Kevin Alexander Waller v. C Wofford et al

Filing 16

MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The petition for a writ of habeas corpus is denied. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 KEVIN ALEXANDER WALLER, 12 Petitioner, 13 14 v. C. WOFFORD, et al., 15 Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 12-4707-AJW MEMORANDUM OF DECISION 16 Background1 17 18 On an afternoon in April 2009, Los Angeles Police 19 Officers Jorge Gonzalez and Victor Escobedo were assigned to 20 work a particular location in the city based on reports of 21 illegal narcotics-related activity in the area. The officers 22 saw Waller standing in the street, delaying the flow of 23 traffic as he attempted to jaywalk. The officers stopped to 24 25 26 27 28 1 The following summary is taken from the opinion of the California Court of Appeal. Independent review of the record confirms that the state appellate court’s summary of the facts is a fair and accurate one. The Ninth Circuit has accorded the factual summary contained in an opinion of the California Court of Appeal a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See, e.g., Slovik v. Yates, 556 F.3d 747, 749 n. 1 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009). 1 issue Waller a traffic citation. When they approached him, 2 they smelled marijuana. Escobedo asked Waller why he smelled 3 marijuana. Waller told the officers he had a “sack of weed 4 in his pocket.” Escobedo searched him. In Waller's coin 5 pocket, Escobedo found a small plastic bag containing a 6 substance resembling marijuana. Escobedo also found 11 other 7 small 8 marijuana in Waller's right front pants pocket. In the same 9 pocket, Escobedo found $185 in small bills. Waller did not 10 have any paraphernalia with him to smoke or otherwise ingest 11 the drugs. Tests later confirmed the substance in the bags 12 was marijuana. 13 plastic bags containing a substance resembling [Lodged Document (“LD”) 8 at 2]. 14 Petitioner was convicted of possession of marijuana for sale. In 15 a separate proceeding, during which petitioner was represented by 16 counsel, the trial court found true the allegations that petitioner 17 had suffered two prior convictions, and a prior strike within the 18 meaning of the “Three Strikes” law. 19 for a term of six years. [Clerk’s Transcript (“CT”) 267, 298, 322]. 20 He was sentenced to state prison Petitioner appealed. The California Court of Appeal affirmed his 21 conviction on October 26, 2011. [LD 8]. The California Supreme Court 22 denied petitioner’s petition for review on January 25, 2012. [Petition 23 at 53]. 24 In his petition for a writ of habeas corpus filed in this Court, 25 petitioner alleges that: (1) the trial court erred in failing to hold 26 a competency hearing; and (2) the trial court erred by denying his 27 motion for discovery of police personnel files pursuant to Pitchess v. 28 Superior Court, 11 Cal.3d 531 (1974). [Petition at 12]. 2 Respondent 1 filed an answer to the petition. 2 Standard of Review 3 4 Petitioner did not file a reply. A federal court may not grant a writ of habeas corpus on behalf of a person in state custody 5 with respect to any claim that was adjudicated on the merits 6 in state court proceedings unless the adjudication of the 7 claim (1) resulted in a decision that was contrary to, or 8 involved an unreasonable application of, clearly established 9 Federal law, as determined by the Supreme Court of the 10 United States; or (2) resulted in a decision that was based 11 on an unreasonable determination of the facts in light of 12 the evidence presented in the state court proceeding. 13 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412 (2000). 14 As used in Section 2254(d), the phrase “clearly established 15 federal law” means “holdings of the Supreme Court at the time of the 16 state court decision.” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 17 2011) (citing Williams, 529 U.S. at 412). Although only Supreme Court 18 law 19 determining what law is clearly established and whether a state court 20 applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting 21 Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). 