Berry v. McDonald

Filing 38

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING re 1 ; DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT; DISMISSING AS MOOT 27 MOTION FOR A RULING AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Barbara A. McAuliffe on 3/25/2015. CASE CLOSED.(Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 SPENCER E. BERRY, Case No. 1:12-cv-00901-BAM-HC 12 ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), DENYING PETITIONER’S MOTION FOR AN EVIDENTIARY HEARING (DOC. 1), AND DIRECTING THE ENTRY OF JUDGMENT FOR RESPONDENT 13 14 Petitioner, v. 15 16 17 McDONALD, Warden, Respondent. ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 18 19 20 21 22 23 24 25 26 27 28 ORDER DISMISSING PETITIONER’S MOTION FOR A RULING AS MOOT (DOC. 27) Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on May 31, 2012, and on behalf of Respondent on September 26, 2012. Pending before the Court is the petition for writ of habeas corpus, which was filed on May 18, 2012, and transferred to this Court on 1 1 June 1, 2012. Respondent filed an answer on October 4, 2012, and 2 Petitioner filed a traverse on October 26, 2012. A supplemental 3 answer was filed on November 24, 2014, and a supplemental traverse 4 on January 13, 2015. 5 I. Jurisdiction 6 Because the petition was filed after April 24, 1996, the 7 effective date of the Antiterrorism and Effective Death Penalty Act 8 of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. 9 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 10 1004 (9th Cir. 1999). 11 The challenged judgment was rendered by the Superior Court of 12 the State of California, County of Stanislaus (SCSC), which is 13 located within the territorial jurisdiction of this Court. 14 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). 28 Further, Petitioner claims 15 that in the course of the proceedings resulting in his conviction, 16 he suffered violations of his constitutional rights. Accordingly, 17 the Court concludes that it has jurisdiction over the subject matter 18 of the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which 19 authorize a district court to entertain a petition for a writ of 20 habeas corpus by a person in custody pursuant to the judgment of a 21 state court only on the ground that the custody is in violation of 22 the Constitution, laws, or treaties of the United States. Williams 23 v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 24 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam). 25 An answer was filed on behalf of Respondent Warden Mike 26 McDonald, who, pursuant to the judgment, had custody of Petitioner 27 at his institution of confinement at the time the petition and 28 answer were filed. (Doc. 18.) Petitioner thus named as a 2 1 respondent a person who had custody of Petitioner within the meaning 2 of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 3 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. 4 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 5 Accordingly, the Court concludes that it has jurisdiction over 6 the person of the Respondent. 7 II. Background 8 On July 9, 2009, Petitioner was convicted by jury trial in the 9 SCSC of feloniously inflicting cruel corporal punishment and injury 10 on a thirteen-year-old child in violation of Cal. Pen. Code 11 § 273d(a). In a bifurcated proceeding on July 10, 2009, the trial 12 court found true allegations that Petitioner had a prior serious 13 felony conviction for attempted robbery within the meaning of Cal. 14 Pen. Code §§ 664, 211, and 667(d). The court also found true a 15 prior prison term enhancement within the meaning of Cal. Pen. Code 16 § 667.5(b). On December 3, 2009, the court sentenced Petitioner to 17 prison for the middle term of four years, doubled that term to eight 18 years pursuant to the Three Strikes Law, and added a consecutive 19 term of one year for the prior prison term enhancement. 20 Petitioner’s total sentence was nine years. (Amended ans., exh. A, 21 doc. 19-1, 3.) 22 Petitioner appealed the judgment, but his conviction was 23 affirmed, and numerous petitions for habeas corpus relief filed in 24 the state courts were denied. 