “threw [the list] back at

16

[counsel] and said I don’t have a date of birth” (R.T. 27).

17

continued, “So what you’re telling me is the investigator did make an

18

attempt to find these people, he just couldn’t find them?” and counsel

19

answered, “That’s correct.” (id.).

Counsel

The court

20
21

The court denied Petitioner’s request to substitute counsel and

22

declined to overturn the denial of a continuance (R.T. 30).

23

told Petitioner:

The court

24
25
26
27
28

13

While the defense investigator evidently had located 16
of the 20 witnesses by June 11, 2008 (FAP Exh. 6(A)), when and
how the investigator actually shared with counsel the information
obtained from the CDC is uncertain. See FAP Exh. 6, ¶¶ 7-8; FAP
Exh. 19, ¶ 7 (generally stating that copies of Exhibits 6(A) and
7 were found in counsel’s trial file after trial, without
indicating when those exhibits were given to counsel).
27

1

[T]here was nothing to stop you or your attorney from asking

2

for another investigator if you were unhappy with the job

3

the investigator was doing during the five months since the

4

preliminary hearing.

5

that.

6

revisit the motion to continue.

But I can’t fault [trial counsel] for

And this is a Marsden motion, and I’m not going to

7
8

(R.T. 30).

9
10

Petitioner then asked, “Can I make a motion to represent myself

11

pro per?” (R.T. 30).

12

“without any further continuances” (id.).

13

asked for a 30-day continuance (id.).

14

a jury outside the door here, so I won’t let you go pro per on that

15

basis.

16

30-day continuance, that’s not going to be granted.

17

would be denied” (R.T. 31).

18

wanted time to subpoena information so that he could locate witnesses

19

and thought he could obtain “at least . . . a couple [witness]

20

statements” in 30 days (id.).

21

Petitioner would be able to subpoena witnesses, given counsel’s

22

representations during the Marsden hearing that the defense

23

investigator had not been able to locate witnesses (R.T. 32 (“You

24

assumed that [the witnesses are] in custody, but [the investigator]

25

hasn’t been able to find them.

26

they were a custody status.”)).

27

and the court asked whether the investigator was there to support

28

Petitioner’s Marsden motion (R.T. 32).

¶

The court said that Petitioner could do so, but
Petitioner immediately

The court responded, “I’ve got

So if you’re requesting pro per status because you want a
So that motion

Petitioner advised the court that he

The trial court expressed doubt that

And [the investigator] would know if
Petitioner requested “some inquiry,”

28

The investigator was not

1

present (see FAP Exh. 6, ¶ 9).

The court concluded:

2
3

[Counsel] has indicated to me that this investigator was

4

sent out on the case and given a list.

5

responsibility, he did that.

6

another reason to remove [counsel] as the lawyer.

7

requested pro per status so that you can get a continuance

8

which I’ve denied.

Okay.

That’s [counsel’s]

You haven’t given me
You only

And the Marsden motion is denied.

9
10

(R.T. 33).

11
12

B.

Additional Evidence Presented on Habeas Review

13
14
15

Petitioner presents the following additional evidence in
connection with Grounds One and Six:

16
17
18

Declaration of Daniel Hines dated June 17, 2013 (FAP Exh. 1),
which states in part:

19
20

In January of 2005, Hines was housed a few cells away

21

from Petitioner in the A-Row (¶ 1).

22

an inmate he knew as “Sleepy” being escorted to the attorney

23

room by deputies and, when Sleepy refused to go, Hines saw

24

one of the deputies push Sleepy into a wall, and deputies

25

then dragged Sleepy down the tier (¶ 2).

26

yelled at the deputies to put Sleepy back into his cell (¶

27

2).

28

escalated (¶ 2).

Hines remembers seeing

Hines and others

Someone threw something at the deputies and things
“We just went crazy when we saw how Sleepy
29

1

was being treated” (¶ 2).

What happened was “completely

2

spontaneous.”

3

inmates to break their sinks, and Petitioner was not a “shot

4

caller” and did not order anybody to do anything (¶ 3).

Hines never heard anyone “command” the

5
6

The deputies left the tier and later came back to each

7

cell on the tier and asked the inmates one by one if they

8

were ready to come out and, if the inmate said no, he was

9

shot with pepper balls (¶ 4).

Hines was shot with pepper

10

balls approximately 56 times before he was dragged from his

11

cell (¶ 4).

12

Petitioner’s face was red and swollen (¶ 5).

Hines saw Petitioner afterward, and

13
14

A day or so after the incident, each inmate was brought

15

individually into a room with a sergeant and “about two

16

other officers” (¶ 6).14

17

he saw, he “essentially” was told what he was supposed to

18

say (i.e., “You didn’t see nothing, right?

19

going to happen if you say you did”) (¶ 6).

20

because he was afraid he would get beaten up if he disagreed

21

(¶ 6).

When Hines was asked about what

You know what’s
Hines agreed

22
23

Hines “thinks” he was out of prison in 2007 and 2008

24

(before and during Petitioner’s trial), had regular contact

25

with his parole officer through which he could have been

26

contacted, and Hines would have testified on Petitioner’s

27
14

28

Hines does not state he was present when other inmates
were brought to this room (¶ 6).
30

1

behalf (¶ 7).

2
3
4

Declaration of Erick Morales dated July 23, 2013 (FAP Exh. 2),
which states in part:

5
6

In 2005, Morales was in jail on the same tier as

7

Petitioner (¶ 1).

8

years they were on the tier together (¶ 1).

9

2005, Morales saw deputies bringing a prisoner to a visit

Morales had known Petitioner for the two
In January of

10

with “a chokehold [sic] around the prisoners [sic] neck” (¶

11

2).

12

throwing things at the deputies.

13

one person started it.

[Petitioner] didn’t start it or tell

14

anyone else what to do.

Whatever we did, we did on our own.

15

There wasn’t a shot caller on our tier.” (¶ 3).

“The inmates became upset and started yelling and
This was spontaneous.

No

16
17

In 2007 and 2008, Morales was in prison and “it would

18

have been easy to find [him]” (¶ 4).

19

testified on Petitioner’s behalf (¶ 5).

Morales would have

20
21
22

Declaration of Gerardo Reyes dated July 7, 2013 (FAP Exh. 3),
which states in part:

23
24

In January of 2005, Reyes was housed in the cell next

25

to Petitioner (¶ 1).

26

(including Deputy Orosco) came to the tier to bring Gonzalez

27

out of his cell, one deputy telling Gonzalez he had an

28

attorney visit (¶ 2).

Reyes remembered a time when deputies

Reyes thought the deputies were lying
31

1

because of what Reyes had heard about Gonzalez’ prior

2

problems with deputies (i.e., Gonzalez was involved in a

3

riot at another jail during which deputies may have been

4

injured) (¶ 3).

Reyes thought the deputies were trying to

5

retaliate (¶ 3).

Some other inmates and Reyes asked the

6

deputies where they were really taking Gonzalez. (¶ 4).

7

said we knew he wasn’t going to an attorney visit.” (¶ 4).

“We

8
9

When Gonzalez tried to go back to his cell, the

10

deputies grabbed Gonzalez and dragged him out of the tier,

11

cuffed, and not resisting (¶ 4).

12

the deputies handled the situation because they “lied about

13

where they were taking him, then they dragged him out,” so

14

Reyes threw an apple at the deputies (¶ 5).

15

started throwing things too (¶ 5).

16

the first to break his sink, using a knob within a sock to

17

break the sink (¶ 5).

18

with Reyes to break their sinks; Reyes just decided to break

19

his sink (¶ 5).

Reyes was upset about how

Other inmates

Reyes believes he was

Petitioner did not make any agreement

20
21

“[Petitioner] was not a shot caller.

He didn’t start

22

the incident, lead it, or tell anyone what to do during it.

23

[Petitioner] did not tell me to break my sink or to do

24

anything else.

25

the inmates, the rest are going to jump in to help the

26

inmate.

27

seemed to dislike Petitioner (¶ 8).

28

In jail, if a deputy messes with any one of

That’s just what we do.” (¶ 6).

///
32

The deputies

1

In 2007 and 2008, Reyes was incarcerated and “would

2

have been easy to find” (¶ 9).

3

Reyes would have testified

in Petitioner’s defense (¶ 9).

4
5
6

Declaration of Timothy Trujillo dated June 25, 2013 (FAP Exh. 4),
stating in part:

7
8
9

In January of 2005, Trujillo was housed in the cell
adjacent to Petitioner (¶ 1).

Trujillo “participated in an

10

incident (cell extraction) that occurred which stem [sic]

11

from sheriffs deputies physically assaulting and using

12

excessive force on a man whom [sic] at the time was unable

13

to defend himself because he was handcuffed” (¶ 2).

14

saw the “assault,” Trujillo wanted the deputies to stop, so

15

he began to throw personal property (bars of soap, a

16

container of grease, food items) (¶ 3).

17

protest I even began breaking things in my cell such as my

18

sink, desk, and light fixture” (¶ 4).

19

did [Petitioner] or anyone . . . tell or order anyone on the

20

row to participate in the incident[,] nor was anyone told to

21

break and/or cause damage to anything in their cell.

22

[Petitioner] was just a regular guy like everyone else on

23

the row[,] he did not possess any leadership over anyone” (¶

24

5).

25

Trujillo was shot with pepper balls and was beaten (¶ 6).

When he

“Out of anger and

“Not at any time ever

When the deputies came back to do the cell extraction,

26
27
28

Trujillo does not indicate where he was in 2007 and 2008, and
does not state whether he would have testified in Petitioner’s
33

1

defense.15

2
3
4

Declaration of Jay Reddix dated August 21, 2013 (FAP Exh. 5),
which states in part:

5
6

In January of 2005, Reddix was housed on the same row

7

as Petitioner (¶ 1).

8

that occurred around that time (¶ 1).

9

his bed when he heard a commotion, stood up and looked out

Reddix recalls “a cell extraction”
Reddix was lying on

10

to see two deputies dragging another inmate down the tier (¶

11

2).

12

deputies’ sticks as they dragged him (¶ 2).

13

the inmate fall and saw the deputies continue to drag the

14

inmate off the tier, beating the inmate all the way out of

15

the tier (¶ 2).

16

deputies to stop and inmates started throwing things (¶ 3).

The inmate was handcuffed and being poked with the
Reddix watched

Reddix heard other inmates yelling at the

17
18

A few hours later, there was a cell extraction where

19

the deputies first asked the inmates to volunteer to come

20

out (¶ 4).

21

masks and holding shields, so Reddix did not want to come

22

out (¶ 4).

23

deputies in jail, Reddix felt certain if he did come out he

24

would be beaten (¶ 4).

The deputies were in full riot gear, wearing

Based on his prior experience of being beaten by

25
26
27
28

15

To establish prejudice caused by the failure to call a
witness, Petitioner must provide evidence, inter alia, that the
witness would have testified at trial if called upon. See, e.g.,
United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.), cert.
denied, 488 U.S. 910 (1988).
34

1

Nobody volunteered to leave their cells, so the

2

deputies began shooting gas balls into each cell, including

3

Reddix’s cell, and Reddix then volunteered to leave his cell

4

(¶ 5).

