Dalray Kwane Andrews v. W.L. Montgomery

Filing 29

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge R. Gary Klausner for Report and Recommendation (Issued) 23 . IT IS ORDERED that: (1) Petitioner's "Request for Judicial Notice, etc." is denied as moot; and (2) Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (dml)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 DALRAY KWAME ANDREWS, ) NO. ED CV 16-0090-RGK(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) W.L. MONTGOMERY, Warden, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) _________________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Petitioner filed a “Petition for Writ of Habeas Corpus By a 26 Person in State Custody” on January 15, 2016. 27 Answer on May 9, 2016. 28 June 20, 2016. Respondent filed an Petitioner filed a Traverse (Reply) on Petitioner filed “Petitioner’s Request for Judicial 1 Notice, etc.” on July 8, 2016, 2 3 BACKGROUND 4 5 A jury found Petitioner guilty of the first degree murder of 6 Joshua Huizar (Count 1), attempted second degree robbery (Count 2), 7 and assault with a semiautomatic firearm on Huizar’s girlfriend, 8 Viridiana Sanchez (Count 3) (Reporter’s Transcript [“R.T.”] 178-79; 9 Clerk’s Transcript [“C.T.”] 52-56, 121-26, 132-33). The jury found 10 true the allegations that Petitioner personally used a firearm in the 11 commission of the offenses (R.T. 178-79; C.T. 121-26). 12 court imposed the middle term of three years on the attempted robbery 13 count and added a ten year firearm enhancement for a total term of 14 thirteen years on that count (R.T. 191; see C.T. 147).1 15 sentenced Petitioner to a term of twenty-five years to life for the 16 murder and added a ten-year firearm enhancement for a total term of 17 thirty-five years to life on that count (R.T. 191; C.T. 147). 18 court indicated that Petitioner would serve the determinate term 19 first, followed by the indeterminate term (R.T. 191; C.T. 147). 20 court stayed sentence on the assault count (R.T. 191; C.T. 147). 21 Thus, Petitioner received a total sentence of forty-eight years to 22 life (R.T. 191-92; C.T. 147). The sentencing The court The 23 1 24 25 26 27 28 Although the Court stated that it was imposing “the upper term of three years” on the second degree robbery count (see R.T. 191), the Clerk’s Transcript and the Abstract of Judgment indicate that the Court imposed a three-year middle term (see C.T. 147, 152). Three years is the middle term for second degree robbery under California Penal Code section 213(a)(2). People v. Moody, 96 Cal. App. 4th 987, 990, 117 Cal. Rptr. 2d 527 (2002). This apparent discrepancy is immaterial to the issues presented here. 2 The 1 The California Court of Appeal affirmed (Respondent’s Lodgment 5; 2 see People v. Andrews, 2014 WL 505716 (Cal. App. Feb. 10, 2014)). 3 Petitioner did not file a petition for review in the California 4 Supreme Court (Petition, p. 3). 5 6 Petitioner filed a habeas corpus petition in the San Bernardino 7 County Superior Court, which that court denied in a brief written 8 order (Respondent’s Lodgments 6, 7). 9 petition in the California Court of Appeal, which that court denied Petitioner filed a habeas corpus 10 summarily (Respondent’s Lodgments 8, 9). 11 corpus petitions in the California Supreme Court (Respondent’s 12 Lodgments 10, 12). 13 petition summarily and denied the second petition with citations to In 14 re Clark, 5 Cal. 4th 750, 767-69, 21 Cal. Rptr. 2d 509, 855 P.2d 729 15 (1993) (“Clark”), People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 16 2d 259, 886 P.2d 1252 (1995) (“Duvall”), and In re Waltreus, 62 Cal. 17 2d 218, 42 Cal. Rptr. 9, 397 P.2d 1001, cert. denied, 382 U.S. 853 18 (1965) (“Waltreus”) (Respondent’s Lodgments 11, 13). Petitioner filed two habeas The California Supreme Court denied the first 19 20 SUMMARY OF TRIAL EVIDENCE 21 22 The prosecution’s evidence showed the following: 23 24 The murder victim, Joshua Huizar, and his girlfriend 25 Viridiana Sanchez, were in a car waiting in a fast-food 26 restaurant drive-through line when Petitioner approached and 27 tried to open the locked driver’s side door of Huizar’s car 28 (R.T. 32, 43). Petitioner tapped a gun on the driver’s side 3 1 window and demanded money (R.T. 26-31). Huizar said he had 2 no money and obeyed Petitioner’s demand to roll the car 3 window down, rolling the window down halfway (R.T. 31). 4 Petitioner put the gun through the window, pointed it at 5 Huizar’s head and again demanded money (R.T. 31-32). 6 Huizar said the victims had no money, Petitioner pointed the 7 gun at Sanchez’ head and said “shut up, bitch” and “[g]ive 8 me your money” (R.T. 34). 9 pockets, pulled out Huizar’s wallet and opened the wallet, When Petitioner reached into Huizar’s 10 finding no money but only a fake bill (R.T. 34-36). 11 Pointing the gun at Huizar, Petitioner again reached into 12 Huizar’s pockets and took a cell phone (R.T. 36). 13 14 The vehicle in line in front of Huizar’s car moved 15 forward (R.T. 37). 16 leave (R.T. 37). 17 Huizar accelerated and attempted to 67-69, 119). The gun fired, killing Huizar (R.T. 37-39, 18 19 At trial, the prosecution called Petitioner’s 20 girlfriend, Victoria Nauls. She claimed to have little or 21 no memory of anything material. 22 remember whether Petitioner was her boyfriend at the time of 23 the incident, whether she spoke to Petitioner after the 24 shooting or whether she spoke to a detective after the 25 shooting (R.T. 51). 26 sending text messages to Petitioner in which she told 27 Petitioner that he had “killed that boy at Del Taco,” that 28 he was “going to jail,” that he would “be in jail soon for She purported not to Nauls also claimed she did not recall 4 1 murder,” and that she, Nauls, was “calling and snitching” 2 (R.T. 52). 3 Petitioner told her “the guns were at the house” (R.T. 53). Nauls also claimed she did not recall that 4 5 Rialto police detective Rory Scalf testified that Scalf 6 looked through Petitioner’s cell phone and read the text 7 messages from Nauls to Petitioner (R.T. 57-58). 8 interviewed Nauls at the police station, Nauls reportedly 9 was evasive and said she did not recall the text messages When Scalf 10 (R.T. 59). Scalf told Nauls that he did not think Nauls was 11 being honest and that if he learned she was hiding anything 12 she could be charged with a crime (R.T. 60). 13 said Petitioner had told Nauls that Petitioner “had shot 14 that boy” and that “it was an accident” (R.T. 61). Nauls then 15 16 Police found a spent 9mm casing in the drive-through 17 area (R.T. 73, 99). Petitioner’s fingerprint was found on 18 the driver’s side door of Huizar’s vehicle (R.T. 81-83, 130- 19 31). 20 21 The prosecution played a tape of Petitioner’s interview 22 with police, in which Petitioner stated that “it was an 23 accident,” that he “didn’t mean to do it” and that the gun 24 “just went off” as Huizar tried to drive away (R.T. 93, 96; 25 C.T. 158-59, 166-67). 26 the car window with the gun, demanded money from Huizar and 27 took Huizar’s wallet, but Petitioner said that he threw the 28 wallet back when Huizar claimed to have no money (C.T. 160- Petitioner admitted that he tapped 5 1 62, 166). Petitioner admitted that Petitioner’s finger was 2 on the trigger when the gun fired (C.T. 159). 3 said he ran away after the shooting and claimed he had 4 thrown the gun in a trash can (C.T. 163-64). 5 thought the gun was a 9 millimeter Glock (C.T. 165). Petitioner Petitioner 6 7 During the interview with police, Petitioner asked if 8 he could speak with his girlfriend (Nauls), and Petitioner 9 was permitted a brief conversation with her (C.T. 157). 