22 is binding, “circuit court precedent may be persuasive in Under section 2254(d)(1), a state court's determination that a 23 claim lacks merit precludes federal habeas relief so long as 24 “fairminded jurists could disagree” about the correctness of the state 25 court's decision. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 26 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 27 This is true even where a state court's decision is unaccompanied by 28 an explanation. In such cases, the petitioner must show that “there 3 1 was no reasonable basis for the state court to deny relief.” Richter, 2 131 S.Ct. at 784. 3 Relief is warranted under section 2254(d)(2), only when a state 4 court decision based on a factual determination is “objectively 5 unreasonable in light of the evidence presented in the state-court 6 proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 384 7 F.3d 628, 638 (9th Cir. 2004), cert. denied, 545 U.S. 1165 (2005)). 8 Finally, state court findings of fact are presumed to be correct 9 unless petitioner rebuts that presumption by clear and convincing 10 evidence. 28 U.S.C. § 2254(e)(1). 11 Discussion 12 1. 13 Petitioner alleges that the trial court was required to conduct 14 a hearing on the issue of petitioner’s competence to stand trial. 15 [Petition at 12 and attached pages]. 16 The trial court’s failure to hold a competency hearing The conviction of a defendant while he or she is incompetent 17 violates due process. 18 Drope v. Missouri, 420 U.S. 162, 171 (1975). 19 against the trial of an incompetent defendant, the Supreme Court has 20 required that a trial court confronted with evidence raising a “bona 21 fide doubt” about a defendant's competency must order a competency 22 hearing sua sponte. 23 A defendant is Indiana v. Edwards, 554 U.S. 164, 170 (2008); In order to protect Pate v. Robinson, 383 U.S. 375, 385 (1966). incompetent if “he lacks the capacity to 24 understand the nature and object of the proceedings against him, to 25 consult with counsel, and to assist in preparing his defense.” Drope, 26 420 U.S. at 171; see Douglas v. Woodford, 316 F.3d 1079, 1094 (9th 27 Cir. 28 demonstrate an ability ‘to consult with his lawyer with a reasonable 2003) (“To be competent to 4 stand trial, a defendant must 1 degree of rational understanding’ and a ‘rational as well as factual 2 understanding of the proceedings against him.’”) (quoting Godinez v. 3 Moran, 509 U.S. 389, 396 (1993) (internal quotations and citation 4 omitted)). 5 “Although no particular facts signal a defendant's incompetence, 6 suggestive evidence includes the defendant's demeanor before the trial 7 judge, irrational behavior of the defendant, and available medical 8 evaluations of the defendant's competence to stand trial.” 9 v. Woodford, 384 F.3d 567, 604 (9th Cir. 2004), cert. denied, 546 U.S. 10 934 (2005). If a reasonable judge would have had a bona fide doubt 11 about the defendant’s competency, due process requires a trial court 12 to hold a competency hearing. McMurtrey v. Ryan, 539 F.3d 1112, 1118- 13 1119 (9th Cir. 2008). Williams 14 A state court’s finding that the evidence did not require a 15 competency hearing under Pate is a finding of fact to which this Court 16 must defer unless it was “unreasonable” within the meaning of section 17 2254(d)(2). 18 failure to conducted a competency hearing, this Court may consider 19 only the evidence that was before the trial court. Williams, 384 F.3d 20 at 604. Davis, 384 F.3d at 644. When reviewing a state court’s 21 In support of his contention that the trial court should have 22 conducted a competency hearing, petitioner relies upon his behavior at 23 trial. 24 demonstrated 25 suggests he might have been suffering from a condition he calls HIV- 26 dementia. 27 evidence relevant to petitioner’s claim. 28 At He argues that he made incomprehensible statements that possibly delusional [Petition at 27-28]. the beginning of thinking and paranoia. He also The record contains the following the preliminary 5 hearing, petitioner 1 indicated that he wished to represent himself and expressed 2 dissatisfaction with his appointed counsel. 3 hearing2 to permit petitioner to explain why he was unhappy with his 4 attorney. 5 motion for substitute counsel. 