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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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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.
)
_________________________________)

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This Report and Recommendation is submitted to the Honorable

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R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C.

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

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Court for the Central District of California.

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PROCEEDINGS

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

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Person in State Custody” on January 15, 2016.

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Answer on May 9, 2016.

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June 20, 2016.

Respondent filed an

Petitioner filed a Traverse (Reply) on

Petitioner filed “Petitioner’s Request for Judicial

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Notice, etc.” on July 8, 2016,

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BACKGROUND

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A jury found Petitioner guilty of the first degree murder of

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Joshua Huizar (Count 1), attempted second degree robbery (Count 2),

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and assault with a semiautomatic firearm on Huizar’s girlfriend,

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Viridiana Sanchez (Count 3) (Reporter’s Transcript [“R.T.”] 178-79;

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Clerk’s Transcript [“C.T.”] 52-56, 121-26, 132-33).

The jury found

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true the allegations that Petitioner personally used a firearm in the

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commission of the offenses (R.T. 178-79; C.T. 121-26).

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court imposed the middle term of three years on the attempted robbery

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count and added a ten year firearm enhancement for a total term of

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thirteen years on that count (R.T. 191; see C.T. 147).1

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sentenced Petitioner to a term of twenty-five years to life for the

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murder and added a ten-year firearm enhancement for a total term of

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thirty-five years to life on that count (R.T. 191; C.T. 147).

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court indicated that Petitioner would serve the determinate term

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first, followed by the indeterminate term (R.T. 191; C.T. 147).

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court stayed sentence on the assault count (R.T. 191; C.T. 147).

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Thus, Petitioner received a total sentence of forty-eight years to

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life (R.T. 191-92; C.T. 147).

The sentencing

The court

The

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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.
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The

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The California Court of Appeal affirmed (Respondent’s Lodgment 5;

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see People v. Andrews, 2014 WL 505716 (Cal. App. Feb. 10, 2014)).

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Petitioner did not file a petition for review in the California

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Supreme Court (Petition, p. 3).

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Petitioner filed a habeas corpus petition in the San Bernardino

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County Superior Court, which that court denied in a brief written

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order (Respondent’s Lodgments 6, 7).

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

Petitioner filed a habeas corpus

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summarily (Respondent’s Lodgments 8, 9).

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corpus petitions in the California Supreme Court (Respondent’s

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Lodgments 10, 12).

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petition summarily and denied the second petition with citations to In

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re Clark, 5 Cal. 4th 750, 767-69, 21 Cal. Rptr. 2d 509, 855 P.2d 729

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(1993) (“Clark”), People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr.

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2d 259, 886 P.2d 1252 (1995) (“Duvall”), and In re Waltreus, 62 Cal.

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2d 218, 42 Cal. Rptr. 9, 397 P.2d 1001, cert. denied, 382 U.S. 853

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(1965) (“Waltreus”) (Respondent’s Lodgments 11, 13).

Petitioner filed two habeas

The California Supreme Court denied the first

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SUMMARY OF TRIAL EVIDENCE

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The prosecution’s evidence showed the following:

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The murder victim, Joshua Huizar, and his girlfriend

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Viridiana Sanchez, were in a car waiting in a fast-food

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restaurant drive-through line when Petitioner approached and

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tried to open the locked driver’s side door of Huizar’s car

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(R.T. 32, 43).

Petitioner tapped a gun on the driver’s side
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window and demanded money (R.T. 26-31).

Huizar said he had

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no money and obeyed Petitioner’s demand to roll the car

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window down, rolling the window down halfway (R.T. 31).

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Petitioner put the gun through the window, pointed it at

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Huizar’s head and again demanded money (R.T. 31-32).

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Huizar said the victims had no money, Petitioner pointed the

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gun at Sanchez’ head and said “shut up, bitch” and “[g]ive

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me your money” (R.T. 34).