5

picked up and dragged off the tier (¶ 5).

Reddix crawled out of his cell backwards and was

6
7

Reddix did not hear any of the inmates tell anyone else

8

to break their sinks or to throw things at the deputies (¶

9

6).

In Reddix’s opinion, the deputies started the incident

10

(¶ 6).

Reddix was able to communicate with all of the other

11

inmates on the tier (¶ 7).

12

Reddix would have known (¶ 7).

13

Petitioner was not a shot caller (¶ 7).

If there was a shot caller,
There was no shot caller and

14
15

In 2007 and 2008, Reddix was in prison and “would have

16

been easy to find” (¶ 8).

Reddix would have testified in

17

Petitioner’s defense (¶ 8).

18
19
20

Declaration of Robert Royce dated August 29, 2013 (FAP Exh. 6),
which states in part:

21
22

Royce was appointed as the defense investigator in both

23

Petitioner’s capital case and in the case involving the jail

24

incident (¶ 2).

25

he thought had the best view of the incident at the jail (¶

26

5).

27

witnesses from reports of the incident that the sheriff’s

28

deputies wrote (¶ 5).

Petitioner gave Royce 7-10 names of inmates

Royce was able to locate the names of other potential

Royce planned to locate as many
35

1

witnesses as possible, then go interview them (¶ 5).

To

2

visit witnesses still held in county jail, Royce needed

3

Petitioner’s attorney to obtain a court order (¶ 6).

4

visit witnesses who had been transferred to prison, Royce

5

needed a written request from the attorney and a travel

6

order if the prison was located outside of Los Angeles

7

County (¶ 6).

8

once” what he needed to visit witnesses, “but nothing ever

9

came of it” (¶ 7).

To

Royce told Petitioner’s counsel “more than

10
11

Royce located many of the potential witnesses by

12

contacting the California Department of Corrections in June

13

of 2008 (¶ 7 & Exhibit A to the Declaration (copy of CDC

14

correspondence wherein Royce provided the inmates’ names and

15

dates of birth, and the CDC provided locations and CDC

16

numbers for 16 inmates)).

17

practice, he had the time and was willing to travel and

18

interview witnesses for Petitioner’s case (¶ 8).

19

reason why witnesses were not interviewed was because

20

counsel never gave Royce the necessary authorizations (¶ 8).

21

Royce told Petitioner’s counsel about the witnesses Royce

22

had located, and Royce does not know why counsel failed to

23

authorize Royce to interview the witnesses (¶ 8).

Although Royce was busy with his

The only

24
25

Royce was not in court on the day Petitioner’s trial

26

commenced (¶ 9).

Royce only interviewed one inmate

27

(Gonzalez) for Petitioner’s jail incident case, and did so

28

shortly before Gonzalez testified (¶ 10).
36

1

Royce was “ready” to investigate “potential impeachment

2

material” on the deputies involved in the incident, but

3

counsel “did not pursue this avenue of investigation” (¶

4

11).

5
6
7

“Memo” from Robert Royce to Clay Jacke dated June 8, 2008 (FAP
Exh. 7) (which has not been authenticated) states:

8
9

The police reports from the incident listed 18

10

witnesses with “old addresses” that Royce had checked.

11

Royce located “possible” addresses for 13 of the witnesses

12

and would be following up to make contact at the addresses

13

to interview those witnesses.

14

housed in the Los Angeles County Jail (for which he would

15

need a letter from counsel to access).16

16

rights cases filed against eight of the deputies alleged to

17

have been involved in the incident.

Royce located five witnesses

Royce found civil

See id.

18
19

“Order for Additional Funds For Investigator, etc.”

20

filed June 9, 2008 (FAP Exh. 8), authorizing 50 additional

21

investigative hours for Petitioner’s case.

22

counsel concurrently filed a declaration requesting those

23

funds for “locating, interviewing and subpoenaing

24

witnesses.”

25

See id.

///

26

Petitioner’s

///

27
16

28

Four of these five witnesses were identified as being
in CDC custody as of June 11, 2008. Compare FAP Exs. 6(A) & 7.
37

1

“Declaration and Order Re Fees for All Court

2

Appointments” dated September 9, 2008, by Petitioner’s

3

counsel (FAP Exh. 9), stating in part that counsel had

4

studied “reports and video” and interviewed Petitioner prior

5

to Petitioner’s trial.

See id.

6
7

“Incident Report” dated January 8, 2005 (FAP Exh. 10),

8

listing 20 inmate “suspects” (other than Petitioner)

9

including names, dates of birth, residential addresses, and

10

booking numbers.

See id.

11
12

Partial Transcripts from Petitioner’s Capital Case

13

dated December 5, 2006 and October 26, 2008 (FAP Exhs. 11

14

and 13) (filed under seal in this case).

15
16

Minute Order from Petitioner’s Capital Case dated

17

October 25, 2007 (FAP Exh. 12), containing the jury’s guilty

18

verdict.

See id.

19
20

Minute Order from Petitioner’s Capital Case dated

21

November 9, 2007 (FAP Exh. 14), wherein the trial court

22

declared a mistrial as to the penalty phase of trial

23

proceedings.

See id.

24
25

“Felony Complaint for Arrest Warrant” dated

26

November 24, 2007 (FAP Exh. 15), for the charges arising

27

from the jail riot.

28

See id.

///
38

1

“Notice to court of defendant renouncing pro-per status

2

and request for counsel” filed on January 8, 2008 (FAP Exh.

3

16), filed in the riot case.

See id.

4
5

“3300 A-Row diagram (FAP Exh. 17), identifying the

6

inmates in cells as follows: A-3 Francisco Morales, A-4 Rudy

7

Tafoya, A-5 Erick Morales, A-6 Gerardo Reyes, A-7

8

Petitioner, A-8 Timothy Trujillo, A-10 Daniel Hines, A-11

9

Daniel Valenzuela, and A-19 Walter Cortez.

See id.

10
11

“Housing Location Inquiry” as of November 27, 2007 (FAP

12

Exh. 18) (bates stamped 91-94), listing inmates for Module

13

3300, including their booking numbers and cell locations.

14

See id.

15
16

Declaration of Rebecca Dobkin dated November 12, 2013

17

(FAP Exh. 19), wherein Petitioner’s federal habeas counsel’s

18

investigator states that she reviewed the trial files from

19

Petitioner’s counsel and from Robert Royce, and that copies

20

of FAP Exhibits 6(A), 7, 10, and 18, were found in the trial

21

file of Petitioner’s trial counsel, and copies of FAP

22

Exhibits 6(A) and 7 were found in Royce’s file.

See id.

23
24

“Annual Report on Conditions Inside Los Angeles County

25

Jail, 2008-2009, dated May 5, 2010 (FAP Exh. 20), which

26

discusses “deputy abuse” and retaliation.

27

///

28

///
39

See id.

1

“Declaration of Tom Parker in Support of Plaintiffs’

2

Motion for Class Certification” filed in Rosas and Goodwin

3

v. Baca, C.D. Cal. Case No. CV 12-428-DDP, dated

4

February 23, 2012 (FAP Exh. 21), concerning allegations of

5

abuse and excessive force in the Los Angeles County jails.

6

See id.

7
8

“Report of the Citizens’ Commission on Jail Violence”

9

dated September 2012 (FAP Exh. 22), concerning allegations

10

of “unreasonable violence” by deputies in Los Angeles County

11

jails.

See id.

12
13

C.

Governing Legal Standards

14
15

To establish ineffective assistance of counsel, Petitioner must

16

prove:

17

of reasonableness; and (2) there is a reasonable probability that, but

18

for counsel’s errors, the result of the proceeding would have been

19

different.

20

(1984) (“Strickland”).

21

“is a probability sufficient to undermine confidence in the outcome.”

22

Id. at 694.

23

counsel’s performance was reasonable or the claimed error was not

24

prejudicial.

25

2002) (“Failure to satisfy either prong of the Strickland test

26

obviates the need to consider the other.”) (citation omitted).

27

///

28

///

(1) counsel’s representation fell below an objective standard

Strickland v. Washington, 466 U.S. 668, 688, 694, 697
A reasonable probability of a different result

The court may reject the claim upon finding either that

Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir.

40

1

Review of counsel’s performance is “highly deferential” and there

2

is a “strong presumption” that counsel rendered adequate assistance

3

and exercised reasonable professional judgment.

4

384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005)

5

(quoting Strickland, 466 U.S. at 689).

6

reasonableness of counsel’s conduct “on the facts of the particular

7

case, viewed as of the time of counsel’s conduct.”

8

U.S. at 690.

9

nor apply the fabled twenty-twenty vision of hindsight. . . .”

Williams v. Woodford,

The court must judge the

Strickland, 466

The court may “neither second-guess counsel’s decisions,

10

Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert.

11

denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see

12

Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment

13

guarantees reasonable competence, not perfect advocacy judged with the

14

benefit of hindsight.”) (citations omitted).

15

burden to show that “counsel made errors so serious that counsel was

16

not functioning as the counsel guaranteed the defendant by the Sixth

17

Amendment.”

18

and internal quotations omitted); see Strickland, 466 U.S. at 689

19

(petitioner bears burden to “overcome the presumption that, under the

20

circumstances, the challenged action might be considered sound trial

21

strategy”) (citation and quotations omitted).

Petitioner bears the

Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation

22
23

“In assessing prejudice under Strickland, the question is not

24

whether a court can be certain counsel’s performance had no effect on

25

the outcome or whether it is possible a reasonable doubt might have

26

been established if counsel acted differently.”

27

omitted).

28

alleged error, it is “‘reasonably likely’” that the result would have

Id. at 111 (citations

Rather, the issue is whether, in the absence of counsel’s

41

1

been different.

Id. (quoting Strickland, 466 U.S. at 696).

“The

2

likelihood of a different result must be substantial, not just

3

conceivable.”

Id. at 112.

4
5

A state court’s decision rejecting a Strickland claim is entitled

6

to “a deference and latitude that are not in operation when the case

7

involves review under the Strickland standard itself.”

8

Richter, 562 U.S. at 101.

9

not whether counsel’s actions were reasonable.

Harrington v.

“When § 2254(d) applies, the question is
The question is

10

whether there is any reasonable argument that counsel satisfied

11

Strickland’s deferential standard.”

Id. at 105.

12
13

D.

14

The Superior Court Reasonably Determined that Petitioner’s
Claim of Ineffective Assistance Fails for Want of Prejudice.

15
16

Petitioner alleges that counsel’s investigation was deficient

17

because counsel assertedly:

18

inmate witnesses prior to trial (FAP, Ground One, pp. 24-25, 29-36);

19

and (2) failed to investigate the general conditions of the Los

20

Angeles County Men’s Central Jail (FAP, Ground One, pp. 36-41).