10 This conversation was recorded (R.T. 96-97; C.T. 168-69). 11 During the conversation, Petitioner told Nauls: “I didn’t 12 tell them about the gun” (C.T. 168). 13 “Shh, there [sic] out there, they’re out there in the hall, 14 go get my gun out my mama house [sic]. 15 in a crate. . . .” (C.T. 168; see R.T. 97). Petitioner also said: Is in the backyard 16 17 Police later went to the home of Petitioner’s mother 18 and discovered two guns in a crate in the backyard, one of 19 which was a 9 millimeter Glock (R.T. 97-99). 20 damage to the Glock, no ballistics comparisons were possible 21 (R.T. 103). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 Due to some PETITIONER’S CONTENTIONS1 1 2 3 Petitioner contends: 4 5 6 1. Petitioner’s trial counsel allegedly rendered ineffective assistance, by assertedly: 7 8 9 a. failing to challenge the admission of Petitioner’s pretrial statements to police and Petitioner’s pretrial 10 statements to Nauls pursuant to Miranda v. Arizona, 384 U.S. 436 11 (1966) (“Miranda”); 12 13 b. failing to object to alleged hearsay evidence; c. failing to object to the gun evidence, and; d. failing to call a fingerprint expert; 14 15 16 17 18 19 20 2. The cumulative effect of trial counsel’s alleged errors assertedly prejudiced Petitioner; 21 22 3. The sentencing court allegedly erred by deeming the attempted 23 robbery count to be the principal count instead of deeming the murder 24 count to be the principal count; 25 26 27 28 1 The Petition references and incorporates the arguments made in Petitioner’s California Supreme Court habeas petitions attached to the Petition as Exhibits J and K. 7 1 2 4. Petitioner’s appellate counsel allegedly rendered ineffective assistance, by assertedly failing to raise on appeal: 3 4 5 a. the claims of alleged ineffective assistance of trial counsel summarized above; and 6 7 b. the alleged sentencing error described above;2 and 8 9 5. The trial court allegedly violated Faretta v. California, 422 10 U.S. 806 (1975) (“Faretta”) by denying Petitioner’s eve of trial 11 request to represent himself. 12 13 STANDARD OF REVIEW 14 15 Under the “Antiterrorism and Effective Death Penalty Act of 1996" 16 (“AEDPA”), a federal court may not grant an application for writ of 17 habeas corpus on behalf of a person in state custody with respect to 18 any claim that was adjudicated on the merits in state court 19 proceedings unless the adjudication of the claim: (1) “resulted in a 20 decision that was contrary to, or involved an unreasonable application 21 of, clearly established Federal law, as determined by the Supreme 22 Court of the United States”; or (2) “resulted in a decision that was 23 based on an unreasonable determination of the facts in light of the 24 evidence presented in the State court proceeding.” 28 U.S.C. § 25 26 27 28 2 Petitioner’s Reply appears to concede that contentions 1-4 do not merit federal habeas relief. Petitioner has not amended the Petition, however. Out of an abundance of caution, the Court will consider the merits of all of the contentions in the Petition. 8 1 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. 2 Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 3 (2000). 4 legal principle or principles set forth by the Supreme Court at the 5 time the state court renders its decision on the merits. 6 Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 7 71-72 (2003). 8 established Federal law if: (1) it applies a rule that contradicts 9 governing Supreme Court law; or (2) it “confronts a set of facts . . . 10 materially indistinguishable” from a decision of the Supreme Court but 11 reaches a different result. 12 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06. “Clearly established Federal law” refers to the governing Greene v. A state court’s decision is “contrary to” clearly See Early v. Packer, 537 U.S. at 8 13 14 Under the “unreasonable application prong” of section 2254(d)(1), 15 a federal court may grant habeas relief “based on the application of a 16 governing legal principle to a set of facts different from those of 17 the case in which the principle was announced.” 18 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 19 U.S. at 24-26 (state court decision “involves an unreasonable 20 application” of clearly established federal law if it identifies the 21 correct governing Supreme Court law but unreasonably applies the law 22 to the facts). Lockyer v. Andrade, 23 24 “In order for a federal court to find a state court’s application 25 of [Supreme Court] precedent ‘unreasonable,’ the state court’s 26 decision must have been more than incorrect or erroneous.” 27 Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court’s 28 application must have been ‘objectively unreasonable.’” 9 Wiggins v. Id. at 520–21 1 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 2 (2009); Davis v. Woodford, 384 F.3d 628, 637–38 (9th Cir. 2004), cert. 3 dism’d, 545 U.S. 1165 (2005). 4 determine what arguments or theories supported, . . . or could have 5 supported, the state court’s decision; and then it must ask whether it 6 is possible fairminded jurists could disagree that those arguments or 7 theories are inconsistent with the holding in a prior decision of this 8 Court.” 9 only question that matters under § 2254(d)(1).” “Under § 2254(d), a habeas court must Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the Id. at 102 (citation 10 and internal quotations omitted). 11 “there is no possibility fairminded jurists could disagree that the 12 state court’s decision conflicts with [the United States Supreme 13 Court’s] precedents.” 14 corpus from a federal court, a state prisoner must show that the state 15 court’s ruling on the claim being presented in federal court was so 16 lacking in justification that there was an error well understood and 17 comprehended in existing law beyond any possibility for fairminded 18 disagreement.” Id. Habeas relief may not issue unless “As a condition for obtaining habeas Id. at 103. 19 20 In applying these standards, the Court looks to the last reasoned 21 state court decision. 22 (9th Cir. 2008). 23 state court summarily denies a claim, “[a] habeas court must determine 24 what arguments or theories . . . could have supported the state 25 court’s decision; and then it must ask whether it is possible 26 fairminded jurists could disagree that those arguments or theories are 27 inconsistent with the holding in a prior decision of this Court.” 28 Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations See Delgadillo v. Woodford, 527 F.3d 919, 925 Where no reasoned decision exists, as where the 10 1 and brackets omitted). Where a state court rejects a federal claim 2 presented to it without expressly addressing the claim, a federal 3 habeas court generally must presume that the state court decided the 4 claim on the merits. 5 (2013). Johnson v. Williams, 133 S. Ct. 1088, 1094-96 6 7 Additionally, federal habeas corpus relief may be granted “only 8 on the ground that [Petitioner] is in custody in violation of the 9 Constitution or laws or treaties of the United States.” 28 U.S.C. § 10 2254(a). 11 of whether the petition satisfies section 2254(a) prior to, or in lieu 12 of, applying the standard of review set forth in section 2254(d). 13 Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc). 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// In conducting habeas review, a court may determine the issue 11 DISCUSSION3 1 2 3 I. 4 Petitioner’s Claims of Ineffective Assistance of Trial Counsel Do Not Merit Federal Habeas Relief. 