Robert Stephen Couturier v. The Presiding Judge of LA Superior Court et al

Filing 25

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

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Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 1 of 34 Page ID #:821 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBERT STEPHEN COUTURIER, ) NO. CV 16-8278-BRO(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) THE PRESIDING JUDGE OF THE ) UNITED STATES MAGISTRATE JUDGE LOS ANGELES SUPERIOR COURT, ) et al., ) ) Respondents. ) ______________________________) 17 18 This Report and Recommendation is submitted to the Honorable 19 Beverly Reid O’Connell, United States District Judge, pursuant to 28 20 U.S.C. section 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 23 PROCEEDINGS 24 25 On December 5, 2016, Petitioner filed the operative “First 26 Amended Petition for Writ of Habeas Corpus By a Person in State 27 Custody” (“First Amended Petition” or “FAP”), with attachments (“FAP 28 Att.”). On March 30, 2017, Respondent filed a “Motion to Dismiss and Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 2 of 34 Page ID #:822 1 Answer to Petition for Writ of Habeas Corpus” (“Answer”). The Answer 2 asserts that two of the four claims raised in the First Amended 3 Petition are unexhausted and procedurally defaulted, and that the 4 remaining two claims fail on the merits. 5 lodged multiple documents in support of the Answer (“Respondent’s 6 Lodgments”), including the Clerk’s Transcript (“C.T.”) and Reporter’s 7 Transcript (“R.T.”). 8 with attachments (“Opposition Att.”). Respondent concurrently On May 3, 2017, Petitioner filed an Opposition 9 10 11 On June 6, 2017, the case was reassigned from Magistrate Judge Bristow to Magistrate Judge Eick. 12 13 BACKGROUND 14 15 A “Misdemeanor Complaint for Arrest Warrant” (“Complaint”) filed 16 in the Los Angeles County Superior Court on October 10, 2014, alleged 17 that on or about July 14, 2014, Petitioner committed petty theft by 18 unlawfully stealing, taking, and carrying away the personal property 19 of Felisa Richards (C.T. 1-3). 20 attached to the Complaint “official reports and documents of a law 21 enforcement agency” to establish probable cause consisting of, inter 22 alia, an “Incident Report” and a “Vehicle Report,” both dated July 20, 23 2014, and a “Supplementary Report” dated July 31, 2014 (C.T. 2; see 24 also Respondent’s Lodgment 2 (copy of Complaint and attachments)). 25 October 15, 2014, Judge Valerie Salkin issued the warrant upon a 26 finding of probable cause (C.T. 3-4). 27 /// 28 /// Complainant Detective E. Harrold 2 On Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 3 of 34 Page ID #:823 1 On October 30, 2014, Petitioner, proceeding pro per, appeared 2 before Judge Salkin and, after waiving his right to counsel for the 3 arraignment only and waiving the reading of the Complaint, pleaded not 4 guilty to the charge (C.T. 6-7; R.T. A-1 - A-7).1 5 6 On January 6, 2015, Petitioner, with the assistance of private 7 counsel, waived his right to a jury trial (C.T. 10). 8 bench trial on January 20, 2015, Judge Salkin found Petitioner guilty 9 of petty theft, sentenced Petitioner to 36 months of probation, and Following a 10 issued a protective order requiring Petitioner to stay away from the 11 victim (C.T. 12-15; R.T. 50-60). 12 13 14 On September 22, 2015, the Appellate Division of the Los Angeles County Superior Court affirmed the judgment. The Appellate Division 15 16 17 18 1 Judge Salkin had advised Petitioner that he was charged with misdemeanor petty theft (R.T. A-5 - A-6), and that he could talk with the prosecutor regarding how the prosecutor wanted to resolve the case (R.T. A-8). The following exchange then occurred: 19 20 21 22 23 24 25 26 27 28 [Petitioner]: I would be interested in trying to understand why I’m here and what [the prosecutor’s] intentions are because it’s – I believe it involves a license plate that the sheriffs came knocking on my door about. The Court: I’m going to stop don’t know anything about the can tell you that there is in of the discovery in here. . . you for a second. I charge in this case. I fact a – a redacted copy . (R.T. A-8). When Petitioner later commented on certain discovery, the court interrupted, “Keep in mind, I don’t know the facts of this case” (R.T. A-9). It is not clear whether Judge Salkin then recalled having signed Petitioner’s arrest warrant weeks before the arraignment. 3 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 4 of 34 Page ID #:824 1 found the evidence sufficient to support Petitioner’s conviction, and 2 determined that Petitioner had failed to show his trial counsel was 3 ineffective for: (1) recommending that Petitioner have a court trial 4 instead of a jury trial; (2) not subpoenaing the deputy sheriff(s) who 5 interviewed the witnesses and prepared a report of the interviews; and 6 (3) not objecting when the prosecutor allegedly “coached” witnesses 7 and assertedly misstated the witnesses’ testimony. 8 Lodgments 4, 6, 7. See Respondent’s 9 10 On November 12, 2015, the California Court of Appeal summarily 11 denied a petition to transfer the matter from the Appellate Division. 12 See Respondent’s Lodgment 8 (order); Opposition Att. (containing copy 13 of petition for transfer and exhibits thereto). 14 the Appellate Division of the Los Angeles County Superior Court issued 15 a remittitur affirming the judgment (Respondent’s Lodgment 9). On November 30, 2015, 16 17 On December 15, 2015, Petitioner filed a habeas petition with the 18 Los Angeles County Superior Court (the “First State Petition”) 19 (Respondent’s Lodgment 10). 20 liberally, the Court deems Petitioner to have alleged therein a claim 21 of ineffective assistance of trial counsel for: (1) recommending a 22 bench trial; (2) failing to bring in an expert witness from Honda to 23 testify concerning how license plates are attached to Honda bumpers; 24 (3) failing to object to prosecutorial statements concerning certain 25 evidence assertedly not in the record; (4) failing to subpoena and 26 present police witnesses who assertedly could have laid a foundation 27 for the police reports and the arguably inconsistent victim and 28 witness statements contained therein; and (5) failing to ask for a Construing the First State Petition 4 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 5 of 34 Page ID #:825 1 continuance to subpoena and present police witnesses regarding the 2 reports. 