(1) failed to interview any potential

21
22

Assuming, arguendo, that counsel’s performance was unreasonable,

23

Petitioner has failed to prove any Strickland prejudice resulting

24

therefrom.

25

of conspiracy to commit assault and vandalism, three counts of

26

resisting an executive officer, and assault by means likely to produce

27

great bodily injury on Deputy Morales and on Deputy Alvarez (C.T. 288-

28

96).

See Strickland, 466 U.S. at 697.

Petitioner was convicted

The trial evidence compellingly established Petitioner’s guilt
42

1

as to all of these charges.

Petitioner suggests that the verdicts

2

might have been different if counsel had presented the other inmate

3

witnesses’ testimony and evidence of deputy-on-inmate abuse at the

4

jail.

5

discussed below, such evidence would not have produced a substantial

6

likelihood of a different trial outcome.

However, as the Superior Court reasonably determined, and as

7
8
9

For the conspiracy charges, the prosecution needed only to show
that two or more persons agreed to commit vandalism or assault, and

10

took one overt act to further the conspiracy.

See C.T. 254-63 (jury

11

instructions).

12

defendant and another person had the specific intent to agree or

13

conspire to commit an offense, as well as the specific intent to

14

commit the elements of that offense, together with proof of the

15

commission of an overt act ‘by one or more of the parties to such

16

agreement’ in furtherance of the conspiracy.”

17

Cal. 4th 403, 416, 84 Cal. Rptr. 2d 665, 975 P.2d 1071 (1999)

18

(citations omitted).

19

circumstantial evidence, ‘particularly when those circumstances are

20

the defendant’s carrying out the agreed-upon crime.’”

21

143 Cal. App. 4th 1009, 1024-25, 49 Cal. Rptr. 3d 765 (2006)

22

(citations omitted).

23

establish that the parties met and expressly agreed; rather, ‘a

24

criminal conspiracy may be shown by direct or circumstantial evidence

25

that the parties positively or tacitly came to a mutual understanding

26

to accomplish the act and unlawful design.”

27

omitted).

28

///

“A conviction of conspiracy requires proof that the

People v. Morante, 20

“The elements of a conspiracy may be proven with

People v. Vu,

“To prove an agreement, it is not necessary to

43

Id. at 1025 (citation

1

At Petitioner’s trial, the evidence included deputies’ testimony

2

regarding what Petitioner and others said and did, a videotape showing

3

what Petitioner and others did, and Petitioner’s own incriminating

4

testimony.

5

Petitioner) intentionally broke their sinks and threw pieces of

6

porcelain and other items at the deputies (constituting five of the

7

alleged overt acts for conspiracy to commit assault and both of the

8

alleged overt acts for conspiracy to commit vandalism) (R.T. 1567,

9

1573, 1706, 1715-16, 1718-19, 1722, 1725-28, 1747-50, 1758, 1838-39;

Petitioner admitted that more than one inmate (including

10

see C.T. 262-63, 288-90 (conspiracy jury instructions and related

11

verdicts)).

12
13

The inmate declarations Petitioner now submits allege that,

14

contrary to prosecution evidence, Petitioner did not order anyone to

15

throw anything, break sinks or take any other action during the riot,

16

and each declaration denies that Petitioner was a “shot caller” for

17

the row (FAP Exhs. 1-5).

18

inmates became upset and threw things at deputies as a spontaneous

19

reaction to the manner in which Gonzalez was removed (FAP Exh. 1, ¶ 2-

20

3; FAP Exh. 2, ¶ 3).

21

sink and that Petitioner did not make any agreement with him to break

22

sinks (FAP Exh. 3, ¶ 5).

Hines and Erick Morales state that the

Reyes states that he was the first to break his

23
24

It was reasonable for the Superior Court to conclude that the

25

inmates’ potential testimony would not have produced a substantial

26

likelihood of a different trial outcome.

27

have supported the prosecution evidence that multiple inmates broke

28

their sinks within a short time frame (see FAP Exh. 3, ¶ 5 (Reyes
44

The inmate testimony would

1

admitting he broke his sink); FAP Exh. 4, ¶ 4 (Trujillo admitting that

2

he broke his sink)).

3

the logical inference that the inmates were acting in concert and by

4

agreement during the riot.

5

specifically directed the other inmates to break their sinks or throw

6

things at the deputies to be found guilty of conspiracy.

7

while finding Petitioner guilty of conspiracy, the jury found “not

8

true” the overt act allegation that Petitioner urged another inmate to

9

break his sink.

The inmate testimony also could have supported

Moreover, Petitioner need not have

In fact,

For the remainder of the charges (i.e., resisting

10

executive officers and assault by means likely to produce great bodily

11

injury), the inmates’ testimony would have been largely if not

12

entirely cumulative of the evidence adduced at trial concerning the

13

officers’ use of force.

14
15

Furthermore, in some respects, the inmates’ testimony actually

16

would have undercut Petitioner’s defense and would have supported

17

rather than impugned the jury’s verdicts.

18

convicted of resisting executive officers (Deputies Ibarra, Argueta,

19

Orosco, and Taylor), the deputies who removed Gonzalez from A-Row.

20

See C.T. 291 (verdict); R.T. 656-57 (Deputy Ibarra testifying

21

regarding who removed Gonzalez from the row); but see R.T. 1276-77,

22

1281-91, 1297-98, 1318-21, 1327-31, 1337-41, 1549-57, 1700, 1849-50

23

(Gonzalez and then Petitioner testifying that it was only Deputy

24

Ibarra who removed Gonzalez from the row).

25

guilty of resisting executive officers in two separate ways:

26

first is attempting by threats or violence to deter or prevent an

27

officer from performing a duty imposed by law; the second is resisting

28

by force or violence an officer in the performance of his or her
45

For example, Petitioner was

A person may be found
“The

1

duty.”

People v. Smith, 57 Cal. 4th 232, 240, 159 Cal. Rptr. 3d 57,

2

303 P.3d 368 (2013) (citation omitted).

3

convicted of an offense against an officer engaged in the performance

4

of his or her duties unless the officer was acting lawfully at the

5

time the offense against the officer was committed.

6

(citations omitted).

7

intentionally threw things directly at Deputy Ibarra to “interfere”

8

with Ibarra as Ibarra attempted to remove Gonzalez from the row

9

supported this charge (R.T. 1839-40).

A defendant cannot be

Id. at 241

Here, Petitioner’s admission that he

The inmate declarations

10

reinforce the fact that inmates threw things at the deputies to try to

11

prevent the removal of Gonzalez from the row.

12

(Hines stating that the inmates yelled to have Gonzalez put back in

13

his cell and threw things at the deputies); FAP Exh. 2, ¶ 3 (Erick

14

Morales stating that the inmates yelled and threw things); FAP Exh. 3,

15

¶¶ 4-5 (Reyes stating that inmates asked questions challenging

16

Gonzalez’ removal and threw things at the deputies); FAP Exh. 4, ¶ 3

17

(Trujillo stating that he threw things because he wanted the deputies

18

to stop the “assault” on Gonzalez); FAP Exh. 5, ¶ 3 (Reddix stating

19

that he heard inmates yelling at the deputies to stop what they were

20

doing to Gonzalez and that inmates threw things).

See FAP Exh. 1, ¶ 2

21
22

The jury had before it ample evidence of the deputies’ use of

23

force in dealing with the inmates on A-Row during the riot.

24

above, Deputy Ibarra admitted that Gonzalez’ removal involved dragging

25

and pepper spraying Gonzalez (R.T. 665-66, 709-10).

26

testified that he struggled and fought with Ibarra, who had him by the

27

neck and dragged him from the row in front of the other inmates, and

28

that he then was beaten by Ibarra and other deputies and maced into
46

As noted

Gonzalez

1

submission (R.T. 1286-93, 1321, 1327-31, 1337-41).

Petitioner

2

testified that Gonzalez was beaten in the sally port area (R.T. 1552-

3

53, 1557-58).

4

deputies were firing pepper ball guns into the cells from where the

5

porcelain was being thrown, and one or two deputies were spraying

6

pepper spray near those cells (R.T. 938, 942-45, 973-75).

7

deputies admittedly fired more than 30 pepper balls into Petitioner’s

8

cell, and sprayed five or more bursts of pepper spray from the

9

canister into his cell when Petitioner refused to comply with their

When the extraction team later came onto A-Row, two

The

10

commands (R.T. 944, 975-76).

The videotape showed, and Deputy Morales

11

confirmed, that the extraction team used “a lot” of pepper spray and

12

pepper balls to remove inmates from their cells (R.T. 778, 786-87).

13

However, the videotape also showed that 16 of the inmates on the row

14

walked out peacefully in handcuffs during the extraction (R.T. 1836).

15

The other inmates’ testimony would not have added anything

16

significantly material to all of this trial evidence regarding the

17

deputies’ use of force.

18

Petitioner was removed from his cell, so they could not have testified

19

competently regarding the circumstances under which Petitioner

20

purported to have acted in self-defense at that time.

None of the inmates were present when

21
22

The inmate testimony would have undermined Petitioner’s defense

23

at trial in several additional respects.

Contrary to Petitioner’s and

24

Gonzalez’ purportedly emphatic trial testimony that Deputy Ibarra was

25

the only deputy to remove Gonzalez from the row, all of the other

26

inmate witnesses now agree that more than one deputy removed Gonzalez

27

from A-row.

28

removing Gonzalez from the row); FAP Exh. 2, ¶ 2 (same for Erick

See FAP Exh. 1, ¶ 2 (Hines referring to “deputies”

47

1

Morales); FAP Exh. 3, ¶ 2 (same for Reyes); FAP Exh. 4, ¶¶ 2-3 (same

2

for Trujillo); FAP Exh. 5, ¶ 2 (same for Reddix).

3

Petitioner’s trial testimony that the deputies threatened over the

4

loud speaker to “fuck [the inmates] up” right after Gonzalez was

5

removed from A-Row, none of the other inmate witnesses now state that

6

the deputies ever threatened the inmates over the loud speaker.

7

See FAP Exhs. 1-5.

Contrary to

8
9

Finally, as the Superior Court reasonably emphasized, the other

10

inmates’ testimony would have been vulnerable to effective impeachment

11

for bias, given these inmates’ own participation in the riot and the

12

fact that the proffered testimony of each is “so similar in content

13

and language” (despite the inmates’ differing vantage points) as to

14

raise “the specter of whether the statements offered by the inmates

15

were specifically designed for achieving a certain outcome or result

16

in the litigation” (Respondent’s Lodgment 20, pp. 523-25).

17

inmate’s testimony also would have been impeached by Gonzalez’ trial

18

admission that an inmate’s testimony that Petitioner had done

19

something wrong could get the testifying inmate killed.

Each

20
21

In sum, the Court finds no substantial, reasonable likelihood of

22

a different verdict had the jury been presented with the inmates’

23

///

24

///

25

///

26

///

27

///

28

///
48

1

testimony.17

2

of the trial evidence concerning the force used by the deputies during

3

the riot, impeaches the defense witnesses’ testimony in some respects,

4

does not materially mitigate Petitioner’s own incriminating

5

admissions, and actually supports certain aspects of the prosecution’s

6

case.

