David Fernandez v. Lydia Romero

Filing 25

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Percy Anderson. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DAVID FERNANDEZ,

) NO. CV 14-3529-PA(E)
)
Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
LYDIA ROMERO, Acting warden, ) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
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______________________________)

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This Report and Recommendation is submitted to the Honorable

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Percy Anderson, United States District Judge, pursuant to 28 U.S.C.

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

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Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus by a

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Person in State Custody” on May 7, 2014.

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on August 26, 2014.

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///

Respondent filed an Answer

Petitioner filed a Reply on October 10, 2014.

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BACKGROUND

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A jury found Petitioner guilty of the second degree murder of

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James Beikman (Reporter’s Transcript [“R.T.”] 1504; Clerk’s Transcript

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[“C.T.”] 99, 120).

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robbery conviction which qualified as a strike under California’s

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Three Strikes Law, California Penal Code sections 667(b) - (i) and

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1170.12(a) - (d) (R.T. 1502-03; C.T. 120).1

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sentence of thirty years to life (R.T. 1803-04; C.T. 140).

Petitioner admitted having suffered a prior

Petitioner received a

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The California Court of Appeal affirmed the judgment and denied

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Petitioner’s companion petition for writ of habeas corpus

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(Respondent’s Lodgment 10 and Appendix A to Respondent’s Lodgment 7;

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see People v. Fernandez, 2012 WL 2025616 (Cal. App. June 6, 2012)).

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The California Supreme Court denied Petitioner’s petition for review

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summarily (Respondent’s Lodgment 8).

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Petitioner filed a habeas corpus petition in the Los Angeles

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County Superior Court, which that court denied on the grounds that

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Petitioner had failed to allege a fundamental jurisdictional or

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constitutional error, failed to alleged a prima facie case for relief,

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and raised issues that should have been raised on direct appeal

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The Three Strikes Law consists of two nearly identical
statutory schemes. The earlier provision, enacted by the
Legislature, was passed as an urgency measure, and is codified as
California Penal Code §§ 667(b) - (I) (eff. March 7, 1994). The
later provision, an initiative statute, is embodied in California
Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People
v. Superior Court (Romero), 13 Cal. 4th 497, 504-05, 53 Cal.
Rptr. 2d 789, 917 P.2d 628 (1996). The State charged Petitioner
under both versions (C.T. 40).
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(Respondent’s Lodgment 12).

Petitioner filed a habeas corpus

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petition in the California Court of Appeal, which that court denied

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for failure to state facts sufficient to demonstrate an entitlement to

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relief (Respondent’s Lodgment 14).

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petition in the California Supreme Court, which that court denied

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summarily (Respondent’s Lodgment 16).

Petitioner filed a habeas corpus

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SUMMARY OF TRIAL EVIDENCE

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The following summary is taken from the opinion of the California

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Court of Appeal in People v. Fernandez, 2012 WL 2025616 (Cal. App.

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June 6, 2012).

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Cir. 2012), cert. denied, 133 S. Ct. 2766 (2013) (presuming correct

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statement of facts drawn from state court decision); Slovik v. Yates,

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556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from

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state appellate decision).

See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th

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A. Prosecution Evidence

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Anthonette Vidal was determined by the trial court to

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be unavailable as a witness, and portions of her preliminary

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hearing testimony were presented to the jury.2

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Vidal, prior to November 2006, she had known appellant for

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approximately a year.

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Lancaster and, for a period, were “together.”

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James Beikman, who lived on the streets at a makeshift

According to

They lived on the streets of
She also knew

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In this testimony, Vidal acknowledged that she had a
conviction for a felony.
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campsite that Vidal shared with appellant.

Sometime before

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Beikman’s death, appellant showed Vidal a distinctive knife

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he had acquired.

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On November 17, 2006, while Vidal was in appellant’s

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tent, appellant told her that she had “15 minutes to get

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everybody out of the desert. . . .”

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that she “didn’t want to be a witness to what was gonna

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happen and pay for it later.”

Appellant also said

As Vidal knew that appellant

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could act violently, she urged other people in the camp to

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“get out of the desert,” and sounded an alert while riding a

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bicycle.

As she did so, she saw appellant running after

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Beikman.

According to Vidal, appellant was then wearing a

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T-shirt.

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A short time later, in the late afternoon, Vidal was

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riding her bicycle close to a Valero gas station near Avenue

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J and Division Street when appellant ran up to her from

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behind a dairy in the area.

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blood stains on his chest, and carried his knife.

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Vidal whether she could see the knife and blood, to which

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she answered affirmatively.

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kill an innocent man.”

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the killing to gain the trust of a man called “Loco,” whom

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appellant viewed as controlling a local street gang.

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Appellant also said that he intended to kill Loco “if [he]

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went to sleep.”

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away from appellant, and learned that Beikman had been

Appellant was shirtless, had
He asked

Appellant then said, “I had to

He explained that he had performed

Afterward, Vidal found a place of safety

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stabbed.

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Los Angeles County Sheriff’s Department Deputy Sheriff

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Paul Fernandez testified that on November 17, 2006, he

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patrolled an area encompassing a Valero gas station and

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Young’s Bar.

