Kessler v. Hornbeak

Filing 51

FINDINGS and RECOMMENDATIONS Recommending Denial of Petition for Writ of Habeas Corpus, signed by Magistrate Judge Barbara A. McAuliffe on 1/4/16. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

KELLY ALICE KESSLER, also known as
KELLY ALICE ARMSTRONG,
Petitioner,

13
14
15
16
17

v.

No. 1:10-cv-00322-LJO-BAM HC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS
CORPUS

DEBORAH K. JOHNSON, Warden, and
JEFFREY BEARD, Ph.D., Secretary,
California Department of Corrections and
Rehabilitation,
(Docs. 24 and 35)
Respondents.

18
19

Petitioner, a state prisoner represented by counsel, proceeds with a petition for writ of

20

habeas corpus pursuant to 28 U.S.C. § 2254. In February 2003, a jury convicted Petitioner of

21

(1) felony possession of a firearm with prior conviction (Cal. Penal Code § 12021.1);

22

(2) exhibiting a firearm (Cal. Penal Code § 417(a)(2)); (3) petty theft (Cal. Penal Code § 484(a));

23

and (4) aggravated trespass (Cal. Penal Code § 602.5(b)). In May 2003, the Tuolumne County

24

Superior Court applied California's three strikes law (Cal. Penal Code § 667) and sentenced

25
Petitioner to an aggregate prison term of 26 years to life. Petitioner claims as grounds for habeas
26
27
28

relief (1) ineffective assistance of counsel contrary to the Sixth Amendment arising from trial
counsel's failure (a) to investigate a prior Nevada burglary conviction which the state court
1

1

counted as a strike and (b) to advise her of her right to bifurcate her prior convictions from the

2

case in chief; (2) due process violations of the Fifth and Fourteenth Amendments arising from the

3

prosecution's misrepresentation that legally cognizable evidence supported the conclusion that the

4
prior Nevada burglary conviction constituted a strike under California law; (3) due process
5
6

violations of the Fifth and Fourteenth Amendments arising from the prosecution's failure to

7

disclose impeaching information concerning the victim's health and eyesight; and (4) due process

8

violations of the Fifth and Fourteenth Amendments arising from the State's determination that the

9

prior Nevada burglary conviction was a strike.

10

I.

11

Factual Background
The California Court of Appeal found the following facts in Petitioner’s direct appeal of

12
13

her conviction:

14

About five months prior to November 2001, [Petitioner] and Dorrey
Hite drove from Tuolumne to Modesto and made a heroin purchase
at a house in Modesto. Sometime later, Hite returned to the
Modesto house without [Petitioner] and made another heroin
purchase.

15
16
17

On November 18, 2001, at about 2:30 a.m., [Petitioner] and Kevin
Wallen arrived at Hite's Tuolumne apartment and kicked the door
in.1 [Petitioner] had a big black gun. She swung the gun around,
pointed it at Hite's face, and said at least three times "I'm going to
shoot you!" [Petitioner] said that Hite had gone to [Petitioner's]
"connection's house," and said something about losing $20 in a drug
deal. Hite ran out the back door of her apartment, yelled "she's got
a gun" and yelled for her neighbors to call the police. [Petitioner]
followed Hite to the back steps of the nearby apartment of her
neighbor, John Castro. Castro came out, saw Hite struggling with
[Petitioner], and broke the two women apart. Vickie Paul, a friend
of Castro's wife and a guest in Castro's apartment, came out and
went into Hite's apartment. Paul saw Wallen at Hite's front door,
and heard Wallen say to [Petitioner] "Let's go." [Petitioner] left by
reentering the back door of Hite's apartment, walking through the
apartment, and then exiting through the front door. While walking
through, [Petitioner] took Hite's cellular telephone. Very shortly
thereafter, [Petitioner] approached Hite's front door again, this time

18
19
20
21
22
23
24
25
26
27
28

1

Wallen pleaded guilty to the charges against him arising from the November 18, 2001, incident. He did not testify
at Petitioner’s trial. According to the investigator assisting in the preparation of Petitioner’s postconviction actions,
Wallen would not speak with him concerning the incident.

2

1

carrying an open Buck knife. The police arrived, and [Petitioner]
dropped the knife and walked to the police vehicle.

2
Police found the gun and Hite's cellular telephone in the Ford
Bronco [Petitioner] and Wallen had driven to Hite's apartment.
Wallen was sitting in the parked Ford Bronco when police arrived
at the scene. Police found the open knife with its blade stuck in the
ground near Hite's front door. The knife had the initials "K.W."
etched on the blade.

3
4
5
6

People v. Kessler, 2004 WL 1067965 at *1-2 (Cal. App. May 13,
2004) (No. F043033).

7
8
9

II.

Procedural Background
On or about December 21, 2001, the Tuolumne County District Attorney charged

10
Petitioner with the following crimes: (1) felony possession of a firearm with prior conviction
11
12

(Cal. Penal Code § 12021.1); (2) exhibiting a firearm (Cal. Penal Code § 417(a)(2)); (3) petty

13

theft (Cal. Penal Code § 484(a)); and (4) aggravated trespass (Cal. Penal Code § 602.5(b)). The

14

complaint alleged prior felony convictions of robbery (Cal. Penal Code § 212.5(b)) and receiving

15

stolen property (Cal. Penal Code § 496(a)) in San Francisco, California (December 1, 1994), and

16

burglary (Nev. Rev. Stats. § 205.060) in Carson City, Nevada (August 1, 1995). On February 28,

17

2003, following a three-day trial, the jury convicted Petitioner on all counts. On May 5, 2003, the

18
19
20

court sentenced Petitioner to an aggregate prison term of 26 years to life.
Petitioner filed a direct appeal on May 8, 2003. She contended that (1) her prior burglary

21

conviction in Nevada did not constitute a strike under California law, and (2) the trial court erred

22

in failing to instruct the jury on voluntary intoxication. The Court of Appeals affirmed the

23

conviction on May 13, 2004, and denied Petitioner's petition for rehearing on June 3, 2004. The

24
25

California Supreme Court denied review on July 28, 2004.
On February 28, 2005, Petitioner filed a petition for writ of habeas corpus in Tuolumne

26
27

County Superior Court in which she contended that:

28
3

1

(1) The prosecution violated Petitioner's right to due process by
suppressing material exculpatory evidence concerning Dorrey Jean
Hite's lack of capacity to perceive the events about which she
testified at trial;

2
3

(2) The prosecution violated Petitioner's right to due process of law
by representing to the Tuolumne Superior Court that there was
legally-cognizable evidence that Petitioner had been convicted of
first degree burglary in the State of Nevada when in fact the public
record of that conviction contains no such evidence; and

4
5
6
7

(3) Petitioner was denied her Sixth Amendment right to effective
assistance of counsel.

8

See Doc. 7 at 38-39.

9

The Superior Court denied the petition on March 16, 2005.
On April 11, 2005, Petitioner filed a writ of habeas corpus in the California Court of

10
11

Appeal. The Court of Appeal found that Petitioner's claims were based on speculation and

12

unsworn testimony. On June 28, 2006, the Court of Appeal denied the petition and directed

13

Petitioner to file an amended petition in Superior Court, including more complete declarations or

14

explaining why such declarations are unavailable.
On October 23, 2006, Petitioner filed an amended petition for writ of habeas corpus in

15
16

Tuolumne County Superior Court, alleging the original three claims plus two more:

17

(IV) The Tuolumne County Superior Court erred in denying
habeas corpus relief on the grounds that (A) Petitioner's first claim
does not make a prima facie showing of grounds for relief under
Brady v. Maryland, and (B) Petitioner's second and third claims
were, or could have been, raised on appeal.

18
19
20

(V)
All issues referenced in the Court of Appeal's June 28, 2006
order have been fully addressed in the instant petition.

21
See Doc. 9 at 4-5.
22
23

Finding that Petitioner's claims were still speculative and lacked factual support, the Superior
Court denied the amended petition on December 29, 2006.

24
25
26
27

On January 16, 2007, Petitioner again filed a petition for writ of habeas corpus in the
California Court of Appeal. On January 25 and April 4, 2007, the Court of Appeal asked
Petitioner's trial attorney, Richard E. Hove, to file a declaration responding to Petitioner's claims
///

28
4

1

of ineffective assistance of counsel. Mr. Hove did not respond. On August 15, 2008, the Court of

2

Appeal denied the petition without prejudice.

3
4

On September 12, 2008, Petitioner filed a third petition for writ of habeas corpus in the
Tuolumne County Superior Court. She alleged the previous five claims plus two more:

5

(VI) The Tuolumne County Superior Court erred in denying
Petitioner's amended petition for writ of habeas corpus.

6
7

(VII) All issues referenced in the Court of Appeal's August 15,
2008 order have been fully addressed in the instant petition.

8

See Doc. 10-1 at 5-6.

9

The Superior Court denied the petition on December 12, 2008.

10

Petitioner filed a petition in the Court of Appeals on January 6, 2009. On October 30,

11

2009, the Court of Appeals found that Petitioner had made a prima facie case for habeas relief on

12

two issues: (1) the suppression of probation records relevant to the eyesight of witness Dorrey

13

Hite and (2) ineffective assistance of trial counsel regarding Petitioner's prior burglary conviction

14

in Nevada. (These two issues comprise federal claims one and three.) The appellate court

15

ordered the Tuolumne County Superior Court to show cause why Petitioner was not entitled to

16

habeas relief. On November 13, 2009, the Superior Court ordered the California Department of

17

Corrections and Rehabilitation to show cause why the petition should not be granted.

18

On December 1, 2009, Petitioner petitioned the California Supreme Court for review of

19

the issue for which the Court of Appeals did not find Petitioner had made a prima facie showing:

20

whether the prosecuting attorney expressly represented to the trial court, and by extension the

21

Court of Appeal and the California Supreme Court, that he possessed evidence that Petitioner had

22

previously incurred a burglary conviction that qualified as a strike when no such evidence existed.

23

(This issue is claim two in Petitioner's federal habeas petition.) The California Supreme Court

24

denied the petition for review on February 18, 2010.

25

On February 23, 2010, Petitioner filed a federal petition for writ of habeas corpus pursuant

26

to 28 U.S.C. § 2254. On October 22, 2010, the Court stayed the petition on Petitioner's motion to

27

permit her exhaustion of federal claims one and three, then pending in the Tuolumne Superior

28

Court.
5

1

On May 20, 2010, the Superior Court denied the habeas petition for the fourth and final

2

time. On June 11, 2010, Petitioner filed a petition in the Court of Appeals, which denied it on

3

August 20, 2010. Petitioner filed a petition for review with the California Supreme Court on

4

August 30, 2010. The California Supreme Court denied review on October 27, 2010. All of

5

Petitioner's federal habeas claims were then exhausted.

6
7
8
9

On January 18, 2011, this Court lifted the stay, and Petitioner filed the first amended
complaint.
On April 5, 2011, Petitioner moved for an evidentiary hearing to address the following
issues:

10

1.
Whether trial counsel rendered ineffective assistance in
failing to investigate the Nevada prior conviction and in advising
Petitioner to admit said conviction under circumstances where said
prior does not constitute a "strike" conviction;

11
12

2.
Whether trial counsel's failure to advise Petitioner of her
right to bifurcate the prior burglary conviction from the trial of the
charged counts was ineffective assistance of counsel;

13
14

3.
Whether the prosecution misrepresented to the trial court
that it possessed evidence that Petitioner suffered a prior conviction
in the state of Nevada that qualified as a conviction for "burglary of
the first degree" under California law; and

15
16
17

19

4.
Whether the prosecutor's failure to disclose material,
exculpatory, impeaching facts concerning key prosecution witness
Dorrey Hite's ability to perceive constituted a Brady violation
compelling reversal.

20

Doc. 35 at 7.

18

21

III.

Constitutionality of the AEDPA

22

Petitioner contends that the Antiterrorism and Effective Death Penalty Act of 1996

23

("AEDPA") is unconstitutional because (1) it violates the suspension clause set forth in art. I, § 9

24

of the U.S. Constitution, and (2) 28 U.S.C. § 2254(d)(1) represents a congressional incursion into

25

judicial powers that violates the separation of powers provisions of articles I, II, and III. The

26

AEDPA's constitutionality is a settled question of law. As a result, Petitioner's constitutional

27

challenge lacks merit.

28

///
6

1

A.

2

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases

Violation of Suspension Clause

3

of rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. After

4

proposing that resolution of the constitutional challenges abide the Court's addressing the

5

substantive issues, the petition itself did no more than contend that the AEDPA as a whole

6

offends the suspension clause. In her supplemental briefing, Respondent contends that the

7

suspension clause does not apply to state prisoners. In her two-paragraph supplemental reply (see

8

Doc. 49 at 5), Petitioner repeats her position that the Court need not address her constitutional

9

challenge to the AEDPA if it resolves the case on another substantive issue. Thus, Petitioner has

10

presented the constitutional challenge but never articulated her reasoning nor set forth precedent

11

supporting her position.

12

Although the suspension clause is appropriately evaluated in consideration of currently

13

applicable law, consideration of the historical availability of habeas relief provides context for

14

analyzing its application to state prisoners:

15
16
17
18
19
20
21
22
23
24
25
26
27
28

The writ of habeas corpus known to the Framers was quite different
from that which exists today. As we explained previously, the first
Congress made the writ of habeas corpus available only to prisoners
confined under the authority of the United States, not under state
authority. Supra, at 659; see Ex parte Dorr, 3 How. 103, 11 L.Ed.
514 (1845). The class of judicial actions reviewable by the writ
was more restricted as well. In Ex parte Watkins, 3 Pet. 193, 7
L.Ed. 650 (1830), we denied a petition for a writ of habeas corpus
from a prisoner "detained in prison by virtue of the judgment of a
court, which court possesses general and final jurisdiction in
criminal cases." Id. at 202. Reviewing the English common law
which informed American courts' understanding of the scope of the
writ, we held that "[t]he judgment of the circuit court in a criminal
case is of itself evidence of its own legality," and that we could not
"usurp that power by the instrumentality of the writ of habeas
corpus." Id. at 207.
It was not until 1867 that Congress made the writ generally
available in "all cases where any person may be restrained of his or
her liberty in violation of the constitution, or of any treaty or law of
the United States." Supra, at 659. And it was not until well into
this century that the Court interpreted the provision to allow a final
judgment of conviction in a state court to be collaterally attacked on
habeas. See, e.g., Waley v. Johnston, 316 U.S. 443 . . . (1942) (per
curiam); Brown v. Allen, 344 U.S. 443 . . . (1953).
Felker v. Turpin, 518 U.S. 651, 663-64 (1996).
7

1

Evaluating the 1996 changes in the law applicable to second or successive petitions, the

2

Supreme Court observed that although the AEDPA affected the standards for granting habeas

3

relief, it did not preclude federal courts from considering state prisoners' petitions for habeas

4

relief. Id. at 654.

5

Relying on Felker in its analysis of a Suspension Clause challenge to § 2254(d)(1), the

6

Seventh Circuit opined, "[T]o alter the standards on which writs issue is not to 'suspend' the

7

privilege of the writ." Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996) (en banc), rev'd on other

8

grounds, 521 U.S. 320 (1997). The Fourth Circuit also rejected a suspension clause challenge,

9

again reasoning that the amendment of §2254(d)(1) altered the standards for evaluating habeas

10

writs brought by state prisoners but did not suspend the writ. Green v. Finch, 143 F.3d 865, 875

11

(4th Cir. 1998), abrogated on other grounds, Williams (Terry) v. Taylor, 529 U.S. 362 (2000).

12

The Ninth Circuit agreed with the Seventh and Fourth Circuits, concluding that "the operative

13

provisions of the [AEDPA] do not violate the Suspension Clause," because "Section 2254(d)(1)

14

simply modifies the preconditions for habeas relief, and does not remove all habeas jurisdiction."

15

Crater v. Galaza, 491 F.3d 1119, 1125, 1126 (9th Cir. 2007). See also Evans v. Thompson, 518

16

F.3d 1, 9-10 (1st Cir. 2008).

17

B.