25 On June 5, 2012, this Court dismissed without leave to amend 26 Petitioner’s state claims, including his challenges to the adequacy 27 of his counsel’s assistance based on the California constitution; 28 his contention that the state court erred in its application of the 3 1 state sentencing laws because Petitioner actually had only one prior 2 “strike” with a current conviction for a non-violent, non-serious 3 offense, which did not warrant a doubled term; a challenge to the 4 authenticity of photographs that had been considered in proceedings 5 in the trial court, which constituted a claim of error concerning 6 the trial court’s ruling on a state law issue of authentication of 7 evidence; and a claim of bias of a state court judge in state 8 collateral review proceedings (as distinct from his claim of a 9 biased tribunal during trial court proceedings). (Doc. 8.) 10 II. 11 Title 28 U.S.C. § 2254 provides in pertinent part: 12 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 13 14 15 16 17 18 19 Standard of Decision and Scope of Review (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 21 (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. 22 Clearly established federal law refers to the holdings, as 20 23 distinct from the dicta, of the decisions of the Supreme Court as of 24 25 26 27 the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 28 412 (2000). 4 1 A state court’s decision contravenes clearly established 2 Supreme Court precedent if it reaches a legal conclusion opposite 3 4 5 6 to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court 7 need not have cited Supreme Court precedent or have been aware of 8 it, "so long as neither the reasoning nor the result of the state9 court decision contradicts [it]." 10 11 12 13 (2002). Early v. Packer, 537 U.S. 3, 8 A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is 14 objectively unreasonable, or 2) extends or fails to extend a clearly 15 established legal principle to a new context in a way that is 16 objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 17 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of 18 clearly established federal law is unreasonable only if it is 19 20 objectively unreasonable; an incorrect or inaccurate application is 21 not necessarily unreasonable. Williams, 529 U.S. at 410. A state 22 court’s determination that a claim lacks merit precludes federal 23 24 25 26 habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court’s decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even 27 a strong case for relief does not render the state court’s 28 conclusions unreasonable. Id. In order to obtain federal habeas 5 1 relief, a state prisoner must show that the state court’s ruling on 2 a claim was “so lacking in justification that there was an error 3 4 5 6 well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87. The standards set by § 2254(d) are “highly deferential 7 standard[s] for evaluating state-court rulings” which require that 8 state court decisions be given the benefit of the doubt, and the 9 Petitioner bear the burden of proof. 10 11 12 13 S.Ct. at 1398. Cullen v. Pinholster, 131 Further, habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, -– 14 U.S.--, 132 S.Ct. 1195, 1199 (2012). 15 In assessing under section 2254(d)(1) whether the state court’s 16 legal conclusion was contrary to or an unreasonable application of 17 federal law, “review... is limited to the record that was before the 18 state court that adjudicated the claim on the merits.” Cullen v. 19 20 Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court 21 has no bearing on review pursuant to § 2254(d)(1). 22 23 24 25 26 Id. at 1400. Title 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden 27 of producing clear and convincing evidence to rebut the presumption 28 of correctness. A state court decision that was on the merits and 6 1 was based on a factual determination will not be overturned on 2 factual grounds unless it was objectively unreasonable in light of 3 4 5 6 the evidence presented in the state proceedings. Cockrell, 537 U.S. 322, 340 (2003). Miller-El v. For relief to be granted, a federal habeas court must find that the trial court’s factual 7 determination was such that a reasonable fact finder could not have 8 made the finding; that reasonable minds might disagree with the 9 determination or have a basis to question the finding is not 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 sufficient. Rice v. Collins, 546 U.S. 333, 340-42 (2006). To conclude that a state court finding is unsupported by substantial evidence, a federal habeas court must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record. 2004). Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. To determine that a state court’s fact finding process is defective in some material way or non-existent, a federal habeas court must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court’s fact finding process was adequate. Id. at 1000. With respect to each claim, the last reasoned decision must be identified in order to analyze the state court decision pursuant to 28 U.S.C. § 2254(d). Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or 28 7 1 rejecting the same claim are presumed to rest upon the same ground. 2 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). 3 Where the state court decides an issue on the merits, but its 4 decision is unaccompanied by an explanation, a habeas petitioner’s 5 burden must be met by showing that here was no reasonable basis for 6 the state court to deny relief. 7 770, 784. Harrington v. Richter, 131 S.Ct. In such circumstances, this Court should perform an 8 independent review of the record to ascertain whether the state 9 court decision was objectively unreasonable. Medley v. Runnels, 506 10 F.3d 857, 863 n.3 (9th Cir. 2007), cert. denied, 552 U.S. 1316 11 (2008); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). 12 Independent review is not the equivalent of de novo review; rather, 13 the Court must still defer to the state court’s ultimate decision. 14 Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 15 However, the deferential standard of § 2254(d) applies only to 16 claims that have been resolved on the merits by the state court. If 17 a claim was not decided on the merits, then this Court must review 18 it de novo. Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004); 19 Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004). The deferential 20 standard of § 2254(d) sets a substantially higher threshold for 21 relief than does the standard of de novo review, which requires 22 relief for an incorrect or erroneous application of federal law. 23 Renico v. Lett, 559 U.S. 766, 773 (2010). 24 III. Biased Tribunal 25 Petitioner alleges that he suffered a denial of his rights to 26 due process and a fundamentally fair trial because of the absence of 27 an impartial tribunal. Petitioner alleges that the trial judge was 28 biased because he denied Petitioner’s habeas corpus petition even 8 1 though an unspecified pleading contained accusations that the same 2 judge was guilty of bias and prejudice; ordered Petitioner to pay 3 $1500.00 in restitution without holding a hearing on ability to pay 4 (which was reversed on appeal); and denied Petitioner’s motions to 5 set aside the verdict, for a new trial, to strike a prior conviction 6 pursuant to Cal. Pen. Code § 667(d), to substitute counsel, and for 7 bail pending appeal. Petitioner further alleges that the trial 8 court had concluded that Petitioner was dangerous and thus prejudged 9 the issue of bail. A. 10 (Doc. 1 at 18.) Procedural Default Respondent contends that this Court should not review 11 12 Petitioner’s bias claim because of Petitioner’s procedural default 1 13 in the state court. Respondent argues that the state court’s 14 reliance on the successive nature of Petitioner’s applications in 15 post-conviction collateral proceedings constitutes an independent 16 and adequate state ground for denying Petitioner’s claim and thus 17 precludes review by this Court. (See LD 15, LD 14-LD 23.) However, 18 Respondent acknowledges that it appears that the state court might 19 have passed on the merits of Petitioner’s claim. (Doc. 19, 36-37.) 20 Respondent contends that in any event, Petitioner has not shown that 21 22 23 24 25 26 27 28 1 The doctrine of procedural default is a specific application of the more general doctrine of independent state grounds. It provides that when state court decision on a claim rests on a prisoner’s violation of either a state procedural rule that bars adjudication of the case on the merits or a state substantive rule that is dispositive of the case, and the state law ground is independent of the federal question and adequate to support the judgment such that direct review in the United States Supreme Court would be barred, then the prisoner may not raise the claim in federal habeas absent a showing of cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice. Walker v. Martin, - U.S. -, 131 S.Ct. 1120, 1127 (2011); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003); Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). The doctrine applies regardless of whether the default occurred at trial, on appeal, or on state collateral review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). 