3 Petition also alleged prosecutorial misconduct for “occasionally 4 ma[king] statements that were not in the record of the trial” (id., p. 5 14). 6 Petition “summarily” for raising issues that had been raised and 7 rejected on appeal, for raising issues that could have been raised on 8 appeal but were not, and for failing to establish prejudice from 9 counsel’s allegedly ineffective assistance (Respondent’s Lodgment 11 10 See Respondent’s Lodgment 10, pp. 4-6. The First State On December 22, 2015, the Superior Court denied the First State (citing Strickland v. Washington, 466 U.S. 668, 697 (1984)). 11 12 On February 9, 2016, Petitioner filed a second habeas petition 13 with the Los Angeles County Superior Court (the “Second State 14 Petition”) (Respondent’s Lodgment 12). 15 alleged a claim of ineffective assistance of counsel similar to the 16 claim alleged in the First State Petition, but with more factual 17 detail. 18 State Petition for raising issues that had been raised and rejected on 19 direct appeal and in a prior habeas petition, for raising issues that 20 could have been raised on appeal but were not, and for having filed a 21 prior habeas petition that failed to raise claims contained in the 22 current petition (Respondent’s Lodgment 13). The Second State Petition On February 17, 2016, the Superior Court denied the Second 23 24 On February 12, 2016, Petitioner filed a habeas petition with the 25 California Court of Appeal (the “Third State Petition”) (Respondent’s 26 Lodgment 14). 27 assistance of counsel claim previously alleged in the Second State 28 Petition. The Third State Petition alleged the same ineffective On February 25, 2016, the California Court of Appeal denied 5 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 6 of 34 Page ID #:826 1 the Third State Petition without prejudice to refiling in the Superior 2 Court. 3 682, 692, 10 Cal. Rptr. 3d 536, 85 P.3d 444 (2004); In re Hillery, 202 4 Cal. App. 2d 293, 294, 20 Cal. Rptr. 759 (1962)). See Respondent’s Lodgment 15 (citing In re Steele, 32 Cal. 4th 5 6 On March 3, 2016, Petitioner filed another habeas petition with 7 the Los Angeles County Superior Court (the “Fourth State Petition”) 8 (Respondent’s Lodgment 16). 9 ineffective assistance of counsel claim Petitioner previously alleged The Fourth State Petition repeated the 10 in the Second and Third State Petitions. 11 Superior Court observed that the petition appeared to be a duplicate 12 of the petitions filed on December 15, 2015, and February 9, 2016 13 (i.e., the First and Second State Petitions) (Respondent’s Lodgment 14 17). 15 reasons that Court had denied the Second State Petition. On March 8, 2016, the The Superior Court denied the Fourth State Petition for the same 16 17 On April 22, 2016, Petitioner filed a habeas petition with the 18 California Supreme Court (the “Fifth State Petition”) (Respondent’s 19 Lodgment 18). 20 ineffective assistance of counsel previously alleged in the Second, 21 Third, and Fourth State Petitions. 22 copies of the police reports as exhibits to the Fifth State Petition. 23 See Respondent’s Lodgment 18. 24 Court summarily denied the Fifth State Petition (Respondent’s Lodgment 25 19). The Fifth State Petition alleged the same claim of Petitioner included redacted On May 25, 2016, the California Supreme 26 27 28 On November 21, 2016, Petitioner filed another habeas petition with the California Supreme Court (the “Sixth State Petition”) 6 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 7 of 34 Page ID #:827 1 (Respondent’s Lodgment 20). The Sixth State Petition alleged the 2 claims now alleged in the First Amended Petition herein. 3 and Respondent’s Lodgment 20, with Respondent’s Lodgment 18. 4 Sixth Amended Petition presented for the first time unredacted 5 exhibits later filed with the First Amended Petition. 6 2016, the California Supreme Court denied the Sixth State Petition, 7 citing In re Clark, 5 Cal. 4th 750, 797-98, 21 Cal. Rptr. 2d 509, 855 8 P.2d 729 (1993), which indicated that the petition was successive. Compare FAP The On December 21, 9 10 SUMMARY OF TRIAL EVIDENCE AND THE TRIAL COURT’S FINDING OF GUILT 11 12 The following summary is taken from the decision of the Appellate 13 Division of the Los Angeles County Superior Court on direct appeal 14 (Respondent’s Lodgment 7).2 15 16 Felisa Richards [a.k.a. Felisa Bayze], Christopher 17 Vang, and [Petitioner] were neighbors and lived on a cul-de- 18 sac in Castaic, California [R.T. 5, 7, 9, 12-13, 24-26]. 19 July 14, 2014, Richards parked her vehicle, a Honda Civic 20 with the front and rear license plates affixed, in front of 21 [Petitioner’s] home and behind Vang’s van [R.T. 6-8]. 22 Richards did not give [Petitioner] permission to remove or 23 take her license plate [R.T. 9]. 24 day that the [front] plate was missing [R.T. 8-9]. 25 She discovered the next On /// 26 27 28 2 The Court has reviewed the Reporter’s Transcript and has confirmed that the Appellate Division accurately summarized the evidence. 7 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 8 of 34 Page ID #:828 1 At approximately 10:00 p.m. on July 14, 2014, Vang was 2 driving home when he observed [Petitioner] crouched behind 3 Vang’s van and in front of Richards’s [sic] vehicle [R.T. 4 26]. 5 yard real quick,” and return to the area between the van and 6 the car [R.T. 27-28]. 7 emerge from between the two vehicles and “walk back in his 8 yard with a [license] plate in his hand” [R.T. 28, 37]. 9 After [Petitioner] went inside, Vang approached the parked Vang observed [Petitioner] “pop up and go into his Vang then observed [Petitioner] 10 vehicles and noticed his rear license plate was still there 11 but Richard’s [sic] front plate was missing [R.T. 29-30]. 12 13 Vang was approximately 70 feet from [Petitioner] while 14 watching him, and he could not see what [Petitioner] was 15 doing when he was between the two vehicles [R.T. 28, 34-37]. 16 He also testified that the area was illuminated by a street 17 light that was above the two vehicles [R.T. 28-29]. 