5 6 A. Governing Legal Standards 7 8 To establish ineffective assistance of counsel, Petitioner must 9 prove: (1) counsel’s representation fell below an objective standard 10 of reasonableness; and (2) there is a reasonable probability that, but 11 for counsel’s errors, the result of the proceeding would have been 12 different. 13 (1984) (“Strickland”). 14 “is a probability sufficient to undermine confidence in the outcome.” 15 Id. at 694. 16 counsel’s performance was reasonable or the claimed error was not 17 prejudicial. 18 2002) (“Failure to satisfy either prong of the Strickland test 19 obviates the need to consider the other.”) (citation omitted). 20 /// Strickland v. Washington, 466 U.S. 668, 688, 694, 697 A reasonable probability of a different result The court may reject the claim upon finding either that Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 21 22 3 23 24 25 26 27 28 Unless otherwise indicated herein, the Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Franklin v. Johnson, 290 F.3d 1223, 1229, 1232-33 (9th Cir. 2002); see also Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.), cert. denied, 528 U.S. 846 (1999) (“judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated”). Hence, Petitioner’s “Request for Judicial Notice, etc.,” directed to the issue of procedural default, should be denied as moot. 12 1 Review of counsel’s performance is “highly deferential” and there 2 is a “strong presumption” that counsel rendered adequate assistance 3 and exercised reasonable professional judgment. 4 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) 5 (quoting Strickland, 466 U.S. at 689). 6 reasonableness of counsel’s conduct “on the facts of the particular 7 case, viewed as of the time of counsel’s conduct.” 8 U.S. at 690. 9 nor apply the fabled twenty-twenty vision of hindsight. . . .” Williams v. Woodford, The court must judge the Strickland, 466 The court may “neither second-guess counsel’s decisions, 10 Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. 11 denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see 12 Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment 13 guarantees reasonable competence, not perfect advocacy judged with the 14 benefit of hindsight.”) (citations omitted). 15 burden to show that “counsel made errors so serious that counsel was 16 not functioning as the counsel guaranteed the defendant by the Sixth 17 Amendment.” 18 internal quotations omitted); see Strickland, 466 U.S. at 689 19 (petitioner bears burden to “overcome the presumption that, under the 20 circumstances, the challenged action might be considered sound trial 21 strategy”) (citation and quotations omitted). Petitioner bears the Harrington v. Richter, 562 U.S. at 104 (citation and 22 23 A state court’s decision rejecting a Strickland claim is entitled 24 to “a deference and latitude that are not in operation when the case 25 involves review under the Strickland standard itself.” 26 Richter, 562 U.S. at 101. 27 not whether counsel’s actions were reasonable. 28 whether there is any reasonable argument that counsel satisfied Harrington v. “When § 2254(d) applies, the question is 13 The question is 1 Strickland’s deferential standard.” Id. at 105. 2 3 “In assessing prejudice under Strickland, the question is not 4 whether a court can be certain counsel’s performance had no effect on 5 the outcome or whether it is possible a reasonable doubt might have 6 been established if counsel acted differently.” 7 omitted). 8 alleged error, it is “‘reasonably likely’” that the result would have 9 been different. Id. at 111 (citations Rather, the issue is whether, in the absence of counsel’s Id. (quoting Strickland, 466 U.S. at 696). “The 10 likelihood of a different result must be substantial, not just 11 conceivable.” Id. at 112. 12 13 Petitioner raised his claims of ineffective assistance of trial 14 counsel in his Superior Court habeas petition, which that court denied 15 on the ground that Petitioner had failed to support his claims with 16 non-conclusory factual allegations or documentary evidence (see 17 Petition, Exhibits, ECF Dkt. No. 1, pp. 28-29; ECF Dkt. No. 17-6, pp. 18 12-18; Respondent’s Lodgment 7, ECF Dkt. No. 17-7). 19 the Superior Court was the last reasoned state court decision 20 regarding these claims. This decision of 21 22 B. Analysis 23 24 25 1. Failure to Move to Suppress Petitioner’s Statements to Police and to Nauls 26 27 28 Miranda generally bars the use of statements elicited by custodial interrogation unless the person in custody first was 14 1 informed of his or her constitutional rights. Miranda, 384 U.S. at 2 444-45. 3 consist of any words or actions on the part of the police (other than 4 those normally attendant to arrest and custody) that the police should 5 know are reasonably likely to elicit an incriminating response from 6 the suspect.” 7 cert. denied, 132 S. Ct. 419 (2011) (citation omitted). “Miranda . . . only appl[ies] to interrogations, which Mickey v. Ayers, 606 F.3d 1223, 1235 (9th Cir. 2010), 8 9 At the preliminary hearing, and at trial, the police detective 10 who interviewed Petitioner testified that the detective had advised 11 Petitioner of his Miranda rights at the commencement of the interview 12 (C.T. 9; R.T. 90). 13 testimony. 14 present at the preliminary hearing and at trial) ever told his counsel 15 that Petitioner supposedly believed he had not received his Miranda 16 advisements at the interview with the detective. 17 charged with ineffectiveness for failing to make a suppression motion 18 where counsel had no reason to believe there was any factual basis for 19 such a motion. 20 of counsel’s actions may be determined . . . by the defendant’s own 21 statements or actions. 22 properly, . . . on information supplied by the defendant.”); cf. 23 Langford v. Day, 110 F.3d 1380, 1387 (9th Cir. 1996), cert. denied, 24 522 U.S. 881 (1997) (counsel not ineffective for failing to 25 investigate a possible motion to suppress the petitioner’s confession 26 where the petitioner did not inform counsel of the petitioner’s 27 alleged refusal to waive his Miranda rights, but rather said he had 28 waived those rights, and counsel otherwise was unaware of the Petitioner did not then controvert the detective’s Nothing in the record suggests that Petitioner (who was Counsel cannot be See Strickland, 466 U.S. at 691 (“The reasonableness Counsel’s actions are usually based, quite 15 1 petitioner’s alleged refusal). 2 Petitioner has not shown a reasonable probability of a different 3 result if Petitioner’s statements to police had been excluded. 4 was substantial other evidence of Petitioner’s guilt, including: 5 (1) Petitioner’s fingerprint on the driver’s side door of Huizar’s 6 car; (2) Petitioner’s inculpatory statements to Nauls admitting 7 Petitioner was the shooter and instructing Nauls to have someone 8 retrieve the gun Petitioner used in the shooting from his mother’s 9 backyard; and (3) the discovery of a 9 millimeter Glock in the 10 backyard of Petitioner’s mother. 11 Furthermore, and in any event, There Accordingly, Petitioner has not shown Strickland prejudice. 12 13 To the extent Petitioner contends counsel should have moved to 14 suppress Petitioner’s recorded statements to Nauls on Miranda grounds, 15 counsel reasonably could have believed that any such motion would fail 16 (regardless of whether Miranda warnings had been given). 17 courts have held that allowing a defendant to converse with his family 18 or other third persons does not amount to interrogation.” 