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)

Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 1 of 34 Page ID #:821

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT STEPHEN COUTURIER,

) NO. CV 16-8278-BRO(E)
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Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
THE PRESIDING JUDGE OF THE
) UNITED STATES MAGISTRATE JUDGE
LOS ANGELES SUPERIOR COURT,
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et al.,
)
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Respondents.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Beverly Reid O’Connell, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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On December 5, 2016, Petitioner filed the operative “First

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Amended Petition for Writ of Habeas Corpus By a Person in State

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Custody” (“First Amended Petition” or “FAP”), with attachments (“FAP

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Att.”).

On March 30, 2017, Respondent filed a “Motion to Dismiss and

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Answer to Petition for Writ of Habeas Corpus” (“Answer”).

The Answer

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asserts that two of the four claims raised in the First Amended

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Petition are unexhausted and procedurally defaulted, and that the

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remaining two claims fail on the merits.

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lodged multiple documents in support of the Answer (“Respondent’s

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Lodgments”), including the Clerk’s Transcript (“C.T.”) and Reporter’s

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Transcript (“R.T.”).

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with attachments (“Opposition Att.”).

Respondent concurrently

On May 3, 2017, Petitioner filed an Opposition

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On June 6, 2017, the case was reassigned from Magistrate Judge
Bristow to Magistrate Judge Eick.

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BACKGROUND

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A “Misdemeanor Complaint for Arrest Warrant” (“Complaint”) filed

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in the Los Angeles County Superior Court on October 10, 2014, alleged

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that on or about July 14, 2014, Petitioner committed petty theft by

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unlawfully stealing, taking, and carrying away the personal property

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of Felisa Richards (C.T. 1-3).

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attached to the Complaint “official reports and documents of a law

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enforcement agency” to establish probable cause consisting of, inter

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alia, an “Incident Report” and a “Vehicle Report,” both dated July 20,

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2014, and a “Supplementary Report” dated July 31, 2014 (C.T. 2; see

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also Respondent’s Lodgment 2 (copy of Complaint and attachments)).

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October 15, 2014, Judge Valerie Salkin issued the warrant upon a

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finding of probable cause (C.T. 3-4).

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///

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///

Complainant Detective E. Harrold

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On

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On October 30, 2014, Petitioner, proceeding pro per, appeared

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before Judge Salkin and, after waiving his right to counsel for the

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arraignment only and waiving the reading of the Complaint, pleaded not

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guilty to the charge (C.T. 6-7; R.T. A-1 - A-7).1

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On January 6, 2015, Petitioner, with the assistance of private

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counsel, waived his right to a jury trial (C.T. 10).

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bench trial on January 20, 2015, Judge Salkin found Petitioner guilty

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of petty theft, sentenced Petitioner to 36 months of probation, and

Following a

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issued a protective order requiring Petitioner to stay away from the

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victim (C.T. 12-15; R.T. 50-60).

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On September 22, 2015, the Appellate Division of the Los Angeles
County Superior Court affirmed the judgment.

The Appellate Division

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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:

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[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.
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found the evidence sufficient to support Petitioner’s conviction, and

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determined that Petitioner had failed to show his trial counsel was

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ineffective for: (1) recommending that Petitioner have a court trial

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instead of a jury trial; (2) not subpoenaing the deputy sheriff(s) who

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interviewed the witnesses and prepared a report of the interviews; and

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(3) not objecting when the prosecutor allegedly “coached” witnesses

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and assertedly misstated the witnesses’ testimony.

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Lodgments 4, 6, 7.

See Respondent’s

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On November 12, 2015, the California Court of Appeal summarily

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denied a petition to transfer the matter from the Appellate Division.

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See Respondent’s Lodgment 8 (order); Opposition Att. (containing copy

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of petition for transfer and exhibits thereto).

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the Appellate Division of the Los Angeles County Superior Court issued

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a remittitur affirming the judgment (Respondent’s Lodgment 9).

On November 30, 2015,

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On December 15, 2015, Petitioner filed a habeas petition with the

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Los Angeles County Superior Court (the “First State Petition”)

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(Respondent’s Lodgment 10).

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liberally, the Court deems Petitioner to have alleged therein a claim

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of ineffective assistance of trial counsel for: (1) recommending a

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bench trial; (2) failing to bring in an expert witness from Honda to

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testify concerning how license plates are attached to Honda bumpers;

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(3) failing to object to prosecutorial statements concerning certain

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evidence assertedly not in the record; (4) failing to subpoena and

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present police witnesses who assertedly could have laid a foundation

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for the police reports and the arguably inconsistent victim and

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witness statements contained therein; and (5) failing to ask for a

Construing the First State Petition

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continuance to subpoena and present police witnesses regarding the

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reports.

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Petition also alleged prosecutorial misconduct for “occasionally

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ma[king] statements that were not in the record of the trial” (id., p.

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14).