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pockets, pulled out Huizar’s wallet and opened the wallet,

When

Petitioner reached into Huizar’s

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finding no money but only a fake bill (R.T. 34-36).

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Pointing the gun at Huizar, Petitioner again reached into

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Huizar’s pockets and took a cell phone (R.T. 36).

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The vehicle in line in front of Huizar’s car moved

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forward (R.T. 37).

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leave (R.T. 37).

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Huizar accelerated and attempted to

67-69, 119).

The gun fired, killing Huizar (R.T. 37-39,

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At trial, the prosecution called Petitioner’s

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girlfriend, Victoria Nauls.

She claimed to have little or

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no memory of anything material.

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remember whether Petitioner was her boyfriend at the time of

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the incident, whether she spoke to Petitioner after the

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shooting or whether she spoke to a detective after the

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shooting (R.T. 51).

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sending text messages to Petitioner in which she told

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Petitioner that he had “killed that boy at Del Taco,” that

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he was “going to jail,” that he would “be in jail soon for

She purported not to

Nauls also claimed she did not recall

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murder,” and that she, Nauls, was “calling and snitching”

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(R.T. 52).

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Petitioner told her “the guns were at the house” (R.T. 53).

Nauls also claimed she did not recall that

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Rialto police detective Rory Scalf testified that Scalf

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looked through Petitioner’s cell phone and read the text

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messages from Nauls to Petitioner (R.T. 57-58).

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interviewed Nauls at the police station, Nauls reportedly

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was evasive and said she did not recall the text messages

When Scalf

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(R.T. 59).

Scalf told Nauls that he did not think Nauls was

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being honest and that if he learned she was hiding anything

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she could be charged with a crime (R.T. 60).

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said Petitioner had told Nauls that Petitioner “had shot

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that boy” and that “it was an accident” (R.T. 61).

Nauls then

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Police found a spent 9mm casing in the drive-through

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area (R.T. 73, 99).

Petitioner’s fingerprint was found on

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the driver’s side door of Huizar’s vehicle (R.T. 81-83, 130-

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31).

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The prosecution played a tape of Petitioner’s interview

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with police, in which Petitioner stated that “it was an

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accident,” that he “didn’t mean to do it” and that the gun

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“just went off” as Huizar tried to drive away (R.T. 93, 96;

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C.T. 158-59, 166-67).

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the car window with the gun, demanded money from Huizar and

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took Huizar’s wallet, but Petitioner said that he threw the

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wallet back when Huizar claimed to have no money (C.T. 160-

Petitioner admitted that he tapped

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62, 166).

Petitioner admitted that Petitioner’s finger was

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on the trigger when the gun fired (C.T. 159).

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said he ran away after the shooting and claimed he had

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thrown the gun in a trash can (C.T. 163-64).

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thought the gun was a 9 millimeter Glock (C.T. 165).

Petitioner

Petitioner

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During the interview with police, Petitioner asked if

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he could speak with his girlfriend (Nauls), and Petitioner

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was permitted a brief conversation with her (C.T. 157).

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This conversation was recorded (R.T. 96-97; C.T. 168-69).

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During the conversation, Petitioner told Nauls: “I didn’t

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tell them about the gun” (C.T. 168).

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“Shh, there [sic] out there, they’re out there in the hall,

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go get my gun out my mama house [sic].

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in a crate. . . .” (C.T. 168; see R.T. 97).

Petitioner also said:

Is in the backyard

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Police later went to the home of Petitioner’s mother

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and discovered two guns in a crate in the backyard, one of

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which was a 9 millimeter Glock (R.T. 97-99).

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damage to the Glock, no ballistics comparisons were possible

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(R.T. 103).

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Due to some

PETITIONER’S CONTENTIONS1

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Petitioner contends:

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1.