6 his request to represent himself, the trial court provided him with a 7 written advisement and Faretta waiver.3 Petitioner completed the form 8 and the trial court reviewed it with him. 9 court that he had completed two years of college in Belize. [CT 3-4]. 10 The trial court explained several items that petitioner had not 11 initialed on the form and he indicated he understood the explanations. 12 [CT 5-9]. 13 disadvantages of self-representation, petitioner said: “I would rather 14 proceed myself, Ma’am, and make my own mistake. I would be the one 15 fully accountable for my mistakes.” [CT 7]. When the trial court asked 16 petitioner 17 “Possession for sales.” [CT 8]. The trial court held a After the hearing, the trial court denied petitioner’s [CT 1-3]. When petitioner repeated Petitioner told the trial In response to the trial court's advisements regarding the to name the charges he faced, petitioner answered, 18 As the trial court continued its advisements, warning petitioner 19 about the difficulties of proceeding without counsel, petitioner 20 stated, “It's too difficult, Ma’am. It's way difficult.” 21 court inquired, “What is way too difficult?” to which petitioner 22 replied: The trial 23 It's way difficult. It's weighing against me, and it's a 24 lot. I'm going through a whole lot of stuff myself right 25 26 2 The hearing was held pursuant to People v. Marsden, 2 Cal.3d 118 (1970). 27 28 3 Faretta v. California, 422 U.S. 806 (1975). 6 1 2 now. [CT 10]. 3 The trial court took a recess, and encouraged petitioner to 4 confer with his counsel. [CT 10]. Following the recess, petitioner 5 continued to request that he be allowed to represent himself. After 6 further advisements, the trial court granted his request. [CT 12-14]. 7 Standby counsel was appointed to assist him. [CT 89, 101]. 8 Before trial, petitioner filed numerous relevant written motions, 9 some of which were meritorious.4 Immediately before trial, petitioner 10 sought a translator 11 understand, you know. 12 Transcript on Appeal, date stamped January 6, 2011 (“1RT”) 3].5 13 the trial court asked what language petitioner wanted translated, he 14 answered, “Broken English.” 15 request, explaining that it could not appoint an interpreter because 16 petitioner 17 inarticulate. spoke because English, “some of the stuff I don’t really My English ain’t properly.” [Reporter’s When [1RT 3]. The trial court denied his even if petitioner considered himself It reminded petitioner that his difficulties were part 18 19 20 21 22 23 24 25 26 27 28 4 Among the motions petitioner filed were discovery motions; motions for the appointment of an investigator and a fingerprint expert, both of which were granted; motions to set aside the information; a suppression motion; two Pitchess motions; a motion to dismiss based on alleged violations of Brady v. Maryland, 373 U.S. 83 (1963); a motion to dismiss based upon the deprivation of the right to a speedy trial; and motions to dismiss his alleged prior strike and previous felony convictions. [CT 41-65, 91-100, 119-137, 140-160, 190-199, 211-220]. 5 Respondent has lodged two volumes of reporter’s transcript, but they are not sequentially paginated. One is date stamped January 6, 2011 and the other is date stamped May 10, 2011. Respondent refers to the January 6, 2011 transcript as “1RT” and the May 10, 2011 transcript as “2RT.” [Answer at 8, n. 5]. For convenience, the Court adopts respondent’s abbreviations. Respondent also lodged an augmented reporters’s transcript, which is referred to as “ART.” 7 1 of the disadvantages of representing himself and told him to let the 2 trial court know if, at any time, he had changed his mind and wanted 3 to be represented by counsel. [1RT 3-4]. 4 Petitioner subsequently told the trial court that the case 5 against him was “fabrication” and requested a hearing without the 6 jurors present. 7 present. [1RT 6]. 8 The trial court indicated that it could not understand what petitioner 9 wanted. [1RT 7]. The trial court pointed out that no jurors were Petitioner then inquired about missing documents. 10 Later that afternoon, petitioner told the trial court that he was 11 a witness in protective custody, apparently because he was going to 12 testify against two inmates in murder trials. [1RT 10-11]. 