Jeffrey Harold Smith v. Director of the CDCR

Filing 20

ORDER OVERRULING PETITIONER'S OBJECTIONS, ADOPTING THE REPORT AND RECOMMENDATION WITH ADDITIONAL ANALYSIS, and DENYING THE INEFFECTIVE-ASSISTANCE CLAIM RAISED BELATEDLY IN PETITIONER'S TRAVERSE by Judge Valerie Baker Fairbank for Report an d Recommendation (Issued) 13 . The Court will overrule petitioner's objections, adopt the well-reasoned Report and Recommendation, and deny the habeas petition for lack of merit, adding a brief note to reinforce the disposition of the recusal cl aim. The Court also holds that petitioner's claim of ineffective assistance due to counsel's failure to request a continuance of his probation-revocation hearing, raised for the first time in his traverse, lacks merit. Petitioner's ob jections are OVERRULED. The Report and Recommendation is ADOPTED. The petition for a writ of habeas corpus is DENIED. As required by Fed. R. Civ. P. 58(a)(1), the judgment is being issued as a separate document. This is a final order, but it will not be appealable unless petitioner obtains a certificate of appealability from the U.S. Court of Appeals for the Ninth Circuit. IT IS SO ORDERED. (mp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No.

CV 11-00521-VBF-AGR

Dated:

Title:

Jeffrey Harold Smith, Petitioner v. Director of the CDCR, Respondent

PRESENT:

HONORABLE VALERIE BAKER FAIRBANK, U.S. DISTRICT JUDGE
Linda Kanter
Courtroom Deputy

N/A
Court Reporter

ATTORNEYS PRESENT FOR PETITIONER:

ATTORNEYS PRESENT FOR RESPONDENT:

N/A
PROCEEDINGS (IN CHAMBERS):

June 19, 2013

N/A
ORDER OVERRULING PETITIONER’S
OBJECTIONS, ADOPTING THE REPORT AND
RECOMMENDATION WITH ADDITIONAL
ANALYSIS, and DENYING THE INEFFECTIVEASSISTANCE CLAIM RAISED BELATEDLY IN
PETITIONER’S TRAVERSE

The Court will overrule petitioner’s objections, adopt the well-reasoned Report and Recommendation,
and deny the habeas petition for lack of merit, adding a brief note to reinforce the disposition of the recusal
claim. The Court also holds that petitioner’s claim of ineffective assistance due to counsel’s failure to request
a continuance of his probation-revocation hearing, raised for the first time in his traverse, lacks merit.

Petitioner’s recusal claim fails essentially for the reasons stated by the R&R at 8-10. Adverse
rulings, such as the state court’s revocation of petitioner’s probation, are insufficient to demonstrate judicial bias,
Taylor v. Regents of Univ. of Calif., 993 F.2d 710, 712-13 (9th Cir. 1993), and in any event, the judge was notably
lenient with petitioner in the initial sentencing. The Court also notes that a party seeking recusal must point to