Separation of Powers

18

The AEDPA does not violate the separation of powers doctrine. Crater, 491 F.3d at

19

1126-30. See also Cobb v. Thaler, 682 F.3d 364, 374 (5th Cir. 2012). Although Articles I, II, and

20

III of the Constitution divide authority among the executive, legislative and judicial branches of

21

the federal government, the Constitution does not contemplate that each branch of government

22

will function in complete isolation. Contrary to Petitioner's arguments, the Constitution allocates

23

to Congress the responsibility to enact provisions that check and balance judicial power. "The

24

judicial power of the United States, shall be vested in one Supreme Court, and in such inferior

25

courts as Congress may from time to time ordain and establish." U.S. Const. art. III, § 1, cl. 1.

26

Congress initially authorized the courts to issue writs of habeas corpus in the Judiciary Act of

27

1789. Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 305 (2001). As

28

discussed above, the scope and application of federal habeas laws have been amended throughout
8

1

our history by both judicial decision and congressional amendment. Indeed, Congress enacted

2

habeas statutes both before and after the 1996 amendments that constituted the AEDPA.

3

C.

Conclusion

4

The constitutionality of the AEDPA is a settled question. Accordingly, Petitioner's

5

contention that the AEDPA is unconstitutional cannot prevail before this Court.

6

IV.

7

Standard of Review
A.

In General

8

A person in custody as a result of the judgment of a state court may secure relief through a

9

petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United

10

States. 28 U.S.C. § 2254(a); Williams (Terry), 529 U.S. at 375. On April 24, 1996, Congress

11

enacted the AEDPA, which applies to all petitions for writ of habeas corpus filed thereafter.

12

Lindh, 521 U.S. at 322-23. Under the statutory terms, the petition in this case is governed by the

13

AEDPA's provisions because Petitioner filed it after April 24, 1996.

14

Nonetheless, in each of her three claims, Petitioner contends that the AEDPA does not

15

apply to her petition, arguing that the Court of Appeal "failed to consider evidence which it

16

should have considered in addressing this constitutional claim." See Doc. 22-1 at 81, 103, 124

17

(citing Williams (Terry), 529 U.S. 413-14). The argument is without merit because Petitioner

18

invokes the AEDPA standard of review when it suits her, and merely seeks to relitigate her claims

19

before this Court without having to establish the exceptions set forth in §§ 2254(d)(1) and (d)(2).

20

See Harrington v. Richter, 562 U.S. 86, 98 (2011).

21

“Federal courts are not forums in which to relitigate state trials.” Brecht v. Abrahamson,

22

507 U.S. 619, 620 (1993). "By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on

23

the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)."

24

Harrington, 562 U.S. at 98. Habeas corpus is neither a substitute for a direct appeal nor a device

25

for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia,

26

443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring).

27

///

28

///
9

1

Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal

2

justice proceedings. Id. Under the AEDPA, a petitioner can prevail only if she can show that the

3

state court's adjudication of her claim:

4

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

5
6

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

7
8

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71
(2003); Williams (Terry), 529 U.S. at 413.

9

Section 2254(d) sets forth a "'highly deferential standard for evaluating state-court rulings,
10
which demands that state-court decisions be given the benefit of the doubt.'" Cullen v.
11
Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
12
The federal court must apply the presumption that state courts know and follow the law.
13
Visciotti, 537 U.S. at 24.
14
The AEDPA standard is difficult to satisfy since even a strong case for relief does not
15
demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
16
"A federal habeas court may not issue the writ simply because the court concludes in its
17
independent judgment that the relevant state-court decision applied clearly established federal law
18
erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a
19
claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on
20
the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v.
21
Alvarado, 541 U.S. 652, 664 (2004)).
22
B.

Burden of Proof

23
The petitioner has the burden of establishing that the decision of the state court is contrary
24
to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v.
25
26

Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). He or she is required to demonstrate “that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that

27
///
28
10

1

there was an error well understood and comprehended in existing law beyond any possibility for

2

fairminded disagreement.” Harrington, 562 U.S. at 103.

3

C.

Legal Determinations

4

“Section 2254(d)(1) does not instruct courts to discern or to deny a constitutional

5

violation. Instead, it simply sets additional standards for granting relief in cases where a

6

petitioner has already received an adjudication of his federal claims by another court of

7

competent jurisdiction.” Crater, 491 F.3d at 1127.

8
9

In analyzing a habeas petition under the AEDPA, a federal court must first determine what
constitutes "clearly established Federal law, as determined by the Supreme Court of the United

10

States." Lockyer, 538 U.S. at 71. “Clearly established . . . as determined by” the Supreme Court

11

“refers to the holdings, as opposed to the dicta, of th[at] Court’s decisions at the time of the

12

relevant state court decision.” Williams (Terry), 529 U.S. at 412.
To analyze the state court’s adjudication of legal claims, the District Court must look to

13
14

the holdings, as opposed to the dicta, of the U.S. Supreme Court's decisions at the time of the

15

relevant state-court decision. Id. The court must then consider whether the state court's decision

16

was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id.

17

at 72. The Supreme Court must have applied the rule in the context in which the petitioner’s

18

claim is made, however. Premo v. Moore, 562 U.S. 115, 128 (2011); Carey v. Musladin, 549

19

U.S. 70, 75-76 (2006). The state court need not have cited clearly established Supreme Court

20

precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it.

21

Early v. Packer, 537 U.S. 3, 8 (2002).
“Under § 2254(d), a habeas court must determine what arguments or theories supported,

22
23

. . . or could have supported, the state court’s decision; and then it must ask whether it is possible

24

fairminded jurists could disagree that those arguments or theories are inconsistent with the

25

holding in a prior decision of the Court.” Harrington, 562 U.S. at 102. That is the only question

26

that matters under § 2254(d)(1).” Id.

27

///

28

///
11

1

D.

2

When a federal court is presented with a state court’s factual determinations and matters

Factual and Mixed Determinations

3

of mixed law resting on findings of fact, the "AEDPA plainly sought to ensure a level of

4

'deference to the determinations of state courts,' provided those determinations did not conflict

5

with federal law or apply federal law in an unreasonable way. H.R. Conf. Rep. No. 104-518, p.

6

111 (1996). Congress wished to curb delays, to prevent 'retrials' on federal habeas, and to give

7

effect to state convictions to the extent possible under law. When federal courts are able to fulfill

8

these goals within the bounds of the law, the AEDPA instructs them to do so.” Williams (Terry),

9

529 U.S. at 386.

10

A petitioner cannot evade the District Court’s deference to the state courts by an attempt

11

to relitigate the facts, such as by resort to § 2254(e) to test whether the state court’s factual

12

conclusions were “correct.” To the extent that a petitioner might debate whether new evidence

13

might show that the state court’s fact finding was correct, the federal court must remember that

14

the § 2254(d) bar is completely independent of correctness. The only relevant factual or legal

15

question under § 2254(d) is whether the state court’s determination was reasonable. In the

16

context of fact finding, then, the only question is whether the state court reasonably determined

17

the facts in light of the record. Harrington, 562 U.S. at 100.

18

E.

Applicability of the AEDPA

19

Petitioner repeatedly claims that the AEDPA does not apply to her case because the state

20

court failed to consider evidence which it should have considered in addressing her constitutional

21

claims. The argument is without merit both in (1) its inartful assertion that the AEDPA “does not

22

apply,” and (2) its misinterpretation of the cited portion of Williams (Terry).

23

1.

Inartful Language

24

Petitioner’s repeated insistence that the AEDPA “does not apply” “due to the [state

25

courts’] failure to consider evidence which should have been considered” in addressing her

26

constitutional claims has no precedential basis, despite her citation to Williams (Terry). By its

27

own terms, the AEDPA applies to all habeas cases filed after April 24, 1996, including the

28

petition in this case. Were Petitioner proceeding pro se, the Court would be inclined to attribute
12

1

the peculiar terminology to a lack of legal knowledge and experience. Petitioner is represented

2

by counsel, however, who may reasonably be expected to express legal arguments precisely and

3

accurately using appropriate legal terms. Accordingly, the Court will analyze the contention

4

using Petitioner’s peculiar terminology.

5

2.

Williams v. Taylor

6

As previously stated, Petitioner bases her contention on Williams (Terry), 529 U.S. at 397-

7

98, 413-16. The Court does not read Williams(Terry) as argued by Petitioner. As discussed in

8

detail below, the Supreme Court did not hold that AEDPA is inapplicable if the state courts failed

9

to consider relevant evidence.

10
11

a. Overview of lower Court decisions in Williams (Terry)
Terry Williams was sentenced to death for a murder that officials had categorized as a

12

“natural” death until Williams turned himself in for killing the victim. Id. at 369-370. Following

13

his conviction and sentencing, Williams contended that his Sixth Amendment right to counsel

14

was violated by ineffective assistance of his trial counsel, who had failed to discover and present

15

significant mitigating evidence in the sentencing phase of his capital trial.

16

In state collateral proceedings, the Danville (Va.) Circuit Court, in which Williams had

17

been tried, upheld the conviction but concluded that trial counsel had been ineffective during

18

sentencing for failing to present mitigating evidence. Id. at 370. The Virginia Supreme Court

19

rejected the Circuit Court’s conclusion, but assuming that trial counsel had been ineffective,

20

concluded that counsel’s ineffective assistance had not resulted in sufficient prejudice to warrant

21

habeas relief. Id. at 371-72.

22

After exhausting state remedies, Williams filed a habeas petition pursuant to 28 U.S.C.

23

§ 2254. Id. at 372. “Noting that the Virginia Supreme Court had not addressed the question

24

whether trial counsel’s performance at the sentencing hearing fell below the range of competence

25

demanded of lawyers in criminal cases,” the District Court identified five categories of mitigating

26

evidence that trial counsel had failed to introduce and rejected the argument that trial counsel

27

tactically decided not to investigate mitigating evidence in favor of relying on Williams’

28

voluntary confession. Id. at 372-73. Even if counsel’s failure to investigate had been a tactical
13

1

decision, the court found such a tactical decision did not constitute reasonable performance of

2

counsel. Id. at 373. It then found a reasonable probability that the outcome of the proceeding

3

would have been different but for trial counsel’s unprofessional errors. Id. Thus, the District

4

Court concluded that “the Virginia Supreme Court’s decision ‘was contrary to, or involved an

5

unreasonable application of clearly established Federal law’ within the meaning of § 2254(d)(1).”

6

Id. at 374.

7

On appeal from the District Court’s grant of habeas relief, the Fourth Circuit Court of

8

Appeals reversed, construing § 2254(d)(1) as prohibiting habeas relief unless the state court

9

“decided the question by interpreting or applying the relevant precedent in a manner that

10

reasonable jurists would all agree is unreasonable.” Id. (internal quotation marks omitted).

11

Applying that standard, the Court of Appeals concluded that the Virginia Supreme Court’s

12

decision of the prejudice issue was not an unreasonable application of the tests set forth in

13

Strickland and Lockhart, and found reasonable the Virginia Supreme Court’s determination that

14

evidence of Williams’ future danger to society was “overwhelming.” Id.

15
16

b. Supreme Court’s Standards
The U.S. Supreme Court granted certiorari and reversed. The Court’s decision is

17

composed of Parts I, III, and IV of the opinion written by Justice Stevens, and Part II of the

18

opinion written by Justice O’Connor. Part II considered the proper analysis to be applied in

19

evaluating § 2254(d)(1), as revised by the AEDPA. Id. at 399.

20

As noted by the Supreme Court, before Congress enacted the AEDPA, a federal habeas

21

court owed no deference to a state court’s resolution of questions of constitutional law or mixed

22

constitutional questions, defined as the application of constitutional law to fact. Id. at 400.

23

Instead, federal habeas courts exercised independent judgment in deciding such questions. Id.

24

The AEDPA amended the standard of review. Id. With regard to all federal habeas petitions

25

filed by state prisoners after the AEDPA’s effective date (April 24, 1996), Section 2254(d)(1)

26

permits a federal court to grant a state prisoner habeas relief in two instances: when the state-

27

court decision was (1) contrary to . . . clearly established Federal law, as determined by the

28

Supreme Court of the United States, or (2) involved an unreasonable application of . . . clearly
14

1
2

established Federal law, as determined by the Supreme Court of the United States. Id. at 404-05.
A state court decision is contrary to clearly established federal law if it is “substantially

3

different from the relevant precedent of [the United States Supreme C]ourt.” Id. at 405. “A state

4

court decision will also be contrary to [the United States Supreme C]ourt’s clearly established

5

precedent if the state court confronts a set of facts that are materially indistinguishable from a

6

decision of th[e Supreme] Court and nevertheless arrives at a result different from [its]

7

precedent.” Id. at 406.

8

A state court may unreasonably apply the Supreme Court’s clearly established precedent

9

by (1) identifying the correct governing rule from the Court’s cases but unreasonably applying it

10

to the facts of the case before it, or (2) unreasonably extending a legal principle from Supreme

11

Court precedent to a new context in which it should not apply or unreasonably refusing to extend

12

the principle to a new context in which it should apply. Id. at 407. Whether a legal principle is

13

inappropriately extended or withheld in a new context presents a difficult distinction that the

14

Williams Court chose not to address. Id. at 408-09. In any event, a court must objectively

15

determine whether the state court’s application of clearly established federal law was

16

unreasonable. Id. at 409.

17

An unreasonable application of clearly established federal law is different from its

18

incorrect application. Id. at 410. “Under § 2254(d)(1)’s ‘unreasonable application’ clause, . . . a

19

federal habeas court may not issue the writ simply because that court concludes in its independent

20

judgment that the relevant state-court decision applied clearly established federal law erroneously

21

or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

22
23

c.

Clearly Established Law under Strickland-Failure to Present Evidence

Part III of the Williams (Terry) opinion (written by Justice Stevens) then identified clearly

24

established federal law concerning ineffective assistance of counsel, the standard articulated in

25

Strickland, and examined its application to the facts of the Williams (Terry) case. At pages 397-

26

98, included within Part IV of the Court’s decision and specifically cited as supporting

27

Petitioner’s claim that the AEDPA does not apply to her petition, the Court examined whether the

28

deficient assistance of Williams’ trial counsel prejudiced Williams within the meaning of
15

1

Strickland. In doing so, the Court necessarily evaluated the likely effect of the mitigating

2

evidence which Williams contended that his trial counsel had failed to investigate and present, as

3

well as the evidence presented in the penalty phase of Williams’ trial. Including analysis of the

4

evidence that Williams first presented in his collateral proceedings was essential to the Supreme

5

Court’s determining whether the Virginia courts reasonably applied clearly established federal

6

law.

7

Like the Court did in Williams(Terry), a federal district court considering a habeas petition

8

may need to evaluate the nature or extent of the state court’s factual findings in the context of

9

analyzing whether a state court decision was contrary to, or involved an unreasonable application

10

of, clearly established Federal law, as determined by the Supreme Court of the United States. But

11

the William (Terry) decision held neither that state courts must consider all evidence that a

12

petitioner wishes to produce in collateral proceedings nor that a state court’s failure to consider all

13

evidence that a petitioner claims to be relevant to the clearly established federal law renders the

14

AEDPA inapplicable.2

15

Having carefully reviewed the Williams(Terry) decision in its entirety, this Court rejects

16

Petitioner’s assertion that the AEDPA does not apply when the state courts failed to consider

17

evidence that they should have considered. In short, the AEDPA applies to this petition.

18

VI.

Request for Further Discovery and Evidentiary Hearing
Petitioner contends that she was “denied full factual development of her claims through

19
20

discovery, full access to the Tuolumne Superior Court, California Court of Appeal and California

21

Supreme Court and those courts’ subpoena powers; additionally, Petitioner has not been granted

22

evidentiary hearings on any of her claims during post-conviction proceedings in state court.”

23

Doc. 22-1 at 15. As a result, “full evidence in support of the claims [set forth in the petition] is

24

not currently available despite Petitioner’s diligence in investigating and presenting her claims.”

25

Id. Petitioner adds that she may have further claims once she is allowed to investigate fully all

26

potentially applicable evidence. Id.

27

2

28

Interestingly, although Petitioner cites 28 U.S.C. § 2254(d)(2) in arguing that the AEDPA does not apply to her
petition, Williams (Terry) addressed the application of 28 U.S.C. § 2254(d)(1) to the petitioner’s claim of ineffective
assistance of trial counsel.