19 States v. Wiggins, 2013 WL 1645180, at *7 (W.D.N.Y. Apr. 16, 2013), 20 adopted, 2013 WL 2553971 (W.D.N.Y. June 10, 2013) (citing cases); see 21 Arizona v. Mauro, 481 U.S. 520, 528-29 (1987) (defendant’s 22 conversation with his wife not the “functional equivalent” of police 23 interrogation for purposes of Miranda, where defendant “was not 24 subjected to compelling influences, psychological plots, or direct 25 questioning” by police); Williams v. Nelson, 457 F.2d 376, 377 (9th 26 Cir. 1972) (upholding the admissibility of a custodial conversation 27 between the petitioner and a codefendant recorded by means of a 28 concealed microphone in a room where the two had been placed by law 16 “Numerous United 1 enforcement; “Trickery does not constitute coercion”); McCraw v. 2 Harrington, 2012 WL 1570534, at *6-7 (C.D. Cal. Jan. 19, 2012), 3 adopted, 2012 WL 1570529 (C.D. Cal. May 2, 2012) (petitioner’s 4 recorded phone calls with alleged co-perpetrator and others held 5 admissible despite lack of Miranda advisements); Williams v. Runnels, 6 2008 WL 4482869, at *9-10 (E.D. Cal. Sept. 29, 2008), adopted, 2008 WL 7 5099733 (E.D. Cal. Dec. 1, 2008) (Miranda did not bar use of 8 inculpatory statements made by the petitioner to his girlfriend while 9 in a police interrogation room); People v. Tate, 49 Cal. 4th 635, 685- 10 87, 112 Cal. Rptr. 3d 156, 234 P.3d 428 (2010), cert. denied, 562 U.S. 11 1274 (2011) (defendant’s statements to girlfriend in police interview 12 room admissible despite alleged lack of Miranda warnings). 13 cannot be faulted for failing to make a futile motion to suppress. 14 See Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008), cert. 15 denied, 558 U.S. 932 (2009) (to show a Strickland violation, a 16 petitioner must show a reasonable probability that, had counsel made 17 the motion, the motion would have been granted); Rupe v. Wood, 93 F.3d 18 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (“the 19 failure to take a futile action can never be deficient performance”); 20 Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 21 493 U.S. 869 (1989) (“[T]he failure to raise a meritless legal 22 argument does not constitute ineffective assistance of counsel”; 23 citation and internal quotations omitted). Counsel 24 25 2. Failure to Object to Alleged Hearsay Evidence 26 27 Petitioner contends counsel should have objected to the 28 introduction of Nauls’ alleged hearsay statements recounting 17 1 Petitioner’s inculpatory statements to Nauls. Petitioner does not 2 dispute that Petitioner’s statements to Nauls were admissible under 3 the party admission exception to the hearsay rule. 4 Code § 1220. 5 Naul’s statements as prior inconsistent statements. 6 Code § 1235; People v. Ledesma, 39 Cal.4th 641, 711–712, 47 Cal. Rptr. 7 3d 326, 140 P.3d 657 (2006), cert. denied, 549 U.S. 1324 (2007) (“when 8 a witness’s claim of lack of memory amounts to deliberate evasion, 9 inconsistency is implied”) (citations, internal quotations and See Cal. Evid. Nor does Petitioner challenge the admissibility of See Cal. Evid. 10 brackets omitted). 11 statements were involuntary, and hence allegedly inadmissible, because 12 Scalf assertedly threatened Nauls with imprisonment (see Petition, Ex. 13 K, ECF Dkt. No. 1, pp. 81-82). 14 Scalf’s testimony describing the interview with Nauls stating that, 15 after Nauls disclaimed any memory of sending the text messages, Scalf 16 told Nauls that Scalf “didn’t think she was being honest” and that if 17 Scalf “learned that she was hiding something or trying to help 18 [Petitioner] -- involved in this case, that she could be charged as 19 well with a crime” (Petition, ECF Dkt. No. 1, p. 81; R.T. 60). 20 Petitioner relies on California cases holding that the admission of 21 the involuntary statement of a third party which renders a trial 22 fundamentally unfair violates the Fifth Amendment, including People v. 23 Douglas, 50 Cal. 3d 468, 268 Cal. Rptr. 126, 788 P.2d 640 (1990), 24 abrogated on other grounds, People v. Marshall, 50 Cal. 3d 907, 933 25 n.4, 269 Cal. Rptr. 269, 790 P.2d 907 (1990), and People v. Underwood, 26 61 Cal. 2d 113, 37 Cal. Rptr. 313, 389 P.2d 937 (1964) (Petition, ECF 27 Dkt. No. 1, p. 82). 28 /// Rather, Petitioner asserts that Naul’s prior Petitioner references a portion of 18 1 Even assuming arguendo Petitioner’s counsel could have excluded 2 Nauls’ statements to Scalf, counsel reasonably could have decided as a 3 matter of strategy that Naul’s statements to Scalf would benefit 4 rather than impair Petitioner’s defense. 5 inculpatory statements to police, counsel reasonably could have 6 believed that the best defense strategy was to argue that the shooting 7 was an accident and that Petitioner did not harbor an intent to kill 8 (see R.T. 154 [counsel’s closing argument]). 9 Petitioner told her Petitioner “shot that boy” and that “it was an In light of Petitioner’s Nauls told Scalf that 10 accident” (R.T. 61). 11 Petitioner’s own statements to police. 12 Petitioner was crying and very upset when he made these statements to 13 her (R.T. 61). 14 could not believe what had happened and that Petitioner “didn’t shoot 15 him but the gun went off” (R.T. 61). 16 bolstered counsel’s argument regarding Petitioner’s alleged lack of 17 the requisite intent. 18 unsuccessful does not prove counsel’s ineffectiveness. 19 v. Ryan, 820 F.3d 1013, 1025 (9th Cir. 2016) (court “must be careful 20 not to conclude that a particular act or omission of counsel was 21 unreasonable simply because the defense was ultimately unsuccessful”) 22 (citation and internal quotations omitted). These statements were consistent with Nauls also said that Nauls told Scalf that Petitioner had said that he Thus, Naul’s statements to Scalf The fact that counsel’s strategy ultimately was See Gallegos 23 24 3. Failure to Object to Gun Evidence 25 26 Petitioner contends counsel should have objected to the admission 27 of the evidence concerning the guns found at the house of Petitioner’s 28 mother (Petition, Ex. K, ECF Dkt. No. 1, p. 83). 19 Petitioner contends 1 that, because the ballistics tests could not link either gun to the 2 shooting, counsel should have objected to the introduction of the gun 3 evidence as unduly prejudicial pursuant to California Evidence Code 4 section 352 (Petition, Ex. K, ECF Dkt. No. 1, p. 83).4 5 also contends the gun evidence was inadmissible as the “fruit” of an 6 interrogation allegedly conducted in violation of Miranda (Petition, 7 Ex. K, ECF Dkt. No. 1, p. 83). Petitioner 8 9 Although the ballistics evidence could not link a gun to the 10 shooting, Petitioner’s own statements provided the link. 11 above, Petitioner told police he thought he used a 9 millimeter Glock 12 in the shooting. 13 and retrieve the gun Petitioner used in the shooting. 14 found a 9 millimeter Glock at that location. 15 relevance of this gun evidence, counsel reasonably could have 16 determined that any objection to the admission of the evidence as 17 unduly prejudicial would have been futile. As indicated Petitioner told Nauls to go to his mother’s house Police later In light of the profound 18 19 Petitioner’s argument that the guns were inadmissible as the 20 “fruit” of an alleged Miranda violation also fails to prove counsel’s 21 ineffectiveness. 22 was aware of any alleged Miranda violation. 