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-1-

some extrajudicial source for the bias, Liteky v. United States, 510 U.S. 540, 548, 114 S. Ct. 1147, 1154 (1994),
i.e., there must be a personal bias as distinguished from a judicial one, arising out of the judge’s background and
association and not his view of the law, United States v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979) (applying
28 U.S.C. § 144), and petitioner points to no such source. Nor has he alleged that the judge engaged in ex parte
contact or investigation outside the record which could require recusal. See In re Marshall, 403 B.R. 668, 680
(C.D. Cal. 2009) (collecting cases). The remarks petitioner made admitting probation violations were “off the
record” but made in court with others present, including petitioner’s counsel, and the judge rightly noted that
those people could testify as to what petitioner said (obviating any need for the judge to testify), R&R at 9-10.
Even broadly construing the need to avoid the appearance of bias, petitioner did not present evidence
suggesting that “a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality
might reasonably be questioned.” Herrington v. Sonoma Cty., 834 F.2d 1488, 1502 (9th Cir. 1987). Supreme
Court holdings set forth three circumstances in which the appearance of bias, as opposed to evidence of actual
bias, warrants recusal, Hurles v. Ryan, 706 F.3d 1021, 1046 (9th Cir. 2013) (citing Crater v. Galaza, 491 F.3d
1119, 1131 (9th Cir. 2007)): the judge has a “direct, personal, substantial pecuniary interest”, Crater, 491 F.3d
at 1131 (quoting Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437 (1927)); the judge became embroiled in “‘a
bitter, running controversy’” with a litigant, Crater, 491 F.3d at 1131 (quoting Mayberry v. Pennsylvania, 400
U.S. 455, 465 (1971)); or the judge acted as “‘part of the accusatory process.’” Crater, 491 F.3d at 1131
(quoting In re Murchison, 349 U.S. 133, 137, 75 S. Ct. 623 (1955)). Smith’s recusal “claim does not suggest
any possible connection of the [trial judge] to his case that approaches the prior involvement of the judges in
Tumey, Murchison, Mayberry, or Caperton.” Greenway v. Schriro, 653 F.3d 790, 807 (9th Cir. 2011).

The ineffective assistance claim discussed by the Magistrate likewise fails for the reasons stated by
the R&R at 10-13. Petitioner complains that his counsel who requested the hearing, Wilson, was unable to
attend due to a death in the family. That inability to attend, petitioner asserts, led the judge to rely on inaccurate
information in revoking probation because Wilson failed to properly instruct and prepare fill-in counsel. As the
Magistrate notes, petitioner merely shows that a better outcome was conceivable if replacement counsel had
demanded a hearing and requested recusal, whereas Strickland requires a finding that a better result would have

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-2-

been substantially likely. R&R at 12 (citing Harrington, 131 S. Ct. at 792); see also Cunningham v. Wong, 704
F.3d 1143, 1156 (9th Cir. 2013) (citing Cullen v. Pinholster, – U.S. –, 131 S. Ct. 1388, 1403 (2011)).
Moreover, consistent with the R&R at 13, the Court notes that petitioner did not identify any witnesses
willing and able to appear at a revocation hearing to dispute the substance of the violation allegations, nor did
he show any likelihood that a recusal request would have been granted if made by replacement counsel. Cf.
Henry v. Ryan, 2009 WL 692356, *45 (D. Ariz. Mar. 17, 2009) (denying § 2254 claim premised partly on refusal
to let petitioner testify at recusal hearing) (“Petitioner’s testimony about his perceptions of the judge’s attitude
. . . would not have revealed ‘a deep-seated favoritism or antagonism’ . . . . There is no likelihood that
Petitioner’s testimony would have altered [the] decision to deny the recusal motion. The Arizona Supreme
Court, in holding that Petitioner was not prejudiced . . . , did not unreasonably apply clearly established federal
law.”) (internal citation omitted), mot. to amend denied, 2009 WL 890971 (D. Ariz. Apr. 2, 2009).

Next, the Court notes that while petitioner’s opening brief here did not claim his counsel was
ineffective for failing to request a continuance of the revocation hearing, his traverse seems to make such
a claim. Petitioner complains about his counsel, “Not only did he not leave a note, he failed to advise his
replacement to postpone any of the cases.” Traverse (Doc 12) at 2.
Ordinarily a federal court refuses to consider arguments which a party raises for the first time in a reply
brief or later filing, even in criminal appeals, see, e.g., United States v. Akana, No. 12-10602, – F. App’x –, 2013
WL 2632593, *1 (9th Cir. June 13, 2013) (“We decline to reach Akana’s argument that the district court
improperly relied on the need for punishment in imposing sentence because it is raised for the first time in the
reply brief.”) (citing United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006)), and habeas proceedings, see,
e.g., Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in
petitioner’s reply brief are deemed waived.”) (citation omitted).
Our Circuit, however, has held that under some circumstances, “it may be an abuse of discretion for a
district court to refuse to consider new claims raised after the petition by a pro se petitioner.” Williams v.
Kramer, 2009 WL 2424582, *3 (E.D. Cal. Aug. 6, 2009) (citing Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002)
(holding that although petitioner did not raise argument until his objections to the R&R, under the circumstances
the district judge abused its discretion in refusing to consider that argument)); see also Akhtar v. Mesa, 698 F.3d