13 prosecutor responded that she had no personal knowledge of that case 14 and 15 Petitioner sought a negotiated disposition of his case and attempted 16 to bargain with the prosecutor and the trial court. 17 had offered petitioner a sentence of 32 months in exchange for a 18 guilty plea, but petitioner refused the offer. 19 a sentence that did not involve state prison. The trial court took a 20 recess 21 Nevertheless, petitioner was unwilling to enter any agreement other 22 than one that resulted merely in probation. Petitioner explained that 23 he was concerned about deportation. 24 that so it was that Throughout not relevant petitioner the trial, to could the present confer trial. [1RT The 11]. The prosecutor He continued to seek with stand-by counsel. [1RT 13-16, 303-308]. petitioner had difficulty phrasing 25 questions. He often referred to witnesses as “defendant.” Portions of 26 his cross-examination of Officer Gonzalez illustrate petitioner’s 27 struggles: 28 [PETITIONER]: I was going to ask like who activity log is 8 1 this? 2 THE COURT: Put the documents down for a moment. [¶] Ask him 3 whatever questions you wish to ask him about his testimony 4 on direct examination. 5 [PETITIONER]: Officer, what was the name of your partner the 6 date of the incident? 7 [GONZALEZ]: Officer Escobedo. 8 [PETITIONER]: Were you driving a marked police car on 9 4–7–09? 10 [GONZALEZ]: I am sorry. 11 [PETITIONER]: Were you driving a marked police car on 12 4–7–09? 13 [GONZALEZ]: Yes. 14 [PETITIONER]: Do you recall admit—do you recall—admit being 15 a dual on 4–14–2010 [sic]? 16 [PROSECUTOR]: I am going to object. I don't understand the 17 question. 18 THE COURT: I don't understand the question either. [¶] Could 19 you rephrase. 20 [PETITIONER]: Basically I am asking, on 4–14–2010, I am 21 asking the defendant [sic] do he admit being driver of dual 22 car. A marked dual car. 23 THE COURT: I am sorry. The date in question is 4–7–09. What 24 he was driving in 2010 wouldn't really be relevant. I am 25 going to ask you to rephrase your question if you have made 26 a mistake about the date. 27 [PETITIONER]: All right. Officer, who admit driver gold 28 color police dual on 4–14–2010 [sic]? 9 1 [1RT 907-908]. 2 The trial court sustained the prosecutor's objection, and then 3 spoke to petitioner out of the jury's presence. It asked if petitioner 4 wished to reconsider his election to represent himself, and to instead 5 have his standby counsel take over the representation. 6 rejected this option and said he had been up all night preparing. He 7 tried to explain: Petitioner 8 [PETITIONER]: I just want to know if the defendant have 9 these in his person to keep going with the question and keep 10 going. This is crip[p]led me from explaining myself, right. 11 I would ask the court to give him my copy and I ask him 12 stuff. 13 THE COURT: I don't know what it is you are talking about. It 14 hasn't been made clear to the court. I can't just give 15 papers to somebody without stating the reason for it. He 16 can't just read your documents. He needs to be responding to 17 questions. 18 [1RT 908-909]. 19 The jury returned. After an additional admonition from the trial 20 court about the need for petitioner to ask the witness questions, 21 petitioner resumed his cross-examination. 22 [PETITIONER]: Officer Gonzalez, were you driving a marked 23 police car on 4–7–09? 24 THE COURT: Was it a marked police car? 25 THE WITNESS: No. It was unmarked. 26 [PETITIONER]: 27 searched the defendant near 45th Street? 28 [GONZALEZ]: My partner. On 4–7–09, while 10 going Northbound, who 1 [PETITIONER]: Page two of six police report. It doesn't add up. 2 THE COURT: Is that a question? 3 [PETITIONER]: Officer, don't Western Avenue got a speed 4 limit of 35 to 40 miles per hour? 5 [GONZALEZ]: I believe it is 35 miles an hour, I believe. It 6 is a major street. 7 [PETITIONER]: At which time partner Escobedo exit police 8 vehicle walking towards the defendant? 9 [GONZALEZ]: At which time? 10 [PETITIONER]: Yes. 11 [GONZALEZ]: When we observed the violation. Then my partner 12 and I both exit the vehicle. 13 [1RT 911]. 14 After reviewing petitioner’s trial behavior in detail, the 15 California Court of Appeal concluded that while petitioner obviously 16 experienced “significant difficulties in representing himself,” the 17 record did not indicate that petitioner “lacked an understanding of 18 the nature of the proceedings or the ability to conduct his defense in 19 a rational manner.” 