23 reasonably could have determined that any “fruit of the poisonous As indicated above, Petitioner fails to show counsel Moreover, counsel 24 25 26 27 28 4 Under California Evidence Code section 352, a trial court has the discretion to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (1) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” 20 1 tree” argument would have failed as matter of law. See United States 2 v. Patane, 542 U.S. 630, 633-34 (2004) (failure to give a suspect 3 Miranda warnings does not require “suppression of the physical fruits 4 of the suspect’s unwarned but voluntary statements”); People v. Davis, 5 46 Cal. 4th 539, 598-99, 94 Cal. Rptr. 3d 322, 208 P.3d 78 (2009), 6 cert. denied, 558 U.S. 1124 (2010) (“The fruit of the poisonous tree 7 doctrine does not apply to physical evidence seized as a result of a 8 noncoercive Miranda violation.”) (citations omitted). 9 10 Counsel’s failure to make a futile objection to the gun evidence 11 was not constitutionally ineffective. 12 1445; Shah v. United States, 878 F.2d at 1162. See Rupe v. Wood, 93 F.3d 13 14 4. Failure to Call a Fingerprint Expert 15 16 Petitioner also faults counsel for failing to call a fingerprint 17 expert “to verify the accuracy of the results” reached by the 18 prosecution’s fingerprint expert (Petition, Ex. K, ECF Dkt. No. 1, pp. 19 83-84). 20 fingerprint expert might have undercut (rather than reinforced) the 21 testimony of the prosecution expert is insufficient to support a 22 habeas claim. 23 2001). 24 enough to establish [Strickland] prejudice.” 25 F.3d 365, 373 (9th Cir. 1997); see Young v. McGrath, 2007 WL 2580593 26 (E.D. Cal. Sept. 5, 2007), adopted, 2007 WL 4246056 (E.D. Cal. 27 Nov. 29, 2007) (petitioner failed to show prejudice from counsel’s 28 asserted failure to have DNA tests conducted on blood on petitioner’s Petitioner’s speculation that the testimony of some other See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. “Speculation about what an expert would have said is not 21 Grisby v. Blodgett, 130 1 pants; “[b]ecause the results of DNA tests are unknown, it is 2 impossible to say the lack of DNA testing prejudiced petitioner’s 3 defense”). 4 5 5. Conclusion 6 7 For all of the foregoing reasons, the state court’s rejection of 8 Petitioner’s claims of ineffective assistance of trial counsel was not 9 contrary to, or an objectively unreasonable application of, any 10 clearly established Federal Law as determined by the United States 11 Supreme Court. 12 562 U.S. 86, 100-03 (2011). 13 habeas relief on these claims. See 28 U.S.C. section 2254(d); Harrington v. Richter, Petitioner is not entitled to federal 14 15 16 II. Petitioner Is Not Entitled to Federal Habeas Relief on His Claim of Cumulative Error. 17 18 Petitioner asserts that trial counsel’s alleged errors, described 19 above, cumulatively prejudiced Petitioner (Petition, Exhibits, Ex. K, 20 ECF Dkt. No. 2, p. 84). 21 Superior Court habeas petition, which that court denied without 22 addressing the claim expressly (although the court did address 23 Petitioner’s claims of ineffective assistance) (see Petition, 24 Exhibits, ECF Dkt. No. 1, pp. 28-29; Respondent’s Lodgment 6, ECF Dkt. 25 No. 17-6, p. 18; Respondent’s Lodgment 7, ECF Dkt. No. 17-7). 26 Court presumes the Superior Court denied the claim on the merits. 27 Johnson v. Williams, 133 S. Ct. 1088, 1094-96 (2013). 28 Court of Appeal and the California Supreme Court subsequently denied Petitioner presented this claim in his 22 The See The California 1 this claim summarily. Hence, there is no reasoned state court 2 decision regarding this claim. 3 what arguments or theories could have supported the state courts’ 4 rejection of the claim and then consider “whether it is possible 5 fairminded jurists could disagree that those arguments or theories are 6 inconsistent with the holding in a prior decision of [the United 7 States Supreme Court].” Accordingly, this Court will determine Harrington v. Richter, 562 U.S. at 101. 8 9 The state courts did not act unreasonably in rejecting this 10 claim. 11 process even when no single error amounts to a constitutional 12 violation or requires reversal, habeas relief is warranted only where 13 the errors infect a trial with unfairness.” 14 F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S. Ct. 426 (2012). 15 Habeas relief on a theory of cumulative error is appropriate when 16 there is a “‘unique symmetry’ of otherwise harmless errors, such that 17 they amplify each other in relation to a key contested issue in the 18 case.” 19 denied, 133 S. Ct. 424 (2012) (citation omitted). 20 Petitioner’s individual claims of ineffective assistance of counsel 21 all fail, his claim of cumulative prejudice necessarily fails as well. 22 See Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013), cert. denied, 23 134 S. Ct. 2697 (2014) (“Given that the California Supreme Court was 24 not necessarily unreasonable in concluding that Sully was not 25 prejudiced by any of the alleged errors in isolation, it was also not 26 necessarily unreasonable in concluding that Sully was not prejudiced 27 by the alleged errors in the aggregate.”); see generally Hayes v. 28 Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no “While the combined effect of multiple errors may violate due Payton v. Cullen, 658 Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert. 23 Because 1 error of constitutional magnitude occurred, no cumulative prejudice is 2 possible.”) (citation omitted). 3 4 5 III. Petitioner’s Claim of Sentencing Error Does Not Merit Federal Habeas Relief. 6 7 Petitioner asserts that the sentencing court erred by designating 8 the sentence on the attempted robbery count as the principal term. 9 According to Petitioner, the court should have designated the sentence 10 on the murder count as the principal term and should have imposed one 11 third the term on the attempted robbery count. 12 this claim is unexhausted because Petitioner allegedly failed to 13 present the claim to the California Supreme Court as a federal claim. Respondent contends 14 15 This Court need not address the issue of exhaustion. For the 16 reasons discussed below, Petitioner’s sentencing claim is not 17 “colorable.” 18 merits. 19 cert. denied, 546 U.S. 1172 (2006) (habeas court may deny on the 20 merits an unexhausted claim that is not “colorable”). Therefore, the Court should deny the claim on the See Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005), 21 22 Petitioner presented his sentencing claim to the Superior Court, 23 which rejected the claim without expressly discussing it (see 24 Respondent’s Lodgment 6, ECF Dkt. No. 17-6, p. 19; Respondent’s 25 Lodgment 8, ECF Dkt. No. 7; Petition, Exhibits, ECF Dkt. No. 1, pp. 26 28-29). 27 petition as claims of ineffective assistance of trial and appellate 28 counsel (Petition, Exhibits, ECF Dkt. No. 1, p. 28; Respondent’s The Superior Court described the claims presented in that 24 1 Lodgment 7, ECF Dkt. 17-7, p. 1). Hence, it is unclear whether the 2 Superior Court ever considered Petitioner’s sentencing claim. 3 Johnson v. Williams, 133 S. Ct. at 1094-96. 4 whether the AEDPA standard of review applies or whether a de novo 5 standard of review applies, this claim does not merit federal habeas 6 relief. See However, regardless of 7 8 9 Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal 10 constitutional question. 11 507 (9th Cir. 1994), cert. denied, 514 U.S. 1026 (1995) (“The decision 12 whether to impose sentences concurrently or consecutively is a matter 13 of state criminal procedure and is not within the purview of federal 14 habeas corpus.”) (citation omitted); see also Wilson v. Corcoran, 562 15 U.S. 1, 5 (2010) (per curiam) (“it is only noncompliance with federal 16 law that renders a State’s criminal judgment susceptible to collateral 17 attack in the federal courts”) (original emphasis). See Cacoperdo v. Demosthenes, 37 F.3d 504, 18 19 Under narrow circumstances, however, the misapplication of state 20 sentencing law may violate due process. 