18 19 (Respondent’s Lodgment 7, pp. 1-2). 20 21 The Court found Petitioner guilty, stating: 22 23 . . . the part I just can’t get around, and why I am going 24 to find you guilty, Mr. Couturier, is that Mr. Vang 25 testified, and I found him believable that he saw you with 26 the license plate. 27 other way. 28 ¶ I think, [defense counsel], you did do a good job of And I can’t wrap my head around that any [Vang] said he saw [Petitioner] crouched down. 8 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 9 of 34 Page ID #:829 1 trying to question that, but the prior inconsistent 2 statement, if made, we don’t have the information that that 3 was made. 4 admitted, and even if it was made, maybe the officer got it 5 wrong, maybe he didn’t, I don’t know, but I have what I have 6 here. He was asked about a police report that was not 7 8 (R.T. 49-50). 9 10 PETITIONER’S CONTENTIONS 11 12 Petitioner contends: 13 14 1. His trial counsel was ineffective for assertedly: 15 (a) performing unreasonably in virtually every aspect of 16 representation (Ground One; Ground Two; Opposition);3 and 17 (b) specifically failing to seek recusal of the trial judge on the 18 ground the trial judge had signed Petitioner’s arrest warrant (and 19 therefore had seen the police reports relating to the alleged crime) 20 (Ground Three); 21 22 23 2. The trial judge erred by failing to recuse herself (Ground Four). 24 25 See FAP, pp. 5-6; FAP Attach., pp. A1 - A5. 26 27 28 3 The Court presumes that Petitioner intends to include among Grounds One and Two his claim that counsel was ineffective for recommending a bench trial rather than a jury trial. 9 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 10 of 34 Page ID #:830 1 STANDARD OF REVIEW 2 3 Under the “Antiterrorism and Effective Death Penalty Act of 1996" 4 (“AEDPA”), a federal court may not grant an application for writ of 5 habeas corpus on behalf of a person in state custody with respect to 6 any claim that was adjudicated on the merits in state court 7 proceedings unless the adjudication of the claim: 8 decision that was contrary to, or involved an unreasonable application 9 of, clearly established Federal law, as determined by the Supreme (1) “resulted in a 10 Court of the United States”; or (2) “resulted in a decision that was 11 based on an unreasonable determination of the facts in light of the 12 evidence presented in the State court proceeding.” 13 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. 14 Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 15 (2000). 28 U.S.C. § 16 17 “Clearly established Federal law” refers to the governing legal 18 principle or principles set forth by the Supreme Court at the time the 19 state court renders its decision on the merits. 20 U.S. 34, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). 21 state court’s decision is “contrary to” clearly established Federal 22 law if: 23 Court law; or (2) it “confronts a set of facts . . . materially 24 indistinguishable” from a decision of the Supreme Court but reaches a 25 different result. 26 omitted); Williams v. Taylor, 529 U.S. at 405-06. 27 /// 28 /// Greene v. Fisher, 565 A (1) it applies a rule that contradicts governing Supreme See Early v. Packer, 537 U.S. at 8 (citation 10 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 11 of 34 Page ID #:831 1 Under the “unreasonable application” prong of section 2254(d)(1), 2 a federal court may grant habeas relief “based on the application of a 3 governing legal principle to a set of facts different from those of 4 the case in which the principle was announced.” 5 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 6 U.S. at 24-26 (state court decision “involves an unreasonable 7 application” of clearly established federal law if it identifies the 8 correct governing Supreme Court law but unreasonably applies the law 9 to the facts). Lockyer v. Andrade, 10 11 “In order for a federal court to find a state court’s application 12 of [Supreme Court] precedent ‘unreasonable,’ the state court’s 13 decision must have been more than incorrect or erroneous.” 14 Smith, 539 U.S. 510, 520 (2003) (citation omitted). 15 court’s application must have been ‘objectively unreasonable.’” 16 at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 17 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th 18 Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005). 19 habeas court must determine what arguments or theories supported, 20 . . . or could have supported, the state court’s decision; and then it 21 must ask whether it is possible fairminded jurists could disagree that 22 those arguments or theories are inconsistent with the holding in a 23 prior decision of this Court.” 24 101 (2011). 25 2254(d)(1).” 26 Habeas relief may not issue unless “there is no possibility fairminded 27 jurists could disagree that the state court’s decision conflicts with 28 [the United States Supreme Court’s] precedents.” Wiggins v. “The state Id. “Under § 2254(d), a Harrington v. Richter, 562 U.S. 86, This is “the only question that matters under § Id. at 102 (citation and internal quotations omitted). 11 Id. “As a condition Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 12 of 34 Page ID #:832 1 for obtaining habeas corpus from a federal court, a state prisoner 2 must show that the state court’s ruling on the claim being presented 3 in federal court was so lacking in justification that there was an 4 error well understood and comprehended in existing law beyond any 5 possibility for fairminded disagreement.” Id. at 103. 6 7 In applying these standards, the Court ordinarily looks to the 8 last reasoned state court decision. 9 F.3d 919, 925 (9th Cir. 2008). See Delgadillo v. Woodford, 527 Where no reasoned decision exists, as 10 where the state court summarily denies a claim, “[a] habeas court must 11 determine what arguments or theories . . . could have supported the 12 state court’s decision; and then it must ask whether it is possible 13 fairminded jurists could disagree that those arguments or theories are 14 inconsistent with the holding in a prior decision of this Court.” 15 Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations 16 and brackets omitted). 