Petitioner’s trial counsel allegedly rendered ineffective

assistance, by assertedly:

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a.

failing to challenge the admission of Petitioner’s

pretrial statements to police and Petitioner’s pretrial

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statements to Nauls pursuant to Miranda v. Arizona, 384 U.S. 436

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(1966) (“Miranda”);

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b.

failing to object to alleged hearsay evidence;

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failing to object to the gun evidence, and;

d.

failing to call a fingerprint expert;

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2.

The cumulative effect of trial counsel’s alleged errors

assertedly prejudiced Petitioner;

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3.

The sentencing court allegedly erred by deeming the attempted

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robbery count to be the principal count instead of deeming the murder

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count to be the principal count;

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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.
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4.

Petitioner’s appellate counsel allegedly rendered ineffective

assistance, by assertedly failing to raise on appeal:

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a.

the claims of alleged ineffective assistance of trial

counsel summarized above; and

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b.

the alleged sentencing error described above;2 and

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5.

The trial court allegedly violated Faretta v. California, 422

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U.S. 806 (1975) (“Faretta”) by denying Petitioner’s eve of trial

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request to represent himself.

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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: (1) “resulted in a

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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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.”

28 U.S.C. §

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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.
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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).

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legal principle or principles set forth by the Supreme Court at the

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time the state court renders its decision on the merits.

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Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63,

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71-72 (2003).

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established Federal law if: (1) it applies a rule that contradicts

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

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materially indistinguishable” from a decision of the Supreme Court but

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reaches a different result.

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(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

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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). “The state court’s

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application must have been ‘objectively unreasonable.’”
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Wiggins v.

Id. at 520–21

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(citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190

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(2009); Davis v. Woodford, 384 F.3d 628, 637–38 (9th Cir. 2004), cert.

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dism’d, 545 U.S. 1165 (2005).

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

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supported, the state court’s decision; and then it must ask whether it

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is possible fairminded jurists could disagree that those arguments or

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theories are inconsistent with the holding in a prior decision of this

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Court.”

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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

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and internal quotations omitted).

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“there is no possibility fairminded jurists could disagree that the

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state court’s decision conflicts with [the United States Supreme

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Court’s] precedents.”

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corpus from a federal court, a state prisoner must show that the state

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court’s ruling on the claim being presented in federal court was so

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lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded

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disagreement.”

Id.

Habeas relief may not issue unless

“As a condition for obtaining habeas

Id. at 103.

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

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state court decision.

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(9th Cir. 2008).

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

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

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

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fairminded jurists could disagree that those arguments or theories are

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

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Cullen v. Pinholster, 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

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and brackets omitted). Where a state court rejects a federal claim

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presented to it without expressly addressing the claim, a federal

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habeas court generally must presume that the state court decided the

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claim on the merits.

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(2013).

Johnson v. Williams, 133 S. Ct. 1088, 1094-96

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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.”

28 U.S.C. §

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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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In conducting habeas review, a court may determine the issue

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DISCUSSION3

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I.

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

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A.

Governing Legal Standards

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To establish ineffective assistance of counsel, Petitioner must

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

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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”).

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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).

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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.

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

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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. . . .”

Williams v. Woodford,

The court must judge the

Strickland, 466

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

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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).

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

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not functioning as the counsel guaranteed the defendant by the Sixth

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Amendment.”

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

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

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circumstances, the challenged action might be considered sound trial

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strategy”) (citation and quotations omitted).

Petitioner bears the

Harrington v. Richter, 562 U.S. at 104 (citation and

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A state court’s decision rejecting a Strickland claim is entitled

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to “a deference and latitude that are not in operation when the case

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involves review under the Strickland standard itself.”

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Richter, 562 U.S. at 101.

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not whether counsel’s actions were reasonable.

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whether there is any reasonable argument that counsel satisfied

Harrington v.

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

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The question is

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Strickland’s deferential standard.”

Id. at 105.

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“In assessing prejudice under Strickland, the question is not

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

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

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been established if counsel acted differently.”

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omitted).