16

1

“Habeas is an important safeguard whose goal is to correct real and obvious wrongs. It

2

was never meant to be a fishing expedition for habeas petitioners to ‘explore their case in search

3

of its existence.’” Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (quoting Calderon v.

4

United States District Court for the Northern District of California (Nicolaus), 98 F.3d 1102,

5

1106 (9th Cir. 1996)). Habeas petitioners are not routinely entitled to discovery. Bracy v.

6

Gramley, 520 U.S. 899, 904 (1997). The discovery provisions of the Federal Rules of Civil

7

Procedure do not generally apply in habeas cases. Harris v. Nelson, 394 U.S. 286, 295 (1969).

8

See Rule 6(a) of the Rules Governing §2254 Cases (“A judge may, for good cause, authorize a

9

party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of

10
11

discovery”).
Section 2254(e)(1) of AEDPA bars most evidentiary hearings if the applicant “failed” to

12

develop the factual basis for the claim in state court. In this context, “failed” “connotes some

13

omission, fault, or negligence on the part of the person who has failed to do something.”

14

Williams(Terry), 529 U.S. at 431–32. “Under §2254(e)(2), a petitioner who failed to develop the

15

facts of the claim in state court may not obtain a hearing in federal court except in limited

16

circumstances.” See, e.g., Atwood v. Schriro, 489 F.Supp.2d 982, 1007 (D.Ariz. 2007). If the

17

court determines that the applicant failed to develop the factual basis for a claim in state court, the

18

district court can hold an evidentiary hearing only if the petitioner meets two demanding

19

requirements: (1) the allegations, if proven, would entitle to petitioner to relief and (2) the state

20

court trier of fact has not reliably found the relevant facts. Rich, 187 F.3d at 1068. A habeas

21

petitioner who has failed to develop a factual basis for his claims in state court and requests an

22

evidentiary hearing before a federal district court must demonstrate that “the claim relies on . . . a

23

factual predicate that could not have been previously discovered through the exercise of due

24

diligence and . . . the facts underlying the claim would . . . establish by clear and convincing

25

evidence that but for constitutional error, no reasonable factfinder would have found the applicant

26

guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2).

27
28

“[A] failure to develop the factual basis of a claim is not established unless there is lack of
diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams
17

1

(Michael) v. Taylor, 529 U.S. 420, 432 (2000). “A petitioner has not neglected his or her rights in

2

state court if diligent in efforts to search for evidence.’ Bragg v. Galaza, 242 F.3d 1082, 1090,

3

amended by 253 F.3d 1150 (9th Cir. 2001).

4
5
6
7
8
9

The question is not whether the facts could have been discovered
but instead whether the prisoner was diligent in his efforts. The
purpose of the fault component of “failed” is to ensure the prisoner
undertakes his own diligent search for evidence. Diligence for
purposes of the opening clause depends upon whether the prisoner
made a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court; it does not
depend . . . upon whether those efforts could have been successful.
Williams (Michael), 529 U.S. at 435.
Petitioner does not argue that good cause entitles her to pursue discovery but simply

10
assumes that she is entitled to an evidentiary hearing to discover whether facts exist to support her
11
existing claims or to create new ones.
12
A habeas petitioner may not presume entitlement to an evidentiary hearing, discovery, or
13
14
15

both. Bracy, 520 U.S. at 903-05. “The mere request for an evidentiary hearing may not be
sufficient to establish diligence if a reasonable person would have taken additional steps.”
Atwood, 489 F.Supp.2d at 1007. See also Koste v. Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003)

16
(finding lack of diligence despite request for evidentiary hearing when petitioner made no effort
17
to develop record or assert facts supporting ineffective assistance of counsel claim); Dowthitt v.
18

Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (finding petitioner not to have been diligent when he

19
failed to secure affidavits of family members that were easily obtained without court order at
20
reasonable expense).
21

In rejecting Petitioner’s claims, the California Court of Appeals explicitly found that

22
Petitioner did not meet applicable standards of diligence. As noted in the procedural history
23
discussion above, on October 30, 2009, the court found cognizable two of the claims set forth in
24

Petitioner’s third petition for habeas corpus and remanded the matter, directing the Tuolumne

25
Superior Court to issue an order to show cause. On May 20, 2010, the Superior Court denied the
26
27

petition, concluding that “the record before it d[id] not support the claims made by Petitioner on
those issues.” In re Kelly Alice Kessler, No. CRW 27950 (Tuolumne County Sup. Ct. May 20,

28
18

1

2010), reproduced at Doc. 29 at 62. On June 11, 2010, Petitioner again sought habeas relief from

2

the Court of Appeals.

3

In denying the petition, the Court of Appeals observed, “It is apparent from the record that

4

the superior court was able to determine from the return the factual and legal issues presented for

5

its determination and proceeded to resolve those issues, including the credibility of witnesses and

6

experts.” In re Kelly Alice Kessler, No. F060284 (Cal.Ct.App. Aug. 20, 2010), Doc. 29 at 64.

7

The Court of Appeals rejected Petitioner’s claims concerning the nature of her Nevada burglary

8

conviction, finding that Petitioner “failed to show why her challenges to the Nevada prior

9

conviction and trial counsel’s alleged ineffectiveness should not be rejected because she waived

10

them or was guilty of unclean hands in failing to obtain the transcripts of the change of plea and

11

sentencing in the Nevada proceeding prior to the destruction of the reporters’ notes.” Id., Doc. 29

12

at 66. It emphasized Petitioner’s failure to support her claims factually:

13
14
15
16
17
18
19
20
21

It was not the courts’ burden to keep informing petitioner of all of
her factual deficiencies so that she could attempt to cure them in
subsequent petitions in a piecemeal, successive fashion.
Nevertheless, this court’s and the superior court’s prior orders
informed petitioner of some of the above described deficiencies in
her prior writs. Despite these deficiencies, the court’s OSC allowed
petitioner to prove in the superior court her entitlement to relief.
(Duvall, supra, 9 Cal.4th 464; In re Hochberg, supra, 2 Cal.3d 860.)
In the superior court she chose not to provide more specific
information (if necessary by subpoena and compelled testimony)
from the victim, petitioner, attorney, trial counsel, Kevin Wallen, or
her experts. Petitioner has failed to show why she should be
entitled to any relief, including another evidentiary hearing, when
she has repeatedly insisted in successive petitions on presenting
information which was limited, incomplete, or conclusional in
critical areas.

22

In re Kelly Alice Kessler, F060284 (Cal.Ct.App. Aug. 20, 2010),
Doc. 29 at 67-68.

23

Petitioner has never outlined what specific evidence she seeks in further discovery.

24

Instead, she expresses a clear intent to continue her investigation until she uncovers some sort of

25

evidence she can use to formulate a winning habeas claim. The record before this Court fully

26

supports the Court of Appeals’ conclusion that Petitioner failed to act diligently in securing

27

necessary evidence and discovering relevant facts.

28

Petitioner has also pointedly failed to disclose information of which she herself has
19

1

relevant knowledge. Many of these omissions are relevant to whether Petitioner can prevail on

2

her claims. For example, although Petitioner certainly knows whether the offense that gave rise

3

to her Nevada burglary confession occurred in an inhabited residence, she has never provided that

4

information at any point in the post-conviction proceedings. Nor has she disclosed any

5

information concerning conversations with her trial attorney regarding the handling of her prior

6

felony convictions.

7

The Court of Appeal reasonably considered the legal and factual bases advanced by

8

Petitioner and concluded that Petitioner failed to carry her burden of proof. It found that

9

Petitioner’s lack of diligence in finding and preserving evidence was tantamount to waiver and

10

unclean hands that precluded her prevailing on her claims of ineffective assistance of counsel and

11

misapplication of the Nevada burglary conviction. Its conclusions were reasonable. That other

12

jurists might have reached different decisions does not mandate further fact funding in this case.

13

The undersigned recommends that the Court deny Petitioner’s request for additional discovery

14

and an evidentiary hearing.

15

VII.

16

Due Process: Sentencing Enhancement
Based on three prior felony convictions, Petitioner received an enhanced sentence under

17

the California three strikes law. Petitioner challenges the state court’s enhancement of her

18

sentence in both claim two, in which she asserts that the prosecutor misrepresented to the Court

19

that he had proof that Petitioner’s 1995 Nevada burglary conviction was equivalent to first degree

20

burglary in California, and claim four, in which she claims that the California court violated her

21

due process rights by concluding that the Nevada conviction was a strike. Because the state court

22

resolved both claims based on Petitioner’s admission of her Nevada burglary conviction and its

23

status as a strike, the undersigned addresses both claims in a single discussion and recommends

24

that the Court do the same.
Prosecutor’s Misrepresentation and Napue

25

A.

26

In her second claim, Petitioner contends that, under Napue v. Illinois, 360 U.S. 264

27

(1959), "the prosecution violated Petitioner's right to due process under the Fifth and Fourteenth

28

Amendments by representing to the Tuolumne County Superior Court that there was legally
20

1

cognizable evidence that Petitioner had been convicted in Nevada of the equivalent of first degree

2

burglary in California when in fact the public record of that conviction contains no such

3

evidence." Doc. 22-1 at 86. The prosecutor has a constitutional duty to correct false testimony.

4

Napue, 360 U.S. at 269. When the state permits a witness to testify to facts which the prosecution

5

knows to be false, the failure of the prosecutor to correct the testimony which he knows to be

6

false deprives the defendant of due process of law, even though the prosecution did not solicit the

7

false evidence. Id. In this case, however, no state witness testified regarding Petitioner’s prior

8

Nevada conviction.

9

Petitioner contends that she was “denied her Fifth and Fourteenth Amendment right[s] to

10

due process of law by the prosecution’s representations to the Tuolumne County Superior Court,

11

on which the Court of Appeal for the State of California, Fifth District, expressly relied in

12

affirming the judgment and sentence, that the prosecution was in possession of evidence that

13

Petitioner was convicted in the state of Nevada of a crime that qualified as First Degree Burglary

14

under California law when in fact no such (legally-cognizable) evidence existed.” Doc. 22-1 at

15

87. Reconciling her arguments with the circumstances and holding in Napue is challenging. As

16

Respondent puts it, “the facts which Petitioner alleged simply bore no connection to the context

17

in which the Supreme Court has ever applied Napue.” Doc. 29 at 40.

18

Petitioner’s attempt to characterize the circumstances of the sentencing enhancement as a

19

violation of the Napue holding is doomed from its start for many reasons, not least of which is

20

that Petitioner admitted both her prior conviction and its status as a strike. As a result of

21

Petitioner’s admissions, the prosecution was never required to produce evidence regarding the

22

Nevada burglary conviction. In fact, the California courts rejected Petitioner’s claim based on her

23

tactical decision to admit both the Nevada conviction and its status as a strike under California

24

law before trial.

25

B.

26

The California Legislature enacted its enhanced sentencing (three strikes) law "to ensure

California's Three Strikes Sentencing Law

27

longer prison sentences and greater punishment for those who commit a felony and have been

28

previously convicted of one or more serious and/or violent felony offenses." Cal. Penal Code
21

1

§ 667(b). The law provides that the prison sentence of an individual convicted of a serious

2

felony, who has previously been convicted of a serious felony or its equivalent in another

3

jurisdiction, shall be enhanced by another consecutive five-year term for each such prior

4

conviction. Cal. Penal Code § 667(a)(1).

5

California Penal Code § 1192.7 defines the term "serious felony" by providing a list of 42

6

serious felonies, including "(18) any burglary of the first degree." Cal. Penal Code 667(a)(4).

7

California defines burglary as follows:

8
9
10
11
12
13
14
15
16
17
18

Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel, as defined in Section 21 of the Harbors and
Navigation Code, floating home, as defined in subdivision (d) of
Section 18075.55 of the Health and Safety Code, railroad car,
locked or sealed cargo container, whether or not mounted on a
vehicle, trailer coach as defined by the Vehicle Code, inhabited
camper, as defined in Section 243 of the Vehicle Code, vehicle as
defined by the Vehicle Code, when the doors are locked, aircraft as
defined by Section 21012 of the Public Utilities Code, or mine or
any underground portion thereof, with intent to commit grand or
petit larceny or any felony is guilty of burglary. As used in this
chapter, "inhabited" means currently being used for dwelling
purposes, whether occupied or not. A house, trailer, vessel
designed for habitation, or portion of a building is currently being
used for dwelling purposes if, at the time of the burglary, it was not
occupied solely because a natural or other disaster caused the
occupants to leave the premises.
Cal. Penal Code § 459.
California’s Penal Code defines burglary in the first degree: "Every burglary of an inhabited

19
dwelling house, vessel, as defined in the Harbors and Navigation Code, which is designed for
20
habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and
21
Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any
22
other building, is burglary of the first degree." Cal. Penal Code § 460(a).
23
In this case, the underlying criminal complaint alleged that Petitioner had prior felony
24
convictions of robbery (Cal. Penal Code § 212.5(b)) and receiving stolen property (Cal. Penal
25
Code § 496(a)) in San Francisco, California (December 1, 1994), and burglary (Nev. Rev. Stats. §
26
205.060) in Carson City, Nevada (August 1, 1995). Petitioner concedes that the San Francisco
27
convictions counted as strikes, but argues that the Nevada burglary conviction did not constitute a
28
22

1

strike because the Nevada statute does not include the California statutory requirement that the

2

residence in which the alleged burglary occurred be inhabited.

3

C.

The Nevada Burglary Conviction

4

On July 10, 1994, Petitioner was arrested on charges of burglary (Nev. Rev. Stats.

5

§ 205.060), possession [of a controlled substance] not for purpose of sale (Nev. Rev. Stats. §

6

453.336), and unlawful use of a controlled substance (Nev. Rev. Stats. § 453.411). Doc. 7-1 at

7

24. In Nevada, "[a] person who, by day or night, enters any house, room, apartment, tenement,

8

shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle

9

trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit

10

grand or petit larceny, assault or battery on any person or any felony, is guilty of burglary." Nev.

11

Rev. Stats. § 205.060.3 In Nevada, unlike in California, a defendant may be guilty of burglary

12

even if he or she enters a house that is not inhabited. State v. Dan, 18 Nev. 345 (1884).

13

According to the criminal information, Petitioner "commit[ed] a felony, to-wit:

14

BURGLARY, as defined by NEV. REV. STATS. § 205.060, in the manner following, to-wit:

15

That the said Defendant did willfully and unlawfully enter a dwelling located at 909 Nye Lane,

16

Carson City, Nevada, with the intent to then and there commit larceny." Doc. 7-1 at 41. The

17

investigating officer reported that "I responded to a report of a burglary in progress at 909 W.

18

Nye. Upon arrival I found [Petitioner] at the side of the house with a clear plastic bag with the

19

victim's jewelry protruding from her pants pocket. I arrested [Petitioner] for burglary." Doc. 7-1

20

at 39. Among the witnesses to the crime was Jerry Lynn, 909 West Nye Lane, Carson City,

21

Nevada. Doc. 7-1 at 43. Implicit in the evidence included within the state court record is that

22

Lynn lived in the dwelling at 909 West Nye Lane, which Petitioner and another person entered

23

and from which they stole Lynn’s jewelry.

24
25

On June 20, 1995, Petitioner pleaded guilty to count 1, burglary, a felony contrary to
Nevada Revised State 205.060. Doc. 7-1 at 46-49. She was sentenced to four years in prison.

26
3

27
28

Petitioner asserts that a different statute, Nev. Rev. Stats. § 205.067, Invasion of the Home, addresses burglary of an
inhabited dwelling. Section 205.067, however, is not analogous to the California crime of first degree burglary
because § 205.067 does not require that entry be made with intent to commit grand or petit larceny or any other
felony.

23

1

Doc. 7-1 at 50.

2

D.

Petitioner Admitted the Nevada Burglary Conviction

3

The trial record in this case documents Petitioner's tactical decision, in consultation with

4

her trial attorney, to admit her Nevada burglary conviction and to concede that it was a strike. In

5

addition to the prior convictions' role in Petitioner's sentencing, her prior felony convictions were

6

also elements of the charge of felony possession of a firearm with a prior conviction (Cal. Penal

7

Code § 12021.1), which was the first count of the charges against her. The defense strategy was

8

to minimize discussion of Petitioner's prior crimes and thus, minimize juror prejudice.