17 constitutional issue of the merits, this Court must consider that 18 issue under a de novo standard of review. 19 1130, 1133 (9th Cir. 2012), cert. denied, 134 S. Ct. 120 (2013). If the state court did not decide a federal See Scott v. Ryan, 686 F.3d 20 21 Additionally, federal habeas corpus relief may be granted “only 22 on the ground that [Petitioner] is in custody in violation of the 23 Constitution or laws or treaties of the United States.” 24 2254(a). 25 of whether the petition satisfies section 2254(a) prior to, or in lieu 26 of, applying the standard of review set forth in section 2254(d). 27 Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc). 28 /// 28 U.S.C. § In conducting habeas review, a court may determine the issue 12 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 13 of 34 Page ID #:833 1 DISCUSSION 2 3 4 The First Amended Petition should be denied and dismissed with prejudice.4 5 6 7 I. Petitioner’s Various Claims of Ineffective Assistance of Counsel Do Not Merit Federal Habeas Relief. 8 9 Petitioner contends that his trial counsel was ineffective in 10 multiple respects. 11 to: (1) visit the crime scene; (2) interview the alleged victim or 12 Vang prior to trial; (3) subpoena the authors of the police reports as 13 witnesses to lay a foundation for statements in the reports to impeach 14 the prosecution’s witnesses, or seek a continuance to present those 15 authors; or (4) call an expert witness from Honda or an auto body shop Petitioner contends that counsel assertedly failed 16 4 17 18 19 20 21 22 23 24 25 26 27 28 The Court has read, considered and rejected on the merits all of Petitioner’s arguments. The Court discusses Petitioner’s principal arguments herein. Respondent argues that Grounds Three and Four herein, i.e., Petitioner’s claims that trial counsel was ineffective for failing to move to recuse the trial judge for potential bias, and his claim that the trial judge should have recused herself, are unexhausted and procedurally defaulted. Answer, pp. 15-20. The Court has exercised its discretion to deny these Grounds on the merits. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (in the interest of judicial economy, federal courts may address merits of defaulted habeas claim if issues on claim’s merits is clear but the procedural default issues are not); Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012), cert. denied, 133 S. Ct. 880 (2013) (“While we ordinarily resolve the issue of procedural bar prior to any consideration on the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.”) (citation omitted); Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (habeas court may deny on the merits unexhausted claims that are not “colorable”). 13 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 14 of 34 Page ID #:834 1 to impeach the alleged victim’s testimony concerning how the license 2 plate attached to her front bumper. 3 for recommending that Petitioner waive his right to a jury trial. 4 FAP Att., pp. A-1 - A-5; Opposition, p. 11. Petitioner also faults counsel See 5 6 Petitioner appears to have raised some but not all of these 7 claims in the Fifth State Petition that was filed with the California 8 Supreme Court. 9 Supreme Court all of his current ineffective assistance of counsel 10 claims with the supporting exhibits until he filed the Sixth State 11 Petition, which was denied as successive. 12 states that the California Supreme Court’s denial of the Fifth State 13 Petition exhausted Grounds One and Two. However, Petitioner did not present to the California Nonetheless, Respondent See Answer, pp. 20, 24, 29. 14 15 In any event, the Court need not determine whether the AEDPA 16 standard of review applies to Grounds One and Two. 17 below, Petitioner is not entitled to federal habeas relief, even under 18 a de novo review of these claims. As discussed 19 20 A. Standards Governing Claim of Ineffective Assistance of 21 Counsel 22 23 To establish ineffective assistance of counsel, Petitioner must 24 prove: 25 of reasonableness; and (2) there is a reasonable probability that, but 26 for counsel’s errors, the result of the proceeding would have been 27 different. 28 (1984) (“Strickland”). (1) counsel’s representation fell below an objective standard Strickland v. Washington, 466 U.S. 668, 688, 694, 697 A reasonable probability of a different result 14 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 15 of 34 Page ID #:835 1 “is a probability sufficient to undermine confidence in the outcome.” 2 Id. at 694. 3 counsel’s performance was reasonable or the claimed error was not 4 prejudicial. 5 2002) (“Failure to satisfy either prong of the Strickland test 6 obviates the need to consider the other.”) (citation omitted). The court may reject the claim upon finding either that Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 7 8 9 Review of counsel’s performance is “highly deferential” and there is a “strong presumption” that counsel rendered adequate assistance 10 and exercised reasonable professional judgment. 11 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) 12 (quoting Strickland, 466 U.S. at 689). 13 reasonableness of counsel’s conduct “on the facts of the particular 14 case, viewed as of the time of counsel’s conduct.” 15 U.S. at 690. 16 nor apply the fabled twenty-twenty vision of hindsight. . . .” 17 Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. 18 denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see 19 Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment 20 guarantees reasonable competence, not perfect advocacy judged with the 21 benefit of hindsight.”) (citations omitted). 22 burden to show that “counsel made errors so serious that counsel was 23 not functioning as the counsel guaranteed the defendant by the Sixth 24 Amendment.” 25 internal quotations omitted); see Strickland, 466 U.S. at 689 26 (petitioner bears burden to “overcome the presumption that, under the 27 circumstances, the challenged action might be considered sound trial 28 strategy”) (citation and quotations omitted). Williams v. Woodford, The court must judge the Strickland, 466 The court may “neither second-guess counsel’s decisions, Petitioner bears the Harrington v. Richter, 562 U.S. at 104 (citation and 15 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 16 of 34 Page ID #:836 1 “In assessing prejudice under Strickland, the question is not 2 whether a court can be certain counsel’s performance had no effect on 3 the outcome or whether it is possible a reasonable doubt might have 4 been established if counsel acted differently.” 