9 1 the state court’s denial of his claim was contrary to, or an 2 unreasonable application of, any Supreme Court precedent. (Doc. 19, 3 37.) 4 A procedural default is not jurisdictional. 5 U.S. 87, 89 (1997). Trest v. Cain, 522 Instead, it proceeds from concerns of comity 6 and federalism because a prisoner=s failure to comply with a state=s 7 procedural requirement for presenting a federal claim has deprived 8 the state courts of an opportunity to address the claim in the first 9 instance. Coleman v. Thompson, 501 U.S. at 831-32. In a habeas 10 case, it is not necessary that the issue of procedural bar be 11 resolved if another issue is capable of being resolved against the 12 petitioner. Lambrix v. Singletary, 520 U.S. 518, 525 (1997). 13 Likewise, the procedural default issue, which may necessitate 14 determinations concerning cause and miscarriage of justice, may be 15 more complex than the underlying issues in the case. In such 16 circumstances, it may make more sense to proceed to the merits. 17 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002). See The Court 18 will proceed to consider the merits of Petitioner’s claim in the 19 interest of economy. 20 A fair trial in a fair tribunal is a basic requirement of due 21 process. In re Murchison, 349 U.S. 133, 136 (1955); see Arizona v. 22 Fulminante, 499 U.S. 279, 309-10 (1991). Fairness requires an 23 absence of actual bias and of the probability of unfairness. 24 Murchison, 349 U.S. at 136. In re Bias may be actual, or it may consist 25 of the appearance of partiality in the absence of actual bias. 26 Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995). A showing that 27 the adjudicator has prejudged, or reasonably appears to have 28 10 1 prejudged, an issue, is sufficient. Kenneally v. Lungren, 967 F.2d 2 329, 333 (9th Cir. 1992). 3 However, there is a presumption of honesty and integrity on the 4 part of decision makers. 5 (1975). Withrow v. Larkin, 421 U.S. 35, 46-47 Further, opinions formed by a judge on the basis of facts 6 introduced or events occurring in the course of the current 7 proceedings do not constitute a basis for a bias or partiality 8 motion unless they display a deep-seated favoritism or antagonism 9 that would make fair judgment impossible. 10 510 U.S. 540, 555 (1994). Liteky v. United States, Thus, stern and even short-tempered 11 efforts at courtroom administration, and judicial remarks during the 12 course of a trial that are critical, disapproving, or even hostile 13 to counsel, the parties, or their cases, ordinarily do not support a 14 bias or partiality challenge. Id. at 555-56. Likewise, Aexpressions 15 of impatience, dissatisfaction, annoyance, and even anger, that are 16 within the bounds of what imperfect men and women... sometimes 17 display@ do not establish bias. 18 Id. Here, there is no basis for concluding that any bias or 19 prejudice entered into, or had any effect on, the judge’s rulings. 20 The fact that the trial court may have made a procedural error 21 concerning the setting of restitution or entered numerous rulings 22 against Petitioner in the course of motion proceedings does not 23 overcome the presumption where, as here, the trial court considered 24 the pertinent pleadings and papers, held hearings on Petitioner’s 25 various motions, and made appropriate rulings. 26 220-29, 302; CT 36, 132 147, 177.) (RT 1-10, 12-24, With respect to the motion for 27 bail pending appeal, the trial court had presided over all the 28 evidence admitted at trial and had sentenced Petitioner to a doubled 11 1 middle term. In sentencing Petitioner, the court had relied on the 2 vulnerability of the victim, the infliction of minor physical but 3 considerable emotional injury, the absence of any provocation, 4 Petitioner’s active participation, Petitioner’s failure to express 5 remorse, and the danger that the court concluded that Petitioner 6 presented to the public safety. (RT 306.) It thus was not 7 unreasonable after conviction and sentence for the court to inform 8 Petitioner and his counsel with respect to the application for bail 9 on appeal that Petitioner would have to show the court why 10 Petitioner did not present a danger to society. (Doc. 1, 57-67.) 11 In denying bail, the trial court expressly relied on 1) the fact 12 that the violent commitment offense had occurred only several days 13 after Petitioner had been released from custody, and 2) Petitioner’s 14 long criminal history. 15 (Id. at 67.) In summary, Petitioner has not shown that the trial court 16 prejudged the case or reasonably appeared to have prejudged the 17 case. Petitioner has not rebutted the presumption of regularity. 