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man talking to a woman seated on a bicycle.

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Fernandez identified the pair as appellant and Vidal in

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photographic lineups; in addition, at trial he identified

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At approximately 5:30 p.m., he saw a shirtless
Later,

appellant as the shirtless man.

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On the date Beikman was killed, Charleen Heasley was

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working as a bartender in Young’s Bar, located on the corner

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of Trevor Avenue near Avenue J.

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shift ran from 10:00 a.m. until 6:00 p.m.

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shift, she heard a commotion outside the bar.

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bar through its front door and saw an argument between two

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men, one of whom was shirtless.

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and noticed no weapon.

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said that there had been a fatal stabbing near the bar.

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trial, Heasley denied having identified the two men as

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appellant and Beau Vitagliano to investigating officers.

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Heasley also denied that she recognized appellant in the

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courtroom.

According to Heasley, her
Late in her
She left the

She recognized neither man

As she re-entered the bar, someone
At

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At approximately 5:00 p.m., Los Angeles County deputy

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sheriffs discovered Beikman in the area of Young’s Bar, in a

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planter behind a wall along Trevor Avenue.
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He had died from

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a fatal stab wound to the chest.

The deputy sheriffs found

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a knife approximately 75 to 100 yards away in an alley

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adjoining Trevor Avenue.

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appellant’s knife.

Later, Vidal identified it as

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Around 10:00 p.m., Ted Hamm, a dog scent consultant,

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arrived at the crime scene with Joe D’Allura, a dog handler,

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and a “trailing” dog trained to follow scents.

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vacuum device, Hamm created two “scent pads” from the knife;

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in addition, he created “scent strips” to preserve the scent

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evidence.

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pad, the dog followed a course that went past the dairy and

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Valero gas station near Division and J, and ended

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inconclusively near an apartment building.

Using a

After exposure to the crime scene and a scent

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On November 26, 2006, appellant was arrested on an

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unrelated matter at his campsite.

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deputy sheriffs obtained two bags containing his personal

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belongings.

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Sheriff’s Department Detective Alexander MacArthur created a

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scent pad.

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scent identification lineup.

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scent pad and three unrelated scent pads in a diamond

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pattern, D’Allura exposed his trailing dog to a scent pad

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taken from the knife, and then permitted the dog to sniff

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each of the scent pads in the pattern.

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the scent pad taken from appellant’s belongings.

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Upon arresting appellant,

From these belongings, Los Angeles County

MacArthur and D’Allura then conducted a dog
After MacArthur arranged the

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The dog responded to

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On December 28, 2006, when Los Angeles County Sheriff’s

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detectives interviewed Heasley, she said that she had seen

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two men arguing outside the bar; from photographic lineups

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she identified the men as appellant and Beau Vitagliano.

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According to Detective MacArthur, Heasley also said that

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appellant was shirtless and was holding a knife while

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arguing with Vitagliano.

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The knife found near Beikman disclosed DNA from a major

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contributor and at least two minor contributors.

Detective

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MacArthur testified that the major contributor was

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identified as an individual residing in the Antelope Valley

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who had no connection with Beikman’s death.

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Andersen, the criminalist who conducted the DNA analysis,

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testified that she had included appellant as a potential

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minority contributor, but that his inclusion was

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statistically weak.

Cheryl

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B. Defense Evidence

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Appellant presented no evidence.

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(Respondent’s Lodgment 6, pp. 2-5; Respondent’s Lodgment 7,

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attachment, pp. 2-5; see People v. Fernandez, 2012 WL 2025616, at *1-

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2) (footnote in original).

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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1.

The introduction of Vidal’s preliminary hearing testimony

allegedly violated the Confrontation Clause (Ground One);

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2.

Petitioner’s trial counsel allegedly rendered ineffective

assistance, by assertedly failing to preserve properly Petitioner’s

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constitutional rights to cross-examination and due process (Ground

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Two); and

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3.

Petitioner’s appellate counsel allegedly rendered ineffective

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assistance, by assertedly: (a) failing to raise on appeal Petitioner’s

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constitutional rights to cross-examination and due process; and

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(b) failing to raise on appeal an argument that the DNA evidence and

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other evidence in the case purportedly showed that Petitioner was

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innocent (Grounds Three and Four).

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STANDARD OF REVIEW

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

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

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

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme
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(1) “resulted in a

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

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

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evidence presented in the State court proceeding.”

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

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

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(2000).

28 U.S.C. §

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“Clearly established Federal law” refers to the governing legal
principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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

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law if:

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

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

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different result.

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

Greene v. Fisher, 132

(1) it applies a rule that contradicts governing Supreme

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

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

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

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

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the case in which the principle was announced.”

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

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

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

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///
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Lockyer v. Andrade,

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

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

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decision must have been more than incorrect or erroneous.”

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

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

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

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

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

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habeas court must determine what arguments or theories supported,

Wiggins v.

“The state
Id.

“Under § 2254(d), a

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

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

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131 S. Ct. 770, 786 (2011).

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under § 2254(d)(1).”