5 Richter, 562 U.S. at 111 (citations omitted). 6 whether, in the absence of counsel’s alleged error, it is “‘reasonably 7 likely’” that the result would have been different. 8 Strickland, 466 U.S. at 696). 9 must be substantial, not just conceivable.” Harrington v. Rather, the issue is Id. (quoting “The likelihood of a different result Id. at 112. 10 11 B. Analysis 12 13 Petitioner’s myriad contentions regarding counsel’s alleged 14 ineffectiveness, raised as Grounds One and Two of the Petition and in 15 portions of the Opposition, do not merit federal habeas relief. 16 17 1. 18 Counsel’s Recommendation that Petitioner Waive Jury and Agree to a Bench Trial 19 20 Petitioner faults counsel for recommending that Petitioner waive 21 his right to a jury trial and agree to a bench trial instead. 22 Petitioner has failed to demonstrate that counsel’s recommendation was 23 unreasonable or prejudicial. 24 25 An attorney’s decision to advise his or her client to waive a 26 jury trial “is a classic example of a strategic trial judgment” which 27 constitutes “a conscious, tactical choice between two viable 28 alternatives.” Hatch v. State of Oklahoma, 58 F.3d 1447, 1459 (10th 16 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 17 of 34 Page ID #:837 1 Cir. 1995), cert. denied, 517 U.S. 1235 (1996) (citations omitted); 2 see Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir. 1995) (counsel not 3 ineffective for advising petitioner to waive jury and submit case on 4 stipulated facts); Thoel v. Leiback, 2002 WL 1990702 *4 (N.D. Ill. 5 Aug. 27, 2002) (“Petitioner cannot establish that his attorney’s 6 performance in recommending a bench trial fell below . . . an 7 objective standard of reasonableness, or that he was prejudiced by 8 this recommendation, as required by Strickland . . .”; see also Morris 9 v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 10 831 (1992) (if the court can conceive of a reasonable explanation for 11 counsel’s action or inaction, the court need not determine the actual 12 explanation). 13 14 As to Strickland’s prejudice requirement, Petitioner offers only 15 speculation that he would not have been convicted if his case had been 16 heard by 12 jurors rather than one judge with “prior case knowledge.” 17 (Opposition, pp. 11-12). 18 petty theft, a trier of fact need only find that Petitioner took or 19 carried away personal property of Richards of a value not exceeding 20 fifty dollars ($50). 21 Whitmer, 59 Cal. 4th 733, 744, 174 Cal. Rptr. 3d 594, 329 P.3d 154 22 (2014). 23 July 14, 2014, Richards parked her car with her front license plate 24 intact (R.T. 8). 25 witnessed Petitioner crouching in front of Richards’ car then leaving 26 with a licence plate in hand (R.T. 26-28). 27 Petitioner crouched and discovered that Richards’ front license plate 28 was missing from her car (R.T. 29). To find Petitioner guilty of misdemeanor See Cal. Penal Code §§ 484, 490.1; People v. The evidence adduced at trial was fairly straightforward. On After she parked, neighbor Vang returned home and 17 Vang went to where he saw Richards did not give Petitioner Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 18 of 34 Page ID #:838 1 permission to take the plate (R.T. 9). Petitioner did not testify at 2 trial, and the defense rested without presenting any evidence (R.T. 3 41). 4 reasonable trier of fact to find Petitioner guilty of petty theft. 5 See Respondent’s Lodgment 7, pp. 2-3 (Superior Court finding testimony 6 of Richards and Vang established the elements of petty theft). The prosecution’s evidence likely would have impelled any 7 8 The fact that, months before trial, the trial judge had been 9 privy to information regarding Petitioner’s case does not suggest 10 Petitioner suffered any prejudice from a bench trial rather than a 11 jury trial. See Osborn v. Belleque, 385 Fed. App’x 701, 703 (9th Cir. 12 2010) (petitioner whose counsel allegedly failed to advise him 13 adequately concerning a jury waiver could not show prejudice because, 14 in light of the overwhelming evidence at trial, a jury was no more 15 likely to acquit than the trial judge); Hensley v. Crist, 67 F.3d at 16 185 (counsel’s advice to waive jury trial and submit case to judge on 17 stipulated facts did not prejudice petitioner, where evidence was so 18 strong that “more likely than not [the petitioner] would have been 19 convicted had he gone to trial”); Ortiz v. Yates, 2010 WL 4628197, at 20 *30 (E.D. Cal. Nov. 5, 2010), adopted, 2011 WL 124758 (E.D. Cal. Jan. 21 14, 2011) (finding no Strickland prejudice due to bench trial where 22 the evidence against petitioner was “overwhelming,” and petitioner had 23 not shown a reasonable likelihood that he could have obtained a more 24 favorable result with a jury trial). 25 below, Petitioner has not proven any bias on the part of the trial 26 judge. 27 /// 28 /// 18 As explained in section II Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 19 of 34 Page ID #:839 1 2. Counsel’s Alleged Failures to Visit the Crime Scene and 2 Call An Expert to Testify Regarding How a License Plate 3 Would Attach to the Victim’s Car 4 5 Petitioner also faults counsel for allegedly failing to visit the 6 crime scene to see the Honda and “gain a clearer understanding that 7 there never had been a license plate attached to the Honda vehicle.” 8 Petitioner alleges that the Honda was parked in front of Petitioner’s 9 house from the time of the police reporting of the incident until a 10 few months after trial. 11 of the Honda “are not as clear as on site observation.” 12 p. A-1 - A-3; Opposition, pp. 11, 16. 13 for failing to present an expert witness who could have testified how 14 license plates are affixed. 15 pp. 11, 14-15, 19, 22. Petitioner further alleges that the pictures See FAP Att., Petitioner also faults counsel See FAP Att., p. A-1, A-4; Opposition, 16 17 Richards testified that there were two screws that held her 18 license plate on the front of her 1994 Honda Civic’s bumper (R.T. 6, 19 19). 