18 Whether the claim is judged under the deferential standard of 19 § 2254(d) or under the more demanding standard of de novo review, 20 Petitioner has not shown a violation of his right to a fair and 21 impartial tribunal. Cf. Knowles v. Mirzayance, 556 U.S. 111, 123-24 22 (2009). 23 Accordingly, Petitioner’s due process claim concerning a biased 24 tribunal will be denied. 25 IV. Prosecutorial Misconduct 26 Petitioner argues that two prosecutors (Arno and Rees) 27 manipulated evidence, coerced witnesses, and knowingly presented the 28 false testimony of witnesses by 1) questioning whether photographic 12 1 exhibit number 1 was authentic and declining to vouch for its 2 authenticity, and 2) presenting the testimony of minor witnesses M 3 and T, despite the existence of evidence showing that the witnesses’ 4 testimony was not based on personal knowledge and thus was 5 inadmissible hearsay. (Doc. 1, 19-20.) The evidence on which 6 Petitioner relies includes a pretrial statement of M indicating that 7 she did not recall seeing the striking of the victim, and 8 preliminary hearing testimony of B, the victim, that after the 9 attack, M and T had asked her what happened, and in response the 10 victim had told them. Petitioner argues that the prosecution’s 11 failure to correct the false testimony of M and T denied Petitioner 12 his right to due process of law protected by the Sixth and 13 Fourteenth Amendments. (Id. at 20, 38-41.) Petitioner asserts that 14 the prosecutors coerced the victim to testify that she was injured 15 when at the preliminary hearing she in fact had testified that the 16 only marks on her face were under her ear; when asked if she had a 17 bump somewhere, she said she did on her forehead. (CT 18.) 18 Petitioner alleges that none of the photographic evidence shows any 19 bruises. 20 The SCSC denied habeas relief on this claim because an appeal 21 was still pending; it then denied a later petition as successive and 22 as raising a claim that could have been raised on appeal. (LD 7-LD 23 10.) A. 24 25 Background A supplemental police report of Detective Dodge documents 26 interviews of the minor witnesses conducted at their junior high 27 school. T stated to Detective Dodge that he awoke in his bedroom 28 when someone kicked his bed; he saw B, the victim, sitting up, and 13 1 he saw Petitioner standing over the victim and punching her in the 2 head. (Doc. 1, 48.) At trial, T testified that he saw Petitioner 3 hitting B on the side of her face near her ear. 4 (RT 88.) M, T’s sister, reported to Detective Hodge that she awoke to 5 the sound of someone screaming. She then saw Petitioner standing 6 above B, who was sitting up, covering her face. (Doc. 1, 49.) 7 Although M recalled seeing Petitioner standing over the victim, she 8 did not recall any punching. (Id. at 46-50.) 9 that she awoke because B was screaming. At trial, M testified (RT 93-94.) She then saw B 10 being struck on her head; then someone ran out of the room and 11 closed the door. (Id. at 94.) 12 face the next day. M was cross-examined with respect to her 13 statements at trial. B. 14 15 M recalled seeing bruises on B’s (Id. at 95-96.) Analysis It is an established principle that due process is violated by 16 a prosecutor’s knowing use of false testimony, or failure to correct 17 18 19 20 21 testimony known to be false, in order to secure a conviction. Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 215–216 (1942). Likewise, it is clearly established federal law within the 22 meaning of § 2254(d)(1) that a prosecutor’s improper conduct 23 violates the Constitution only if it so infects the trial with 24 25 26 27 unfairness as to make the resulting conviction a denial of due process. Parker v. Matthews, – U.S. -, 132 S.Ct. 2148, 2153 (2012) (per curiam); see, Darden v. Wainwright, 477 U.S. 168, 181 (1986); 28 Comer v. Schriro, 480 F.3d 960, 988 (9th Cir. 2007). 14 Prosecutorial 1 misconduct deprives the defendant of a fair trial as guaranteed by 2 the Due Process Clause if it prejudicially affects the substantial 3 4 5 6 rights of a defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)). The standard of review of claims concerning prosecutorial 7 misconduct in proceedings pursuant to § 2254 is the narrow standard 8 of due process, and not the broad exercise of supervisory power; 9 improper argument does not, per se, violate a defendant’s 10 11 12 13 constitutional rights. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (citing Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996)). This Court must thus determine whether the alleged 14 misconduct has rendered a trial fundamentally unfair. 15 Wainwright, 477 U.S. at 183. Darden v. It must be determined whether the 16 prosecutor’s actions constituted misconduct, and whether the conduct 17 violated Petitioner’s right to due process of law. Drayden v. 18 White, 232 F.3d 704, 713 (9th Cir. 2000). 19 Further, to grant habeas relief, this Court must conclude that 20 21 the state court’s rejection of the prosecutorial misconduct claim 22 “was 23 24 25 26 so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Parker v. Matthews, 132 S.Ct. at 2155 (quoting Harrington v. Richter, 131 S.Ct. at 767-87). In addition, 27 the standard of Darden v. Wainwright is a very general one that 28 leaves courts with more leeway in reaching outcomes in case-by-case 15 1 determinations. Parker v. Matthews, 132 S.Ct. at 2155 (quoting 2 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 3 4 5 6 In determining whether remarks in argument rendered a trial fundamentally unfair, a court must judge the remarks in the context of the entire proceeding in order to determine whether the argument influenced the jury’s 7 decision. Boyde v. California, 494 U.S. 370, 385 (1990); Darden v. 8 Wainwright, 477 U.S. at 179-82. In Darden, the Court considered 9 whether the prosecutor manipulated or misstated evidence, whether 10 11 12 13 specific rights of the accused were implicated, the context of the remarks in light of both parties’ arguments, the instructions given by the trial court, and the weight of the evidence. Darden, 477 14 U.S. at 179-82. 15 Here, the record does not support Petitioner’s allegation that 16 the prosecutors knowingly presented the false testimony of T. This 17 is because T’s statements and testimony are essentially internally 18 consistent and are generally consistent with the testimony of the 19 20 victim; thus, presenting T’s testimony would not provide a basis for 21 a finding of knowingly presenting perjured testimony. 22 23 24 25 26 M’s pretrial statement of failure to recall punching may be considered to be inconsistent with her testimony that she observed striking on the head. However, this does not necessarily support a conclusion of knowing use of false testimony. The pretrial 27 statements of M on the one hand, and her trial testimony on the 28 other, were otherwise essentially consistent. 16 There is no evidence 1 that the child’s failure of recollection was a prevarication as 2 distinct from a genuine failure of recollection concerning a 3 4 5 6 traumatic event. The inconsistency was the subject of cross- examination as well as comment in closing argument by the prosecutor, who expressly mentioned the inconsistency of M’s 7 statements concerning seeing the striking of the victim and noted 8 that the children’s stories were not absolutely perfect. (RT 147- 9 48.) 10 11 12 13 Further, in view of the weight of the evidence, including the victim’s specific testimony regarding the injuries inflicted by Petitioner, any alleged misconduct was harmless because it was not 14 of a nature or stature to influence the jury’s verdict or render the 15 trial fundamentally unfair. Whether the claim is judged under the 16 deferential standard of § 2254(d) or under the more demanding 17 standard of de novo review, Petitioner has not shown a violation of 18 his right to due process and a fair trial by the prosecutor’s 19 20 presentation of witnesses. Cf. Knowles v. Mirzayance, 556 U.S. 111, 21 123-24 (2009). 22 Thus, the claim will be denied. Insofar as Petitioner challenges the authenticity of 23 photographic exhibits 2 through 4, Petitioner’s claim has been 24 dismissed without leave to amend as a state law claim. 25 V. 26 Petitioner raises multiple issues relating to his sentence. 27 28 Sentencing Issues A. Dismissal of State Law Claims To the extent that Petitioner challenges the sentencing court’s 17 1 failure to grant his motion to strike a prior conviction or the 2 court’s doubling of his sentence under California law based on a 3 non-contest plea to an offense which Petitioner argues did not meet 4 the statutory criteria for doubling, Petitioner’s claims have been 5 dismissed without leave to amend. These claims are based solely on 6 state law. B. 7 8 Challenge to Prior Conviction Petitioner alleges that his fair trial rights were violated by 9 the use of a 1999 conviction of attempted robbery (Cal. Pen. Code 10 §§ 664 and 211) to enhance his sentence on the current commitment 11 offense. Petitioner alleges that before he entered his no-contest 12 plea to the attempted robbery charge, he did not intelligently and 13 fully understand or waive his rights; thus, the plea agreement was 14 invalid for purposes of increasing his current sentence. 