20 [LD 8 at 5-6]. The state appellate court’s conclusion is a reasonable one in 21 light of the record. The evidence before the trial court reflected 22 a defendant who struggled to make his legal and factual arguments 23 understood, had difficulty asking legally appropriate and coherent 24 questions, and made inarticulate arguments in his attempt to present 25 a defense. 26 understood the proceedings. 27 proceedings at each step. As set forth above, he filed numerous 28 relevant pretrial motions, including motions for discovery, a motion At the same time, petitioner’s conduct reflects that he Petitioner actively participated in the 11 1 for the appointment of an investigator, a motion for the appointment 2 of a fingerprint expert, a motion for sanctions, a motion to dismiss, 3 a motion to strike the prior felony conviction allegation, among 4 others. [See CT 34-38, 41-65, 84-88, 91-100, 103-107, 119-137, 140- 5 160, 6 witnesses. [RT 907-931, 941-965]. In fact, petitioner was able to use 7 the documents he had received in discovery such as the police report 8 and 9 cross-examination. [RT 913, 942-957]. 190-199, a police 211-220]. activity He log cross-examined as a basis the for police his officer questions on He also used the preliminary 10 hearing transcript to refresh a witness’s recollection. [RT 942]. 11 explained his theory of the case in a brief opening statement and made 12 a closing argument.6 13 that the facts that “a defendant is alert, unafraid to address the 14 court, and able to use somewhat technical legal terms appropriately is 15 a factor suggesting that a competency hearing is not required”) 16 (citation and internal quotation marks omitted). Petitioner’s 17 He See, e.g., Stanley, 633 F.3d at 861 (stating difficulties asking questions and presenting 18 evidence that might support a defense did not necessarily raise the 19 possibility that he was unable to understand the nature of the 20 proceedings against him. 21 arisen 22 irrelevant points, and his difficulty with English.” “from his lack Instead, his difficulties appear to have of legal training, his focus on legally [LD 8 at 6]. 23 24 25 26 27 28 6 When asked whether he would like to make an opening statement, petitioner offered: “Um, I am denying the charge, Your Honor, because I was lawfully walking down a public street. Somebody had really had these officers attack me basically.” [1RT 611]. In closing argument, petitioner addressed the jury and asked them to pay close attention to the photographs depicting the site of his arrest, arguing that he was arrested without probable cause. He also argued that the officers were lying. [1RT 1209-1210]. 12 In 1 addition, petitioner’s difficulties may have been exacerbated by the 2 fact that he did not possess any apparent defense to the charges. 3 Finally, nothing suggested that petitioner had a history of 4 mental illness or a prior determination of incompetency. No medical 5 or psychiatric evidence regarding petitioner’s mental health history 6 was presented to the trial court. 7 standby counsel raise a concern about petitioner’s competency. 8 Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991) (“We deem 9 significant the fact that the trial judge, government counsel, and 10 [petitioner’s] own attorney did not perceive a reasonable cause to 11 believe [petitioner] was incompetent”). Nor did either his appointed or his See 12 While petitioner arguably was inept in his presentation of his 13 case, and while he may have had only a shaky grasp of the concept of 14 legal relevancy, the state appellate court’s conclusion that his 15 behavior was not so erratic or irrational that the trial court should 16 have experienced doubt about his competency to stand trial was not an 17 unreasonable one. 18 2. The trial court’s denial of petitioner’s motion for discovery 19 Petitioner also alleges that he was denied his right to discovery 20 of police personnel records pursuant to Pitchess v. Superior Court, 11 21 Cal.3d 531 (1974). 22 process and his right to confrontation. 