20 license plate attached to the bumper (R.T. 18). 21 screw area there was a “little rubber piece” (or cap) that comes with 22 the Honda (R.T. 18). 23 18-19). 24 area on the right side, and a hole that “goes through the middle of 25 [the rubber cap]” (R.T. 19). 26 hole through the middle of the rubber cap in the photograph, and 27 Richards said, “I don’t understand. 28 my license plate on to this portion of my vehicle” (R.T. 19). Richards identified from a photograph two areas where the front On the left side There was no rubber cap on the right side (R.T. Richards said there were screw holes in the center of the Counsel asked Richards if there was no 19 ¶ There were two screws that held The Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 20 of 34 Page ID #:840 1 trial court admitted into evidence the photographs of the bumper from 2 which counsel suggested there was no visible left-side screw hole 3 (R.T. 41-42). 4 5 Richards admitted that, as part of her job, she drove on a movie 6 ranch over brush and things that nicked and scratched her bumper, and 7 that she regularly spray painted over the nicks and scratches (R.T. 8 14). 9 know the condition of her car, and the license plate could have fallen Defense counsel argued in closing that: (1) Richards did not 10 off from her work conditions; (2) Richards had spray painted the 11 bumper where the front license plate would have been, so the plate was 12 removed to paint the bumper and might have been put back on 13 incorrectly; and (3) a license plate could not be put over the cap 14 seen on the left side of the bumper – the license plate goes beneath 15 the cap (R.T. 45-47). 16 with the prosecutor’s rebuttal argument, that if Richards had removed 17 the plate to spray paint the bumper, there would have been paint on 18 the unpainted area of the bumper (R.T. 47-49). The court reasonably observed, in accordance 19 20 Petitioner has provided as exhibits unsworn, unverified letters 21 from: (1) Shane Wanjon, the purported owner of “Exclusive Image” dated 22 September 28, 2016; and (2) William Scott, Parts Manager at Autonation 23 Honda Valencia, undated (including a parts list that has a bracket for 24 front license plate assembly). 25 you have a front license plate, is to remove the caps filling the 26 holes, and put correct sized bolts thru the holes.” 27 Scott states: “When shown the photo’s [sic] of the vehicle in question 28 my first response was that there was never any license plate affixed Wanjon states: 20 “The correct way, when See FAP Att. Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 21 of 34 Page ID #:841 1 to this vehicle. . . . [B]ased on the fact that one of the 2 plugs is 2 still in the hole and looks to be the same paint color as the rest of 3 the car[,] and that there is no lower bracket or frame installed[,] I 4 would in my own opinion have to say that no front license plate was 5 ever attached to the front of this car. 6 designed to be attached [sic]. 7 be noted as such.” (id.). At least not the way it was This is just my own opinion and should 8 9 Unauthenticated, unsworn statements generally cannot carry a 10 habeas petitioner’s burden to show Strickland prejudice. 11 States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“evidence about 12 the testimony of a putative witness must generally be presented in the 13 form of actual testimony by the witness or an affidavit”); accord 14 United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. 15 denied, 467 U.S. 16 5975056, at *9 (C.D. Cal. Oct. 20, 2011), adopted, 2011 WL 5974672 17 (C.D. Cal. Nov. 29, 2011) (habeas petitioner’s unsworn assertion “is 18 not competent evidence”). 19 might suggest that the Honda’s front license plate may not have been 20 attached in the precise manner in which the assembly may have been 21 “designed to be attached.” 22 however. 23 always lacked an attached front license plate or that the Honda lacked 24 an attached front license plate on the day in question. 25 letters do not establish any substantial likelihood of a different 26 outcome at trial. 27 /// 28 /// See United 1251 (1984); see also Brown v. Swarthout, 2011 WL The letters (if accepted and believed) Such suggestion would prove little, The letters are not persuasive evidence that the Honda 21 In short, the Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 22 of 34 Page ID #:842 1 The fact, if it is a fact, that counsel did not physically 2 inspect the bumper prior to trial does not establish ineffective 3 assistance. 4 condition of the bumper. 5 would not have added anything material with respect to the license 6 plate’s installation. 7 visual inspection would have enabled counsel to weaken appreciably the 8 decisive testimony of the prosecution witnesses. Photographs in evidence adequately demonstrated the Counsel’s visual inspection of the bumper Petitioner has failed to demonstrate that a 9 10 3. Counsel’s Alleged Failures to Interview the 11 Prosecution’s Witnesses Prior to Trial and Subpoena and 12 Present the Authors of the Police Reports 13 14 Petitioner faults counsel for failing to interview Richards or 15 Vang prior to trial. 16 learned through pretrial interviews that Vang would testify 17 differently from the statements attributed to Vang in the police 18 reports, and could have anticipated the need to call the authors of 19 the police reports to impeach Vang, and to call the Honda experts to 20 impeach Richards regarding the attachment of the license plate to the 21 Honda. 22 steps to introduce Vang’s reported statements from police reports to 23 attempt to impeach Vang further. 24 Opposition, pp. 11, 16-18, 21-22. Petitioner suggests that counsel could have Petitioner faults counsel for failing to take the necessary See FAP Att., pp. A-1, A-3 - A-4; 25 26 Again, Petitioner has failed to demonstrate Strickland prejudice. 27 Initially, Petitioner has not shown that either Richards or Vang would 28 have consented to speak with Petitioner’s counsel before trial. 