7

inmate testimony would have been vulnerable to effective impeachment.

8

See Respondent’s Lodgment 20, pp. 523-25.

9

testimony would not have undermined the compelling strength of the

10

As discussed above, such testimony is largely cumulative

Additionally, as the Superior Court correctly observed, the

Finally, the inmate

prosecution’s evidence.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

17

Nor does the Court find any prejudice from counsel’s
alleged failure to investigate the reported history of deputy-oninmate abuse at the jail. Petitioner has provided reports postdating Petitioner’s conviction that generally concern allegations
of physical abuse and excessive force in the Los Angeles County
jails (FAP Exhs. 20-22). Petitioner claims these reports
chronicle a long history of deputy-on-inmate violence based on
“numerous publicly available reports,” which counsel supposedly
could have probed for leads on evidence to lend credibility to
the defense that Petitioner feared physical abuse at the hands of
his jailers (FAP, p. 37). Petitioner has not identified specific
evidence within these reports existing at the time of
Petitioner’s trial that counsel could or should have unearthed.
See FAP, p. 37 & n. 4. Petitioner’s vague and speculative
allegations that there existed unidentified evidence counsel
should have presented do not establish Strickland prejudice. See
Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (no
Strickland prejudice where petitioner did “nothing more than
speculate that if interviewed, [a potential witness] might have
given information helpful to [petitioner]”); see also Bible v.
Ryan, 571 F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S.
995 (2010) (speculation insufficient to show Strickland
prejudice); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.),
cert. denied, 502 U.S. 902 (1991) (petitioner cannot satisfy
Strickland standard by “vague and conclusory allegations that
some unspecified and speculative testimony might have established
his defense”). In any event, there is no substantial, reasonable
likelihood that general evidence of deputy-on-inmate abuse in the
county jail system would have altered the result of Petitioner’s
trial.
49

1

The Superior Court’s rejection of Petitioner’s ineffective

2

assistance claim was not contrary to, or an objectively unreasonable

3

application of, any clearly established Federal law as determined by

4

the United States Supreme Court.

5

is not entitled to federal habeas relief on Ground One.

See 28 U.S.C. § 2254(d).

Petitioner

6
7

II.

Petitioner is Not Entitled to Federal Habeas Relief on His Claim

8

that the Trial Court Unconstitutionally Denied Petitioner’s

9

Request for Self-Representation.

10
11

Petitioner challenges the trial court’s denial of Petitioner’s

12

request for self-representation, which Petitioner made immediately

13

after the court denied Petitioner’s Marsden motion on the eve of

14

trial.

15

California Court of Appeal issued the last reasoned decision rejecting

16

this claim, ruling that the trial court did not abuse its discretion

17

by denying Petitioner’s request.

18

2510095, at *6-7 (Cal. App. June 23, 2010).18

19

stated, inter alia, that “[Petitioner’s] request for self-

20

representation brought on the eve of trial appears to be a ploy to

21

obtain a continuance.”

See FAP, Ground Two, pp. 41-47; Reply, pp. 19-26.

The

See People v. McGhee, 2010 WL
The Court of Appeal

Id. at *7 (citations omitted).

22
23

A.

Governing Legal Standards

24
25
26

Under Faretta v. California, 422 U.S. 806, 820-21 (1975), a
criminal defendant is constitutionally entitled to waive his or her

27
18

28

Respondent’s Lodgment 1, which purports to be this
decision of the Court of Appeal, is missing several pages.
50

1

Sixth Amendment right to counsel and to represent himself or herself

2

at trial.

3

Cir.), cert. denied, 521 U.S. 1111 (1997) (Faretta rule is clearly

4

established by United States Supreme Court for purposes of 28 U.S.C.

5

section 2254(d)).

6

(1) knowing and intelligent; (2) unequivocal;19 (3) timely; and

7

(4) not asserted for purposes of delay.

8

F.3d 922, 926 (9th Cir. 2005); United States v. Schaff, 948 F.2d 501,

9

503 (9th Cir. 1991).

See also Moore v. Calderon, 108 F.3d 261, 264-65 (9th

Under Ninth Circuit law, a Faretta request must be:

Hirschfield v. Payne, 420

10
11

In Marshall v. Taylor, 395 F.3d 1058 (9th Cir.), cert. denied,

12

546 U.S. 860 (2005), the Ninth Circuit recognized that, although no

13

United States Supreme Court case has directly addressed the timing of

14

a request for self-representation, Faretta itself incorporated a

15

timing element.

16

“require a court to grant a Faretta request when the request occurs

17

‘weeks before trial.’”

18

that, “[b]ecause the Supreme Court has not clearly established when a

19

Faretta request is untimely, other courts are free to do so as long as

20

their standards comport with the Supreme Court’s holding that a

21

request ‘weeks before trial’ is timely.”

22

Marshall Court held that, because the petitioner’s request for self-

Id. at 1060.

The Ninth Circuit read Faretta to

Id. at 1061.

However, the Ninth Circuit ruled

Id. (footnote omitted).

23
24
25
26
27
28

19

This Court assumes, arguendo, that Petitioner made an
unequivocal Faretta request. But see Jackson v. Ylst, 921 F.2d
882, 888-89 (9th Cir. 1990) (request for self-representation that
was an “impulsive response to the trial court’s denial of
[defendant’s] request for substitute counsel” deemed equivocal);
Young v. Knipp, 2013 WL 2154158, at *8 (C.D. Cal. May 15, 2013)
(Faretta request coupled with request for 30-day continuance
deemed equivocal).
51

The

1

representation on the morning of trial “fell well inside the ‘weeks

2

before trial’ standard for timeliness established by Faretta,” the

3

state court’s finding of untimeliness “clearly comport[ed] with

4

Supreme Court precedent.”

Id.

5
6

B.

Analysis

7
8
9

Petitioner made his request for self-representation on July 21,
2008, the day the case was assigned for trial after two previous

10

continuances of the trial date.

11

well within the “weeks before trial” standard set forth in Faretta,

12

the trial court’s rejection of Petitioner’s Faretta request was not an

13

objectively unreasonable application of Faretta.

14

Taylor, 395 F.3d at 1061; see also Burton v. Davis, 816 F.3d 1132,

15

1141-42 (9th Cir. 2016) (where defendant made request three days

16

before jury was empaneled, Faretta did not “clearly entitle” defendant

17

to habeas relief for denial of request); Stenson v. Lambert, 504 F.3d

18

873, 884-85 (9th Cir. 2007), cert. denied, 555 U.S. 908 (2008)

19

(because there was no Supreme Court holding that request for self-

20

representation made on eve of trial was timely, denial of request did

21

not violate Faretta and was not objectively unreasonable under AEDPA);

22

Ake v. Biter, 2013 WL 1515859, *12 (C.D. Cal. Feb. 6, 2013), adopted,

23

2013 WL 1511745 (C.D. Cal. Apr. 11, 2013) (request on the day set for

24

trial and the day before jury selection began untimely; denial

25

comported with Faretta); see generally Williams v. Taylor, 529 U.S.

26

362, 412 (2000) (“[AEDPA] restricts the source of clearly established

27

law to [the Supreme] Court’s jurisprudence”).

Because Petitioner’s request came

28
52

See Marshall v.

1

Furthermore, Petitioner made his request for self-representation

2

after the presiding judge denied trial counsel’s request for a

3

continuance and after the trial judge denied Petitioner’s

4

Marsden motion.

5

With his request for self-representation, Petitioner concurrently made

6

another request for a trial continuance (R.T. 30-31).

7

it was not unreasonable for the Court of Appeal to find that

8

Petitioner made the Faretta motion as a ploy for the purpose of delay.

9

See Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982) (if a

See FAP, pp. 45-46; R.T. A5-A7, A-11, 3-4, 13-31.

On this record,

10

defendant accompanies a Faretta motion with a request for continuance,

11

this may be considered evidence of purpose to delay); see also

12

Hirschfield v. Payne, 420 F.3d at 927 (state court finding that

13

Faretta request was made for the purpose of delay was not unreasonable

14

where the request came the day before the start of trial, was

15

accompanied by a request for continuance, and the defendant previously

16

had made requests to substitute counsel).20

17
18
20

19
20
21
22
23
24
25
26
27
28

Petitioner argues that the trial court (and the Court
of Appeal) denied the Faretta request in reliance on Petitioner’s
failure to give a sufficient “reason to remove Mr. Jacke as the
lawyer” (Reply, p. 20 (quoting R.T. 33); Reply, p. 21 (quoting
People v. McGhee, 2010 WL 2510095, at *7)). The record belies
this argument. The trial court denied the Faretta request
because Petitioner was requesting another continuance on the eve
of trial. See R.T. 31 (“[I]f you’re requesting pro per status
because you want a 30-day continuance, that’s not going to be
granted. So that motion would be denied.”); R.T. 33 (“You only
requested pro per status so that you can get a continuance which
I’ve denied.”). The trial court’s discussion of Petitioner’s
reasons for removing counsel concerned Petitioner’s
Marsden motion. See R.T. 33. Similarly, the Court of Appeal
found no abuse of discretion in denying the Faretta request
because, under the totality of circumstances, Petitioner’s
request appeared “to be a ploy to obtain a continuance.” See
People v. McGhee, 2010 WL 2510095, at *6-7.
53

1

Petitioner’s citations of Buhl v. Cooksey, 233 F.3d 783, 794 (3d

2

Cir. 2000) (“Buhl”), Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008),

3

cert. denied, 558 U.S. 933 (2009) (“Moore”), and Jones v. Norman, 633

4

F.3d 661, 664 (8th Cir. 2011) (“Jones”) (see Reply, p. 20) do not

5

alter the Court’s conclusion.

6

a Faretta request that was filed several weeks before trial was

7

scheduled to begin.

8

Circuit precedent required the trial court to inquire concerning the

9

defendant’s reasons for the request to aid the court in determining if

In Buhl, the Third Circuit found timely

Because a timely request had been made, Third

10

the request was voluntary, knowing, and intelligent.

11

In Petitioner’s case, there was no Faretta request made weeks before

12

trial, and it is clear from the record that the trial court understood

13

that Petitioner’s supposed reason for making the Faretta request was

14

to obtain a continuance to conduct discovery that had not been done –

15

the same reason for which counsel had requested and been denied a

16

continuance.

17

continue).

18

where the trial court did not rule on the Faretta request at all.

19

Moore, 531 F.3d at 402-03.

20

Faretta violation where the trial court had applied too high a

21

standard in determining whether the Faretta request was knowing and

22

voluntary.

23

decisions apply in Petitioner’s circumstance.

Id. at 794-97.

See R.T. A-6 - A-8, 19-32; C.T. 176-77 (motion to

In Moore, the Sixth Circuit found a Faretta violation

In Jones, the Eighth Circuit found a

Jones, 633 F.3d at 666-67.