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-3-

1202 (9th Cir. 2012) (district court abused its discretion by refusing to consider arguments raised for the first
time in an incarcerated pro se section 1983 plaintiff’s objections to an R&R); Jones v. Blanas, 393 F.3d 918, 935
(9th Cir. 2004) (district court abused its discretion by refusing to consider arguments raised for the first time in
a pro se plaintiff’s objections to an R&R). Accordingly, in an abundance of caution, the Court exercises its
discretion to consider the claim relating to counsel’s failure to request a continuance, and concludes that it lacks
merit.

If the rationale for believing that competent counsel would have requested a continuance was that
counsel, who was well versed in the case, could attend rather than a less-prepared fill-in counsel, it was
reasonable to conclude that petitioner did not suffer Strickland prejudice from counsels’ failure to request a
continuance. There is no reason to believe that the unsupported recusal request would have succeeded if it had
been asserted by one counsel rather than another.
Alternately, if the rationale for requesting a continuance was that petitioner would have had more time
to contact witnesses or gather other evidence, it would again be reasonable to conclude that he did not suffer
Strickland prejudice from the failure to request a continuance. Petitioner has not identified particular testimony
he could have mustered with a continuance. See United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987)
(to demonstrate Strickland prejudice caused by failure to call a witness, a defendant must show what testimony
the witness would have given and explain how it would have changed the outcome); Dows v. Wood, 211 F.3d
480, 486 (9th Cir. 2000) (petitioner must provide affidavit from each witness stating he was willing and able to
testify at the proceeding and saying what he would have testified). For that reason, the Court cannot say there
was a substantial likelihood of the judge granting a continuance on this latter basis. Cf. Noble v. Scribner, 2010
WL 2674458, *35 (C.D. Cal. Apr. 23, 2010) (“[T]here is no reason to believe that any competent defense
attorney would have asked for a continuance when the prosecution’s motion to amend was granted . . . .
Moreover, there is no reason believe the trial court would have granted a continuance request . . . .”) (emphasis
added), R&R adopted, 2010 WL 2674464 (C.D. Cal. July 1, 2010).
Also because of this lack of specific intended testimony, this Court cannot say there was a substantial
likelihood of the judge issuing a more favorable decision on the recusal request or the probation violations if a
revocation hearing had been held later following a continuance. Cf. Kelsaw v. Horel, 2010 WL 3634337, *34

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-4-

(E.D. Cal. Sept. 14, 2010) (“Kelsaw has failed to demonstrate ineffective assistance of counsel because . . . there
is no evidence regarding what [witness] Ford would have testified to had she been recalled by the defense and
impeached with the substance of the undated recorded conversation. Kelsaw offers no . . . declaration from Ford
nor any other evidence to corroborate Horne’s assertion that the voice on the tape belonged to Ford.”).

Finally, the Court will overrule petitioner’s objections. The Report rightly recommended finding that
petitioner has not demonstrated that he was prejudiced by any supposedly deficient performance by his counsel,
R&R at 13. The judge terminated petitioner from the drug court program and probation on the basis of two
admissions made during the following colloquy:

COURT:

Do you admit that you violated Drug Court policy by drinking alcoholic
beverages since your son went into the Army?

PETITIONER:

Yes, Your Honor.

COURT:

And do you admit that you submitted falsified pay stubs to Patty Munson at the
Needles Center for Change?

PETITIONER:

Yes, Your Honor.