22 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 23 of 34 Page ID #:843 1 Neither Richards nor Vang would have been under any legal obligation 2 to do so. 3 916-17 (9th Cir. 2012); Cacoperdo v. Demosthenes, 37 F.3d 504, 509 4 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995). 5 arguendo Richards and Vang would have consented, Petitioner still has 6 failed to demonstrate Strickland prejudice. 7 in Section 2 above, any alleged harm from failing to interview 8 Richards prior to trial so that counsel could anticipate the supposed 9 need to call Honda experts for impeachment was insufficiently 10 See Fenenbock v. Director of Corrections, 692 F.3d 910, Assuming For the reasons discussed prejudicial. 11 12 As to Vang, he testified that he could not see what Petitioner 13 was doing when Petitioner was between the two parked cars, but Vang 14 did see Petitioner later walk through Petitioner’s yard with a license 15 plate in Petitioner’s hand. 16 Lodgment 2 (Vehicle Report, pp. 1-2) (stating in relevant part: “The 17 witness [Vang] stated he watched the suspect on 7/14/14 at approx. 18 2200 hrs. as he removed the front license plate from the victim’s 19 vehicle.”). 20 when Vang was exiting his vehicle he saw Petitioner crouched in front 21 of the Honda (R.T. 31, 40). 22 driving down the street. 23 Lodgment 2 (Supplementary Report, p. 1) (providing in relevant part: 24 “[Vang] stated that he arrived at his home at approx. 2200 hrs. and 25 parked in his driveway. 26 [Petitioner] crouched at the front of the victim’s vehicle.”). 27 was shown a copy of a police report and said, “Maybe it was taken down 28 mistakenly, but that’s not what happened.” See R.T. 28; compare Respondent’s Vang also testified that he did not tell the police that Vang said he saw Petitioner as Vang was See R.T. 31, 34; compare Respondent’s As he was exiting the vehicle, [Vang] saw 23 (R.T. 32). Counsel Vang Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 24 of 34 Page ID #:844 1 attempted to offer the statement in the police report in evidence, and 2 the court advised: 3 4 It’s not admissible in that regard. You can use it for 5 impeachment as a prior statement. 6 going to bring in the police officer to testify what was 7 said or wasn’t said, but the police report itself is not 8 admissible. . . . 9 I haven’t heard from a police officer as to whether it was I assume somebody is There’s been no foundation laid for that. 10 taken down correctly, whether it was described correctly. 11 Anything. 12 evidence. Police reports, in general, never come into 13 14 (R.T. 32-33). 15 16 Petitioner has not shown sufficient prejudice from any failure 17 further to attempt to impeach Vang’s testimony. The reports were not 18 verbatim recorded statements from Vang. 19 police reports and Vang’s testimony was relatively immaterial. 20 Nothing contradicted Vang’s testimony that he saw Petitioner walking 21 away from Richards’ car with a license plate in Petitioner’s hand. 22 Counsel questioned Vang at length with accompanying photographs 23 concerning the relationship of Vang’s house and yard to Petitioner’s 24 driveway, the distance from which Vang reportedly observed Petitioner, 25 the location of the two parked cars in relation to the street, and the 26 location where Vang hid in his yard to watch Petitioner near bushes 27 and trees (R.T. 33-39). 28 “straight perfect view” or “perfect vantage” of the whole side of The variance between the Vang stated that from his vantage he had a 24 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 25 of 34 Page ID #:845 1 Vang’s van, the front of Richards’ car, and the whole sidewalk (R.T. 2 36). 3 walk back in his yard from the cars with a license plate in hand (R.T. 4 28). Vang clearly and unequivocally testified that he saw Petitioner 5 6 For all the foregoing reasons, Petitioner is not entitled to 7 federal habeas relief on Ground One or Ground Two. 8 2254(a). See 28 U.S.C. § 9 10 II. Petitioner’s Claim of Judicial Bias and His Related Claim of 11 Ineffective Assistance of Counsel Do Not Merit Federal Habeas 12 Relief. 13 14 Petitioner contends that the trial judge should have recused 15 herself for bias because she had issued the arrest warrant in 16 Petitioner’s case months before trial (FAP, Ground Four; FAP Att., pp. 17 A-1 - A-2; Opposition, pp. 1, 3, 5-6, 8-9, 12, 14-19, 22-23). 18 Petitioner also contends that his trial counsel was ineffective for 19 failing to seek the recusal of the trial judge on this basis (FAP, 20 Ground Three; FAP Att., p. A-1; Opposition, p. 14). 21 22 A. Standards Governing Judicial Bias Claims 23 24 The Due Process Clause requires a “fair trial in a fair tribunal” 25 before a judge with no actual bias against the defendant. 26 Gramley, 520 U.S. 899, 904-05 (1997); Smith v. Mahoney, 611 F.3d 978, 27 997 (9th Cir.), cert. denied, 562 U.S. 965 (2010). 28 bias is claimed, habeas relief is limited to circumstances in which 25 Bracy v. Where judicial Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 26 of 34 Page ID #:846 1 the state trial judge’s behavior rendered the trial so fundamentally 2 unfair as to violate due process. 3 734, 740 (9th Cir. 1995), cert. denied, 517 U.S. 1158 (1996). 4 succeed on a judicial bias claim, Petitioner must “overcome a 5 presumption of honesty and integrity in those serving as 6 adjudicators.” 7 Palmateer, 515 F.3d 1057, 1067 (9th Cir.), cert. denied, 555 U.S. 871 8 (2008). See Duckett v. Godinez, 67 F.3d To Withrow v. Larkin, 421 U.S. 35, 47 (1975); Larson v. 9 10 “[N]ot subject to deprecatory characterization as ‘bias’ or 11 ‘prejudice’ are opinions held by judges as a result of what they 12 learned in earlier proceedings. 13 and proper for a judge to sit in the same case upon its remand, and to 14 sit in successive trials involving the same defendant.” 15 United States, 510 U.S. 540, 551 (1994). It has long been regarded as normal Liteky v. 16 17 [J]udicial rulings alone almost never constitute a valid 18 basis for a bias or partiality motion. 