None of these out of circuit

24
25

Petitioner faults the trial court for not inquiring of the

26

defense investigator concerning the status of discovery.

27

45; R.T. 32.

28

the hearing, and the trial court was entitled to rely on the

See FAP, p.

The defense had not made the investigator available for

54

1

representations of Petitioner’s counsel concerning the status of the

2

investigation.

3

require the inquiry for which Petitioner argues.

4

U.S. at 835.

Under the circumstances,

Faretta does not clearly
See Faretta, 422

5
6

Petitioner also argues that he made his Faretta request at the

7

first available opportunity after he realized his counsel had not

8

prepared desired witnesses.

9

clearly establishes that an eve of trial Faretta motion is timely

No United States Supreme Court law

10

under such circumstances.

11

argument, he actually did have prior opportunities to make a Faretta

12

request in essentially the same factual circumstances.

13

pretrial conferences on April 22, 2008, and June 4, 2008, and the case

14

was called for trial on June 30, 2008 (C.T. 136-38, 142).

15

2008, Petitioner was present with another attorney appearing on behalf

16

of his trial counsel who was engaged in another trial (C.T. 142).

17

trial court then continued the trial date to July 14, 2008, because,

18

inter alia, defense counsel supposedly needed time to locate and

19

interview witnesses (C.T. 139-40, 142).

20

trial date, Petitioner was on notice that desired witnesses had not

21

been interviewed.

22

that time (C.T. 142-43).

Moreover, contrary to Petitioner’s

There were

On June 30,

The

Thus, on the June 30, 2008

Yet, Petitioner did not make any Faretta request at

23
24

Defense counsel then filed a motion to dismiss for want of

25

prosecution and discriminatory prosecution on July 11, 2008, in which

26

counsel declared, “The defendant has informed me and I believe him

27

when he says witnesses are impossible to find.

28

investigator has been unable to locate several of the witnesses. . . .
55

The defense

1

The police reports did not record the residence addresses of the

2

inmates.

3

jail.

4

When the case returned for trial on July 14, 2008, Petitioner again

5

was present with a substitute attorney appearing because trial counsel

6

was still engaged in another trial (C.T. 168).

7

was on notice that desired witnesses had not been interviewed.

8

Furthermore, Petitioner was on notice that counsel purportedly

9

believed that it would be impossible to find the witnesses.

The reports merely indicate that they resided at the county

This makes it impossible to find witnesses” (C.T. 144-57).

Once again, Petitioner

Yet,

10

Petitioner still did not make any Faretta request at the July 14, 2008

11

hearing (C.T. 168).

12

Court’s July 21 denials of two 11th hour requests for a third

13

continuance before invoking Faretta in the apparent (and ultimately

14

vain) hope of reversing these continuance denials.

Instead, he waited until after the Superior

15
16

Petitioner has failed to demonstrate that the Court of Appeal’s

17

rejection of his Faretta claim was contrary to, or an objectively

18

unreasonable application of, any clearly established Federal law as

19

determined by the United States Supreme Court.

20

2254(d).

21

relief on Ground Two.

See 28 U.S.C. §

Therefore, Petitioner is not entitled to federal habeas

22
23
24

III. Petitioner is Not Entitled to Federal Habeas Relief on His Claim
that He Was Denied a Fair Trial By the Delay in Charging Him.

25
26

Petitioner claims that he was denied his due process right to a

27

fair trial by the delay between the jail riot and the filing of the

28

charges.

See FAP, Ground Three, pp. 47-52 (erroneously referring to
56

1

this claim as a “speedy trial” claim); Reply, pp. 26-29.21

2

of Appeal issued the last reasoned decision denying this claim,

3

finding that Petitioner had not shown prejudice from the delay.

4

People v. McGhee, 2010 WL 2510095 at *7-8.

5

the Court is limited to the record that was before the Court of Appeal

6

at the time of its decision.

7

(2013) (review “is limited to the record that was before the state

8

court that adjudicated the claim on the merits”) (quoting Cullen v.

9

Pinholster, 563 U.S. 170, 181 (2011)).22

The Court

See

In reviewing this claim,

See Ryan v. Gonzalez, 568 U.S. 57, 68

10
11

A.

Background

12
13

Three days before the scheduled trial date, Petitioner filed a

14

motion to dismiss the charges for want of prosecution (pre-indictment

15

delay) and for assertedly discriminatory prosecution (C.T. 144-57).

16
17
18
19
20
21
22
23
24
25
26
27
28

21

The Sixth Amendment right to a speedy trial attaches
only at the time of arrest, indictment, or other official
accusation. See United States v. Marion, 404 U.S. 307, 321
(1971) (“Marion”) (holding that the Sixth Amendment speedy trial
provision is not implicated until formal charges are filed or
defendant suffers actual restraint on liberty); see also Doggett
v. United States, 505 U.S. 647, 654 (1992); United States v.
MacDonald, 456 U.S. 1, 6-7 (1982); United States v. Manning, 56
F.3d 1188, 1194 (9th Cir. 1995). Pre-charge delay (i.e., delay
prior to arrest or the filing of formal charges) does not
implicate the Sixth Amendment right to a speedy trial. United
States v. Lovasco, 431 U.S. 783, 788-89 (1977); Marion, 404 U.S.
at 321-23.
22

Petitioner did not submit any additional evidence to
the California Supreme Court before the Supreme Court summarily
denied review in 2010 (Respondent’s Lodgments 2 and 3). If
Petitioner had done so, such additional evidence could be
considered in reviewing this claim. See Cannedy v. Adams, 706
F.3d 1148, 1159 (9th Cir. 2013), cert. denied, 134 S. Ct. 1001
(2014).
57

1

Petitioner alleged that the prosecutor waited until November 13, 2007

2

to file any felony complaint for crimes arising from the January 5,

3

2005 incident, and then charged only Petitioner (C.T. 146).

4

Petitioner argued that the prosecution sought to have the jail riot

5

case precede the retrial on the penalty phase of Petitioner’s capital

6

case.

7

before the beginning of the guilt phase of the capital trial that the

8

state would file jail riot charges against Petitioner (C.T. 147).

9

Petitioner also alleged that the prosecution had “tendered” an

Yet, as Petitioner conceded, the prosecution had announced

10

“unofficial/off the record settlement” in the capital case prior to

11

the start of the penalty phase (C.T. 148).

12

the settlement assertedly discussed would have given him life without

13

parole in the capital case, and “the riot case would be included in

14

some way,” in return for Petitioner’s waiver of appeal (C.T. 148).

15

Petitioner alleged that the delay in filing the charges in the jail

16

riot case caused the loss of potential defense witnesses, the fading

17

of memory, and the destruction of physical evidence (C.T. 147, 149,

18

151).

19

jail riot charges in “bad faith” to try to “coerce” a plea in the

20

capital case and to avoid a trial on the penalty phase of the capital

21

case (C.T. 148).

22

deprived him of his due process right under the federal constitution

23

(C.T. 149-50 (citing United States v. Ross, 123 F.3d 1181 (9th Cir.

24

1997)).

Petitioner alleged that

Petitioner further alleged that the prosecution brought the

Petitioner argued that this conduct effectively

25
26

The prosecution opposed the motion, arguing that the decision to

27

file the present charges preceded the murder trial and was unrelated

28

to Petitioner’s rejection of any alleged plea offers in the capital
58

1

case (C.T. 170-71; see also C.T. 173-74).

The prosecutor stated that,

2

in preparing for the capital case, he had discovered the videotape of

3

the jail riot showing Petitioner throwing porcelain at the officers.

4

The prosecutor claimed that, because he then was busy preparing for

5

the murder trial and the statute of limitations on the potential riot

6

charges was not yet close to expiring, the prosecutor had opted to

7

wait to proceed on the riot charges (C.T. 170-71; R.T. A-4 - A-5).

8

The prosecutor said that he had charged only Petitioner in the jail

9

riot case because, as a “special unit” prosecutor, he did not have any

10

responsibility or jurisdiction over the others who had been involved

11

in the jail riot (R.T. A-4).

12
13

The presiding judge denied Petitioner’s motion, characterizing

14

the video evidence against Petitioner as “very compelling,” and

15

finding that there was no vindictiveness by the prosecution and no

16

material prejudice as a result of the delay in filing (R.T. A-5).

17

previously indicated, the Court of Appeal later ruled that Petitioner

18

had failed to show prejudice resulting from the pre-charge delay.

As

19
20

B.

Governing Legal Standards

21
22

The Due Process Clause provides a criminal defendant with some

23

protection against delay between the commission of an offense and the

24

initiation of a prosecution.

25

788-89; Marion, 404 U.S. at 322.

26

delay denied a defendant due process requires, inter alia, proof of

27

“actual, non-speculative prejudice [to the defense] from the delay,

28

meaning proof that demonstrates exactly how the loss of evidence or

United States v. Lovasco, 431 U.S. at
However, a claim that pre-charge

59

1

witnesses was prejudicial.”

United States v. Barken, 412 F.3d 1131,

2

1134 (9th Cir. 2005) (citations and internal quotations omitted).

3

“Once prejudice is sufficiently proved, the court then undertakes the

4

task of balancing the length of the delay against the reason for the

5

delay.”

6

1992); see also United States v. Lovasco, 431 U.S. at 789-90.

United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir.

7
8
9

“A defendant claiming preindictment delay carries a ‘heavy
burden’ of showing actual prejudice that is ‘definite and not

10

speculative.’”

11

1997), cert. denied, 522 U.S. 1066 (1998) (citations omitted).

12

“Generalized assertions of the loss of memory, witnesses, or evidence

13

are insufficient to establish actual prejudice.”

14

Manning, 56 F.3d at 1194; see also United States v. Corona-Verbera,

15

509 F.3d 1105, 1112 (9th Cir. 2007), cert. denied, 555 U.S. 865 (2008)

16

(burden is one that is “rarely met”); see generally Marion, 404 U.S.

17

at 325-26 (a defendant’s reliance solely on the “real possibility of

18

prejudice inherent in any extended delay: that memories will dim,

19

witnesses become inaccessible, and evidence be lost,” is not in itself

20

enough to demonstrate actual prejudice).

United States v. Ross, 123 F.3d 1181, 1185 (9th Cir.

United States v.

21
22

C.

Analysis

23
24

The Court of Appeal reasonably determined that Petitioner failed

25

to carry his burden to prove prejudice from the pre-charge delay.

26

Petitioner asserts that he was prejudiced from the delay because he

27

was unable to find and present any inmate witnesses other than

28

Gonzalez.

By the time he was charged, the witnesses reportedly had
60

1

either been released from jail or transferred to various state

2

prisons.

3

witness, Walter Cortez, had died by the time Petitioner was charged

4

(FAP, p. 51).

5

testified to events not captured on the videotape, and could have

6

corroborated the defense testimony (FAP, pp. 51-52).

7

asserts that, by delaying bringing the charges, the prosecution

8

intentionally gained a tactical advantage (FAP, p. 50).

See FAP, pp. 50-51.