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alleged error, it is “‘reasonably likely’” that the result would have

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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

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likelihood of a different result must be substantial, not just

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conceivable.”

Id. at 112.

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Petitioner raised his claims of ineffective assistance of trial

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counsel in his Superior Court habeas petition, which that court denied

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on the ground that Petitioner had failed to support his claims with

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non-conclusory factual allegations or documentary evidence (see

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Petition, Exhibits, ECF Dkt. No. 1, pp. 28-29; ECF Dkt. No. 17-6, pp.

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12-18; Respondent’s Lodgment 7, ECF Dkt. No. 17-7).

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the Superior Court was the last reasoned state court decision

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regarding these claims.

This decision of

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B.

Analysis

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1.

Failure to Move to Suppress Petitioner’s Statements to
Police and to Nauls

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Miranda generally bars the use of statements elicited by
custodial interrogation unless the person in custody first was
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1

informed of his or her constitutional rights.

Miranda, 384 U.S. at

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444-45.

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consist of any words or actions on the part of the police (other than

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those normally attendant to arrest and custody) that the police should

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know are reasonably likely to elicit an incriminating response from

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the suspect.”

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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),

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At the preliminary hearing, and at trial, the police detective

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who interviewed Petitioner testified that the detective had advised

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Petitioner of his Miranda rights at the commencement of the interview

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(C.T. 9; R.T. 90).

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testimony.

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present at the preliminary hearing and at trial) ever told his counsel

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that Petitioner supposedly believed he had not received his Miranda

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advisements at the interview with the detective.

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charged with ineffectiveness for failing to make a suppression motion

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where counsel had no reason to believe there was any factual basis for

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such a motion.

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of counsel’s actions may be determined . . . by the defendant’s own

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statements or actions.

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properly, . . . on information supplied by the defendant.”); cf.

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Langford v. Day, 110 F.3d 1380, 1387 (9th Cir. 1996), cert. denied,

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522 U.S. 881 (1997) (counsel not ineffective for failing to

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investigate a possible motion to suppress the petitioner’s confession

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where the petitioner did not inform counsel of the petitioner’s

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alleged refusal to waive his Miranda rights, but rather said he had

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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

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1

petitioner’s alleged refusal).

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Petitioner has not shown a reasonable probability of a different

3

result if Petitioner’s statements to police had been excluded.

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was substantial other evidence of Petitioner’s guilt, including:

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(1) Petitioner’s fingerprint on the driver’s side door of Huizar’s

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car; (2) Petitioner’s inculpatory statements to Nauls admitting

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Petitioner was the shooter and instructing Nauls to have someone

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retrieve the gun Petitioner used in the shooting from his mother’s

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backyard; and (3) the discovery of a 9 millimeter Glock in the

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backyard of Petitioner’s mother.

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Furthermore, and in any event,

There

Accordingly, Petitioner has not

shown Strickland prejudice.

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To the extent Petitioner contends counsel should have moved to

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suppress Petitioner’s recorded statements to Nauls on Miranda grounds,

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counsel reasonably could have believed that any such motion would fail

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(regardless of whether Miranda warnings had been given).

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courts have held that allowing a defendant to converse with his family

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or other third persons does not amount to interrogation.”

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States v. Wiggins, 2013 WL 1645180, at *7 (W.D.N.Y. Apr. 16, 2013),

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adopted, 2013 WL 2553971 (W.D.N.Y. June 10, 2013) (citing cases); see

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Arizona v. Mauro, 481 U.S. 520, 528-29 (1987) (defendant’s

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conversation with his wife not the “functional equivalent” of police

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interrogation for purposes of Miranda, where defendant “was not

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subjected to compelling influences, psychological plots, or direct

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questioning” by police); Williams v. Nelson, 457 F.2d 376, 377 (9th

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Cir. 1972) (upholding the admissibility of a custodial conversation

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between the petitioner and a codefendant recorded by means of a

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concealed microphone in a room where the two had been placed by law
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“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