15 6, 10, 17.) (Doc. 1 at Petitioner raised this claim in a habeas petition 16 before the SCSC, which denied it because it was successive and was 17 not raised on appeal (LD 9-10); he later raised it before the Court 18 of Appeal of the State of California, Fifth Appellate District (CCA) 19 (LD 16), which denied the claim summarily (LD 17), as did the 20 California Supreme Court (CSC) (LD 18-19). 21 Review of pre-plea issues is limited by the entry of a guilty 22 plea. 23 24 25 26 In Tollett v. Henderson, 411 U.S. 258, 266-67 (1973), the Court held that the petitioner’s guilty plea to first degree murder, based on the advice of counsel, foreclosed any independent inquiry in federal habeas corpus proceedings into the merits of a claim of 27 unconstitutional racial discrimination in the selection of the grand 28 jury that returned the indictment unless the petitioner demonstrated 18 1 that the advice regarding the plea was not within the range of 2 competence demanded of attorneys in criminal cases. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Id. at 266-67. The Court stated the following: We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases,’ McMann v. Richardson, supra, 397 U.S. at 771, 90 S.Ct. at 1449. Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief. 18 19 20 21 22 23 24 25 26 27 We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. Tollett, 411 U.S. 266-67. Further, where a petitioner’s state court conviction is later 28 used to enhance a criminal sentence, the petitioner generally may 19 1 not challenge the enhanced sentence through a petition under § 2254 2 on the ground that the prior conviction was unconstitutionally 3 obtained unless in the proceeding resulting in the prior conviction 4 there was a failure to appoint counsel in violation of Gideon v. 5 Wainwright, 372 U.S. 335 (1963). Lackawanna County Dist. Attorney 6 v. Coss, 532 U.S. 394, 403-04 (2001). Where the prior conviction is 7 no longer open to direct or collateral attack in its own right 8 because the defendant either failed to pursue those remedies while 9 they were available or pursued them unsuccessfully, relief by way of 10 28 U.S.C. § 2254 is unavailable. Id. This is because of the need 11 for finality of convictions and other concerns related to the 12 administration of justice based on the substantially diminishing 13 likelihood that state court records and transcripts of prior 14 convictions will be retained and will remain accessible for review. 15 Id. 16 Thus, Petitioner’s claims concerning the validity of the plea 17 that resulted in the prior conviction do not present a basis for 18 relief in this proceeding. 19 To the extent Petitioner claims the trial court had a duty to 20 re-confirm that his prior plea was knowing and voluntary before 21 using the resulting conviction to enhance the current sentence, 22 Petitioner fails to support this claim with any clearly established 23 federal law. 24 25 C. Cruel and Unusual Punishment Petitioner alleges that using Cal. Pen. Code §§ 667(b)–(i) and 26 1170.12 to double his sentence for his non-violent and non-serious 27 felony from four to eight years violates his right to be free from 28 cruel and unusual punishment protected by the Eighth and Fourteenth 20 1 Amendments. (Doc. 1 at 17-18.) This claim was denied summarily by 2 the CCA and the CSC without a statement of reasoning or citation of 3 authority. (LD 16-19.) 1. 4 5 Background Evidence in the trial record reflects that Petitioner opened 6 the door to the room where B was and threw a pill bottle at her, 7 hitting her somewhere around her leg but below her waist. (RT 478 48.) Petitioner placed his hand over B’s mouth and repeatedly told 9 her to shut up. (Id. at 50.) B struggled to get to her knees, and 10 Petitioner repeatedly hit her in the face with his hand, which the 11 victim believed was closed. (Id. at 50-51.) During the struggle, B 12 reached for help and scratched the face of T, who was asleep on the 13 bed next to hers. (Id. at 51.) Petitioner then constantly hit B 14 with a closed fist on her face near the ear and jawline; B covered 15 her face with her hands with clenched fists at her hairline level. 16 Petitioner departed as T and M were awakening. (Id. at 51-52, 86, 17 94.) 