Petitioner also asserts that one

Petitioner suggests that these witnesses could have

Petitioner

9
10

However, Petitioner presented no competent evidence to the Court

11

of Appeal regarding the identities of the other inmates who supposedly

12

could have testified (other than the deceased Walter Cortez), the

13

substance of their potential testimony, or when the other inmates were

14

released or transferred from the jail.

15

pp. 65-77; Respondent’s Lodgment 14, pp. 17-20.

16

failed to furnish definite, nonspeculative proof that the charging

17

delay actually impaired Petitioner’s ability to defend himself.

18

United States v. Manning, 56 F.3d at 1194; see also United States v.

19

Butz, 982 F.2d 1378, 1380 (9th Cir.), cert. denied, 510 U.S. 891

20

(1993) (assertions that a key witness had died, witnesses had dimmed

21

memories, and that the defendant did not secure witnesses because of

22

the belief no charges were forthcoming, were too speculative to

23

demonstrate actual prejudice).

See Respondent’s Lodgment 12,
Petitioner thus

See

24
25

At trial, Petitioner testified at length and in detail concerning

26

what he claimed transpired on the day of the jail riot (R.T. 1539-78,

27

1596-97, 1687-1841, 1846-55, 2104-2124).

28

incident did not appear to have been impaired by the passage of time.
61

Petitioner’s memory of the

1

Petitioner said he was testifying based on his memory of how events

2

actually happened rather than from the videotape (R.T. 2105-06).23

3
4

As for the potential witnesses never called by the trial defense,

5

the Court of Appeal reasonably found from Petitioner’s failure to

6

identify the witnesses (other than the deceased Walter Cortez) and

7

Petitioner’s failure to delineate the substance of the witnesses’

8

purported testimony that Petitioner had offered only speculation that

9

these witnesses could have provided any evidence that would have been

10

valuable to Petitioner.24

11

As the Court of Appeal reasonably concluded, Petitioner’s speculation

12

did not meet Petitioner’s heavy burden to show prejudice from a pre-

13

indictment delay.

14

States v. Huntley, 976 F.2d at 1290.25

People v. McGhee, 2010 WL 2510095 at *8.

United States v. Butz, 982 F.2d at 1380; United

15
16

Petitioner suggests that the Court of Appeal was required to

17

evaluate prejudice in light of the applicable statute of limitations.

18

See Reply, pp. 27-28 (quoting Marion, 404 U.S. at 326).

Marion does

19
20
21
22

23

Gonzalez’ purported memory appeared similarly
unimpaired by the passage of time (R.T. 1279, 1281-82, 1285-86,
1292-93, 1320-21, 1327-28, 1337, 1340, 1343).
24

23
24
25
26
27
28

Again, in reviewing the reasonableness of the Court of
Appeal’s denial of this claim, only the evidence that was then
before the Court of Appeal may be considered. The inmate
declarations submitted years later may not be considered in this
review.
25

Because the Court of Appeal reasonably determined that
Petitioner failed to demonstrate prejudice to the Court of
Appeal, this federal Court need not and does not balance “the
length of the delay against the reason for the delay.” See
United States v. Huntley, 976 F.2d at 1290.
62

1

not so hold.

2

applicable statute of limitations,” “possibilities” of prejudice

3

inherent in any extended delay do not demonstrate actual prejudice.

4

See Marion, 404 U.S. at 326 (emphasis added).

5

press the Sixth Amendment into service to guard against the mere

6

possibility that pre-accusation delays will prejudice the defense in a

7

criminal case since statutes of limitations already perform that

8

function.”

9

112, 114 (1970).

10

To the contrary, Marion states that “in light of the

“There is [] no need to

Id. at 323 (quoting Toussie v. United States, 397 U.S.
Here, the statute of limitations had not run, and

Petitioner did not demonstrate actual prejudice.

11
12

The Court of Appeal’s rejection of Petitioner’s due process claim

13

regarding pre-charging delay was not contrary to, or an unreasonable

14

application of, any clearly established Federal law as determined by

15

the Supreme Court of the United States.

16

Petitioner is not entitled to federal habeas relief on Ground Three.

See 28 U.S.C. § 2254(d).

17
18

IV.

19

Petitioner’s Claim of Vindictive Prosecution Does Not Merit
Federal Habeas Relief.

20
21

Petitioner contends that the prosecutor engaged in vindictive

22

prosecution by bringing the charges in the jail riot case after

23

Petitioner assertedly refused to accept a plea offer and waive his

24

appellate rights in the capital case.

25

60; Reply, pp. 32-38.

26

decision violated due process and, by virtue of the pre-charge delay,

27

his right to present a defense.

28

///

See FAP, Ground Five, pp. 55-

Petitioner alleges that the prosecution’s

Id.

63

1

Petitioner raised this claim (among numerous other claims) in

2

Petitioner’s first round of habeas petitions filed in the state courts

3

in 2011-12.

4

Lodgment 6, pp. 56-59; Respondent’s Lodgment 8, pp. 26-30.

5

Superior Court and the Court of Appeal issued reasoned decisions

6

denying the petitions, stating that the petitions reiterated issues

7

raised on direct appeal and that Petitioner had failed to demonstrate

8

ineffective assistance of counsel (Respondent’s Lodgments 5 and 6).26

9

Neither decision specifically mentioned Petitioner’s vindictive

See Respondent’s Lodgment 4, pp. 54-57; Respondent’s
The

10

prosecution claim (id.).

11

Petitioner’s habeas petition summarily (Respondent’s Lodgment 9).

12

Petitioner had not raised his vindictive prosecution claim on direct

13

appeal, and the Court of Appeal’s reasoned decision on direct appeal

14

had not addressed such a claim.

15

14.

16

discussing Petitioner’s vindictive prosecution claim, Ground Five

17

herein.

The California Supreme Court denied

See Respondent’s Lodgments 1-3, 12,

Therefore, there is no reasoned state court decision specifically

18
19

Petitioner argues that no state court ever reached the merits of

20

Ground Five and this Court should review the claim de novo.

21

pp. 55-56; Reply, pp. 32-34.

22

Court of Appeal’s reasoned decision did not invoke any procedural bar

23

as to Ground Five and this Court should review the denial of the claim

24

under 28 U.S.C. section 2254(d).

25

Although the issue is not free from doubt, it appears that section

26

2254(d) should apply to the review of this claim.

See FAP,

Respondent argues, inter alia, that the

See FAP Answer, pp. 9-11, 34-35.

27
26

28

documents.

Respondent’s Lodgment 6 consists of several disparate
64

1

“When a state court rejects a federal claim without expressly

2

addressing that claim, a federal habeas court must presume that the

3

federal claim was adjudicated on the merits. . . .”

4

Williams, 568 U.S. 289, 133 S. Ct. 1088, 1096 (2013).

5

presumption may be rebutted only in “unusual circumstances.”

6

S. Ct. at 1096-99.

7

federal claim as a result of “sheer inadvertence,” the claim has not

8

been adjudicated on the merits.

Johnson v.
This “strong”
Id., 133

Even so, where the state court failed to address a

Id., 133 S. Ct. at 1097.

9
10

In seeking de novo review of Ground Five, Petitioner theorizes

11

that the Court of Appeal erroneously believed that its own previous

12

opinion on Petitioner’s direct appeal had discussed and denied Ground

13

Five, even though Petitioner never raised Ground Five on direct

14

appeal.

15

Court then adopted as its own basis for denying Ground Five the

16

manifestly erroneous belief Petitioner imputes to the Court of Appeal.

17

And, according to Petitioner, the California Supreme Court made this

18

egregious error even though Petitioner expressly had told the Supreme

19

Court in the habeas petition filed therein that claims in that

20

petition had not been made on direct appeal (Respondent’s Lodged

21

Document 8 at pp. 5-6).

Petitioner further theorizes that the California Supreme

22
23

Petitioner’s arguments for de novo review of Ground Five should

24

be rejected.

25

///

26

///

27

///

28

///

Nothing (including possible factual error in the

65

1

Superior Court’s previous habeas decision27) sufficiently rebuts the

2

“strong” presumption that the Court of Appeal adjudicated Ground Five

3

on the merits, albeit without any specific discussion.

4

Oregon Bd. of Parole and Post-Prison Supervision, 736 F.3d 857, 860-61

5

(9th Cir. 2013) (applying presumption to cursory state court order).

See Smith v.

6
7

Moreover, assuming arguendo the Court of Appeal did not

8

adjudicate Ground Five on the merits and instead based its denial on

9

the theorized mischaracterization of its own ruling on direct appeal,

10

this federal Court should not presume that the California Supreme

11

Court embraced the Court of Appeal’s manifestly erroneous reasoning.

12

Although a federal habeas court usually “looks through” a California

13

Supreme Court’s summary denial to presume the Supreme Court adopted

14

the rationale of the lower court, such presumption may be refuted by

15

“strong evidence.”

16

(“Kernan”).

17

“look through” presumption “amply refuted” in circumstances where it

18

would have been absurd for the California Supreme Court to have

19

adopted the rationale of the lower court.

20

present case, the California Supreme Court’s adoption of the rationale

21

Petitioner theorizes would have been no less absurd.

22

the California Supreme Court’s denial here “quite obviously rested

23

upon some different ground. . . .

See Kernan v. Hinojosa, 136 S. Ct. 1603 (2016)

In Kernan, the United States Supreme Court deemed the

Id. at 1606.

In the

As in Kernan,

Containing no statement to the

24
25
26
27
28

27

Of course, the Superior Court’s decision is not the
decision under review with respect to Ground Five. See Barker v.
Fleming, 423 F.3d 1085, 1092-93 (9th Cir. 2005), cert. denied,
547 U.S. 1138 (2006) (federal habeas court ordinarily reviews
only the most recent state court reasoned decision on a
petitioner’s claim).
66

1

contrary, the Supreme Court of California’s summary denial of [the

2

petitioner’s] petition was therefore on the merits.

3

Richter, 562 U.S. 86, 99 . . . (2011).”

4

Cate, 2016 WL 3514118, at *7-8 (C.D. Cal. May 20, 2016), adopted, 2016

5

WL 3511540 (C.D. Cal. June 27, 2016) (“look through” presumption

6

refuted where lower court’s decision was obviously wrong).

Harrington v.

Id.; see, e.g., Ortega v.

7
8
9

More than negligible uncertainty attends the above analysis,
however.

In particular, it is exceedingly difficult under existing

10

case law to determine the precise point at which the California

11

Supreme Court’s theoretical adoption of incorrect lower court

12

reasoning transitions along an improbability continuum from mere error

13

to error sufficiently absurd to refute the “look through” presumption.

14

Therefore, notwithstanding the above analysis, and out of an abundance

15

of caution, the Court will first discuss the merits of Ground Five as

16

if this Court’s review were de novo.

17
18

A.

Background

19
20

Prior to trial, when Petitioner’s counsel filed the motion to

21

dismiss the charges for want of prosecution and discriminatory

22

prosecution (discussed above), counsel also filed a motion to recuse

23

the Los Angeles County District Attorney as the prosecuting agency

24

(C.T. 158-66).