23 Under He contends that the error deprived him of due California law, a criminal [Petition at 20, 32-41]. defendant is entitled to 24 discovery of information in police personnel records that would 25 support a defense to the charges. 26 confidential personnel records, the defendant must establish good 27 cause, which means that he or she must support the motion with 28 affidavits that present “a specific factual scenario of officer 13 To obtain discovery of otherwise 1 misconduct that is plausible when read in light of the pertinent 2 documents.” Warrick v. Superior Court, 35 Cal.4th 1011, 1025 (2005) 3 Prior to trial, petitioner filed two motions for discovery of 4 police personnel records pursuant to Pitchess. [CT 66-83, 119-137]. 5 In his declaration in support of the motions, petitioner denied the 6 officers’ account of the arrest and alleged that he did not have any 7 drugs in his possession. 8 walking along the public street, the police searched him without 9 cause, the drugs were “planted” on him by the officers, and the police 10 report was written as a “cover up of unprofessional action.” [CT 69, 11 122]. 12 Petitioner explained that he was lawfully No police report was attached. The first motion was denied without prejudice based upon 13 petitioner’s failure to show good cause – namely, petitioner’s failure 14 to present a plausible factual scenario or an alternative version of 15 events that would suggest police misconduct. [ART 42]. 16 court instructed petitioner to add more detail about what allegedly 17 happened. 18 The trial [ART 42-43]. Petitioner’s second Pitchess motion included the same 19 declaration, with the addition of the date of the arrest. [CT 122]. 20 The trial court denied the motion, finding that petitioner failed to 21 attach the police report and failed to establish good cause for 22 discovery. [ART 56-57]. 23 The California Court of Appeal found that the trial court 24 properly determined that petitioner had not established good cause for 25 the discovery. [LD 8 at 10-15]. 26 A person in custody pursuant to the judgment of state court can 27 obtain a federal writ of habeas corpus only on the ground that he is 28 in custody in violation of the Constitution or laws or treaties of the 14 1 United States. See 28 U.S.C. § 2254(a). The writ is not available for 2 violations of state law or for alleged error in the interpretation or 3 application of state law. Swarthout v. Cooke, __ U.S. __, 131 S.Ct. 4 859, 861 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67–68 5 (1991). 6 As pleaded, petitioner’s challenge fails to present a federal 7 question because “alleged errors in the application of state law are 8 not cognizable in federal habeas corpus.” 9 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997). 10 Petitioner has not cited, and the Court is not aware of, any clearly 11 established federal law requiring the trial court to provide criminal 12 defendants with police personnel files absent a showing that the files 13 might contain material evidence. See Dyer v. Harrington, 2012 WL 14 5188028, *8-9 (C.D.Cal. 2012) (rejecting a claim that the trial court 15 erroneously denied petitioner’s Pitchess motion, and finding that it 16 failed to present a cognizable federal question); see generally, 17 Harrison v. Lockyer, 316 F.3d 1063, 1066 (9th Cir.) (finding no denial 18 of due process where discovery was denied to a defendant who had 19 failed to make a showing that a police personnel file contained 20 evidence material to the defense), cert. denied, 538 U.S. 988 (2003). 21 Even if petitioner’s claim were liberally construed to implicate 22 the due process right to receive material exculpatory and impeachment 23 evidence under Brady v. Maryland, 373 U.S. 83, 86-87 (1963), he would 24 not be entitled to relief.7 25 petitioner must show three things: that the evidence was favorable to 26 him because it was either exculpatory or impeaching; that the evidence Langford v. Day, 110 F.3d To establish a Brady violation, a 27 28 7 Furthermore, petitioner has not exhausted such a claim. 15 1 was suppressed by the prosecution either willfully or inadvertently; 2 and that he was prejudiced by the nondisclosure. Strickler v. Greene, 3 527 U.S. 263, 281–282 (1999). 