9

Petitioner’s felony record included a series of crimes that involved threatening and stealing from

10

others, often friends or acquaintances, a pattern that jurors could easily have interpreted to

11

indicate likely guilt of the pending charges.

12

Although the proceedings were protracted, the Court includes the full text of Petitioner's

13

admission to illustrate fully the circumstances under which she admitted the Nevada burglary

14

conviction and its status as a strike under California law. Contrary to Petitioner's claims that she

15

was poorly counseled and reluctant to admit the conviction, the transcript reveals Petitioner's

16

willing acknowledgement of the Nevada conviction, her admission that the Nevada conviction

17

was a strike under California law, and her agreement with the tactical objective of keeping the

18

details of the Nevada conviction out of the felony weapon possession trial. Petitioner and counsel

19

had previously discussed her prior convictions and the most desirable way to address them when

20

facing the current charges and is evident in the questioning that leads to Petitioner’s admission.

21

Note, also, the time and patience of Petitioner's trial attorney, with input from the prosecutor and

22

the trial judge, to ensure that Petitioner understood the nature of her admissions and the reasons

23

for making them.

24

COURT:
Let the record show we are meeting outside the
presence of the jury, that the defendant is present with her counsel,
Mr. Hove, and Mr. Knowles.[4]

25
26

This morning, before going on the record, we discussed a number
of matters in chambers, and among those was the defendant's priors.
And Mr. Hove stated that the defendant would, in fact, admit those

27
28

4

Knowles was the assistant district attorney who prosecuted the case.

24

1

priors.

2

Is that correct, Mr. Hove?

3

MR. HOVE: That's correct, your honor.

4
5

Miss Kessler, you and I have discussed that fact that in the charging
Information against you, there are a number of priors that are what
we call alleged or stated. Do you understand that?

6

THE DEFENDANT: Um, no.

7

MR. HOVE: The district attorney, in response to Count I –

8

THE REPORTER:
please?

Excuse me, can you use your microphone

9
10
11
12
13
14
15

MR. HOVE: Count I alleges you are a felon, and alleges it was a
firearm that proves your – he has alleged various priors that have –
that you have suffered, that primarily being the robbery out of
Nevada and the burglary and robbery in San Francisco. Do you
understand that?
THE DEFENDANT: That's incorrect. But what – the charges are
correct, I did the time already.
MR. HOVE: No, it's not a matter of the time. We have discussed
the fact that you have suffered those convictions, is that correct?

16
THE DEFENDANT: Burglary and robbery, yes.
17
MR. HOVE: Yes.
18
THE DEFENDANT: 14 years ago.
19
20

MR. HOVE: Yes. Now, what I told and have represented to them
and we have discussed is the fact that we do not wish the jury to
hear about those priors, isn't that correct?

21
22

THE DEFENDANT: That is correct. However, if need be, I'm
willing –

23

MR. HOVE: No, not – just listen to what I'm saying. We have
discussed that, is that correct?

24
THE DEFENDANT: Yes, we have.
25

27

MR. HOVE: All right. And we have decided tactically that we do
not want the jury to hear – have those priors read and have them try
that whether, in fact, you were convicted or not of those priors, isn't
that correct?

28

THE DEFENDANT: We've discussed that.

26

25

1
2

MR. HOVE: Yes. And it's our decision to not have them try that.
We are going to admit those priors, we've discussed that, is that
correct?

3

THE DEFENDANT: We're going to admit the priors?

4

MR. HOVE: Yes.

5

THE DEFENDANT: My prior convictions?

6

MR. HOVE: Yes.

7

THE DEFENDANT: Yes.

8

MR. HOVE: Okay. Now, you understand in doing that, you
would have the right to what's called a trial by judge, Judge Stone,
or by the jury to determine, receive evidence of these priors, do you
understand that?

9
10
11
12

THE DEFENDANT: Receive the evidence, I don't understand that.
What, evidence of the priors?

13

MR. HOVE: Yes, they would present the packet showing that you
are the person who suffered these prior convictions pursuant to
certified –

14

THE DEFENDANT: Okay.

15

MR. HOVE: Okay? We discussed that, and we are – you're going
to – because you admit it, you give up that trial, you understand
that? You don't have a trial on the priors, we're just trying the case
itself.

16
17

THE DEFENDANT: (Pause.) Forgive me, I don't understand that.
18
19

MR. HOVE: Just as you're having the trial about what happened,
you also have a right to have a trial about whether you were
convicted of these priors.

20
THE DEFENDANT: Well, I know we had once.
21
22

MR. HOVE: I know we know you are. And because of that we
decided you are going to admit them, correct?

23

THE DEFENDANT: Correct.

24

MR. HOVE: And because you admit them, you are giving up your
right to a jury trial, correct?

25
THE DEFENDANT: For this?
26
MR. HOVE: For the priors only.
27
THE DEFENDANT: I made a deal for those.
28
26

1
2
3
4
5

MR. HOVE: So what I'm saying, you're giving – we don't want to
try the priors, do you understand?
THE DEFENDANT: No, because I've already been – I don't – I'm
sorry. Please have patience with me. I don't understand. I've
already been to prison for those, so how can you charge me with
them again.
MR. HOVE: Because they are enhancements as to whether or not
you can have a firearm.

6
THE DEFENDANT: Oh. Oh. Oh.
7
8

MR. HOVE: And because of that, we've discussed on other
occasions –

9

THE DEFENDANT: I'm sorry.

10
11

MR. HOVE: --we have decided we don't want the jury to hear
that, correct?

12
THE DEFENDANT: Correct. I'm following you now.
13
14

MR. HOVE: Because you admit the priors, you're not going to
have a trial, right?

15

THE DEFENDANT: (No response.)

16

MR. HOVE: So you give up the right to have a trial, is that
correct?

17
THE DEFENDANT: Okay.
18
MR. HOVE: Is that "yes"?
19
THE DEFENDANT: Yes.
20
21

MR. HOVE: Okay. At the trial, you would have the right to have
– to confront the evidence, which, in this case, would be certified
records of your convictions. You know, they would bring --

22
THE DEFENDANT: They could use them against me?
23
MR. HOVE: Right.
24
THE DEFENDANT: Okay.
25
26

MR. HOVE: And I could cross-examine any of the witnesses
about that, which would be a custodian of records, right?

27

THE DEFENDANT: Okay.

28

MR. HOVE: All right.

And are you giving up the right to
27

1

confront that, the certified documents, and have me cross-examine
them, do you understand that?

2
THE DEFENDANT: Okay. Yes.
3
4

MR. HOVE: And do you give that, give up that right to confront
and cross-examine?

5

THE DEFENDANT: Yes, that's the past.

6

8

MR. HOVE: Right. You also have the right to produce evidence
in your own behalf, what's called use the subpoena processes or the
power of the Court to gain evidence in this case, if you wanted to
try to contest the priors. But we know there's nothing to contest,
correct?

9

THE DEFENDANT: Right.

7

10

MR. HOVE: So, do you want to give up the right to use the
powers of the Court?

11
THE DEFENDANT: Yes.
12
13

MR. HOVE: Okay. And finally, you have the right against selfincrimination. Because by admitting the priors, you're admitting
that you suffered –okay, that was you, you understand that?

14
THE DEFENDANT: Yes.
15
16

MR. HOVE: And do you give up that right? As to the priors
only?

17

THE COURT: Just to – only as to the priors.

18

THE DEFENDANT: But I will still be able to talk?

19
20

MR. HOVE: At the trial, you can, if you want to, but, as to the
priors, because you're admitting them, you're giving up the right
against self-incrimination regarding the priors, do you understand?

21

THE DEFENDANT: Okay. Okay. Please forgive me again.

22

MR. HOVE: Okay.

23

THE DEFENDANT: Okay. So I give up my right for him to bring
this up, and then he can't – he can't tell the jury about this on the
stand?

24
25
26

MR. HOVE: No, he can. He can. He is not going to prove these
things up if you testify. As I've discussed with you over the noon
hour, the Court will allow him to ask you about your priors.

27

THE DEFENDANT: Oh.

28

MR. HOVE: But, in terms of whether or not before we get to that
28

1

point the jury will never hear about these priors if you never testify,
do you understand that? That's the point.

2
3

THE DEFENDANT: So, I have a choice. I can either give up my
right for him to cross-examine me, or whatever you call it, on these
and not testify, testify on this case?

4
5
6

MR. HOVE: No. You can still testify on this case, but you're
giving – your right is against self-incrimination on the priors only.
You're saying –
THE DEFENDANT: Well, then –

7
MR. HOVE: -- "I suffered a prior."
8
THE DEFENDANT: Of course, I want to do that.
9
MR. HOVE: You want to do that?
10

THE DEFENDANT: I want to give up –

11
MR. HOVE: Your right against self-incrimination on the priors?
12
THE DEFENDANT: (Nods head.)
13
MR. HOVE: Okay.
14
THE DEFENDANT: Because then the jury will believe this case.
15

17

MR. HOVE: That's right. Now, which you understand is the
direct consequence of that by these admissions is that, in fact, these
priors are strikes and he won't have to prove them later on to a jury,
do you understand that?

18

THE DEFENDANT: Right. Right.

19

MR. HOVE: Okay. And we have decided that's what we want to
do?

16

20
THE DEFENDANT: Yes.
21
22

MR. HOVE: Okay. And are you doing this, what's called – I
understand you're upset, but you've been upset all day about the
trial.

23
THE DEFENDANT: All year.
24
25

MR. HOVE: Okay. Are you doing this what's called freely and
voluntarily?

26

THE DEFENDANT: Well, of course.

27

MR. HOVE: Okay. Well, I mean, the judge has to be satisfied.

28

THE DEFENDANT: Yes.
29

1

MR. HOVE: Nobody's twisting your arm?

2

THE DEFENDANT: Yes, Your Honor.

3

MR. HOVE: To get you to do this?

4

THE DEFENDANT: No.

5

MR. HOVE: Okay. You're doing it – okay.

6

THE DEFENDANT: Because I don't want him to drag that dirt
into this.

7
MR. HOVE: Fine.
8
THE DEFENDANT: Because I already paid for that.
9
MR. HOVE: Okay. Understood.
10
I don't know if the Court needs anything further.
11
THE COURT: I'm satisfied with the waiver.
12

14

Miss Kessler, do you admit or deny a prior violation of Section
212.5(b), that's robbery, of the Penal Code, with a conviction date
on the first day of December of 1994 in San Francisco Superior
Court, do you admit or deny that?

15

THE DEFENDANT: Yes, Your Honor, I did – I admit.

16

THE COURT: And do you admit or deny a prior violation of
burglary in the Carson City, Nevada, District Court with the
conviction date the 1st day of August of 1995, do you admit or deny
that?

13

17
18

THE DEFENDANT: I agree to that, yes.
19
MR. HOVE: He's asking you, do you admit that?
20
THE DEFENDANT: That I actually did the crime?
21
MR. HOVE: Do you admit that you suffered that conviction?
22
THE DEFENDANT: Yes, I did.
23

25

THE COURT: And do you admit or deny a prior violation of
Section 496, paren (a), that's possession of stolen property, at the
same date and time as the robbery, that is, the 1st day of December
of 1994, in San Francisco Superior Court?

26

THE DEFENDANT: Yes, Your Honor.

27

(WHEREAS, Discussion was had off the record between the
defendant and her counsel.)

24

28
30

1

THE COURT: And do you admit or deny that you served a sentence
in regard to the robbery and the possession of stolen property?

2
THE DEFENDANT: Admit it, Your Honor.
3
MR. KNOWLES:

That was a prison sentence.

4
5

MR. HOVE: Yeah, we'll stipulate at what he's saying. The judge
is asking did she suffer and serve a prison sentence?

6

Yes, you went to prison pursuant to that, is that correct?

7

THE DEFENDANT: That is correct, Your Honor.

8

THE COURT:
All right. And did you suffer a further felony
conviction within five years of that?

9
THE DEFENDANT: No, your honor.
10

///

11
12

MR. HOVE: I think what the Court means is between the time of
the first conviction and the second conviction there, they were both
within a five-year period?

13
THE DEFENDANT: Yes, I was in custody.
14
15

THE COURT:
The Nevada conviction and the
Francisco conviction were within five years of each other?

San

16

THE DEFENDANT: They were 21 days apart.

17

THE COURT:
Are the dates wrong here? Because the San
Francisco conviction is 12-1-94, and the Nevada conviction –

18
THE DEFENDANT: They came and picked me up.
19
THE COURT: Was 8-1-95.
20

MR. HOVE: The date –

21
MR. KNOWLES:
22

That's correct, Your Honor.

MR. HOVE: What you're confusing is this –

23
MR. KNOWLES:

The abstract is – the sentencing is 8-1-95.

24
MR. HOVE: Right.
25

27

What happened was, when you suffered the conviction, that's
basically the date that you were sentenced. So, what happened is,
you got sentenced in the one place, and then later, you got
sentenced in another one, is that correct?

28

THE DEFENDANT: Yes. They came and got me.

26

31

1
2

MR. HOVE: Right. You got sentenced first in San Francisco in
'94, then you went in '95 and got sentenced in Nevada, is that
correct?

3

THE DEFENDANT: That is correct.

4

MR. HOVE: That is what the Judge means when he's asking you
about the two sentences occurring within a five-year period.

5
THE COURT:
Knowles?

Are you satisfied with the admission, Mr.

6
7

MR. KNOWLES:

Yes, Your Honor.

8

10

THE COURT:
I will find that Miss Kessler has made a free
and voluntary admission, knowing and intelligent waiver of her
rights, and based upon stipulation of counsel, I will find that there
is, in fact, a factual basis for the admission. Do I have that
stipulation?

11

MR. HOVE: Yes, Your Honor.

12

MR. KNOWLES:

13

MR. HOVE: There is a factual basis.

14

Trial transcript (February 26, 2003) at 22-36.

9

Yes, Your Honor.

15

E.

California Court of Appeals Decision

16

Because the California Supreme Court summarily denied review, the Court must "look

17

through" its summary denial to the last reasoned decision, which is, for these claims, the opinion

18

of the California Court of Appeal in Petitioner’s direct appeal. See Ylst v. Nunnemaker, 501 U.S.

19

797, 803-06 (1991). The Court of Appeal rejected Petitioner's argument that the State was

20

required to prove that the Nevada burglary conviction was a strike under California law:

21

"[A]ppellant's argument is without merit because it ignores the fact that the lack of proof is the

22

direct result of appellant's strategic decision to admit that she was convicted of the Nevada

23

burglary and to admit that the Nevada burglary was a 'strike.'" People v. Kessler, 2004 WL

24

1067965 at *2 (Cal.Ct.App. May 13, 2004) (No. F043033).

25

F.

Petitioner's Admission of Prior Conviction and its Status as a Strike

26

Neither the United States nor the California Constitutions extend a criminal defendant's

27

right to a jury trial to the factual determination of whether that defendant has suffered a prior

28

conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior
32

1

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

2

maximum must be submitted to a jury, and proved beyond a reasonable doubt."); People v. Epps,

3

25 Cal.4th 19, 23 (2001) ("The right, if any, to a jury trial of prior conviction allegations [does not

4

derive] . . . from the state or federal Constitution."). The California Penal Code provides a state

5

right that "the question of whether or not the defendant suffered the prior conviction shall be tried

6

by the jury . . . or by the court if a jury is waived." Cal. Penal Code § 1025(b). "Whenever the

7

fact of a previous conviction or another offense is charged in the accusatory pleading, and the

8

defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury

9

trial is waived, must unless the answer of the defendant admits such previous conviction, find

10
11

whether or not he has suffered such previous conviction." Cal. Penal Code § 1158.
"Under California law, a defendant's admission of a prior felony conviction that will be

12

used as a sentence enhancement is the 'functional equivalent' of a guilty plea to a separate charge,

13

and therefore, it may not be accepted unless the defendant understands the consequences of the

14

admission." Wright v. Craven, 461 F.2d 1109, 1110 (9th Cir. 1972) (internal citations omitted).