25

decided not to file a case regarding the jail riot, and further

26

alleged that:

27

///

28

///

Petitioner alleged that the prosecution initially

67

1

This new case was filed because the prosecution suffered a

2

hung jury in the special circumstances death case against

3

Mr. McGhee and because of the perceived infirmities with the

4

guilty verdicts.

5

the riot, and before the filing of the jailhouse riot

6

complaint.

7

People entered into discussion with the defense that if [Mr.

8

McGhee] were to accept the sentence of life without the

9

possibility of parole in the death case and waive any appeal

The [capital] trial took place well after

Before the start of the penalty phase, the

10

rights, the People would resolve the jail riot case (which

11

had not been filed yet).

12

proposal were to be turned down, the jailhouse case would be

13

filed.

14

“leverage” for a disposition in the other.

The People indicated that if the

The two cases were linked.

One was being used as

15
16

Mr. McGhee was charged in bad faith. ¶ The People seem upset

17

because Mr. McGhee will not waive his rights to trial on the

18

penalty phase and appeal of the guilty verdict. . . .

19
20

(C.T. 161).

21
22

At the hearing on the motions, Petitioner’s counsel argued that

23

Petitioner had been singled out for prosecution (R.T. A-1, A-3 - A-4).

24

As summarized above, the prosecutor explained that Petitioner was the

25

only inmate over which the prosecutor had jurisdiction, and reminded

26

the Court that the prosecutor had said before the murder trial began

27

that the prosecutor would be filing charges regarding the jail riot

28

(R.T. A-4 - A-5).

The presiding judge denied the motion to recuse the
68

1

prosecutor, finding no vindictiveness, and transferred the case to

2

another department for trial (R.T. A-5, A-11).

3
4

As part of the later Marsden hearing before the trial court,

5

Petitioner again discussed the prosecution’s decision to charge him

6

for the jail riot, claiming:

7

parole on the condition that I waive all my rights to appeal.

8

also communicated to me that if I did not accept this offer, I would

9

be charged on a three strikes case stemming from the jailhouse

“I was told I was offered life without
It was

10

incident that occurred two years and ten months before the offer.

11

refused to be bullied or blackmailed into a deal simply because I

12

wished to exercise my right to appeal” (R.T. 17).

13

that, out of 20 or more alleged participants in the jail riot, he was

14

the only person charged (R.T. 17).

15

prejudice resulted from the prosecution for the jail riot, because a

16

conviction for the jail riot assertedly would be used as an

17

aggravating factor in the penalty phase of his death penalty case

18

(R.T. 18-19).

I

Plaintiff claimed

Petitioner also alleged that

19
20

Petitioner’s trial counsel complained that the trial on the jail

21

riot had been set in “a rush,” claiming that, when counsel initially

22

reported needing time to interview witnesses, the presiding judge had

23

set the case for trial (R.T. 20-21).

24

that the prosecution’s alleged offer in the capital case of life

25

without parole in exchange for a waiver of appeal had occurred before

26

the beginning of the first penalty phase of the capital case, rather

27

than after the first penalty phase jury hung (R.T. 21).

28

acknowledged that the prosecutor in the capital case had put on the
69

Petitioner’s counsel conceded

Counsel also

1

record before the start of the capital trial that the prosecution

2

would be filing charges for the jail riot (R.T. 21).

3
4

B.

Governing Legal Standards

5
6

A vindictive prosecution can violate a defendant’s Fifth

7

Amendment right to due process.

8

368, 372 (1982).

9

action whose objective is to penalize a person’s reliance on his [or

United States v. Goodwin, 457 U.S.

“For an agent of the State to pursue a course of

10

her] protected statutory or constitutional rights is ‘patently

11

unconstitutional.’”

12

434 U.S. 357, 363 (1978)).

13

prosecutorial vindictiveness, a defendant must show either direct

14

evidence of actual vindictiveness or facts that warrant an appearance

15

of such.”

16

cert. denied, 552 U.S. 962 (2007) (quotations and citations omitted).

17

Otherwise, the decision whether to prosecute rests within the

18

prosecution’s discretion.

19

364 (“so long as the prosecutor has probable cause to believe that the

20

accused committed an offense defined by statute, the decision whether

21

or not to prosecute, and what charge to file or bring before a grand

22

jury, generally rests entirely in his [or her] discretion”) (footnote

23

omitted).

24

burden shifts to the prosecution to show that independent reasons or

25

intervening circumstances dispel the appearance of vindictiveness and

26

justify its decisions.”

27

(9th Cir.), cert. denied, 516 U.S. 814 (1995) (citations and internal

28

quotations omitted).

Id. at 372 n.4 (quoting Bordenkircher v. Hayes,
“To establish a prima facie case of

Nunes v. Ramirez-Palmer, 485 F.3d 432, 441 (9th Cir.),

See Bordenckircher v. Hayes, 434 U.S. at

“Once a presumption of vindictiveness has arisen, the

United States v. Montoya, 45 F.3d 1286, 1299

70

1

C.

Analysis

2
3

Petitioner has presented no direct evidence of actual

4

vindictiveness, and the Court’s review of the record had disclosed no

5

such evidence.28

6

vindictiveness, a petitioner may establish a prima facie case only by

7

submitting objective evidence of an appearance of vindictiveness.

8

United States v. Montoya, 45 F.3d at 1299.

9

vindictiveness results only where, as a practical matter, there is a

In the absence of direct evidence of actual

See

“[T]he appearance of

10

realistic or reasonable likelihood of prosecutorial conduct that would

11

not have occurred but for hostility or a punitive animus towards the

12

defendant because he has exercised his specific legal rights.”

13

States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982)

14

(citation omitted).

United

15
16

The record also fails to demonstrate any appearance of

17

vindictiveness.

18

intent to bring jail riot charges against Petitioner, and put

19

Petitioner on notice of this intent, even before Petitioner’s capital

20

trial began.

21

criminal charges against any other participant in the jail riot does

22

not alter this conclusion.

23

state’s reasonable belief that Petitioner’s command to Gonzalez

The record reflects that the prosecutor formed the

The fact, if it is a fact, that the state did not bring

Apart from all other considerations, the

24
25
26
27
28

28

The Court has reviewed all of the papers on file,
including the October 26, 2008 transcript from Petitioner’s
capital case that has been filed under seal as FAP Exh. 13. This
exhibit contains a sealed bench discussion regarding a possible
plea offer that the prosecution ultimately decided not to extend
to Petitioner. FAP, Exh. 13 at 58-59. The Court discerns no
evidence of actual vindictiveness from any of the papers on file.
71

1

had precipitated the riot, as well as the state’s reasonable, related

2

belief that Petitioner had been the “shot caller,” provided manifestly

3

rational bases for singling out Petitioner for prosecution.

4
5

Moreover, the Ninth Circuit has “sanctioned the conditioning of

6

plea agreements on acceptance of terms apart from pleading guilty,

7

including waiving appeal.”

8

(9th Cir.), cert. denied, 565 U.S. 924 (2011) (“Kent”) (citations

9

omitted).

United States v. Kent, 649 F.3d 906, 914

Even if the prosecutor in Petitioner’s case had threatened

10

Petitioner with filing the jail riot charges if Petitioner did not

11

plead in the capital case, the prosecutor permissibly could make good

12

on such a threat without giving rise to an appearance of

13

vindictiveness.

14

to make good on a plea bargaining threat . . . will not establish

15

requisite the punitive motive.”

16

434 U.S. at 364 (“While confronting a defendant with the risk of more

17

severe punishment clearly may have a discouraging effect on the

18

defendant’s assertion of his trial rights,” doing so legitimately

19

“encourages the negotiation of pleas”) (citations and quotation marks

20

omitted).

“As a matter of law, the filing of additional charges

Id.; see also Bordenkircher v. Hayes,

21
22

For the same reason, to the extent Petitioner suggests that the

23

jail riot case was filed to impact negatively the penalty phase of his

24

capital case on retrial, this suggestion fails to establish any

25

appearance of vindictiveness.

26

introduced during the first penalty phase trial.

27

possibility the prosecution later might use a conviction in the jail

28

riot case as additional aggravating evidence in the retrial on the

Evidence of the jail riot had been

72

See R.T. A-8.

The

1

penalty phase of the capital case does not establish actual or

2

apparent vindictiveness.

3

632, 640-41 (9th Cir.), cert. denied, 133 S. Ct. 377 (2012) (rejecting

4

under Kent defendant’s claim that the prosecution’s decision to file

5

enhanced penalty information after the defendant rejected a plea

6

constituted vindictive prosecution); United States v. Maciel, 461 Fed.

7

Appx. 610, 617 (9th Cir. 2011) (rejecting similar claim based on

8

prosecution’s filing of evidence of prior conviction information after

9

defendant rejected plea offer).

See United States v. Johnson, 469 Fed. Appx.

Given the prosecution’s announcement

10

prior to start of Petitioner’s capital trial of its intent to file the

11

jail riot charges, Petitioner’s circumstance was “not a situation

12

. . . where the prosecutor without notice brought an additional and

13

more serious charge after plea negotiations relating only to the

14

original indictment had ended with the defendant’s insistence on not

15

pleading guilty.”

16

added).29

Bordenkircher v. Hayes, 434 U.S. at 360 (emphasis

17
18
19

In addition to arguing that the prosecution’s alleged
vindictiveness violated due process, Petitioner also argues that the

20
21
22
23
24
25
26
27
28

29

Petitioner’s citation to Blackledge v. Perry, 417 U.S.
21, 27-28 (1974) (“Blackledge”) (see FAP, pp. 56, 58-59; Reply,
p. 35-36), does not alter the Court’s conclusion. In Blackledge,
the Supreme Court found a constitutional violation from the
prosecution’s response to the defendant’s invocation of the right
to appeal a misdemeanor conviction, which in North Carolina
carried with it the statutory right to a trial de novo. The
prosecution’s response had been to bring a more serious charge on
the same conduct prior to the new trial. Id. at 25-29. Unlike
in Blackledge, Petitioner had not exercised any appellate rights
prior to the time he was charged regarding the jail riot, and the
new charges were based on different conduct than the conduct
alleged in the capital case.
73

1

prosecution’s alleged vindictiveness violated Petitioner’s right to

2

present a defense.

3

previously discussed, however, there was no vindictiveness.

4

Therefore, Petitioner’s derivative “right to present a defense”

5

argument must be rejected.

6

may become unavailable prior to the initiation of a charge does not

7

establish any violation of a defendant’s constitutional “right to

8

present a defense.”

9

1560722 (E.D. Wisc. June 24, 2005), adopted, 2005 WL 182251 (E.D.

10

See FAP, pp. 59-60; Reply, pp. 37-38.

As

The mere fact that some potential evidence

See, e.g., United States v. Roberts, 2005 WL

Wisc. July 28, 2005).

11
12

For the foregoing reasons, Petitioner would not be entitled to

13

federal habeas relief on Ground Five even under a de novo standard of

14

review.