4 Evidence is material for Brady purposes “only if there is a 5 reasonable probability that, had the evidence been disclosed to the 6 defense, the result of the proceeding would have been different. A 7 ‘reasonable probability’ is a probability sufficient to undermine 8 confidence in the outcome.” 9 682 (1985). United States v. Bagley, 473 U.S. 667, Disclosure of a requested file is not warranted unless 10 the defendant first “establish[es] a basis for his claim that it 11 contains material evidence.” Pennsylvania v. Ritchie, 480 U.S. 39, 58 12 n. 15 (1987); Harrison, 316 F.3d at 1066. 13 threshold showing of materiality also applies to Pitchess requests. 14 Harrison, 316 F.3d at 1066 (noting that the Pitchess process operates 15 in parallel to the procedure described in Brady and Ritchie, but 16 noting that the state standard is “both a broader and lower threshold 17 for disclosure” than the Brady standard). This requirement of a As the trial court observed in denying petitioner’s Pitchess 18 19 motions, petitioner 20 materiality in support of his motion. Petitioner’s argument about the 21 discovery 22 possibility that those records might contain other instances in which 23 the deputies allegedly fabricated information. Likewise, petitioner’s 24 claim for habeas relief based on the denial of his Pitchess motions is 25 not supported by any evidence of actual incidents in the officers’ 26 files. Instead, petitioner relies only on speculation and hope that 27 the 28 officers which might have some impeachment value. But speculation and of the undisclosed failed to officers’ files may make files have a was included 16 preliminary premised showing solely complaints on against of the the 1 hope do not suffice to show that the personnel files contained any 2 information or evidence material to his defense. See United States v. 3 Michaels, 4 defendant's “mere speculation about materials in the government’s 5 files does not require [a] ... court under Brady to make the materials 6 available for [a defendant's] inspection”) (internal quotation marks, 7 brackets and citation omitted), cert. denied, 479 U.S. 1038 (1987); 8 see also United States v. Agurs, 427 U.S. 97, 109–110 (1976) (“The 9 mere possibility that an item of undisclosed information might have 10 helped the defense, or might have affected the outcome of the trial, 11 does not establish ‘materiality’ in the constitutional sense.”). 12 Because petitioner’s discovery motions made no preliminary showing of 13 materiality, he cannot establish a due process claim based on being 14 denied access to the requested files. See Harrison, 316 F.3d at 1066 15 (rejecting a petitioner's challenge to the trial court’s denial of a 16 Pitchess motion because the petitioner failed to make threshold 17 showing that the files contained information material to his defense); 18 see 19 (rejecting a claim that the trial court deprived the petitioner of due 20 process by denying his Pitchess motion as without merit “[s]ince 21 petitioner has not made any showing that the personnel records in 22 question actually contain any information that is material to his 23 defense”), 24 (C.D.Cal. 2012); Gutierrez v. Yates, 2008 WL 4217865, *7 (C.D.Cal. 25 2008) (absence of proof that exculpatory evidence would be found in 26 police 27 claim”), report and recommendation adopted, 2008 WL 1694465 (C.D.Cal 28 2008); Gomez v. Alameida, 2007 WL 949425, *15-16 (N.D.Cal. 2007) also 796 F.2d Rubin v. report personnel 1112, Uribe, and 1116 (9th 2012 WL Cir. 4848673, recommendation records “is fatal 17 1986) to *5 adopted, (stating that (C.D.Cal. 2012 petitioner's WL due a 2012) 4840092 process 1 (holding that the state court's denial of a discovery request under 2 Pitchess did not violate the petitioner's constitutional rights where 3 the petitioner had not made the requisite showing of materiality under 4 state law) (citing Harrison, 316 F.3d at 1066). Conclusion 5 6 Because the state court’s determination of petitioner’s claims 7 was neither contrary to, nor an unreasonable application of, clearly 8 established 9 Accordingly, the petition for a writ of habeas corpus is denied. federal law, petitioner is not entitled to relief. 10 11 Dated: November 19, 2012 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ______________________________ Andrew J. Wistrich United States Magistrate Judge

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