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

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

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

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

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

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presented in federal court was so lacking in justification that there

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was an error well understood and comprehended in existing law beyond

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any possibility for fairminded disagreement.”).

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

This is “the only question that matters

Id. (citation and internal quotations omitted).

Id. at 786-87 (“As a

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In applying these standards, the Court looks to the last reasoned

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state court decision.

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(9th Cir. 2008).

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state court summarily denies a claim, “[a] habeas court must determine

See Delgadillo v. Woodford, 527 F.3d 919, 925

Where no reasoned decision exists, as where the

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what arguments or theories . . . could have supported the state

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

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fairminded jurists could disagree that those arguments or theories are

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inconsistent with the holding in a prior decision of this Court.”

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Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation,

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quotations and brackets omitted).

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Additionally, federal habeas corpus relief may be granted “only
on the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

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2254(a).

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

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

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

28 U.S.C. §

In conducting habeas review, a court may determine the issue

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DISCUSSION

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I.

Petitioner’s Confrontation Clause Claim Does Not Merit Habeas
Relief.

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Petitioner claims that the admission at trial of Vidal’s

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preliminary hearing testimony violated the Confrontation Clause

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because the prosecution assertedly failed to exercise due diligence to

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secure Vidal’s presence at trial.

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Superior Court habeas petition, which that court denied in a brief

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order stating that Petitioner had not alleged a cognizable or prima

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facie ground for habeas relief (Respondent’s Lodgments 11, 12).

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California Court of Appeal rejected this claim for failure to state

Petitioner raised this claim in his

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The

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facts sufficient to demonstrate entitlement to the relief requested,

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and the California Supreme Court rejected the claim summarily (see

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Respondent’s Lodgments 13, 14, 15, 16).

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A.

Background

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1.

Introduction

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California’s hearsay rule permits the admission of former

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testimony if: (1) the witness is unavailable; and (2) the party

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against whom the former testimony is offered was a party to the prior

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proceeding and had the right and opportunity to cross-examine the

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witness with an interest and motive similar to that which the party

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has at the present hearing.

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California Evidence Code section 240 defines the term “unavailable” to

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include a situation in which the proponent of the absent witness’

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statement “has exercised due diligence but has been unable to procure

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his or her attendance by the court’s process.”

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240(a)(5).

See Cal. Evid. Code § 1291(a)(2).

Cal. Evid. Code §

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At the preliminary hearing on September 13, 2007, Vidal testified

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that: (1) on the day of the killing, Vidal saw Petitioner with a

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knife; (2) on the day of the killing, Petitioner told Vidal that she

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had fifteen minutes to get everybody out of the desert; (3) Vidal

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later saw Petitioner running after the victim; (4) still later that

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day, Vidal saw Petitioner with blood on his chest and on the knife,

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and Petitioner told Vidal that Petitioner had had to kill an innocent

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man; and (5) Petitioner said he killed a man to obtain Loco’s trust so
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that Petitioner could stab Loco while Loco was asleep (C.T. 7-14).

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Petitioner’s counsel cross-examined Vidal at length, eliciting her

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testimony that, among other things: (1) Vidal recently had suffered a

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felony drug conviction; (2) Vidal had used methamphetamine for

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approximately a year and had ingested methamphetamine earlier that

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week; and (3) Vidal did not report the incident to police until police

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contacted her for another reason several days later (C.T. 18-19, 22-

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23).

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Trial commenced on March 9, 2011 (C.T. 88).3

On Monday,

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March 14, 2011, the court held a hearing, out of the presence of the

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jury, on the prosecution’s motion to admit Vidal’s preliminary hearing

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testimony on the ground that Vidal assertedly was “unavailable” within

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the meaning of Evidence Code section 1291 (R.T. 601-22).

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2.

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Summary of Evidence at the March 14, 2011 Evidentiary
Hearing

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At the evidentiary hearing, Detective Alexander MacArthur
testified as follows:

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MacArthur interviewed Vidal prior to the preliminary

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hearing (R.T. 603).

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addicted to drugs (R.T. 604).

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temporary, county-funded housing prior to the preliminary

At that time, Vidal was homeless and
Vidal was placed in

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Numerous continuances, occasioned in part by the death
of one of Petitioner’s attorneys, delayed the commencement of
trial (see C.T. 59-60, 62-67, 69-71, 73-85; R.T. 621).
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hearing (R.T. 604, 614).

MacArthur gave Vidal his contact

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information (R.T. 604).

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once a week until the preliminary hearing (R.T. 612).

MacArthur had contact with Vidal

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The preliminary hearing occurred on September 13, 2007

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(R.T. 614).

After the preliminary hearing, Vidal’s county-

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funded housing was no longer available to her (R.T. 604).

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MacArthur heard nothing from Vidal after the preliminary

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hearing (R.T. 604-05).

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Approximately two months before trial, the prosecutor

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asked MacArthur to attempt to locate Vidal (R.T. 605).