21 U.S. 40, 50 (1992). 22 whether [the error] is so arbitrary or capricious as to constitute an 23 independent due process” violation. 24 citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th 25 Cir. 1994) (“Absent a showing of fundamental unfairness, a state 26 court’s misapplication of its own sentencing laws does not justify 27 federal habeas relief.”). 28 /// See Richmond v. Lewis, 506 “[T]he federal, constitutional question is 25 Id. (internal quotation and 1 Here, there was no sentencing error. Under California law, the 2 sentencing court must calculate an indeterminate term separately from 3 any determinate term and may not make the indeterminate term a 4 “principal term.” 5 97 Cal. Rptr. 3d 913 (2009). 6 by Petitioner would have violated California law. 7 Petitioner is not entitled to federal habeas relief on his sentencing 8 claim. 9 (9th Cir. 2008) (en banc). See People v. Neely, 176 Cal. App. 4th 787, 797-99, Thus, the sentencing approach suggested See id. Therefore, See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d 724, 736-37 10 11 12 IV. Petitioner’s Claims of Ineffective Assistance of Appellate Counsel Do Not Merit Federal Habeas Relief. 13 14 The standards of Strickland and its progeny govern claims of 15 ineffective assistance of appellate counsel as well as claims of 16 ineffective assistance of trial counsel. 17 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th 18 Cir. 2001), cert. denied, 535 U.S. 995 (2002); see also Daire v. 19 Lattimore, 818 F.3d 454, 461 (9th Cir. 2016) (en banc) (clearly 20 established Supreme Court law holds that Strickland applies to claim 21 of ineffective assistance of counsel in noncapital sentencing 22 proceedings). 23 raise all non-frivolous issues on appeal. 24 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 25 1102, 1109 (9th Cir. 2010), cert. denied, 132 S. Ct. 346 (2011) 26 (appellate counsel is not required to raise a meritless issue on 27 appeal). 28 weed out claims that have no likelihood of success, instead of See Smith v. Robbins, 528 Appellate counsel has no constitutional obligation to See Pollard v. White, 119 “A hallmark of effective appellate counsel is the ability to 26 1 throwing in a kitchen sink full of arguments with the hope that some 2 argument will persuade the court.” 3 1435. See Pollard v. White, 119 F.3d at 4 5 Petitioner raised his claims of ineffective assistance of 6 appellate counsel in his Superior Court habeas petition, which that 7 court denied on the ground that Petitioner had failed to support his 8 claims with non-conclusory factual allegations or documentary evidence 9 (see Petition, Exhibits, ECF Dkt. No. 1, pp. 28-29; ECF Dkt. No. 17-6, 10 p. 11; Respondent’s Lodgment 7, ECF Dkt. No. 17-7). 11 the Superior Court was the last reasoned state court decision 12 regarding these claims. 13 not unreasonable. This decision of For the following reasons, this decision was 14 15 Petitioner’s claim that appellate counsel rendered ineffective 16 assistance by allegedly failing to raise Petitioner’s claims of trial 17 counsel’s ineffectiveness plainly fails. 18 Petitioner’s claims of trial counsel’s ineffectiveness lack merit. 19 Appellate counsel cannot be deemed ineffective for failing to raise 20 unmeritorious claims. 21 petitioner failed to show trial counsel’s alleged ineffectiveness 22 prejudiced petitioner, appellate counsel’s failure to argue trial 23 counsel’s alleged ineffectiveness “was neither deficient 24 representation nor prejudicial”); Featherstone v. Estelle, 948 F.2d 25 1497, 1507 (9th Cir. 1991) (where trial counsel’s performance did not 26 fall below the Strickland standard, “petitioner was not prejudiced by 27 appellate counsel’s decision not to raise issues that had no merit”) 28 (footnote omitted). As discussed above, all of See Moormann v. Ryan, 628 F.3d at 1109 (where 27 1 Petitioner’s claim that appellate counsel failed to raise 2 Petitioner’s sentencing claim also necessarily lacks merit. For the 3 reasons stated in section III above, Petitioner’s sentencing claim is 4 not even “colorable.” 5 this claim was neither unreasonable nor prejudicial. Therefore, appellate counsel’s failure to raise 6 7 It follows that the Superior Court’s rejection of Petitioner’s 8 claims of ineffective assistance of appellate counsel was not contrary 9 to, or an objectively unreasonable application of, any clearly 10 established Federal Law as determined by the United States Supreme 11 Court. 12 100-03. 13 claims. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. at Petitioner is not entitled to federal habeas relief on these 14 15 16 V. Petitioner Is Not Entitled to Federal Habeas Relief on His Faretta Claim. 17 18 A. Background 19 20 Under Faretta, a criminal defendant is constitutionally entitled 21 to waive his or her Sixth Amendment right to counsel and to represent 22 himself or herself at trial. 23 v. Calderon, 108 F.3d 261, 264-65 (9th Cir.), cert. denied, 521 U.S. 24 1111 (1997) (Faretta rule clearly established by United States Supreme 25 Court for purposes of 28 U.S.C. section 2254(d)). 26 law, a Faretta request must be: (1) knowing and intelligent; 27 (2) unequivocal; (3) timely; and (4) not asserted for purposes of 28 delay. Faretta, 422 U.S. at 820-21; see Moore Under Ninth Circuit Hirschfield v. Payne, 420 F.3d 922, 926 (9th Cir. 2005); 28 1 United States v. Schaff, 948 F.2d 501, 503 (9th Cir. 1991). 2 3 At Petitioner’s arraignment on April 21, 2011, the court 4 appointed the public defender to represent Petitioner (C.T. 4). On 5 April 29, 2011, the public defender declared a conflict and the court 6 appointed a conflict panel attorney to represent Petitioner (C.T. 5). 7 This attorney represented Petitioner at the preliminary hearing and 8 during pretrial proceedings (C.T. 5-6, 11-14, 17, 22, 57-68). 9 pretrial conference on Thursday, October 25, 2012, the court set a At a 10 “readiness calendar date” of Friday, December 7, 2012, and a jury 11 trial date of Monday, December 10, 2012 (C.T. 68). 12 13 On Friday, December 7, 2012, Petitioner’s counsel advised the 14 court that Petitioner had told counsel that morning that Petitioner 15 wanted to “go pro per” (R.T. 1). 16 wanted to go over some “important information” with counsel at the 17 jail rather than in court (R.T. 1). 18 (R.T. 1). 19 that the court had indicated in a chambers conference that the court 20 intended to hear motions Monday morning and to start jury selection 21 Monday afternoon (R.T. 1-2). 22 address the court (R.T. 2). Counsel also stated that Petitioner Counsel requested a continuance The court denied the request for a continuance, stating Counsel then said Petitioner wanted to 23 24 Petitioner told the court that his counsel was “a good lawyer” 25 (R.T. 2). Petitioner nevertheless claimed he wanted to represent 26 himself at trial (R.T. 2). 27 /// 28 /// The following then occurred: 29 1 2 The Court: Okay. We’re on for assignment calendar. You ready to start on Monday? 3 4 5 [Petitioner]: at my case? I mean, can I -- if I go pro per, can I look Can I study it for a minute? 6 7 The Court: What do you mean for a minute? 8 9 [Petitioner]: A couple of months? 10 11 The Court: No, sir. We’ve been -- just do a quick 12 recitation here. Date of offense is April 20, 2011. The 13 arraignment on the Information was April 21st of 2011. 