(LD 16 at 35.) In his Objections, Petitioner argues that the state court’s decision was not entitled to deference
because the state court failed to conduct an evidentiary hearing even though his evidence “controverted every
single declaration which the judge made against petitioner causing the judge to impose the six year sentence at
80%.” Petitioner’s Objections (Doc 19) at 3. Petitioner cites attachments to LD 14, his state habeas petition
before the California Supreme Court. Petitioner further argues that there is a reasonable probability of a
favorable outcome had the Vickers hearing not been waived. These arguments are not supported by the record.
Yet in his Objections, Petitioner admits he drank alcohol, merely portraying it as “a one time occurrence
when petitioner dropped his 17 year old Army-enlistee son off at the bus station to go to boot camp.”1 Id. at 4.

1

Petitioner cites a declaration from his appellate counsel:

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-5-

Petitioner further admits that the pay stubs were made by him instead of his employer.2 Id. at 5. Accordingly,
the two admissions that formed the basis of the judge’s decision to terminate petitioner’s probation and drugcourt placement are not controverted by LD 14. It is undisputed that petitioner was not allowed to consume any
alcohol. Petitioner argues that he performed the work reflected in the pay stubs, Objections at 5, but the judge
previously noted that the documents Petitioner submitted were documents petitioner created, even if he was
actually working for the employer. LD 16 at 29. The judge referred to the fact that he had previously given
petitioner a second chance but was not going to give him a third chance.3 Id.
Petitioner’s remaining objections likewise lack merit.

ORDER
Petitioner’s objections are OVERRULED.
The Report and Recommendation is ADOPTED.
The petition for a writ of habeas corpus is DENIED.

In March 2009, I spoke with petitioner’s mother. . . . She said she was asked by Patty Munson
of the Drug Court, Center for Change if she had seen her son drink while he was enrolled in Drug
Court. She told Ms. Munson that the only time was when petitioner dropped his 17 year old son
off at the bus to go to Army boot camp, petitioner was so upset he went down to the Colorado
River and drank some beer and then came back and told her “that was it” he was not going to
drown his sorrows any more that way and would support his son in his decision.
Khoury Decl. ¶ 4, Lodged Document (“LD”) 14 at Ex. D.
2

Petitioner again cites his appellate counsel’s declaration:
In March 2009 I was able to contact Jim Jones who employed petitioner Smith during the time
Smith was in Drug Court. Jones said that Smith was a valued worker but was an independent
contractor. He said . . . that [he] would have come to court to verify that Smith worked for him.
Khoury Decl. ¶ 3.
3

Petitioner disputes other facts that were discussed at times before the judge. Because those facts did not
form the basis of the judge’s decision, Petitioner has not shown a basis for federal habeas relief.

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-6-

As required by FED. R. CIV. P. 58(a)(1), the judgment is being issued as a separate document.4
This is a final order, but it will not be appealable unless petitioner obtains a certificate of appealability
from the U.S. Court of Appeals for the Ninth Circuit.5
IT IS SO ORDERED.

4

See Jayne v. Sherman, 706 F.3d 994, 1009 (9th Cir. 2013) (adopting opinion stating, “The Court will issue
a separate Judgment as required by Rule 58(a).”); Stratton v. Buck, 697 F.3d 1004, 1007 (9th Cir. 2012) (“The
district court apparently did not enter a separate Judgment, as required by FED. R. CIV. P. 58(a)(1).”); Bravo v.
City of Santa Maria, 665 F.3d 1076, 1079 n.5 (9th Cir. 2011).
5

See Korn v. US, 2013 WL 1163941, *18 (C.D. Cal. Mar. 20, 2013) (Fairbank, J.) (citing Muth v.
Fondren, 676 F.3d 815, 822 (9th Cir.) (citing 28 U.S.C. § 2253(c)(1)(B)), cert. denied, – U.S. –, 133 S. Ct. 292
(2012); see also FED. R. APP. P. 22(b)(1) (if district judge denies a COA, applicant may request a COA from a
circuit judge).

MINUTES FORM 90
CIVIL ‐ GEN

Initials of Deputy Clerk       Lk          

-7-