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MacArthur checked all databases available to him and to

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personnel in his office, including: (1) Lexis Nexis;

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(2) Choice Point/Auto Trak; (3) the Department of Motor

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Vehicles; (4) the Reverse Directory; (5) telephone

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information or “4-1-1"; (6) Los Angeles City Schools and

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School Police; (7) the Los Angeles District Attorney case

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information database; (8) a rap sheet database (the “JDIC”

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“RAPS” database); (9) the DMV photograph database (“Cal

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Photo”); (10) the Los Angeles Regional Crime Information

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System; (11) the Los Angeles County Probation office; (12) a

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“wants and warrant” database; (13) the Los Angeles Sheriff’s

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Department booking information database; (14) Los Angeles

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Police Department records; (15) the Los Angeles County voter

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registration database; (16) the United States Post Office;

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(17) the California Department of Corrections statewide

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locator; (18) the vital records database of the Los Angeles
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County Registrar/Recorder’s Office; (19) the Los Angeles

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Superior Court divorce index and civil index; (20) the

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United States military locator; (21) the “utility research”

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database of the Los Angeles District Attorney’s Office

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Operations Section; (22) the licensing database of the

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California Department of Consumer Affairs; (23) the Los

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Angeles County Coroner’s Office; (24) the Los Angeles City

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Fire Department; (25) the Los Angeles County dog license

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department; (26) the Los Angeles County Tax Assessor/Tax

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Collector; (27) the Los Angeles County fictitious business

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database; (28) the federal prison locator; (29) the victim

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witness advocate; (30) the DMV occupational licensing

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database; (31) the Los Angeles Police Department jail

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release records; (32) the Union Rescue Mission; (33) the Los

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Angeles City Housing Authority; (34) the Los Angeles

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Mission; (35) the Midnight Mission; (36) the Salvation Army;

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(37) “LA Clear”; (38) the Los Angeles County Medical Center

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patient information database; (39) the state parole

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database; (40) the California state disability database;

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(41) the Los Angeles Traffic Court; and (42) the “Cop Link”

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database (R.T. 606-09).

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most recently on the Saturday and Sunday before the Monday

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hearing (R.T. 606, 611).4

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MacArthur found was a domestic violence incident in

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Lancaster, but there was no arrest and no reports taken

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(R.T. 610).

MacArthur checked the databases

The last record of Vidal

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4

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MacArthur’s records of his investigation comprised “60
pages of paperwork” (R.T. 610).
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MacArthur had the names of some relatives of Vidal

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(R.T. 614).

MacArthur spoke with Vidal’s ex-husband before

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the preliminary hearing, but had not spoken with him since

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then (R.T. 614).

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surrounding area, neighborhoods and last known addresses”

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(R.T. 607).

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homeless camp where Vidal previously resided by herself in a

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field in a makeshift structure constructed of a covered

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dugout,5 checked some of the hotels where Vidal had resided

On March 8, 2011, MacArthur checked “the

Additionally, MacArthur drove through the

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temporarily after the murder, and checked a shelter near the

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crime scene (R.T. 610, 613).

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3.

Subsequent Proceedings

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The court found that Vidal was unavailable and that her

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preliminary hearing testimony was admissible at trial (R.T. 622).

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court commented that, because Vidal was subject to cross-examination

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at the preliminary hearing, there was “no Crawford issue” (R.T. 622).

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A reader later took the witness stand (R.T. 681-82).

The

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prosecutor read the questions asked of Vidal at the preliminary

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hearing and the reader read Vidal’s responses at the preliminary

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hearing, including the cross-examination (R.T. 681-712).

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MacArthur never saw Vidal in the field in anyone else’s
company (R.T. 613).
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The

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B.

Discussion

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The Confrontation Clause prohibits the admission of an out-of-

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court testimonial statement at a criminal trial unless the witness is

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unavailable to testify and the defendant had a prior opportunity for

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cross-examination.

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(“Crawford”).

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testimony was “testimonial” hearsay within the meaning of Crawford or

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that Petitioner’s counsel had an opportunity to (and did) cross-

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Crawford v. Washington, 541 U.S. 36, 59 (2004)

Neither party disputes that Vidal’s preliminary hearing

examine Vidal at the preliminary hearing.6

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“The constitutional requirement that a witness be ‘unavailable’

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stands on separate footing that is independent of and in addition to

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the requirement of a prior opportunity for cross-examination.”

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States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (citations omitted).

16

A witness is not “unavailable” for purposes of the hearsay exception

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for former testimony “‘unless the prosecutorial authorities have made

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a good-faith effort to obtain [the witness’] presence at trial.’”

19

Hardy v. Cross, 132 S. Ct. 490, 493 (2011) (quoting Barber v. Page,

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390 U.S. 719, 724-25 (1968)); Windham v. Merkle, 163 F.3d 1092, 1102

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(9th Cir. 1998); People v. Smith, 30 Cal. 4th 581, 609, 134 Cal. Rptr.

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2d 1, 68 P.3d 302 (2003), cert. denied, 540 U.S. 1163 (2004) (noting

23

good faith requirement of Barber v. Page is “similar” to due diligence

24

requirement of California Evidence Code section 240(a)(5)).