14 Defender was on the case for one or two appearances and 15 conflicted off. 16 counsel] has been on it since at least May of 2011. Public And for the Conflict Panel, [Petitioner’s 17 18 Several continuances on the pre-preliminary hearing 19 calendar. Went to preliminary hearing on August 31st of 2011 and 20 held to answer. 21 estimating, at least ten appearances since then. 22 request to go pro per. That’s over a year ago. There’s been, No prior 23 24 So the request to go pro per on the date of assignment 25 calendar, the Court finds that to be untimely . . . the defense 26 ready to go next week? 27 28 [Petitioner’s counsel]: Yes. 30 1 2 [The Court]: So Court finds the request to go pro per is untimely and that is denied. 3 4 [Petitioner]: Could you file a motion that -- saying that I 5 wasn’t ready for trial? 6 7 The Court: Well, what you said and what [Petitioner’s 8 counsel] has said regarding what you wanted to talk about is on 9 the record. There’s certainly going to be time to talk to you 10 before the trial starts on Monday and before witnesses are called 11 on Wednesday. 12 13 There will be time for you to have a discussion with 14 [Petitioner’s counsel] about -- I don’t want you to tell me what 15 you want to talk about because that’s between you and 16 [Petitioner’s counsel], but there will certainly be time for 17 discussion. 18 for discussion for the past year and a half as well. Of course there’s been, in the Court’s opinion, time 19 20 R.T. 2-3). 21 22 Jury selection began on Monday, December 10, 2012 (R.T. 10). 23 24 Petitioner claims the trial court erred by denying his Faretta 25 request. 26 claim on the merits, ruling that it was “clear that [Petitioner] was 27 just trying to delay the inevitable (or perhaps build error into the 28 case)” (see Respondent’s Lodgment 5, ECF Dkt. No. 17-5, pp. 4-7; On direct review, the California Court of Appeal denied this 31 1 People v. Andrews, 2014 WL 505716, at *2-3). 2 The Court of Appeal stated: 3 4 In this case, as quoted above, defendant himself 5 described [Petitioner’s counsel] as a “good lawyer,” thus 6 conceding that he had no quarrel with her performance to 7 that point. . . . 8 long period of time during which defendant, while 9 represented by [Petitioner’s counsel], sat mute and [T]here had been multiple hearings over a 10 acquiescent. His professed desire for self-representation 11 manifested itself only at the last minute before trial. 12 Furthermore, defendant asked for two months of preparation 13 time - a substantial additional delay and disruption to the 14 court, counsel, the nine witnesses who testified, and the 15 unquestionably substantial summoned jury pool. 16 that the trial court had these points in mind and 17 substantial evidence supports its exercise of discretion. 18 The conclusion that the request was prompted solely by a 19 desire to put off the trial date is amply justified. We presume 20 21 . . . When a defendant who has sat quietly for well 22 over a year suddenly stands up on the eve of a trial, which 23 could result in a life sentence, and announces that he 24 wishes to represent himself and have a “couple of months” to 25 study his case, there is nothing arbitrary in the court’s 26 determination that the request is designed to create a delay 27 and should be refused. 28 /// 32 1 (Respondent’s Lodgment 5, ECF Dkt. No. 17-5, pp. 4-6; People v. 2 Andrews, 2014 WL 505716, at *2-3) (footnote omitted). 3 4 Petitioner presented his Faretta claim to the California Supreme 5 Court in his second habeas corpus petition filed in that court (see 6 Respondent’s Lodgment 12). 7 Court denied that petition with citations (Respondent’s Lodgment 13). As indicated above, the California Supreme 8 9 B. Standard of Review 10 11 Petitioner argues that, because the California Supreme Court 12 assertedly rejected his Faretta claim on procedural grounds, the AEDPA 13 standard of review does not apply (see Reply, ECF Dkt. No. 20, pp. 7, 14 11-15). 15 cert. denied, 539 U.S. 916 (2003) (AEDPA standard of review 16 inapplicable where state supreme court denied claim on procedural 17 grounds and there was no state court decision on the merits). 18 Petitioner argues that review should be de novo, and that this Court 19 should apply the Ninth Circuit’s “jury empanelment” rule (a rule not 20 endorsed by the United States Supreme Court) (see Reply, ECF Dkt. No. 21 20, pp. 11-15) (citing Burton v. Davis, 816 F.3d 1132 (9th Cir. 22 2016)).5 23 /// See Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002), 24 25 26 27 28 5 In cases unencumbered by the AEDPA standard of review, the Ninth Circuit applies the rule that “a motion to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay.” Burton v. Davis 816 F.3d at 1142 (quoting Fritz v. Spaulding, 682 F.2d 782, 784 (9th Cir. 1982) (emphasis added)). 33 1 Here, the California Court of Appeal determined the merits of the 2 Faretta issue. 3 second habeas petition, which contained his Faretta claim, with 4 citations to Waltreus, Duvall and Clark. 5 signified that the California Supreme Court would not consider on 6 habeas corpus issues previously resolved on appeal. 7 Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004), cert. denied, 543 U.S. 8 1190 (2005). 9 default nor a ruling on the merits.” The California Supreme Court denied Petitioner’s The citation to Waltreus See Carter v. A Waltreus denial is “neither a ruling of procedural Id. Where the California 10 Supreme Court denies a habeas petition with a Waltreus citation, a 11 federal habeas court must “look through” the California Supreme 12 Court’s denial to the last reasoned opinion, here the merits decision 13 of the California Court of Appeal. 14 797, 805-06 (1991) (“Ylst”). 15 the merits of a petitioner’s claim on the ground that it has done so 16 already, it creates no bar to federal habeas review.” 17 556 U.S. 449, 466 (2009). 18 is applicable in the present circumstance. See Ylst v. Nunnemaker, 501 U.S. “When a state court declines to review Cone v. Bell, Accordingly, the AEDPA standard of review 19 20 The California Supreme Court’s citation to Duvall does not alter 21 this conclusion. 22 failure to “state fully and with particularly the facts on which 23 relief is sought.” 24 v. Clay, 692 F.3d 948, 968 (9th Cir. 2012), cert. denied, 133 S. Ct. 25 1465 (2013); In re Reno, 55 Cal. 4th 428, 482, 146 Cal. Rptr. 3d 297, 26 283 P.3d 1181 (2012), cert. denied, 133 S. Ct. 2345 (2013). 27 California Supreme Court deems a petition lacking in particularity, a 28 federal habeas court examines the state petition independently to A citation to Duvall usually connotes a perceived People v. Duvall, 9 Cal. 4th at 474; see Stancle 34 When the 1 determine whether the petitioner stated the claim “with as much 2 particularity as is practicable.” 3 Calif., 473 Fed. App’x 748, 749 (9th Cir. 2012) (quoting Kim v. 4 Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). 5 much of the Faretta argument in his California Supreme Court habeas 6 petition verbatim from the Faretta argument in his attorney-drafted 7 opening brief in the California Court of Appeal, including a verbatim 8 transcription of that portion of the Reporter’s Transcript concerning 9 Petitioner’s Faretta request (see Respondent’s Lodgments 3, 13). Barrera v. Attorney General of Petitioner copied The 10 Court of Appeal addressed the Faretta issue on the merits, evidently 11 having no trouble discerning the particularized nature of the claim 12 and the underlying facts. 