19 (i.e., apart from surrounding comments or accompanying 20 opinion), they cannot possibly show reliance upon an 21 extrajudicial source; and can only in the rarest 22 circumstances evidence the degree of favoritism or 23 antagonism required . . . when no extrajudicial source is 24 involved. * * * [O]pinions formed by the judge on the basis 25 of facts introduced on events occurring in the course of the 26 current proceedings, or of prior proceedings, do not 27 constitute a basis for a bias or partiality motion unless 28 they display a deep-seated favoritism or antagonism that 26 In and of themselves Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 27 of 34 Page ID #:847 1 would make fair judgment impossible. 2 3 Id. at 555; see also United States v. Johnson, 610 F.3d 1138, 1148 4 (9th Cir. 2010) (“Adverse findings do not equate to bias. 5 Judge Alsup did was outside his official duties or even shown to be 6 erroneous in any way.”); Taylor v. Regents Univ. of Cal., 993 F.2d 7 710, 712 (9th Cir. 1993) (per curiam), cert. denied, 510 U.S. 1076 8 (1994) (a judge’s prior adverse ruling is not sufficient cause for 9 recusal) (citations omitted). Nothing 10 11 B. Analysis 12 13 Petitioner has not shown that the judge harbored any “deep-seated 14 favoritism or antagonism that would make fair judgment impossible.” 15 Liteky v. United States, 510 U.S. at 555. 16 trial judge (months before trial) had reviewed the Complaint and 17 supporting police reports and had found probable cause to issue the 18 arrest warrant does not suggest that the judge was biased. 19 making a probable cause ruling is not prejudging the merits, but 20 rather is making a preliminary determination regarding the likelihood 21 the defendant committed a crime. 22 F.3d 1206, 1209 (9th Cir. 2011) (for probable cause there must exist a 23 fair probability that one committed a crime based on the totality of 24 the evidence); People v. Richardson, 43 Cal. 4th 959, 989, 77 Cal. 25 Rptr. 3d 163, 183 P.3d 1146 (2008), cert. denied, 555 U.S. 1177 (2009) 26 (“Probable cause to issue an arrest . . . warrant must . . . be based 27 on information contained in an affidavit providing a substantial basis 28 from which the magistrate can reasonably conclude there is a fair The mere fact that the A judge See Garcia v. County of Merced, 639 27 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 28 of 34 Page ID #:848 1 probability that a person has committed a crime”) (citation omitted); 2 see also Almont Ambulatory Surgery Center, LLC v. United Health Group, 3 Inc., 2015 WL 12807875, at *3 (C.D. Cal. Feb. 12, 2015) (“In any bench 4 trial, the judge will know considerably more about the case than the 5 evidence admitted at trial. 6 cause is not a finding of fact.”). 7 bench trial, the trial judge becomes privy to inadmissible evidence 8 while ruling on objections and motions in limine. 9 necessary judicial functions do not render the trial judge biased or Moreover, a determination of probable In connection with almost every These common and 10 otherwise require the judge’s recusal. 11 339, 346 (1981) (“In bench trials, judges routinely hear inadmissible 12 evidence that they are presumed to ignore when making decisions.”). See Harris v. Rivera, 454 U.S. 13 14 “Even a judge who is ‘exceedingly ill disposed towards the 15 defendant’ after presiding at trial ‘is not thereby recusable for bias 16 or prejudice, since his knowledge and the opinion it produced were 17 properly and necessarily acquired in the course of the proceedings.’ 18 ¶ 19 of a criminal case does not violate constitutional due process, 20 certainly reviewing an affidavit, finding mere probable cause to 21 believe the defendant has committed a crime, and authorizing the 22 filing of an Information does not.” 23 417900, at *1 (D. Mont. Jan. 30, 2015) (quoting Liteky v. United 24 States, 510 U.S. at 550-51); see also Ayers v. Kirkegard, 2015 WL 25 268870, at *1-2 (D. Mont. Jan. 21, 2015) (same; rejecting due process 26 challenge to judge’s further participation in criminal proceedings 27 after finding probable cause existed to file an information); cf. 28 United States v. Griffin, 874 F.2d 634, 637-38 (9th Cir. 1989) (in a If a judge’s formation of an opinion of a defendant in the course 28 Golden v. Kirkegard, 2015 WL Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 29 of 34 Page ID #:849 1 federal prosecution applying federal statutory recusal standards, 2 conviction affirmed even though the trial judge kept the citation and 3 police report on the bench during the trial; trial judge’s actions 4 deemed “not good practice,” but harmless). 5 arguments of judicial bias must be rejected. 6 defendant advances, equating knowledge acquired as part of pretrial 7 adjudication with an appearance of impropriety thus requiring recusal 8 for bench trial purposes, finds no support in law, ethics or sound 9 policy.” 10 In sum, Petitioner’s “The judicial test People v. Moreno, 70 N.Y.2d 403, 407, 516 N.E.2d 200, 203, 521 N.Y.S.2d 663, 666 (1987). 11 12 Petitioner also has failed to demonstrate that his counsel was 13 ineffective for failing to request the recusal of the trial judge 14 based on the judge’s finding of probable cause to arrest Petitioner. 15 As demonstrated above, any such request would have been futile. 16 Counsel cannot be deemed ineffective for failing to take a futile 17 action. 18 Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 19 U.S. 1142 (1997); Shah v. United States, 878 F.2d 1156, 1162 (9th 20 Cir.), cert. denied, 493 U.S. 869 (1989). See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir. 2008); 21 22 For the foregoing reasons, Petitioner is not entitled to federal 23 habeas relief on Ground Three or Ground Four. 24 2254(a). 25 /// 26 /// 27 /// 28 /// 29 See 28 U.S.C. § Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 30 of 34 Page ID #:850 1 RECOMMENDATION 2 3 For the reasons discussed above, IT IS RECOMMENDED that the Court 4 issue an order: (1) accepting and adopting this Report and 5 Recommendation; and denying and dismissing the First Amended Petition 6 with prejudice.5 7 8 DATED: July 6, 2017. 9 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Petitioner’s request for an evidentiary hearing is denied. Petitioner has had ample opportunity to develop the factual record, and Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to Petitioner’s claims. 30 Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 31 of 34 Page ID #:851 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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