15

As a result, the defendant must be "aware of the consequence of his admission, such as possible

16

enhancement of punishment imposed for a separate criminal offense." Bernath v. Craven, 506

17

F.2d 1244, 1245 (9th Cir. 1974). To the extent that Petitioner contends that she did not

18

understand the nature of her waiver of her statutory right to jury determination of her prior

19

convictions, her contentions are a matter of state law.

20

"[F]ederal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire,

21

502 U.S. 62, 67 (1991) (citations omitted). See also Oxborrow v. Eikenberry, 877 F.2d 1395,

22

1400 (9th Cir. 1989) ("[E]rrors of state law do not concern us unless they rise to the level of a

23

constitutional violation."). Federal habeas review does not extend to a state court's interpretation

24

of its own laws, including sentencing laws. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Campbell

25

v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir.

26

1989). The AEDPA imposes "a highly deferential standard for evaluating state-court rulings,"

27

requiring "that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537

28

U.S. 19, 24 (2002) (quoting Lindh, 521 U.S. at 333 n. 7.
33

1

To allege a cognizable federal claim based on a state sentencing error, a petitioner must

2

show that the error was "so arbitrary or capricious as to constitute an independent due process"

3

violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992). Three federal constitutional rights are

4

implicated in the context of a guilty plea: (1) the privilege against compulsory self-incrimination,

5

(2) the right to trial by jury, and (3) the right to confront one's accusers. Boykin v. Alabama, 395

6

U.S. 238, 243 (1970). Waivers of these constitutional rights "not only must be voluntary but must

7

be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and

8

likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970).

9

Explicit advisement on each of the implicated constitutional rights is not required.

10

Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974). The mere failure to advise the defendant

11

explicitly of her privilege against self-incrimination or her right to confrontation does not, of

12

itself, mean that the defendant's admission of her prior felony conviction was not knowing,

13

intelligent, and voluntary. In any event, the transcript of Petitioner's admission of her prior

14

convictions well documents that Petitioner's trial attorney, assisted by the trial judge and the

15

prosecutor, proceeded carefully to ensure that Petitioner understood that by admitting her prior

16

convictions, she was waiving her right against self-incrimination, her right to have the prior

17

convictions proved in the course of trial, and the right to have the jury determine the existence of

18

the prior convictions. Through her admissions, Petitioner communicated that she wanted to

19

minimize the jury's exposure to the prior convictions and related details even though the nature of

20

count one (felony possession of a firearm with prior conviction (Cal. Penal Code § 12021.1))

21

required the State to prove that Petitioner had a prior felony conviction. By admitting her prior

22

convictions, Petitioner discussed with counsel and achieved the tactical objective of keeping the

23

highly prejudicial details of those prior convictions from the jury.

24

A defendant's tactical decision to plead guilty generally relieves the prosecution of its

25

burden of proving the elements of the substantive offense charged. Applying the Ninth Circuit's

26

reasoning of Wright, the Eighth Circuit held that a defendant's voluntary and knowing stipulation

27

or admission of prior convictions "amounted to a waiver of [the defendant's] right to have the

28

State prove the prior offenses and of his right to rebut the State's evidence." Cox v. Hutto, 589
34

1

F.2d 394, 396 (8th Cir. 1979) (per curiam).

2

G.

Summary and Recommendation

3

The state court concluded that Petitioner voluntarily and knowingly admitted her prior

4

felony convictions, including her Nevada burglary conviction and its status as a strike. Having

5

made that factual determination, the state court applied federal law to conclude that Petitioner’s

6

admissions relieved the prosecution of its burden of proving that Petitioner’s Nevada felony

7

conviction of burglary and its status as a strike under California’s sentencing enhancement (three

8

strikes) statute. The undersigned recommends the Court find the state court’s determination to

9

have been reasonable under federal constitutional law and deny relief under claim two.

10
11

VI.

Ineffective Assistance of Counsel
In her first claim, Petitioner contends that the ineffective assistance rendered by her trial

12

counsel, Mr. Hove, deprived her of her Sixth Amendment right to the effective assistance of

13

counsel. Specifically, Petitioner claims that Hove failed to (1) investigate her Nevada burglary

14

conviction, which was improperly counted as a strike for sentencing purposes, and (2) advise

15

Petitioner of her right to bifurcate the trial to keep the jury from learning that Petitioner had

16

previous felony convictions. Respondent counters that (1) Petitioner did not carry her factual

17

burden of proving that Hove failed to investigate the Nevada conviction, and (2) bifurcation was

18

meaningless since the charge against Petitioner, possession of a weapon by a felon, required the

19

prosecution to prove the prior felony conviction as an element of the crime.

20
21
22

A.

In General
1.

Standard of Review

The purpose of the Sixth Amendment right to counsel is to ensure that the defendant

23

receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to counsel

24

is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14

25

(1970). "The benchmark for judging any claim of ineffectiveness must be whether counsel's

26

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

27

relied on as having produced a just result." Strickland, 466 U.S. at 686. See also United States v.

28

Cronic, 466 U.S. 648, 658-59 (1984).
35

1

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

2

that her trial counsel's performance "fell below an objective standard of reasonableness" at the

3

time of trial and "that there is a reasonable probability that, but for counsel's unprofessional

4

errors, the result of the proceeding would have been different." Id. at 688, 694. The petitioner

5

bears the heavy burden of proving that counsel’s errors were so serious that he or she was not

6

functioning as the counsel guaranteed by the Sixth Amendment. Id. at 688; Harrington, 562 U.S.

7

at 104. “A court considering a claim of ineffective assistance must apply a ‘strong presumption’

8

that counsel’s representation was within the ‘wide range’ of reasonable professional assistance.”

9

Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689).

10

“Surmounting Strickland’s bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

11

371 (2010). A court must apply the Strickland standards carefully since post-conviction hindsight

12

can threaten the integrity of the adversarial process that the Sixth Amendment is intended to

13

preserve. 466 U.S. at 689-90. Unlike a reviewing court, counsel was present during the plea or

14

trial and the proceedings that led up to it, was familiar with evidence outside the record, and

15

interacted with the client, prosecutor, and judge. Id. “The question is whether an attorney’s

16

representation amounted to incompetence under ‘prevailing professional norms,’ not whether it

17

deviated from best practices or most common custom.” Harrington, 562 U.S. at 105 (quoting

18

Strickland, 466 U.S. at 690).

19

The Strickland test requires Petitioner to establish two elements: (1) her attorney’s

20

representation was deficient and (2) prejudice. Both elements are mixed questions of law and

21

fact. Id. at 698. These elements need not be considered in order. Id. at 697. "The object of an

22

ineffectiveness claim is not to grade counsel's performance." Id. If a court can resolve an

23

ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's

24

performance was deficient. Id.

25

Strickland and its progeny applies to the state court’s evaluation of Petitioner’s ineffective

26

assistance claims. “Establishing that a state court’s application of Strickland was unreasonable

27

under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 105. The Court explained:

28

The standards created by Strickland and § 2254(d) are both “highly
36

1
2
3
4
5

deferential,” id. at 689 . . . Lindh v. Murphy, 521 U.S. [at 333 n. 7]
. . ., and when the two apply in tandem, review is “doubly” so.
Knowles, 556 U.S. at 123 . . . The Strickland standard is a general
one, so the range of reasonable applications in substantial. 556 U.S.
at 123 . . . Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.

6
Harrington, 562 U.S. at 105.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

2.

Hove's Disciplinary Status

In the course of her argument, Petitioner emphasizes the history of disciplinary cases
brought against Hove by the State Bar of California, asserting that his representation of Petitioner
suffered from the same misdeeds. See In re Hove, 05-O-04300-LMA (December 21, 2007); In re
Hove, 01-O-01267-JMR, 03-O-01200, and 04-O-11366 (February 16, 2006).
“There is generally no basis for finding a Sixth Amendment violation unless the accused
can show how specific errors of counsel undermined the reliability of the finding of guilt.”
Cronic, 466 U.S. at 659 n. 26. Representation by a lawyer previously suspended from practice by
a state bar does not automatically result in the denial of the Sixth Amendment right to counsel.
United States v. Mouzin, 785 F.2d 682, 696 (9th Cir. 1986). “A defendant must show actual errors
and omissions by counsel that a conscientious advocate would not have made, and which
prejudiced him.” Id.
Petitioner has not made the necessary showing the counsel’s purported errors and
omissions prejudiced her. Hove was disciplined for multiple cases of financial improprieties and
one instance of abandoning a client. Plaintiff has not shown that these disciplinary actions had
any impact or connection with counsel’s representation of her. For instance, nothing in the record
suggests that Petitioner ever filed a disciplinary complaint against Hove as a result of his
representing her. Nor is any evidence presented of financial improprieties relating to his
representation of Petitioner of the type for which Hove was repeatedly disciplined and eventually
disbarred. That Hove was disciplined for financial improprieties and one instance of abandoning
a client has no direct relevance to Petitioner's allegations of ineffective representation. Those

28
37

1

disciplinary actions are not connected to counsel’s representation of Petitioner. The Court

2

declines to speculate that because counsel was disciplined, his conduct in Petitioner’s case fell

3

below the applicable standard of review. Accordingly, the mere fact of Hove’s history of

4

discipline and eventual disbarment in 2007 provides no basis to conclude that Petitioner’s Sixth

5

Amendment right to counsel was violated by Hove’s failure to investigate Petitioner’s prior

6

Nevada conviction or to move to bifurcate the trial.

7

B.

The State Opinions

8

In its determination on Petitioner’s direct appeal, the California Court of Appeals

9

concluded that Petitioner was not “denied the effective assistance of counsel by virtue of her trial

10

counsel having her admit that the Nevada burglary conviction was a ‘strike’ for purposes of the

11

three strikes law.” People v. Kessler, 2004 WL 1067965 at *5-*6 (Cal.App. May 13, 2004) (No.

12

F043033) (reproduced at Doc. 29 at 48).

13
14
15
16
17
18
19

We cannot conclude, on the record before us, that trial counsel’s
representation fell below an objective standard of reasonableness.
Nor can we conclude that there is a reasonable possibility that if
[Petitioner] had not admitted the strike she would have gotten a
better result. The record includes the prosecutor’s representation
that he was prepared to show, if need be, that the Nevada burglary
was a burglary of an inhabited dwelling. Presumably that is what
would have happened if [Petitioner] had not admitted the “strike.”
[Petitioner] thus has not shown that she was denied the effective
assistance of counsel.
Id.
In her habeas petition, Petitioner contended that she was denied effective assistance of

20
counsel when Hove failed to advise her of her right to have a separate trial (bifurcate) on the issue
21

of her prior burglary conviction in Nevada. She argued “that there is no legally cognizable

22
evidence that she was convicted on Nevada of an inhabited dwelling, or that she suffered a
23
conviction in which she inflicted great bodily harm, used a firearm or used a deadly weapon.”
24

Doc. 29 at 60. Concluding that the record presented to it did not support Petitioner’s contentions,

25
the Tuolumne Superior Court rejected her claims:
26
27
28

The Nevada burglary statute does not require that the burglary be of
an inhabited dwelling. To qualify as a strike in California, there
must be a showing that the conduct underlying the conviction
suffered would have qualified as a strike under California law. At
38

1

5

trial, outside the presence of the jury, Petitioner admitted her two
prior felony convictions, a robbery in San Francisco in 1994 and a
burglary in Carson City, Nevada in 1995. The trial transcript shows
that her retained counsel advised her that she had a right to either
trial by the Court on this issue, or trial before the jury, or that she
could waive her right to trial and admit. In this case, Petitioner
admitted that the prior qualified as a strike, and the Court found the
admission to be free and voluntary, and based upon the stipulation
of counsel, found a factual base for the admission.

6

Doc. 29 at 60.

2
3
4

7

The Superior Court rejected Petitioner’s claim that her counsel failed to advise her of her

8

right to bifurcation on the prior convictions, finding that the transcript clearly demonstrated that

9

(1) Hove had advised Petitioner that she could have either a jury trial or a court trial on the issue

10

and (2) that Petitioner and Hove had discussed the question of admitting the prior convictions

11

before the trial and had decided for tactical reasons that Petitioner would admit the prior strikes.

12

Id.

13
14
15
16
17
18
19
20
21
22

Finally, the Superior Court addressed Petitioner’s claims that no admissible evidence
supported a conclusion that the Nevada burglary conviction was a strike:
In a previous habeas petition before the Fifth District Court of
Appeal on this issue, the Court of Appeal, in denying that Petition,
noted that Petitioner had failed to provide transcripts of the Nevada
hearings or to explain why she should not be required to provide the
transcripts. That Court found that without the transcripts, Petitioner
failed to provide a complete record of the Nevada prior conviction
to show that it did not qualify as a “strike.” While Petitioner
subsequently provided this Court with the documents comprising
the public record regarding the Nevada felony conviction for
burglary, Petitioner has acknowledged that there is no transcript of
any of the proceedings, nor any court reporter notes from which the
transcript could be created. While the Fifth District Court of
Appeal placed the burden on Petitioner to show that the prior
Nevada conviction did not qualify as a strike, Petitioner here seeks
to have the burden shift to Respondent to show it would qualify as a
strike.

23
24
25
26

Petitioner claims that there are no admissible documents that will
show the prior conviction qualifies as a strike. Respondent has
submitted a declaration stating the District Attorney’s office was
prepared to prove the prior Nevada conviction involved the
burglary of an inhabited dwelling. The prosecution was denied that
opportunity because of the free and voluntary admission made by
Petitioner.

27
28

To determine whether a prior out-of-state conviction involved
conduct that would satisfy all the elements of the California statute,
39

1
2
3
4
5
6
7

a court may consider the entire record of conviction in addition to
the statutory elements of the offense. (People v. Reed (1996) 13
Cal.4th 217, 226; People v. Guerrero (1988) 44 Cal.3d 343, 355.)
The record of conviction considered by the court must consist of
admissible evidence. (In re Cruse (2003) 110 Cal.App.4th 1495,
1499.) The record of conviction for the Nevada prior conviction,
when viewed as a whole, demonstrates that the burglary was of an
inhabited dwelling. The Nevada charging document indicated the
burglary was of a dwelling. The witness list included the resident
of that dwelling. A sworn affidavit from the arresting officer
includes an admission from Petitioner that she had been inside the
victim’s house and took the victim’s jewelry from her co-defendant
and ran out of the house. She was found to have the jewelry in her
possession.

8
Doc. 29 at 61-62.
9
10
11
12
13
14
15
16
17
18
19
20

The Superior Court noted that although the Court of Appeals had remanded the habeas
petition to it for hearing on two claims found to be cognizable, Petitioner failed to produce
evidence sufficient to prove those two claims. Accordingly, the Superior Court denied relief.
Petitioner then filed a new petition with the Court of Appeals in which she contended that
the factual and legal determinations leading to the Court of Appeals’ remand to the Superior
Court were binding on the Court of Appeals and other California courts. The Court of Appeals
rejected her contention, explaining that the remand resulted from its applying an assumption of
correctness to the contentions that led to the remand. “It is apparent from the record that the
superior court was able to determine from the return the factual and legal issues presented for its
determination and proceeded to resolve those issues, including the credibility of witnesses and
experts.” Doc. 29 at 64. With regard to the Nevada burglary conviction, the court emphasized
the insufficiency of the evidence that Petitioner presented to support her contentions:

21
22
23
24
25
26
27

The record of the Nevada proceeding did not include the change of
plea and sentencing transcripts during which facts may have been
brought out sufficiently establishing that the burglary qualified as a
“strike” in California. The declarations from the court reporters
asserted that their notes of these hearings had been destroyed
sometime after June 27, 2003 and August 1, 2003. Although
petitioner’s counsel could have asked for the specific dates the
notes were destroyed, those declarations did not include those dates.
The attorney representing petitioner in this writ (attorney) started
investigating this case no later that July 21, 2003, because on that
date attorney hired a private investigator. Petitioner failed to
provide the date when attorney first began representing petitioner.