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Petition “summarily” for raising issues that had been raised and

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rejected on appeal, for raising issues that could have been raised on

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appeal but were not, and for failing to establish prejudice from

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counsel’s allegedly ineffective assistance (Respondent’s Lodgment 11

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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)).

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On February 9, 2016, Petitioner filed a second habeas petition

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with the Los Angeles County Superior Court (the “Second State

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Petition”) (Respondent’s Lodgment 12).

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alleged a claim of ineffective assistance of counsel similar to the

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claim alleged in the First State Petition, but with more factual

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detail.

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State Petition for raising issues that had been raised and rejected on

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direct appeal and in a prior habeas petition, for raising issues that

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could have been raised on appeal but were not, and for having filed a

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prior habeas petition that failed to raise claims contained in the

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current petition (Respondent’s Lodgment 13).

The Second State Petition

On February 17, 2016, the Superior Court denied the Second

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On February 12, 2016, Petitioner filed a habeas petition with the

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California Court of Appeal (the “Third State Petition”) (Respondent’s

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Lodgment 14).

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assistance of counsel claim previously alleged in the Second State

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Petition.

The Third State Petition alleged the same ineffective

On February 25, 2016, the California Court of Appeal denied
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the Third State Petition without prejudice to refiling in the Superior

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Court.

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682, 692, 10 Cal. Rptr. 3d 536, 85 P.3d 444 (2004); In re Hillery, 202

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Cal. App. 2d 293, 294, 20 Cal. Rptr. 759 (1962)).

See Respondent’s Lodgment 15 (citing In re Steele, 32 Cal. 4th

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On March 3, 2016, Petitioner filed another habeas petition with

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the Los Angeles County Superior Court (the “Fourth State Petition”)

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(Respondent’s Lodgment 16).

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ineffective assistance of counsel claim Petitioner previously alleged

The Fourth State Petition repeated the

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in the Second and Third State Petitions.

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Superior Court observed that the petition appeared to be a duplicate

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of the petitions filed on December 15, 2015, and February 9, 2016

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(i.e., the First and Second State Petitions) (Respondent’s Lodgment

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17).

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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

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On April 22, 2016, Petitioner filed a habeas petition with the

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California Supreme Court (the “Fifth State Petition”) (Respondent’s

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Lodgment 18).

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ineffective assistance of counsel previously alleged in the Second,

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Third, and Fourth State Petitions.

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copies of the police reports as exhibits to the Fifth State Petition.

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See Respondent’s Lodgment 18.

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Court summarily denied the Fifth State Petition (Respondent’s Lodgment

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19).

The Fifth State Petition alleged the same claim of

Petitioner included redacted

On May 25, 2016, the California Supreme

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On November 21, 2016, Petitioner filed another habeas petition
with the California Supreme Court (the “Sixth State Petition”)
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(Respondent’s Lodgment 20).

The Sixth State Petition alleged the

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claims now alleged in the First Amended Petition herein.

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and Respondent’s Lodgment 20, with Respondent’s Lodgment 18.

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Sixth Amended Petition presented for the first time unredacted

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exhibits later filed with the First Amended Petition.

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2016, the California Supreme Court denied the Sixth State Petition,

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citing In re Clark, 5 Cal. 4th 750, 797-98, 21 Cal. Rptr. 2d 509, 855

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P.2d 729 (1993), which indicated that the petition was successive.

Compare FAP
The

On December 21,

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SUMMARY OF TRIAL EVIDENCE AND THE TRIAL COURT’S FINDING OF GUILT

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The following summary is taken from the decision of the Appellate

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Division of the Los Angeles County Superior Court on direct appeal

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(Respondent’s Lodgment 7).2

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Felisa Richards [a.k.a. Felisa Bayze], Christopher

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Vang, and [Petitioner] were neighbors and lived on a cul-de-

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sac in Castaic, California [R.T. 5, 7, 9, 12-13, 24-26].

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July 14, 2014, Richards parked her vehicle, a Honda Civic

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with the front and rear license plates affixed, in front of

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[Petitioner’s] home and behind Vang’s van [R.T. 6-8].

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Richards did not give [Petitioner] permission to remove or

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take her license plate [R.T. 9].

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day that the [front] plate was missing [R.T. 8-9].

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She discovered the next

On

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The Court has reviewed the Reporter’s Transcript and
has confirmed that the Appellate Division accurately summarized
the evidence.
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At approximately 10:00 p.m. on July 14, 2014, Vang was

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driving home when he observed [Petitioner] crouched behind

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Vang’s van and in front of Richards’s [sic] vehicle [R.T.

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26].

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yard real quick,” and return to the area between the van and

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the car [R.T. 27-28].

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emerge from between the two vehicles and “walk back in his

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yard with a [license] plate in his hand” [R.T. 28, 37].