United

However,

25
26
27
28

6

Petitioner appears to assert that the jury did not hear
Vidal’s testimony that she had suffered a prior felony conviction
and had been using methamphetamine for “about a year” (see
Traverse, p. 17). The record belies any such assertion (see R.T.
702-04).
17

1

“the law does not require the doing of a futile act, and the extent of

2

the effort the prosecutor must make is a question of reasonableness.”

3

United States v. Olafson, 213 F.3d 435, 441 (9th Cir.), cert. denied,

4

531 U.S. 914 (2000) (citation, quotations and brackets omitted).

5
6

In Ohio v. Roberts, 448 U.S. 56 (1980), abrogated on other

7

grounds, Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court

8

held that the prosecution had made a good faith effort to locate an

9

unavailable witness, despite the prosecution’s failure to contact a

10

social worker who might have been able to assist in finding the

11

witness.

12

hindsight, may always think of other things,” the “great improbability

13

that such efforts would have resulted in locating the witness, and

14

would have led to her production at trial, neutralized any intimation

15

that a concept of reasonableness required their execution.”

16

76.

Id. at 75-76.

The Court held that, although “[one], in

Id. at

17
18

The United States Supreme Court also addressed the issue of

19

diligence in locating a witness in Hardy v. Cross, supra.

20

case, a kidnap and sexual assault victim testified at the petitioner’s

21

first trial prior to the grant of a motion for a mistrial.

22

Cross, 132 S. Ct. at 491.

23

prosecutor informed the court that the witness could not be located.

24

Id. at 492.

25

the witness declared unavailable and to introduce her prior testimony.

26

Id.

27

witness, although “extremely frightened,” had indicated her

28

willingness to testify at the retrial, and that the prosecution had

In that

Hardy v.

Nine days prior to the retrial, the

The day before the retrial, the prosecutor moved to have

The prosecutor told the court that after the first trial the

18

1

remained in “constant contact” with the witness and her mother.

2

However, approximately three weeks before the retrial, the witness

3

disappeared.

4

investigators they did not know the witness’ whereabouts.

5

Investigators made personal visits to the witness’ home and that of

6

her father, and contacted the witness’ parents and other family

7

members.

8

examiner, the witness’ school, the family of the witness’ old

9

boyfriend, the office of the state secretary of state, the welfare

Id.

Id.

Id.

The witness’ mother, father and brother told
Id.

Investigators also contacted the county medical

10

department, the morgue, the public health department, the jail, the

11

post office, and immigration authorities.

12

before the retrial, the witness’ mother told a detective that the

13

witness had called two weeks previously, saying she did not want to

14

testify and would not return to the area.

Id. at 492-93.

The day

Id. at 493.

15
16

The trial court admitted the prior testimony and the state court

17

of appeals affirmed, ruling the prosecution’s efforts met the

18

constitutional diligence standard.

19

States Court of Appeals for the Seventh Circuit disagreed, noting that

20

investigators had not contacted the victim’s current boyfriend and a

21

school at which the victim once had been enrolled.

22

unanimous summary per curiam disposition, the Supreme Court reversed.

23

Id. at 494-95.

24

AEDPA standard of review, the Seventh Circuit erred in deeming the

25

state court of appeals’ determination unreasonable.

26

Court stated that the constitution did not “require the prosecution to

27

exhaust every avenue of inquiry, no matter how unpromising.”

28

Court continued: “And, more to the point, the deferential standard of

Id.

On habeas review, the United

Id. at 494.

In an

The Supreme Court held that, under the deferential

19

Id.

The Supreme

Id.

The

1

review set out in 28 U.S.C. § 2254(d) does not permit a federal court

2

to overturn a state court’s decision on the question of unavailability

3

merely because the federal court identifies additional steps that

4

might have been taken.”

Id. at 495.

5
6

Similarly here, this Court cannot deem unreasonable the state

7

court’s diligence determination.

8

database search and also physically searched the locations Vidal

9

previously had frequented.

MacArthur performed an exhaustive

Given the numerous continuances of the

10

trial date and Vidal’s apparent transient status, it was not

11

necessarily unreasonable for MacArthur to delay searching for Vidal

12

until approximately two months before the trial date.

13

Petitioner points to other avenues of inquiry that purportedly could

14

have been pursued in an attempt to locate Vidal, the efforts that

15

MacArthur did undertake were not unreasonable.

16

132 S. Ct. at 494-95.

Although

See Hardy v. Cross,

17
18

Therefore, the state courts’ rejection of Petitioner’s

19

Confrontation Clause claim was not contrary to, or an objectively

20

unreasonable application of, any clearly established Federal law as

21

determined by the United State Supreme Court.

22

2254(d); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770 (2011).

23

Petitioner is not entitled to relief on Ground One of the Petition.

24

///

25

///

26

///

27

///

28

///
20

See 28 U.S.C. §

1
2

II.

Petitioner’s Claim of Ineffective Assistance of Trial
Counsel Does Not Merit Habeas Relief.

3
4

Petitioner contends his trial counsel ineffectively failed to

5

preserve Petitioner’s Confrontation Clause claim (Petition, p. 5).

6

Petitioner raised this claim in his Superior Court habeas petition,

7

which that court denied in a brief order stating that Petitioner had

8

not alleged a cognizable or prima facie ground for habeas relief

9

(Respondent’s Lodgments 11, 12).