15

presumed rejection of Ground Five on the merits and (alternatively)

16

the California Supreme Court’s summary denial of Ground Five on the

17

merits were not unreasonable under 28 U.S.C. section 2254(d).

18

Harrington v. Richter, 562 U.S. 86 (2011).30

19

///

20

///

21

///

22

///

23

///

24

///

It necessarily follows that the California Court of Appeal’s

See

25
26
27
28

30

Petitioner requests leave to file briefing regarding
section 2254(d) review of this claim. The request is denied.
Petitioner has had ample time and opportunity to brief all
issues, including issues concerning the standard(s) of review and
the application of those standard(s) to Petitioner’s claims.
74

1

V.

Petitioner is Not Entitled to Federal Habeas Relief on his Claim

2

that the Trial Court Improperly Used Petitioner’s Prior Juvenile

3

Adjudication as a Strike.

4
5

Petitioner alleges that the trial court improperly used his prior

6

juvenile adjudication to impose a sentence beyond the statutory

7

maximum.

8

Petitioner cites Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

9

(“Apprendi”), which provides that “[o]ther than the fact of a prior

See FAP, Ground Four, pp. 52-55; Reply, pp. 29-31.

10

conviction, any fact that increases the penalty for a crime beyond the

11

prescribed statutory maximum must be submitted to a jury, and proved

12

beyond a reasonable doubt.”

13

adjudication in which a defendant does not have the right to a jury

14

trial cannot qualify as a “prior conviction” within the meaning of

15

Apprendi.

Petitioner argues that a juvenile

FAP, pp. 53-54.

16
17

The California Court of Appeal issued the last reasoned decision

18

on this claim, rejecting the claim on direct appeal.

19

McGhee, 2010 WL 2510095, at *9.

See People v.

20
21

A.

Background

22
23

The prosecution alleged that Petitioner suffered a 1989 juvenile

24

adjudication for assault with a firearm (Cal. Penal Code § 245(a)(2))

25

qualifying as a prior conviction (a “strike”) under the Three Strikes

26

Law (C.T. 131; see also R.T. 2882 (noting same)).

27

proceeding, the trial court found this allegation true, observing that

28

Petitioner admitted the allegation when Petitioner testified (R.T.
75

In a bifurcated

1

3017-18; see also R.T. 1578, 1584-86 (Petitioner’s admission)).31

2
3

Petitioner filed a motion to strike on the ground that he was not

4

afforded a jury trial on the juvenile adjudication (C.T. 309-12).

5

trial court denied the motion.

The

See R.T. 3302.

6
7

B.

Governing Legal Standards

8
9

In Apprendi, the United States Supreme Court held that,

10

regardless of its label as a “sentencing factor,” any fact other than

11

the fact of a prior conviction that increases the penalty for a crime

12

beyond the prescribed statutory maximum, among other things, must be

13

“proved beyond a reasonable doubt.”

14

Blakely v. Washington, 542 U.S. 296 (2004) (“Blakely”), the Supreme

15

Court held that the “statutory maximum” for Apprendi purposes “is the

16

maximum sentence a judge may impose solely on the basis of the facts

17

reflected in the jury verdict or admitted by the defendant. . . .”

18

Blakely, 542 U.S. at 303 (original emphasis).

19

California, 549 U.S. 270, 293 (2007), the Supreme Court held that a

Apprendi, 530 U.S. at 490.

In Cunningham v.

20
21
22
23
24
25
26
27
28

31

Under the Three Strikes Law, qualifying strikes are
defined as the “serious” felonies listed in California Penal Code
section 1192.7(c) and the “violent” felonies listed in California
Penal Code section 667.5(c). See Cal. Penal Code §§ 667(d)(1),
1102.12(b)(1). California Penal Code section 667(d)(3) provides,
in pertinent part, that a prior juvenile adjudication may
constitute a strike if the prior offense is described as a
serious felony or violent felony in California Penal Code
sections 1192.7 or 667.5, or if the prior offense is listed in
California Welfare and Institutions Code section 707(b).
California Welfare and Institutions Code section 707(b) lists the
offense of assault with a firearm. See Cal. Welf. & Inst. Code §
707(b)(13). Thus, Petitioner’s juvenile assault conviction
qualified as a strike.
76

In

1

California judge’s imposition of an upper term sentence based on facts

2

found by the judge rather than the jury violated the Constitution.

3
4

C.

Analysis

5
6

It is clear that Apprendi and its progeny do not inhibit a

7

sentencing court’s use of prior adult convictions.

8

v. Delaney, 427 F.3d 1224, 1226 (9th Cir. 2005) (“The Supreme Court

9

has made clear that the fact of a prior conviction need not be proved

See United States

10

to a jury beyond a reasonable doubt or admitted by the defendant to

11

satisfy the Sixth Amendment.”) (citation omitted); United States v.

12

Martin, 278 F.3d 988, 1006 (9th Cir. 2002) (“Apprendi expressly

13

excludes recidivism from its scope.

14

not be proved to a jury beyond a reasonable doubt. [citations].”).

Defendant’s criminal history need

15
16

The Court of Appeal rejected Petitioner’s contention that the use

17

of his prior juvenile adjudication violated Apprendi.

18

McGhee, 2010 WL 2510095, at *9.

19

v. Nguyen, 46 Cal. 4th 1007, 1028, 95 Cal. Rptr. 3d 615, 209 P.3d 946,

20

cert. denied, 559 U.S. 1067 (2009), a California Supreme Court

21

decision holding that juvenile strike priors may enhance an adult

22

sentence beyond the statutory maximum.

See People v.

The Court of Appeal relied on People

23
24

In United States v. Tighe, 266 F.3d 1187, 1194-95 (9th Cir. 2001)

25

(“Tighe”), a federal criminal case, the Ninth Circuit held that the

26

prior conviction exception to Apprendi did not extend to nonjury

27

juvenile adjudications.

28

1152 (9th Cir. 2006), cert. denied, 550 U.S. 933 (2007) (“Boyd”), the

However, in Boyd v. Newland, 467 F.3d 1139,

77

1

Ninth Circuit held that Tighe did “not represent clearly established

2

federal law as determined by the Supreme Court of the United States”

3

within the meaning of 28 U.S.C. section 2254(d)(1).

4

noted that California courts and several other circuits had disagreed

5

with Tighe.

6

Nguyen, 46 Cal. 4th at 1021-28 (the “overwhelming majority of federal

7

decisions and cases from other states” have held that nonjury juvenile

8

adjudications may be used to enhance later adult sentences, and that

9

the United States Supreme Court “has declined numerous opportunities

10

The Boyd Court

Boyd, 467 F.3d at 1152 (citing cases); see also People v.

to decide otherwise”) (footnote omitted).

11
12

Consequently, under the standard of review set forth in 28 U.S.C.

13

section 2254(d)(1), Petitioner is not entitled to federal habeas

14

relief on this claim.

15

California, 646 F.3d 1243, 1252-53 (9th Cir.), cert. denied, 565 U.S.

16

1097 (2011) (Boyd is binding; use of the petitioner’s prior nonjury

17

juvenile adjudication to enhance the petitioner’s sentence not

18

contrary to, or an unreasonable application of, clearly established

19

Supreme Court law); see also Wright v. Van Patten, 552 U.S. 120, 126

20

(2008) (where Supreme Court’s cases “give no clear answer to the

21

question presented,” state court’s rejection of the petitioner’s claim

22

did not constitute an unreasonable application of clearly established

23

Federal law) (citation and internal quotations omitted); Kessee v.

24

Mendoza-Powers, 574 F.3d 675, 678-79 (9th Cir. 2009) (state court’s

25

application of Apprendi’s prior conviction exception not unreasonable

26

under AEDPA standard of review, where United States Supreme Court had

27

not “given explicit direction” on the issue and state court’s decision

28

was consistent with those of other courts).

See Boyd, 467 F.3d at 1152; John-Charles v.

78

1
2

Thus, Petitioner is not entitled to federal habeas relief on
Ground Four.

See 28 U.S.C. § 2254(d).

3
4
5

VI.

Petitioner’s Claim of Cumulative Error Does Not Merit Federal
Habeas Relief.

6
7

Petitioner contends that cumulative error based on the claims

8

discussed above violated his constitutional rights to due process, a

9

fair trial, effective assistance of counsel, self-representation, and

10

trial by jury (FAP, Ground Six, pp. 61-64; Reply, pp. 38-40).

11

Angeles County Superior Court issued the last reasoned decision

12

rejecting this claim on the merits, finding that there was no

13

cumulative error justifying another trial.

14

20, p. 526.32

15

this Court would reach the same conclusion even under a de novo

16

standard of review.

The Los

See Respondent’s Lodgment

The Superior Court’s decision was not unreasonable, and

17
18

“While the combined effect of multiple errors may violate due

19

process even when no single error amounts to a constitutional

20

violation or requires reversal, habeas relief is warranted only where

21

the errors infect a trial with unfairness.”

22

F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S. Ct. 426 (2012).

23

Habeas relief on a theory of cumulative error is appropriate when

24

there is a “‘unique symmetry’ of otherwise harmless errors, such that

Payton v. Cullen, 658

25
26
27
28

32

The California Court of Appeal rejected the claim as
procedurally barred (Respondent’s Lodgment 20, p. 549), and the
California Supreme Court summarily rejected Petitioner’s claim
“on the merits” (Respondent’s Lodgment 23).
79

1

they amplify each other in relation to a key contested issue in the

2

case.”

3

denied, 133 S. Ct. 424 (2012) (citation omitted).

Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert.

4
5

No such symmetry of otherwise harmless errors exists in the

6

present case.

7

habeas relief on Ground Six.

Accordingly, Petitioner is not entitled to federal
See 28 U.S.C. § 2254(a) and (d).

8
9

RECOMMENDATION

10
11

For all the foregoing reasons, IT IS RECOMMENDED that the Court

12

issue an order: (1) accepting and adopting this Report and

13

Recommendation; and (2) directing that Judgment be entered denying and

14

dismissing the First Amended Petition with prejudice.33

15
16

DATED: August 1, 2017.

17
18

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28

33

Petitioner’s request for an evidentiary hearing is
denied. When evaluating the reasonableness of a state court’s
decision denying the merits of a petitioner’s claim, the federal
habeas court may not consider evidence unpresented to the state
courts. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011);
Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert.
denied, 134 S. Ct. 2823 (2014). To the extent any of
Petitioner’s claims may be subject to de novo review, Petitioner
has failed to demonstrate that an evidentiary hearing would
reveal anything material to such claims. Finally, Petitioner
previously has had ample opportunity to develop the record and to
present evidence to the courts from which he has sought relief
during the past nine years.
80

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

No notice of appeal pursuant to the

9
10

If the District Judge enters judgment adverse to Petitioner, the

11

District Judge will, at the same time, issue or deny a certificate of

12

appealability.

13

and Recommendation, the parties may file written arguments regarding

14

whether a certificate of appealability should issue.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Within twenty (20) days of the filing of this Report