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After [Petitioner] went inside, Vang approached the parked

Vang observed [Petitioner] “pop up and go into his

Vang then observed [Petitioner]

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vehicles and noticed his rear license plate was still there

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but Richard’s [sic] front plate was missing [R.T. 29-30].

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Vang was approximately 70 feet from [Petitioner] while

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watching him, and he could not see what [Petitioner] was

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doing when he was between the two vehicles [R.T. 28, 34-37].

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He also testified that the area was illuminated by a street

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light that was above the two vehicles [R.T. 28-29].

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(Respondent’s Lodgment 7, pp. 1-2).

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The Court found Petitioner guilty, stating:

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. . . the part I just can’t get around, and why I am going

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to find you guilty, Mr. Couturier, is that Mr. Vang

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testified, and I found him believable that he saw you with

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the license plate.

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other way.

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¶ 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.

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trying to question that, but the prior inconsistent

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statement, if made, we don’t have the information that that

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was made.

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admitted, and even if it was made, maybe the officer got it

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wrong, maybe he didn’t, I don’t know, but I have what I have

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here.

He was asked about a police report that was not

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(R.T. 49-50).

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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1.

His trial counsel was ineffective for assertedly:

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(a) performing unreasonably in virtually every aspect of

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representation (Ground One; Ground Two; Opposition);3 and

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(b) specifically failing to seek recusal of the trial judge on the

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ground the trial judge had signed Petitioner’s arrest warrant (and

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therefore had seen the police reports relating to the alleged crime)

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(Ground Three);

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2.

The trial judge erred by failing to recuse herself (Ground

Four).

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See FAP, pp. 5-6; FAP Attach., pp. A1 - A5.

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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.
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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

(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

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

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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.

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Greene v. Fisher, 565
A

(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).

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,

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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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101 (2011).

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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.”

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).

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Id.

“As a condition

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

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

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

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error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

Id. at 103.

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In applying these standards, the Court ordinarily looks to the

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last reasoned state court decision.

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F.3d 919, 925 (9th Cir. 2008).

See Delgadillo v. Woodford, 527

Where no reasoned decision exists, as

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

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

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state 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, 563 U.S. 170, 188 (2011) (citation, quotations

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and brackets omitted).

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constitutional issue of the merits, this Court must consider that

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issue under a de novo standard of review.

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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

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Additionally, federal habeas corpus relief may be granted “only

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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).

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///

28 U.S.C. §

In conducting habeas review, a court may determine the issue

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DISCUSSION

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The First Amended Petition should be denied and dismissed with
prejudice.4

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I.

Petitioner’s Various Claims of Ineffective Assistance of Counsel
Do Not Merit Federal Habeas Relief.

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Petitioner contends that his trial counsel was ineffective in

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multiple respects.

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to: (1) visit the crime scene; (2) interview the alleged victim or

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Vang prior to trial; (3) subpoena the authors of the police reports as

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witnesses to lay a foundation for statements in the reports to impeach

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the prosecution’s witnesses, or seek a continuance to present those

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authors; or (4) call an expert witness from Honda or an auto body shop

Petitioner contends that counsel assertedly failed

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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”).
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to impeach the alleged victim’s testimony concerning how the license

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plate attached to her front bumper.

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for recommending that Petitioner waive his right to a jury trial.

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FAP Att., pp. A-1 - A-5; Opposition, p. 11.

Petitioner also faults counsel
See

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Petitioner appears to have raised some but not all of these

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claims in the Fifth State Petition that was filed with the California

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Supreme Court.

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Supreme Court all of his current ineffective assistance of counsel

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claims with the supporting exhibits until he filed the Sixth State

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Petition, which was denied as successive.

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states that the California Supreme Court’s denial of the Fifth State

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Petition exhausted Grounds One and Two.

However, Petitioner did not present to the California

Nonetheless, Respondent

See Answer, pp. 20, 24, 29.

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In any event, the Court need not determine whether the AEDPA

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standard of review applies to Grounds One and Two.

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below, Petitioner is not entitled to federal habeas relief, even under

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a de novo review of these claims.

As discussed

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A.

Standards Governing Claim of Ineffective Assistance of

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Counsel

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To establish ineffective assistance of counsel, Petitioner must

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prove:

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

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

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different.

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

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Id. at 694.

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

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prejudicial.

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

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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.

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Review of counsel’s performance is “highly deferential” and there
is a “strong presumption” that counsel rendered adequate assistance

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and exercised reasonable professional judgment.

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

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

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

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

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U.S. at 690.

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

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

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

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

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guarantees reasonable competence, not perfect advocacy judged with the

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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

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Recommendation; and denying and dismissing the First Amended Petition

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with prejudice.5

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DATED:

July 6, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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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.
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Case 2:16-cv-08278-BRO-E Document 22 Filed 07/06/17 Page 31 of 34 Page ID #:851

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NOTICE
Reports and Recommendations are not appealable to the Court of

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

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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