The California Court of Appeal

10

rejected this claim for failure to state facts sufficient to

11

demonstrate entitlement to the relief requested, and the California

12

Supreme Court rejected Petitioner’s claim of ineffective assistance of

13

trial counsel summarily (see Respondent’s Lodgments 13, 14, 15, 16).

14
15

A.

Governing Legal Standards

16
17

To establish ineffective assistance of counsel, Petitioner must

18

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

19

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

20

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

21

different.

22

(1984) (“Strickland”).

23

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

24

Id. at 694.

25

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

26

prejudicial.

27

(9th Cir.), cert. denied, 134 S. Ct. 102 (2013) (“[f]ailure to meet

28

either [Strickland] prong is fatal to a claim”); Rios v. Rocha, 299

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; see Gentry v. Sinclair, 705 F.3d 884, 889

21

1

F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the

2

Strickland test obviates the need to consider the other.”) (citation

3

omitted).

4
5

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

6

is a “strong presumption” that counsel rendered adequate assistance

7

and exercised reasonable professional judgment.

8

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

9

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

Williams v. Woodford,

The court must judge the

10

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

11

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

12

U.S. at 690.

13

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

14

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

15

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

16

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

17

guarantees reasonable competence, not perfect advocacy judged with the

18

benefit of hindsight.”) (citations omitted).

19

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

20

not functioning as the counsel guaranteed the defendant by the Sixth

21

Amendment.”

22

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

23

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

24

circumstances, the challenged action might be considered sound trial

25

strategy”) (citation and quotations omitted).

Strickland, 466

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

Petitioner bears the

Harrington v. Richter, 131 S. Ct. at 787 (citation and

26
27
28

A state court’s decision rejecting a Strickland claim is entitled
to “a deference and latitude that are not in operation when the case
22

1

involves review under the Strickland standard itself.”

Harrington v.

2

Richter, 131 S. Ct. at 785.

3

not whether counsel’s actions were reasonable.

4

whether there is any reasonable argument that counsel satisfied

5

Strickland’s deferential standard.”

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

Id. at 788.

6
7

“In assessing prejudice under Strickland, the question is not

8

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

9

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

10

been established if counsel acted differently.”

11

(citations omitted).

12

counsel’s alleged error, it is “‘reasonably likely’” that the result

13

would have been different.

14

at 696).

15

not just conceivable.”

Id. at 791-92

Rather, the issue is whether, in the absence of

Id. at 792 (quoting Strickland, 466 U.S.

“The likelihood of a different result must be substantial,
Id.

16
17

B.

Discussion

18
19

Contrary to Petitioner’s apparent contention, counsel did not

20

fail to challenge the admission of Vidal’s preliminary hearing

21

testimony.

Counsel opposed the prosecution’s motion to admit this

22

testimony.

At the evidentiary hearing concerning the issue of witness

23

unavailability, counsel reasonably cross-examined Detective MacArthur

24

(R.T. 611-15).

25

at the time of the preliminary hearing Vidal had been homeless and was

26

in temporary housing, authorities should have obtained Vidal’s contact

27

information and information concerning her relatives while the

28

authorities were still in contact with Vidal (R.T. 617-20).

Counsel also argued that, given the alleged facts that

23

Counsel

1

argued that the authorities assertedly had not made a sufficient

2

effort to stay in touch with Vidal after the preliminary hearing (R.T.

3

619-20).

4

show counsel’s ineffectiveness.

5

1388, 1420 (9th Cir. 1988), cert. denied, 489 U.S. 1046 (1989),

6

overruled on other grounds, People of the Territory of Guam v.

7

Ignacio, 10 F.3d 608, 612 n.2 (9th Cir. 1993) (“Lack of success,

8

however, does not prove ineffective assistance of counsel”).

9

Petitioner appears to assert counsel failed to elicit Vidal’s

The fact that counsel’s arguments were unsuccessful does not
See United States v. Layton, 855 F.2d

Although

10

testimony that Vidal was a transient who took drugs (see Traverse, p.

11

28), the record belies any such assertion (see R.T. 703-04).

12

Petitioner does not allege what other questions counsel could have

13

asked that would have yielded any reasonable probability of a

14

different outcome.

15

2009), cert. denied, 559 U.S. 995 (2010) (speculation insufficient to

16

show Strickland prejudice); Jones v. Gomez, 66 F.3d 199, 204-05 (9th

17

Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations

18

unsupported by a statement of specific facts do not warrant habeas

19

relief).

20

unreasonableness nor any resulting prejudice.

See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir.

In sum, Petitioner has shown neither counsel’s

21
22

Accordingly, the state courts’ rejection of Petitioner’s claim of

23

ineffective assistance of trial counsel was not contrary to, or an

24

objectively unreasonable application of, any clearly established

25

Federal law as determined by the United State Supreme Court.

26

U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 770.

27

Petitioner is not entitled to relief on Ground Two of the Petition.

28

///
24

See 28

1
2

III. Petitioner’s Claims of Ineffective Assistance of Appellate
Counsel Do Not Merit Habeas Relief.

3
4

A.