28
40

1

Petitioner was sentenced on May 5, 2003. The notice of appeal was
filed May 15, 2003. Counsel was substituted in place of
[Petitioner] on July 3, 2003. The opening brief was filed on August
27, 2003. The appeal opinion filed May 13, 2004, rejected
petitioner’s contentions that the Nevada prior conviction did not
qualify as a strike and that trial counsel was ineffective for not
challenging the Nevada prior.

2
3
4
5

Petitioner does not describe when she, attorney and her counsel on
appeal became aware of the issues regarding the Nevada prior and
trial counsel’s ineffectiveness.

6
7

Petitioner has failed to show why her challenges to the Nevada
prior conviction and trial counsel’s alleged ineffectiveness should
not be rejected because she waived them or was guilty of unclean
hands in failing to obtain the transcripts of the change of plea and
sentencing in the Nevada proceeding prior to the destruction of the
reporters’ notes.

8
9
10

Petitioner’s declaration states that trial counsel never “discuss[ed]
with [her] the facts relating to the” Nevada prior conviction and,
had she known, she could have had a bifurcated trial on that prior,

11
12

and would not have admitted it as a strike. Trial counsel refused to
provide a declaration on this issue.

13
14

Petitioner has failed to provide a detailed declaration regarding
what she told counsel regarding the Nevada prior conviction and
what counsel told her. Her denial that there was no discussion [sic]
does not negate the possibility that unilateral statements were made
that were pertinent to her claim that counsel was ineffective for not
challenging that prior.

15
16
17

Doc. 29 at 66-67.
18
19
20
21
22
23
24
25
26
27

C.

Bifurcation

In California, various criminal statutes authorizes increased punishment of a defendant
when the prosecutor alleges and proves that the defendant has one or more prior convictions.
People v. Calderon, 9 Cal.4th 69, 71 (1994). In such cases, “a trial court has the discretion, in a
jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the
determination of the defendant’s guilt of the charged offense, but is not required to do so if the
defendant will not be unduly prejudiced by having the truth of the alleged prior conviction
determined in a unitary trial.” Id. at 72.
Petitioner claims that Hove failed to advise Petitioner of her right to bifurcate the trial to
keep the jury from learning of her previous felony convictions. The Tuolumne County Superior

28
41

1

Court summarily rejected the claim, stating, “The transcript clearly shows that counsel stated to

2

petitioner that she had the right to have either a court trial or a jury trial on the issue.” In re

3

Kessler, CRW 27950 at 5 (Tuolumne Cty. May 20, 2010), reproduced at Doc. 29 at 60. The

4

Superior Court’s determination appears to refer to counsel’s following statement in the course of

5

Petitioner’s admission:

6

MR. HOVE: Okay. Now, you understand in doing that, you
would have the right to what's called a trial by judge, Judge Stone,
or by the jury to determine, receive evidence of these priors, do you
understand that?

7
8

Trial transcript (February 26, 2003) at 25.

9

The determination is based in evidence and reasonable.
10

Petitioner’s claim that she was entitled to prevent the jury from learning that she had any

11
prior felony convictions is frivolous. The first charge against her, felony possession of a firearm
12
with prior conviction (Cal. Penal Code § 12021.1), required the prosecution to prove that
13
Petitioner had a prior felony conviction.
14
D.

Failure to Investigate Nevada Conviction

15
1.

Factual Insufficiency Regarding Deficient Representation

16
As she did in state court, Petitioner relies on her conclusory declaration that Hove failed to
17
investigate her Nevada conviction and that she and Hove never discussed the facts related to her
18
Nevada conviction prior to her in-court admission. Doc. 7-1 at 8. In the admission transcript, set
19
forth in full above, however, Petitioner confirmed that she and Hove had previously discussed the
20
strategy of admitting her prior convictions and their status as strikes under California law:
21

23

MR. HOVE: All right. And we have decided tactically that we do
not want the jury to hear – have those priors read and have them try
that whether, in fact, you were convicted or not of those priors, isn't
that correct?

24

THE DEFENDANT: We've discussed that.

25

Trial transcript (February 26, 2003) at 24.

22

26

Petitioner also relies on the declaration of her habeas counsel, Jim Andres, that Hove told

27

him that he had never “viewed the originals or copies of documents relating to the conviction

28

[Petitioner] suffered in 1995 in the state of Nevada,” and that the district attorney only showed
42

1

him copies of the documents relating to the Nevada conviction that were in the prosecution’s

2

possession after the jury had been charged and retired to deliberate. Doc. 7-1 at 13-14.

3

Significantly, Hove never signed the declaration that Andres had prepared and provided to

4

memorialize that information. Nor does Andres’ declaration address what discussion Petitioner

5

and Hove had regarding the Nevada conviction or the strategic decision that Petitioner would

6

admit the prior felony convictions and their qualification as strikes under California law.

7

Petitioner also provides expert opinion that Hove’s failure to investigate constituted

8

deficient representation and argues (Doc. 22-1 at 62-63) that her case is “legally

9

indistinguishable” from Rompilla v. Beard, 545 U.S. 374 (2005), a capital case in which the

10

Supreme Court addressed the scope of investigation required of counsel preparing for the penalty

11

phase. In Rompilla, defense counsel failed to investigate the defendant’s prior conviction for rape

12

and assault, despite knowing that the prosecution intended to use a transcript the victim’s

13

testimony in that case in the penalty phase to establish Petitioner’s violent character and

14

propensity to commit crimes involving the use or threat of violence.

15

In arguing that Rompilla required the state court to find that Hove’s representation of

16

Petitioner was deficient, Petitioner fails to acknowledge any distinction between applying

17

California’s three strikes law to a prior felony conviction in her case and defending against the

18

use of damaging testimony in the penalty phase of a capital case. Her superficial analysis

19

overlooks the key distinction: Rompilla provided extensive proof of his attorney’s failure to

20

pursue mitigating evidence after (1) Rompilla himself evinced disinterest in the process, and (2)

21

family members and mental health experts offered nothing useful in counsel’s attempts to develop

22

a mitigation case. Petitioner offers no evidence relating to Hove’s development of her case.

23

The complete absence of any evidence concerning the nature of Hove’s preparation for

24

Petitioner’s trial makes any attempt to evaluate Hove’s performance a speculative exercise.

25

Petitioner wants the Court to conclude that Hove simply failed to address the specifics of the

26

Nevada conviction, but the paucity of evidence permits many other conclusions. For example, if

27

Petitioner herself provided the details of the Nevada offense to Hove, as she likely would have

28

done in discussion prior to a decision of whether or not to admit to the prior convictions, Hove
43

1

would not have needed to review the plea and sentencing transcripts to recognize that Petitioner

2

and her co-defendant had burglarized an occupied residence, resulting in a conviction of a serious

3

offense that qualified as a strike under California law.

4

Under California law, the “serious felonies” listed in Cal. Penal Code § 1192.7 refer “not

5

to specific criminal offenses, but to the criminal conduct described therein, and applicable

6

whenever the prosecution pleads and proves that conduct.” People v. Reed, 13 Cal.4th 217, 222

7

(1996) (quoting People v. Jackson, 37 Cal. 3d 826, 832 (1985)). To establish the nature of the

8

criminal conduct leading to a prior conviction, “the trier of fact may look to the entire record of

9

conviction to determine the substance of the prior conviction.” People v. Guerrero, 44 Cal.3d

10

343, 355 (1988) (emphasis added). When the Superior Court ultimately reviewed the record of

11

conviction in the habeas remand, it concluded that Petitioner’s burglary of 909 W. Nye Lane,

12

Carson City, Nevada, the home of witness Jerry Nye, was a burglary of an inhabited dwelling,

13

and thus, a serious felony for purposes of California’s three strikes law.

14

In short, Petitioner failed to prove that Hove factually failed to investigate the Nevada

15

conviction. As a result, she failed to overcome the presumption that her counsel’s representation

16

was within the range of acceptable assistance. See Harrington, 562 U.S. at 104.

17

In the direct appeal, the California Court of Appeals rejected Petitioner’s claim that

18

Hove’s representation was deficient, finding that Petitioner failed to carry her burden of proof on

19

the issue. See Doc. 29 at 48. On habeas, despite the state courts’ repeatedly allowing Petitioner

20

multiple opportunities to provide evidentiary proof, the Superior Court ultimately rejected the

21

claim for failure of proof, and the Court of Appeals upheld its determination. In light of the

22

inadequacy of the evidence presented by petitioner, that conclusion was reasonable.

23
24

C.

Petitioner Did Not Prove Prejudice
Because the record failed to present a factual basis by which the state court could have

25

found “a reasonable probability that, but for counsel's unprofessional errors, the result of the

26

proceeding would have been different," Petitioner failed to prove prejudice, the second prong of

27

the Strickland test. 466 U.S. at 688, 694. Thus, even if Petitioner had mustered evidence to

28

support her claim that Hove never investigated the Nevada conviction, her ineffective assistance
44

1

claim would be unsuccessful because she did not, and could not, prove prejudice. Before this

2

Court, Petitioner does not attempt to argue prejudice, but contends that the Court must assume

3

prejudice under Cronic, 466 U.S. 648.

4

1.

Cronic and the Presumption of Prejudice

5

“[T]he adversarial process protected by the Sixth Amendment requires that the accused

6

have ‘counsel acting in the role of an advocate.’” Id. at 656 (quoting Anders v. California, 386

7

U.S. 738, 743 (1967). The goal is defense counsel who require “the prosecution’s case to survive

8

the crucible of meaningful adversarial testing.” Cronic, 466 U.S. at 656. A defense attorney can

9

satisfy the standard even if he or she has made demonstrable errors. Id. Courts must presume

10

that defense counsel was competent; the defendant bears the burden of proving a constitutional

11

violation. Id.

12

In Cronic, however, the Supreme Court identified three situations in which the

13

circumstances are “so likely to prejudice the accused that the cost of litigating their effect in a

14

particular case is unjustified”: (1) complete denial of counsel at a critical stage of the trial, (2)

15

complete failure of counsel to subject the case to serious adversarial testing, and (3) a counsel’s

16

attempt to render assistance under circumstances in which even competent counsel were very

17

unlikely to succeed. Id. at 659-62. The Court cautioned such situations would be rare, including

18

only those of such magnitude that the likelihood "that any lawyer, even a fully competent one,

19

could provide assistance is so small that a presumption of prejudice is appropriate without inquiry

20

into the actual conduct of the trial." Id. at 659-60. Petitioner contends that a breakdown of the

21

adversarial process occurred in her trial as a result of Hove’s failure to investigate the details of

22

her Nevada conviction and that the Court may simply presume prejudice in her case.

23

A “breakdown of the adversarial process” sufficient to give rise to a presumption of

24

prejudice requires an attorney to “entirely fail[] to subject the prosecution’s case to meaningful

25

adversarial testing.” Bell v. Cone, 535 U.S. 685, 697 (2002) (quoting Cronic, 466 U.S. at 659

26

(emphasis added)). “Under the Cronic test, it is the totality of [counsel’s] efforts that we must

27

examine, not just part of them in isolation. ‘[S]pecified errors made by counsel . . . should be

28

evaluated under the standards enunciated in Strickland.’” Gerlaugh v. Stewart, 129 F.3d 1027,
45

1

1036 (9th Cir. 1997) (quoting Cronic, 466 U.S. at 666 n. 41). See also, e.g., Woods v. Donald,

2

135 S.Ct. 1372, 1377-78 (2015) (state court’s application of the Cronic presumption of prejudice

3

was not unreasonable when counsel was briefly absent during testimony about other defendants

4

that was irrelevant to the petitioner’s theory of defense); Bell v. Quintero, 125 S.Ct. 2240, 2242

5

(2005) (Mem.) (vacating and remanding case in light of Cronic when ineffective assistance

6

limited to counsel’s failure to address biased nature of jury); United States v. Thomas, 417 F.3d

7

1053, 1055 (9th Cir. 2002) (declining to presume prejudice where defense counsel conceded guilt

8

on criminal charge without consulting defendant or obtaining his consent); United States v.

9

Baldwin, 987 F.2d 1432, 1437-38 (9th Cir. 1993) (declining to apply presumption where counsel

10

conceded defendant’s guilt in pretrial conference, used profanity before the jury, and failed to

11

request an overt act instruction); Trevino v. Evans, 521 F.Supp.2d 1104, 1119 (S.D.Cal. 2007)

12

(declining to apply presumption of prejudice where counsel had only 30 days to prepare for trial

13

after his substitution); Anaya v. Hickman, 111 Fed.Appx. 491, 492 (9th Cir. 2004) (refusing to

14

assume prejudice under Cronic since counsel’s error, failing to seek trial bifurcation in a

15

California three strikes case, was “plainly of the same ilk as other specific attorney errors [the

16

Supreme Court has] held subject to Strickland’s performance and prejudice components”).
In Cronic itself, the Supreme Court did not presume prejudice and “reversed a Court of

17
18

Appeals ruling that ranked as prejudicially inadequate the performance of an inexperienced,

19

underprepared attorney in a complex mail fraud case.” Florida v. Nixon, 543 U.S. 175, 190

20

(2004). In Nixon, the Court declined to presume prejudice in counsel’s strategic decision, in the

21

face of almost certain conviction and carried out without Nixon’s explicit consent, to concede

22

Nixon’s guilt in a capital murder case and to concentrate on sparing Nixon’s life in the penalty

23

phase. Id. at 178.
Petitioner presented no evidence to support a conclusion that Hove’s representation

24
25

entirely failed to subject the prosecution’s case against her to meaningful adversarial testing. The

26

state court reasonably rejected this claim.

27

VII.

28

Failure to Disclose Victim’s Visual and Medical Impairments
Petitioner contends that the prosecution failed to disclose written reports of the
46

1

Tuolumne County Probation Department concerning Dorrey Hite’s visual and medical

2

impairments, violating Petitioner’s right to due process under the Fifth and Fourteenth

3

Amendments. According to Petitioner, “Hite’s vision was impaired so severely that she was

4

legally blind.” Doc. 22-1 at 107.

5

A. Trial Testimony

6

In its opening statement at trial, the defense claimed that Petitioner did not use a gun in

7

the course of her confrontation with Dorrey Hite and that only Hite claimed to have seen a gun.

8

The defense also contended that Hite had stolen money and checks from Petitioner’s purse and

9

had a motive to lie. Id. at 21.

10

Hite testified that she was awakened at about 2:30 a.m. on November 18, 2001, by

11

banging on her neighbor’s door.5 She remained in bed until she heard someone calling her name.

12

After turning on “a tiny little lamp” next to her bed, Hite opened her front door a crack and saw a

13

woman and a blond man (later identified as Kevin Wallen) leave her neighbor’s door and start up

14

her steps. Hite did not know the man but recognized Petitioner, who was carrying a gun, when

15

she was about five-to-six feet away at the bottom of the steps.6 When she attempted to shut her

16

door, Hite was nearly knocked off her feet when Petitioner or Wallen kicked the door open. As

17

she advanced into Hite’s apartment, Petitioner swung the gun at Hite’s head and yelled that Hite

18

had gone to the home of Petitioner’s drug connection:

19

And I said, “So what? You’re the one that got burnt, not me.”

20

And she—the guy—then the guy says, “Well, I thought this had to
do with money.”

21

And I said, “What? She spent a whole $5.”

22

And she said, “No, I spent 20.”

23
24

And he said, “$20?” And he got mad and tried to take the gun from
her.

25

Reporter’s Transcript (February 27, 2003).7

26

5

Hite and her neighbor shared a single set of steps with a railing up the middle.
According to Hite’s testimony, she had travelled to Modesto with Petitioner several months earlier to buy drugs.
Petitioner had been cheated by a third party and blamed Hite, to whom she had advanced money for the transaction.
Hite had later returned alone to buy drugs from the same individual.
7
The Reporter’s Transcripts are not paginated.
6

27
28

47

1

Meanwhile, Petitioner was swinging the gun, “a big revolver,” in Hite’s face, threatening

2

to shoot Hite. Hite recalled that Petitioner yelled, “I’m going to shoot you,” at least three times.

3

Petitioner was angry and smelled of alcohol. Wallen repeatedly asked Petitioner to give him the

4

gun.