13 finds that Petitioner presented his Faretta argument to the California 14 Supreme Court “with as much particularity as is practicable.” 15 v. Villalobos, 799 F.2d at 1320. 16 does not support a determination of procedural default or otherwise 17 undermine the conclusion that the Waltreus citation renders applicable 18 the AEDPA standard of review. In these circumstances, this federal Court See Kim Inclusion of the Duvall citation 19 20 The citation to Clark at the pages referenced indicated that the 21 petition was successive to Petitioner’s first habeas petition to the 22 California Supreme Court (which did not contain the Faretta claim). 23 See Clark, 5 Cal. 4th at 767-69. 24 Petitioner previously had the opportunity to assert that claim in a 25 habeas petition but had failed to do so. 26 long been the rule that absent a change in the applicable law or the 27 facts, the court will not consider repeated applications for habeas 28 corpus presenting claims previously rejected.” This citation signified that 35 Clark also states: “It has Clark, 5 Cal. 4th at 1 767 (citations omitted). 2 3 Even if Petitioner had raised his Faretta claim in his first 4 California Supreme Court habeas petition, Petitioner still would have 5 been subject to a Waltreus denial (as demonstrated by the California 6 Supreme Court’s citation of Waltreus in denying the second petition). 7 The California Supreme Court’s indication it would refuse to entertain 8 a successive petition containing a claim already subject to a Waltreus 9 denial does not diminish the significance of the Waltreus denial or 10 render inapplicable the Ylst “look through” doctrine as to that 11 denial. 12 13 In sum, the California Supreme Court’s denial of Petitioner’s 14 second habeas petition is no bar to the application of the AEDPA 15 standard of review to the reasoned decision of the California Court of 16 Appeal. See Cone v. Bell, 556 U.S. at 466. 17 18 C. 19 Under the AEDPA Standard of Review, Petitioner Is Not Entitled to Federal Habeas Relief on His Faretta Claim. 20 21 In Marshall v. Taylor, 395 F.3d 1058 (9th Cir.), cert. denied, 22 546 U.S. 860 (2005), the Ninth Circuit recognized that, although no 23 United States Supreme Court case directly addressed the timing of a 24 request for self-representation, Faretta itself incorporated a timing 25 element. 26 court to grant a Faretta request when the request occurs ‘weeks before 27 trial.’” 28 (9th Cir. 1997), abrogated on other grounds, Williams v. Taylor, 529 Id. at 1060. The Ninth Circuit read Faretta to “require a Id. at 1061; see also Moore v. Calderon, 108 F.3d 261, 265 36 1 U.S. 362 (2000). (Faretta clearly established that a request to 2 proceed pro se is timely if made “weeks before trial”). 3 Marshall v. Taylor, the Ninth Circuit also ruled that, “[b]ecause the 4 Supreme Court has not clearly established when a Faretta request is 5 untimely, other courts are free to do so as long as their standards 6 comport with the Supreme Court’s holding that a request ‘weeks before 7 trial’ is timely.” 8 omitted). 9 request for self-representation on the morning of trial “fell well However, in Marshall v. Taylor, 395 F.3d at 1061 (footnote The Marshall Court held that, because the petitioner’s 10 inside the ‘weeks before trial’ standard for timeliness established by 11 Faretta,” the state court’s finding of untimeliness “clearly 12 comport[ed] with Supreme Court precedent.” Id.. 13 14 Here, Petitioner’s claim fails because, inter alia, he did not 15 make his Faretta request until the last court day before trial, which 16 reasonably could be deemed untimely without violating the “weeks 17 before trial” standard established by Faretta. 18 816 F.3d 1132, 1141-42 & n.5 (9th Cir. 2016) (Faretta did not “clearly 19 entitle” petitioner to relief where he made his Faretta request three 20 court days before the jury was empaneled); Stenson v. Lambert, 504 21 F.3d 873, 884 (9th Cir. 2007), cert. denied, 555 U.S. 908 (2008) (“The 22 Supreme Court has never held that Faretta’s ‘weeks before trial’ 23 standard requires courts to grant requests for self-representation 24 coming on the eve of trial.”); Turner v. Price, 2016 WL 1394282, at *8 25 (N.D. Cal. Apr. 8, 2016) (Faretta request made five days before trial 26 untimely); Garcia v. Beard, 2015 WL 7960749, at *6 (C.D. Cal. Sept. 3, 27 2015), adopted, 2015 WL 8022982 (C.D. Cal. Dec. 4, 2015) (Faretta 28 motion made the day before trial untimely). 37 See Burton v. Price, 1 Furthermore, the California Court of Appeal found as a matter of 2 fact that Petitioner made his Faretta request for the sole purpose of 3 delay. 4 petitioner’s purpose in seeking self-representation is a question of 5 fact); see also Williams v. Johnson, 6 *4 (9th Cir. May 27, 2016) (“AEDPA requires us to defer to state court 7 findings made for the first time by the appellate court. . . .”) 8 (citations omitted). 9 evidence to rebut the presumption of correctness accorded to this See Burton v. Davis, 816 F.3d at 1147 (determination of a F.3d , 2016 WL 3034705, at Petitioner has produced no clear and convincing 10 factual determination. 11 Taylor, 395 F.3d at 1061-62 & n.19 (presuming correct factual finding 12 by California Court of Appeal that petitioner’s Faretta request was 13 untimely). 14 concluding that the first-time, eve-of-trial self-representation 15 request by a defendant who professed satisfaction with his counsel and 16 requested a two-month continuance in a case over a year old betrayed 17 the fact that the defendant’s request was a tactic to secure delay.6 18 See Hirschfield v. Payne, 420 F.3d 922, 926-27 (9th Cir. 2005) 19 (denying Faretta motion based on purpose to delay not contrary to 20 Faretta and not unreasonable, where petitioner sought self- 21 representation the day before trial, had sought unsuccessfully to 22 substitute counsel on four prior occasions and admitted that prior See 28 U.S.C. § 2254(e)(1); Marshall v. The California Court of Appeal was not unreasonable in 23 6 24 25 26 27 28 Contrary to Petitioner’s argument, the Court of Appeal’s conclusion that Petitioner’s Faretta request “was prompted solely by a decision to put off the trial date” was tantamount to a conclusion that the request “was a tactic to secure delay.” This Court would reach the same factual conclusion on the present record under a “totality of the circumstances” de novo review. It is evident from all the circumstances that Petitioner’s Faretta request was merely a tactic to secure delay. 38 1 requests to substitute counsel had been “close to trial”). 2 3 For the foregoing reasons, the California Court of Appeal’s 4 rejection of Petitioner’s Faretta claim was not contrary to, or an 5 objectively unreasonable application of, any clearly established 6 Federal Law as determined by the United States Supreme Court. 7 Petitioner is not entitled to federal habeas relief on this claim. 8 See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 9 (2011). 10 11 RECOMMENDATION 12 13 For the foregoing reasons,7 IT IS RECOMMENDED that the Court 14 issue an Order: (1) accepting and adopting this Report and 15 Recommendation; (2) denying Petitioner’s “Request for Judicial Notice, 16 etc.” as moot; and (3) directing that Judgment be entered denying and 17 dismissing the Petition with prejudice. 18 19 DATED: July 18, 2016. 20 21 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 7 The Court has considered and rejected all of Petitioner’s arguments. The Court has discussed Petitioner’s principal arguments herein. 39 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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