Governing Legal Standards

5
6

The standards set forth in Strickland govern claims of

7

ineffective assistance of appellate counsel.

8

528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028

9

(9th Cir. 2001), cert. denied, 535 U.S. 995 (2002).

See Smith v. Robbins,

Appellate counsel

10

has no constitutional obligation to raise all non-frivolous issues on

11

appeal.

12

hallmark of effective appellate counsel is the ability to weed out

13

claims that have no likelihood of success, instead of throwing in a

14

kitchen sink full of arguments with the hope that some argument will

15

persuade the court.”

Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997).

“A

Id.

16
17

B.

18

Appellate Counsel’s Failure to Raise Confrontation
Clause Claim on Appeal

19
20

Petitioner contends appellate counsel ineffectively failed to

21

raise Petitioner’s Confrontation Clause claim on appeal (Petition, pp.

22

5-6).

23

rejected this claim (see Respondent’s Lodgments 13, 14, 15, 16).

24

suggested by the discussion in Section I above, Petitioner has not

25

shown a reasonable likelihood that any appellate challenge to the

26

admission of Vidal’s preliminary hearing testimony would have been

27

successful.

28

meritless argument.

The California Court of Appeal and the California Supreme Court
As

Strickland does not require appellate counsel to raise a
See Moormann v. Ryan, 628 F.3d 1102, 1109 (9th
25

1

Cir. 2010), cert. denied, 132 S. Ct. 346 (2011) (failure to raise a

2

meritless issue on appeal is not unreasonable); Wildman v. Johnson,

3

261 F.3d 832, 840 (9th Cir. 2001) (appellate counsel’s failure to

4

raise an issue on direct appeal cannot constitute ineffective

5

assistance when “the appeal would not have provided grounds for

6

reversal.”) (citation omitted).

7

rejection of this claim of ineffective assistance of appellate counsel

8

was not contrary to, or an objectively unreasonable application of,

9

any clearly established Federal law as determined by the United States

10

Supreme Court.

11

Ct. at 770.

Therefore, the state courts’

See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.

Petitioner is not entitled to relief on this claim.

12
13
14

C.

Appellate Counsel’s Failure to Argue that the DNA
Evidence Purportedly Showed Petitioner’s Innocence

15
16

Petitioner contends counsel should have argued on appeal that the

17

DNA evidence purportedly “exonerated” Petitioner and that the DNA

18

evidence, along with other evidence including evidence that Petitioner

19

assertedly “was not identified in the photo lineup,” supposedly showed

20

Petitioner’s innocence (Petition, p. 6).

21

several reasons.

This claim lacks merit for

22
23

The California Supreme Court has “long recognized the viability

24

of an actual innocence habeas corpus claim, at least insofar as the

25

claim is based on newly discovered evidence or proof false evidence

26

was introduced at trial.”

27

Cal. Rptr. 3d 92, 179 P.3d 891 (2008) (citations omitted).

28

petitioner may attack a criminal judgment on the ground of newly

In re Lawley, 42 Cal. 4th 1231, 1238, 74

26

A

1

discovered evidence if such evidence casts “fundamental doubt on the

2

accuracy and reliability of the proceedings.”

3

and internal quotations omitted).

4

if credited, must undermine the entire prosecution case and point

5

unerringly to innocence or reduced culpability.”

6

internal quotations omitted).

7

rejected the evidence presented, a petitioner has not satisfied his

8

burden.”

Id. at 1239 (citations

“At the guilt phase, such evidence,

Id. (citations and

“If a reasonable jury could have

Id. (citation omitted).

9
10

Petitioner does not argue that appellate counsel should have

11

submitted any alleged “newly discovered evidence” on appeal or in a

12

companion habeas corpus petition, much less show that any new evidence

13

“point[ed] unerringly to innocence.”

14

argument is that the evidence admitted at trial, including the DNA

15

evidence, assertedly did not support his conviction.

16

essentially contends appellate counsel should have challenged the

17

sufficiency of the evidence on appeal.

Rather, the gist of Petitioner’s

Petitioner

18
19

Counsel reasonably could have decided not to make such a

20

challenge.

21

evidence, a California court must view the evidence “in the light most

22

favorable to the judgment below to determine whether it discloses

23

substantial evidence — that is, evidence that is reasonable, credible,

24

and of solid value — such that a reasonable trier of fact could find

25

the defendant guilty beyond a reasonable doubt.”

26

Cal. App. 4th 411, 417, 174 Cal. Rptr. 3d 192 (2014) (citing, inter

27

alia, Jackson v. Virginia, 443 U.S. 307, 319, (1979)).

28

not reweigh the evidence, resolve conflicts in the evidence, or

In considering a challenge to the sufficiency of the

27

People v. Elder, 227

The court may

1

reevaluate the credibility of witnesses.

Id. (citations omitted).

2

“Resolution of conflicts and inconsistencies in the testimony is the

3

exclusive province of the trier of fact.”

4

quotations omitted).