5

Frightened, Hite ran out the back door of her apartment and yelled to her neighbor, John

6

Castro,8 to call the police because Petitioner had a gun. Standing on Castro’s back porch, Hite

7

heard Petitioner say, “You’re damn right I got one,” but Hite no longer saw the gun in her hand.

8

Hite then struck out at Petitioner. Castro broke up the fight and told Petitioner to leave.

9

Petitioner left through Hite’s apartment, stealing her cell phone on the way. Hite did not see

10

Wallen after she fled the apartment.

11

Castro testified that Hite repeatedly exclaimed that Petitioner had a gun but he did not

12

personally see it. He also testified that Wallen was present in the backyard when Hite and

13

Petitioner fought.
Castro testified that Petitioner told him that she “should have had a gun.” He denied

14
15

having told officers that Petitioner said, “You bet I have a gun,” as noted in a report prepared by

16

Sheriff’s Deputy Neil Evans. Testifying later in trial, Evans confirmed that when interviewed on

17

the scene, Castro told Evans that Petitioner said, “You bet I have a gun.”

18

Castro’s house guest, Vickie Paul, accompanied Petitioner as she left through Hite’s

19

apartment. Paul testified that Wallen met Petitioner at the front door and encouraged her to leave.

20

When Hite returned to her apartment after spending a few minutes speaking to the

21

sheriff’s dispatcher from Castro’s phone, her front door was open, and her cell phone was

22

missing. As Hite began to lock the front screen door, she saw Petitioner approaching with a buck

23

knife, which she dropped when Hite pointed out that the police were arriving behind her. Police

24

later recovered the knife, bearing the initials “K.W.,” from the ground outside Hite’s apartment.

25
26

When Corporal Jerry McCaig arrived at the scene, Petitioner approached his patrol car
and immediately stated, “There’s two sides to every story and I didn’t have a gun.” Wallen left

27
8

28

Hite and Castro subsequently had a falling out after Hite accused Castro of having burglarized her apartment at
some point after the incident. In their respective testimony, each spoke of the other with undisguised hostility.

48

1

his vehicle and said, “There’s no gun.” But when McCaig asked Hite separately, she described

2

having been threatened with a black revolver. Before police discovered the gun in Wallen’s

3

Bronco, Narcotics Sergeant James Mele showed Hite a document picturing various types of guns.

4

Hite identified a revolver of the type that was later recovered from Wallen’s vehicle.
McCaig searched Wallen’s vehicle and found the gun in a locked case in the back seat. 9

5
6

He also recovered Hite’s cell phone, which Hite recognized from ten feet away as police removed

7

it from the Bronco. After Petitioner claimed the phone was hers, Hite produced the rental

8

contract to prove ownership.

9

Evans, the last officer to arrive at the scene, spoke to Petitioner while she was seated in

10

the back of a patrol car. Petitioner told him that she had taken the cell phone to compensate her

11

for money and checks that Hite had stolen from her.

12

In the course of cross-examination, Hite emphasized that she had clearly been able to see

13

both Petitioner and the revolver that she carried since Petitioner had been very close to Hite

14

during the confrontation inside Hite’s front door. Hite also acknowledged that on November 18,

15

2001, she was recovering from heroin addiction; however, the trial judge sustained the

16

prosecution’s objection that detailed questions about the nature and extent of Hite’s addiction

17

lacked relevance.

18

B.

19

Plaintiff contends the probation records relevant to the eyesight of witness Dorrey Hite

Evidence Presented in Postconviction Proceedings

20

were suppressed. The allegedly suppressed probation report is not included in the record.

21

According to the return to petition for writ of habeas corpus, Hite’s probation file notes that she

22

verbally told her probation officer: “Eyesight continues to worsen.” “Have eyeglasses on the

23

way—should be here by end of 12/01.” Doc. 22-2 at 12. The record discloses nothing more.

24

Notably, Petitioner does not contend that the probation file itself states that Petitioner was legally

25

blind or sets forth any information regarding Petitioner’s medical history.
The record includes Hite’s optometric and medical records for an extended time period. 10

26
27
9

28

The key to the gun case was on the key ring in the ignition of Wallen’s vehicle.
Hite signed documents authorizing the release of her medical records to petitioner’s counsel.

10

49

1
2

Only those records close in time to the November 18, 2001, incident are relevant.
Notes from Hite’s October 2001 eye examination are included in the record as Doc. 10-2

3

at 46-47. Hite told the examining doctor, Dr. Ardron, that her near and distance vision had

4

recently diminished. With her glasses on, she experienced blurry vision, glare from lights, double

5

vision, trouble reading, trouble reading road signs, and wandering eyes. Her history included lazy

6

eye and crossed eyes. The examination revealed 20/50 uncorrected vision and 20/30 corrected

7

vision. Dr. Ardron noted intermittent double vision and prescribed new lenses.

8

Hite’s October 11, 2001, examination at the primary care clinic of Tuolumne Medical

9

Center appears at Doc. 10-3 at 70-72. After recent detox treatment, Hite was not taking street

10

drugs: she sought to resume treatment of her thyroid problems, which she had discontinued while

11

taking illicit drugs. Hite sought referral to a different neurologist because the assigned doctor had

12

not been helpful. She was experiencing headaches that were not responsive to ibuprofen. Her

13

anti-depressive medication was working well. She also requested an antibiotic for a dental

14

abscess while she sought dental care. Nurse-practitioner Carol Wiley ordered thyroid testing,

15

prescribed penicillin and Vicodin, and noted that the clinic needed to find another neurologist to

16

treat Hite.

17

On November 28, 2001, Hite was hospitalized for a three-week-old subcutaneous hip

18

abscess caused by skin popping heroin. Nursing staff noted that the exophthalmos (bulging) of

19

Hite’s left eye was so severe that it remained open while she slept. Petitioner wore glasses;

20

hospital records (physical therapy screening) note normal functional ability and normal visual

21

function.

22

Petitioner’s expert ophthalmologist, Murad Sunalp, M.D., reviewed Hite’s medical

23

records from Donaldson Eye Care Associates (April 2000-May 2003) and Family Health &

24

Wellness Clinic (April 1999-May 2003); the government’s statement of facts in Petitioner’s direct

25

appeal; and information secured from the Tuolumne County Probation Department by Petitioner’s

26

counsel. In a declaration dated January 5, 2005, Sunalp opined that on November 18, 2001,

27

Hite’s vision was seriously impaired, dropping as low as 20/200 in conditions of poor lighting.

28

Drooping of her right eyelid resulting from myasthenia gravis may have rendered her without
50

1

functional vision in her right eye. Hite’s vision was also compromised by Graves disease.

2

Finally, Hite took multiple prescriptions that can cause visual and physiologic ocular errors and

3

misinterpretation of visual experience.

4

Benjamin Kaufman, M.D., a psychiatrist and neurologist whom Petitioner also hired as an

5

expert, reviewed Hite’s medical records from Donaldson Eye Care Associates (April 2000-May

6

2003) and Family Health & Wellness Clinic (April 1999-May 2003); the government’s statement

7

of facts in Petitioner’s direct appeal; information secured from the Tuolumne County Probation

8

Department by Petitioner’s counsel; and Dr. Sunalp’s opinion letter. In a declaration dated

9

January 6, 2005, he opined that Hite’s physical condition, prescription medications, and visual

10

impairment, combined with her use of heroin and methamphetamine, significantly affected her

11

ability to perceive the events that were the subject of her trial testimony.

12

In an opinion letter dated February 24, 2005, Petitioner’s expert psychologist Deborah

13

Davis opined that Hite’s medical condition, visual difficulties, and legal and illegal drug use put

14

Hite at increased risk of misperception of nonthreatening objects as weapons. She added:

15

It is also likely that a person confronted by persons aggressively
invading her home and engaging in a hostile confrontation might
fear or expect that one or more of them might wield a weapon. Her
fear and expectation could easily lead her to misperceive a weapon
where none existed, particularly if the hand or object was rendered
blurry by her vision difficulties.

16
17
18

Doc. 7 at 108.

19

Davis reviewed the declarations of appellate counsel James B. Andres, Dr. Sunalp, and Dr.
20
21

Kaufman; the government’s statement of facts in Petitioner’s direct appeal; information secured
from the Tuolumne County Probation Department by Petitioner’s counsel; and Hite’s trial

22
testimony.
23
24

In a declaration dated September 18, 2006, Petitioner’s expert opthalmologist John Davis
Edmiston II, M.D., opined that due to uncorrected farsightedness and presbyopia, Hite’s vision

25
was significantly impaired on November 18, 2001. He opined that the circumstances of the
26
interaction and the unique characteristics of the two locations in which Hite had the opportunity
27

to observe and identify a handgun in Petitioner’s possession made it extremely unlikely that Hite

28
51

1

could have accurately perceived and identified a handgun. Hite’s vision would have rendered any

2

object held three feet from her eyes blurry, indistinct, and virtually unrecognizable. The effect

3

would have been aggravated by Hite’s double vision and the fact that she had just awakened from

4

sleep.

5

In a declaration dated September 29, 2006, that was prepared by Petitioner’s counsel, Hite

6

reported that she had an eye examination at Donaldson Eye Care Associates on October 26,

7

2001. In early December 2001, she prepared a written report to Tuolumne County Probation in

8

which she “mentioned that my eye sight was worsening and that I anticipated getting new glasses

9

before the end of December, 2001.” Doc. 9-1 at 60.

10

On October 19, 2005, Dr. Kaufman prepared a second declaration in which he objected to

11

the Attorney General’s characterizing his opinion as “speculation” in its informal response to the

12

December 2005 petition for writ of habeas corpus. Kaufman acknowledged that he had never

13

examined Hite and had no personal knowledge of “the actual lighting conditions and other

14

circumstances, which may have affected Hite’s vision.” Doc. 9-1 at 63. He nonetheless

15

reasserted his opinion that Hite’s medical records formed a sufficient basis for his opinion.

16

In a declaration dated January 7, 2010, and prepared at Respondent’s request, Hite stated,

17

“At the time of the incident, I had no difficulty seeing [Petitioner]. At the time of trial, I had no

18

difficulty seeing her. I identified her in court.” Doc. 22-2 at 32. Although myasthenia gravis

19

occasionally caused double vision, Hite had no difficulty seeing Petitioner on November 18,

20

2001: “She was right in my face. I was easily able to recognize her at that time. I did not feel at

21

the time of the incident that my vision was impaired.” Doc. 22-2 at 33.

22

Hite reported that Petitioner knew that Hite wore glasses; she had worn glasses when she

23

travelled to Modesto with Petitioner and also at trial. She had no difficulty seeing Petitioner in

24

the courtroom. Although Hite briefly lost her driver’s license in the 1990’s for failure to have

25

adequate insurance in an accident, she had no difficulty regaining her license in 2003. Her vision

26

had never prevented her getting a driver’s license.

27
28

Hite never provided a written report to the probation department regarding her vision,
health, or any other issue. To the extent that she disclosed any health information to her
52

1

probation officer, she did so verbally and in person in the course of meeting with her probation

2

treatment team.

3

In a declaration dated February 5, 2010, Michael Knowles, the assistant district attorney

4

who prosecuted the case against Petitioner, stated that at the time of trial, he had no knowledge

5

that Hite had any visual problems.11 Knowles and Hite never discussed her vision nor did Hite

6

offer any unilateral disclosure of medical or vision problems. Knowles added that during a

7

meeting in his office, Hite had no difficulty reading the certificates and diplomas on his wall, as

8

indicated by her spontaneously questioning him about the Order of the Coif.

9

C. State Court Opinions

10
11

In its remand decision dated May 20, 2010, the Tuolumne County Superior Court
resolved this issue factually:

12

Petitioner claims the prosecution suppressed exculpatory evidence
regarding the credibility of a witness. Witness Dorrey Hite made
several statements regarding her deteriorating eyesight in
confidential reports she made to her probation officer while she was
a participant in Drug Court. The witness had previously been
convicted of a drug offense in November 1998, and was on
probation.
Petitioner contends that the information in the
statements the witness made to her probation officer was
information available to the prosecution. Petitioner contends that
the probation department is part of the prosecution team. She
contends that the prosecution committed a Brady error in not
making the information available to her. Petitioner further contends
that the deputy district attorney who prosecuted the case had not
only constructive knowledge of that information, but actual
knowledge as well, as he made appearances for the District
Attorney in the witness’s criminal proceedings.

13
14
15
16
17
18
19
20

Respondent has provided a declaration to this Court from the
prosecuting attorney in Petitioner’s underlying criminal case stating
that while he had met with the witness Dorrey Hite prior to trial, he
was not aware of any vision problems that she may or may not have
had. He further states that he was unaware that her vision was an
issue in any way until the Petition for Writ of Habeas Corpus was
served on the District Attorney’s Office.

21
22
23
24

The prosecution would have received the report prepared by the

25
11

26
27
28

Petitioner contends that Knowles had to have knowledge of Hite’s probation statement because he appeared in
court nine times in the course of Hite’s trial and conviction on a 1997 drug charge and her subsequent violations of
probation. The record indicates that Knowles appeared in proceedings up to and including Hite’s 2000 transfer to
Drug Court supervision. Knowles did not appear in Drug Court, where proceedings regarding Hite were handled by
her treatment team. Hite made the statement regarding her visual problems and anticipated receipt of new glasses in
December 2001, well after Knowles’ involvement in her case.

53

probation department for Dorrey Hite’s sentencing hearing. That
report, reviewed by this Court for this proceeding, contains no
information regarding her medical condition generally, and
specifically contained no information regarding her vision. There is
nothing in the probation report that the prosecution had in its
possession that would indicate the witness’s credibility was at issue
due to deteriorating eyesight.

1
2
3
4

Additionally, a review of the Court’s file for Dorrey Hite’s criminal
proceedings shows that there is no documentation that her medical
condition was mentioned at any of the hearings in the criminal
proceedings leading to conviction. Post-conviction, Ms. Hite was
referred and accepted into Drug Court after a violation of probation.
The statements she made to her probation officer regarding her
eyesight were made while she was a participant in Drug Court. Her
probation officer would have been part of the Drug Court treatment
team.

5
6
7
8
9
10

14

Petitioner has argued that because the probation department is part
of the prosecution team, the information in its records can be
imputed to the District Attorney’s office. The position that a
probation department is part of a prosecution team is contrary to
law. It is long established that a county probation department is an
arm of the Superior Court. (People v. Villareal (1977) 65
Cal.App.3d 938, 945, citing In re Giannini (1912) 18 Cal.App. 166,
169.) The probation department is not a police agency, and the
information in its records cannot be imputed to the prosecution.

15

Doc. 29 at 57-58.

11
12
13

16

The state court distinguished In re Pratt (69 Cal.App.4th 1294 (1999)), on which Petitioner

17

had relied. The prosecution in Pratt had actual possession of the probationary report, unlike the

18

prosecution in Petitioner’s case. The state court found that the record did not support Petitioner’s

19

claim that the prosecution had actual knowledge of Hite’s vision and medical condition but

20

suppressed it.

21
22
23
24
25
26
27

In any event, the court disagreed with Petitioner’s contention that information concerning
Hite’s vision and medical condition was material:
Petitioner previously provided the Court a declaration from her trial
counsel regarding the reports made by Dorrey Hite to her probation
officer while she was a participant in drug court. He states that he
had no knowledge prior to trial that the witness suffered from vision
impairment. He further states he would have used the information
of impaired vision on cross-examination to discredit the witness’s
capacity to perceive the events about which she testified at trial. He
opines that this information is especially important because the
witness was the only person who testified at trial that she observed
petitioner in possession of a handgun.

28
54

1

While counsel has stated what he could have done with the
information about her impaired vision, this does [not] equate to a
showing that having this information prior to trial would have
yielded a different result.

2
3

Doc. 29 at 59.
4
5
6
7
8

Finding reports of Hite’s vision after trial to be irrelevant to the state of her vision on the
date of the crime, the superior court rejected Dr. Edmiston’s opinion as unsupported by records of
Hite’s visual care before the trial. The court also rejected Hite’s attempts to cooperate with
Petitioner’s counsel and the prosecution,12 emphasizing that “she has not recanted her testimony
that she saw Petitioner with a handgun.” Doc. 29 at 59-60.