Id. (citation and internal

5
6

The evidence in the present case, taken in the light most

7

favorable to the judgment, showed that: (1) the day before the killing

8

Petitioner showed Vidal, for the first time, a knife with a light;

9

(2) on the day of the killing, Petitioner told Vidal to get everybody

10

out of the desert because Vidal would not want to be a witness to what

11

was going to happen; (3) Vidal knew Petitioner was violent; (4) Vidal

12

saw Petitioner running after the victim; (5) when Vidal encountered

13

Petitioner later, Petitioner, who had blood on his chest, showed Vidal

14

blood on the knife and told Vidal “I had to kill an innocent man”;

15

(6) Petitioner told Vidal he had to kill the victim to engender trust

16

in a gang member so that Petitioner could kill that gang member; (7) a

17

detective found the knife, with the light still on, lying on the

18

ground approximately a block from the victim’s body; (8) Vidal

19

identified the knife police found at the scene as the knife Petitioner

20

showed her the day before the killing; and (9) at a dog scent lineup

21

on November 30, 2006, a trained dog first sniffed a scent pad made

22

from the knife and then alerted at a box containing a scent pad taken

23

from Petitioner’s clothing (R.T. 669-73, 687-96, 977-78, 1002-06).

24
25

A DNA expert testified that: (1) DNA on the knife blade

26

assertedly matched that of the victim; (2) DNA on the knife handle

27

///

28

///
28

1

assertedly was a mixture from at least three contributors;5 and

2

(3) although Petitioner assertedly was a “weak” inclusion for the DNA

3

on the knife handle, (based on a statistical analysis reportedly

4

showing one out of every 136 people had Petitioner’s DNA profile),

5

Petitioner allegedly could not be excluded as a contributor (R.T. 944-

6

60).

7
8
9

A reasonable trier of fact crediting this evidence could have
found Petitioner guilty beyond a reasonable doubt.

The DNA evidence

10

did not “exonerate” Petitioner, and did not even exclude him as a

11

contributor.

12

Petitioner in a “six-pack” photo lineup (Petition, p. 6).

13

Heasley testified at trial that she did not identify Petitioner in the

14

photo lineup, she did authenticate her signature on the photo lineup

15

form which reflected an identification of Petitioner (R.T. 652-53,

16

656-58).

17

identified Petitioner from the photo lineup as a person she knew from

18

prior contacts at the bar and as the person whom she saw outside the

19

bar holding a knife just prior to the murder (R.T. 988-91).

20

counsel reasonably could have determined that, despite any evidence

21

assertedly favoring Petitioner, the jury’s credibility determinations

22

would be unassailable on appeal.

23

4th at 417 (in reviewing the sufficiency of the evidence, an appellate

Petitioner argues Heasley purportedly did not identify
Although

Furthermore, Detective MacArthur testified that Heasley

Appellate

See People v. Elder, 227 Cal. App.

24
5

25
26
27
28

An investigation revealed that the major contributor to
the DNA on the knife handle was a white male, 18 to 19 years old,
approximately six feet, two inches tall and 140 pounds (R.T.
1006-07). Detective MacArthur excluded this person as a possible
suspect because the description did not match that of anyone
involved in the case and “anyone could have handled the knife
prior to the murder” (R.T. 1007).
29

1

court may not reweigh the evidence, resolve conflicts in the evidence,

2

or reevaluate the credibility of witnesses).

3

reasonably could have determined that a challenge to the sufficiency

4

of the evidence would have been fruitless.

5

1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (“the

6

failure to take a futile action can never be deficient performance”);

7

Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied,

8

493 U.S. 869 (1989) (“[T]he failure to raise a meritless legal

9

argument does not constitute ineffective assistance of counsel”;

10

Hence, appellate counsel

See Rupe v. Wood, 93 F.3d

citation and internal quotations omitted).

11
12

In sum, Petitioner has not shown appellate counsel acted

13

unreasonably in failing to assert Petitioner’s “innocence” on appeal.

14

For the same reasons, Petitioner has not shown that any claim of

15

innocence or any challenge to the sufficiency of the evidence on

16

appeal would have been successful, and hence has not shown Strickland

17

prejudice.

18
19

RECOMMENDATION

20
21

For all of the foregoing reasons, IT IS RECOMMENDED that the

22

Court issue an Order: (1) accepting and adopting this Report and

23

///

24

///

25

///

26

///

27

///

28

///
30

1

Recommendation; and (2) directing that Judgment be entered denying and

2

dismissing the Petition with prejudice.

3
4

DATED: October 23, 2014.

5
6
7
8

_____________/S/________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31

1

NOTICE

2
3

Reports and Recommendations are not appealable to the Court of

4

Appeals, but may be subject to the right of any party to file

5

objections as provided in the Local Rules Governing the Duties of

6

Magistrate Judges and review by the District Judge whose initials

7

appear in the docket number.

8

Federal Rules of Appellate Procedure should be filed until entry of

9

the judgment of the District Court.

No notice of appeal pursuant to the

10
11

If the District Judge enters judgment adverse to Petitioner, the

12

District Judge will, at the same time, issue or deny a certificate of

13

appealability.

14

and Recommendation, the parties may file written arguments regarding

15

whether a certificate of appealability should issue.

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

Within twenty (20) days of the filing of this Report