9
10
11
12

As was the case with the ineffective assistance of counsel claim, the Court of Appeals
rejected Petitioner’s claim that its order to show cause remanding the issue to the superior court
constituted binding factual and legal determinations. Addressing the new petition before it, the
Court of Appeals wrote:

13
The information possessed by the probation department was too
conclusional to constitute favorable or material evidence regarding
the ability of victim Dorrey Hite . . . to perceive a gun in
petitioner’s hand on the night of the offense under the lighting
conditions in the victim’s apartment. (In re Sassounian (1995) 9
Cal.4th 535.)

14
15
16
17

Assuming that the information from the Donaldson Eye Care
Center (Center), the Family Health and Wellness Clinic (Clinic),
and the expert declarations which petitioner was able to develop
from the probation department information may be considered
evidence suppressed by the prosecution, that information was also
conclusional in critical aspects. The reports from the Center and
Clinic did not provide sufficient details about the condition of the
victim’s eyesight on the night of the offense nor the dosages and
frequency of her taking medications. Petitioner’s experts did not
personally examine the victim nor have sufficient details regarding
the lighting conditions in the victim’s apartment. The meager
information that the apartment was illuminated by a “tiny” lamp
does not describe the actual size of the lamp, the voltage of the bulb
or bulbs nor the lamp’s placement and distance relative to the
positions of the victim and petitioner. The experts also did not have
information regarding the extent to which the victim took
medications on the night of the offense. The limited information
available to the experts and their failure to provide adequate

18
19
20
21
22
23
24
25
26
12

27
28

Beginning at Petitioner’s sentencing when she provided a statement that Petitioner’s offense was not so serious as
to require enhanced sentencing, Hite cooperated with defense requests for her assistance in opposing Petitioner’s
sentence under the three strikes law. Nonetheless, Hite has always maintained that Petitioner threatened her with a
revolver on November 18, 2001.

55

“explanation[s]” regarding how they derived their opinions from
the incomplete, partly conclusional and meager information
available to them rendered their opinions insufficient under In re
Sassounian, supra, 9 Cal.4th 535.”

1
2
3

Doc. 29 at 65-66.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

D.

Prosecutor’s Duty to Disclose
1.

In General

“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material to guilt or punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The Supreme Court has also
held that failure to disclose material and favorable evidence violates due process even if the
defendant did not request the evidence. See United States v. Bagley, 473 U.S. 667, 675 (1985);
United States v. Agurs, 427 U.S. 97, 110 (1976).
“To establish that a Brady violation undermines a conviction, a convicted defendant must
make each of three showings: (1) the evidence at issue is ‘favorable to the accused, either because
it is exculpatory, or because it is impeaching”; (2) the State suppressed the evidence, “either
willfully or inadvertently”; and (3) “prejudice . . . ensued.” Skinner v. Switzer, 562 U.S. 521, 536
(2011) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In Sassounian, on which the
Court of Appeals relied, the California Supreme Court applied these federal constitutional
principles and concluded that the petitioner failed to carry his burden of proving that the evidence
allegedly withheld by the prosecution was favorable and material, as required by Bagley (473
U.S. at 674). Sassounian, 9 Cal.4th at 543-44.
2.

Favorable Evidence

“Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by
impeaching one of its witnesses.” Sassounian, 9 Cal.4th at 544 (citing Bagley, 473 U.S. at 676).
Hite’s statements to her probation officer that her vision had deteriorated and that she expected to
receive her new glasses by the end of the year qualify as favorable evidence since they could be
used to impeach Hite’s testimony about what she saw in the course of the November 18, 2001,
incident that lead to the charges against Petitioner.

28
56

1

3.

Suppression

“The prosecution’s duty to divulge relevant information is a ‘broad obligation.’” Amado

2
3

v. Gonzalez, 758 F.3d 1119, 1134 (9th Cir. 2014) (quoting Strickler, 527 U.S. at 281). Under

4

Bagley, “the prosecution must disclose all impeachment evidence,” including impeachment

5

evidence that is not in the prosecutor’s possession. Amado, 758 F.3d at 1134. “The prosecution's

6

duty to reveal favorable, material information extends to information that is not in the possession

7

of the individual prosecutor trying the case.” Amado, 758 F.3d at 1134. “[B]ecause the

8

prosecution is in a unique position to obtain information known to other agents of the

9

government, it may not be excused from disclosing what it does not know but could have

10

learned.” Id. “If the suppression of evidence results in a constitutional error, it is because of the

11

character of the evidence, not the character of the prosecutor.” Agurs, 427 U.S. at 110. For

12

purposes of this habeas petition, the Court will assume the prosecutor’s failure to disclose Hite’s

13

comments to her probation officer, even though the probation department is not part of the

14

prosecution team and the prosecutor did not know of the report, arguably constituted

15

suppression.13

16

4.

Material Evidence (Prejudice)

Evidence is material “if there is a reasonable probability that, had the evidence been

17
18

disclosed to the defense, the result of the proceeding would have been different.” Kyles v.

19

Whitley, 514 U.S. 419, 433-34 (1995); Sassounian, 9 Cal.4th at 544 (quoting Bagley, 473 U.S. at

20

682). “A ‘reasonable probability’ of a different result is . . . shown when the government’s

21

evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles, 514 U.S. at

22

434. “The question is not whether the defendant would more likely than not have received a

23

different verdict with the evidence, but whether in its absence he received a fair trial, understood

24

as a trial resulting in a verdict worthy of confidence.” Id. In addition, the probability must be

25

“objective,” that is, “based on ‘an assumption that the decision maker is reasonably,

26

13

27
28

Petitioner attempts to characterize the prosecutor’s failure to disclose the probation report, of which he was
unaware at the time of trial, as also constituting an error under Napue. See Napue, 360 U.S. at 269 (The prosecutor
has a constitutional duty to correct false testimony.) The Court summarily rejects this imaginative attempt to equate
failure to disclose material unknown to the prosecutor with the constitutionally required disclosure of known
material for impeachment purposes.

57

1

conscientiously, and impartially applying the standards that govern the decision,’ and not

2

dependent on the ‘idiosyncracies of the particular decisionmaker,’ including the ‘possibility of

3

arbitrariness, whimsy, caprice, nullification, and the like.’” Sassounian, 9 Cal. 4th at 545 (quoting

4

Strickland, 466 U.S. at 695).

5

A court must evaluate materiality in the context of the record as a whole. Agurs, 427 U.S.

6

at 112. In addition, it must evaluate the undisclosed evidence collectively, not item by item.

7

Kyles, 514 U.S. at 436. The California courts did so here, rejecting the expert opinions that

8

Petitioner presented to buttress her claim as conclusional and drawn from portions of Hite’s

9

medical records relating to her condition after, or well before, November 18, 2001.

10

The Superior Court’s analysis and rejection of Petitioner’s supporting materials are well

11

supported by the record. Dr. Sunalp’s references to Hite’s drooping right eyelid and Grave’s

12

disease do not find support in the records of medical or optical examinations in fall and early

13

winter 2001. His statement that Hite’s vision dropped to 20/200 in poor light had no apparent

14

basis. Dr. Kaufman’s opinion failed to explain the basis of his conclusions and assumed an effect

15

from heroin and methamphetamine despite the absence of any evidence of Hite’s taking either

16

drug at the time of the incident. Davis’s speculative opinion that Hite likely misperceived some

17

other object as a gun not only has no specific basis in the facts of the underlying incident, it is

18

inconsistent with Hite’s ability to identify specifically the type of gun that she saw and the

19

discovery of that type of gun in the subsequent search of Wallen’s Bronco outside of the

20

apartment. Edmiston’s assumption of uncorrected presbyopia and farsightedness at the time of

21

the incident has no evidentiary basis.

22

In considering Petitioner’s supportive evidence, one must not lose sight of the fact that the

23

expert opinions and declarations post-conviction were submitted only to buttress Petitioner’s

24

claim that the prosecutor failed to disclose two very general statements that Hite made to her

25

probation officer concerning her need for new glasses, which she expected to receive shortly.

26

That those who wear corrective lenses require periodic check-ups and adjustments of their

27

prescriptions is common knowledge, and both Petitioner and her counsel knew that Hite wore

28

glasses. In fact, Petitioner’s trial counsel cross-examined Hite regarding her ability to see
58

1
2

Petitioner on November 18, 2001.
In the Ninth Circuit, “[a] defendant is entitled to material in a probation file that bears on

3

the credibility of a significant witness in the case.” United States v. Strifler, 851 F.2d 1197, 1201

4

(9th Cir. 1988). Contrary to petitioner’s assertion (Doc. 22-1 at 108, ¶ 4), however, the Ninth

5

Circuit does not require “reversal for non-disclosure where undisclosed Brady material in

6

probation file pertained to prosecution witness’s credibility.” In Strifler, the circuit court

7

contemplated that the prosecution would produce a significant witness’s probation records to the

8

trial judge for in camera review. 851 F.2d at 1201. Following review, the judge should release

9

only the specific information relevant to the defendant’s concerns under Brady, not the probation

10
11
12
13
14

reports as a whole. Id. The court explained:
The ruling of the court is a ruling on evidence. The trial court must
release what it finds relevant, material, and probative as to the
witness[‘s] credibility. See Giglio v. United States, 405 U.S. 150,
154 . . . (1972). It need not release evidence that is not material.
Cf. United States v. Bagley, 473 U.S. 667, 682 . . . (1985).
Evidence that is merely cumulative is not credible.

16

We adopt the rule that we will reverse for denial of Brady material
from a probation file if, on review of the file, we find that the
district [trial] court committed clear error in failing to release
probative, relevant, material information.

17

Strifler, 851 F.2d at 1202.

15

18

In this case, Petitioner contacted the probation department directly and directly obtained Hite’s

19

medical records from the providers with her consent. Accordingly, the Strifler holding does not

20

mandate reversal here.

21

In addition, U.S. Supreme Court precedent is contrary to Petitioner’s claim that this Court

22

must reverse without further analysis. Federal courts do not “automatically require a new trial

23

whenever a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful

24

to the defense but not likely to have changed the verdict.” Giglio v. United States, 405 U.S. 150,

25

154 (1972). “[S]trictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure

26

was so serious that there is a reasonable probability that the suppressed evidence would have

27

produced a different verdict.” Strickler, 527 U.S. at 278. “[T]he materiality inquiry is not just a

28

matter of determining whether, after discounting the inculpatory evidence in light of the
59

1

undisclosed evidence the remaining evidence is sufficient to support the jury’s conclusions.” Id.

2

at 290. Instead, the reviewing court must determine whether “the favorable evidence could

3

reasonably be taken to put the whole case in such a different light as to undermine the confidence

4

in the verdict.” Kyles, 514 U.S. at 435.
The California court reasonably determined that the prosecution’s failure to disclose

5
6

Hite’s comment of her need for new glasses did not so alter the case as to undermine confidence

7

in the verdict. The jury knew of other factors potentially affecting Hite’s credibility, including

8

her criminal record, her prior heroin addiction, and her admitted continued occasional use of

9

heroin at the time of the incident. Petitioner’s identity was never in question. The only element of

10

her conviction that Petitioner challenges in the petition before this Court is her possession of the

11

gun.

12

Despite the nondisclosure of the evidence that Hite told her probation officer that her

13

vision had deteriorated and she expected to receive new glasses, the prosecution produced reliable

14

evidence sufficient for the jury to conclude that Petitioner had a gun. Questioned about her

15

ability to see Petitioner and the gun, Hite denied any difficulty, explaining that Petitioner stood

16

very close to Hite and waved the revolver in Hite’s face.

17

Even if Hite could not have clearly seen the gun, she testified that Petitioner repeatedly

18

stated that she was going to shoot Hite. According to Hite’s testimony, when Wallen heard the

19

small sum ($20.00) that Petitioner claimed Hite caused her to lose, he expressed disbelief and

20

attempted to disarm Petitioner. Hite took advantage of the break in the action to escape out her

21

back door and run to Castro’s apartment, yelling to him to call the police because Petitioner had a

22

gun.

23

According to Hite, when Hite exclaimed that Petitioner had a gun, Petitioner confirmed,

24

“You’re damn right I got one.” In a statement to Deputy Evans at the scene, Castro also claimed

25

to have heard Petitioner respond, “You’re damn right I got one.” On the stand at trial, however,

26

Castro denied that statement and claimed that Petitioner told him that she “should have had a

27

gun.” Deputy Evans testified that when interviewed on the scene, Castro told Evans that

28

Petitioner said, “You bet I have a gun.” Despite the contradictory testimony, the jury could
60

1
2

reasonably have credited the testimony that Petitioner acknowledged her gun possession.
Wallen’s location after Hite fled the apartment was also disputed in the trial testimony.

3

But the jury could reasonably have credited Vickie Paul’s testimony that Wallen met Petitioner at

4

the front door as she left Hite’s apartment and urged her to leave. Assuming that it did so, the

5

jury could also have concluded that Wallen had sufficient time to return the revolver to its case in

6

his Bronco, locking it with the key on his key ring.

7

Finally, Petitioner, buttressed by Davis’s conclusory declaration, argues that Hite only

8

saw an object that she thought was a gun. When sheriff’s officers arrived at the scene, Petitioner

9

and Wallen spontaneously declared to responding officers that neither of them had a gun.

10

Questioned separately before officers searched Wallen’s Bronco, Hite described the gun to

11

Corporal McCaig as a revolver and a “six-shooter.” She also identified the gun accurately on a

12

chart displayed by Sergeant Mele. Later, the officers discovered a gun fitting Hite’s description in

13

a case in the back of Wallen’s Bronco.

14
15

5.

Summary and Recommendation

When the evidence is evaluated as a whole, Hite’s telling her probation officer that she

16

needed, and would soon receive, new glasses could not reasonably be seen “to put the whole case

17

in such a different light as to undermine the confidence in the verdict” and so, “did not have the

18

capacity to change fundamentally a reasonable probability that the suppressed evidence would

19

have produced a different verdict.” The undersigned recommends that the Court conclude that

20

the prosecution’s failure to disclose the statement in Hite’s probation records did not violate

21

Brady because it was not material.

22

VIII. Certificate of Appealability

23

A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

24

district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

25

Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

26

certificate of appealability is 28 U.S.C. § 2253, which provides:

27
28

(a) In a habeas corpus proceeding or a proceeding under section 2255
61

1

before a district judge, the final order shall be subject to review,
on appeal, by the court of appeals for the circuit in which the
proceeding is held.

2
3
4
5
6
7
8
9
10
11
12
13
14
15

(b) There shall be no right of appeal from a final order in a proceeding
to test the validity of a warrant to remove to another district or
place for commitment or trial a person charged with a criminal
offense against the United States, or to test the validity of such
person's detention pending removal proceedings.
(c)

(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a
state court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing
required by paragraph (2).

16
17
18

If a court denies a habeas petition, the court may only issue a certificate of appealability
"if jurists of reason could disagree with the district court's resolution of his constitutional claims

19

or that jurists could conclude the issues presented are adequate to deserve encouragement to

20

proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

21

Although the petitioner is not required to prove the merits of his case, he must demonstrate

22

"something more than the absence of frivolity or the existence of mere good faith on his . . .

23
part." Miller-El, 537 U.S. at 338.
24
25

In the present case, the Court finds that reasonable jurists would not find the Court's

26

determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

27

deserving of encouragement to proceed further. Petitioner has not made the required substantial

28

showing of the denial of a constitutional right. Accordingly, the Court declines to issue a
62

1

certificate of appealability.

2

IX.

3

Conclusion and Recommendation
The undersigned RECOMMENDS that the Court deny with prejudice the petition for

4
habeas corpus and decline to issue a certificate of appealability.
5
6

These Findings and Recommendations will be submitted to the United States District

7

Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

8

(30) days after being served with these Findings and Recommendations, either party may file

9

written objections with the Court. The document should be captioned AObjections to Magistrate

10
11

Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and
filed within fourteen (14) days after service of the objections. The parties are advised that failure

12
13
14
15

to file objections within the specified time may constitute waiver of the right to appeal the District
Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

16
17

IT IS SO ORDERED.

18
Dated:
19

/s/ Barbara

January 4, 2016

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
63