18 The record shows that Petitioner has a long history of 19 criminality. As a juvenile, Petitioner was initially made a ward of 20 the court for having committed burglary. (CT 161.) Wardship was 21 continued for approximately five years following sustained petitions 22 for battery, receiving stolen property, unlawfully taking a vehicle, 23 engaging in fraudulent activity, and two separate burglaries. 24 at 161.) (Id. As an adult, Petitioner was convicted for resisting a 25 peace officer, receiving stolen property, attempted robbery, assault 26 with a deadly weapon or by means of force likely to produce great 27 bodily injury, evading a pursuing peace officer, hit-and-run 28 driving, and possessing a device with which to consume drugs or 21 1 alcohol in a state prison. (Id. at 161-62.) Petitioner also 2 violated the terms and conditions of parole seven times. 3 162.) (Id. at He had been paroled on October 6, 2008, and he committed the 4 instant offense just three days later on October 9, 2008. (Id. at 5 162.) 6 A transcript of the sentencing proceedings reflects that the 7 trial court concluded that the offense was committed without 8 provocation against a young, credible, and vulnerable victim, and it 9 resulted in insubstantial physical injuries but substantial 10 emotional injuries based on the mother’s victim impact statement; 11 Petitioner was dangerous and had expressed no remorse. (RT 305-06.) 12 The court denied bail on appeal after the prosecutor argued that the 13 offense had occurred after Petitioner had been out of custody for 14 only three days, the offense was violent, and Petitioner had a long 15 history of criminal offenses. 2. 16 17 (RT 360-61.) Analysis A criminal sentence that is “grossly disproportionate” to the 18 crime for which a defendant is convicted may violate the Eighth 19 Amendment. Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Harmelin v. 20 Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring); 21 Rummel v. Estelle, 445 U.S. 263, 271 (1980). Outside of the capital 22 punishment context, the Eighth Amendment prohibits only sentences 23 that are extreme and grossly disproportionate to the crime. United 24 States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin 25 v. Michigan, 501 U.S. 957, 1001, (1991) (Kennedy, J., concurring)). 26 Such instances are “exceedingly rare” and occur in only “extreme” 27 cases. 28 272. Lockyer v. Andrade, 538 U.S. at 72 73; Rummel, 445 U.S. at So long as a sentence does not exceed statutory maximums, it 22 1 will not be considered cruel and unusual punishment under the Eighth 2 Amendment. See United States v. Mejia Mesa, 153 F.3d 925, 930 (9th 3 Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576 (9th 4 Cir. 1990). 5 The decisions of the Supreme Court confirm that the Eighth 6 Amendment does not disturb the authority of a state to protect the 7 public by adopting a sentencing scheme that imposes longer sentences 8 on recidivists who have suffered a serious prior felony conviction. 9 See Ewing v. California, 538 U.S. 11, 25 (2003) (upholding a 10 sentence of twenty-five years to life for a recidivist convicted of 11 grand theft); Lockyer v. Andrade, 538 U.S. 63, 66-67, 73-76 (2003) 12 (upholding two consecutive terms of twenty-five years to life and 13 denying habeas relief to an offender convicted of theft of 14 videotapes worth approximately $150 with prior offenses that 15 included first-degree burglary, transportation of marijuana, and 16 escape from prison); Rummel, 445 U.S. at 284 85 (upholding a 17 sentence of life with the possibility of parole for a recidivist 18 convicted of fraudulently using a credit card for $80, passing a 19 forged check for $28.36, and obtaining $120.75 under false 20 pretenses); see Taylor v. Lewis, 460 F.3d 1093, 1101–02 (9th Cir. 21 2006) (upholding a sentence of twenty-five years to life for 22 possession of .036 grams of cocaine base where the petitioner had 23 served multiple prior prison terms with prior convictions of 24 offenses that involved violence and crimes against the person). 25 Likewise, the Court has affirmed severe sentences for controlled 26 substance violations. See Harmelin v. Michigan, 501 U.S. at 962-64 27 (1990) (upholding a sentence of life without the possibility of 28 parole for a defendant convicted of possessing more than 650 grams 23 1 of cocaine, although it was his first felony offense). 2 Here, Petitioner’s determinate nine-year sentence is 3 considerably shorter than the sentences of fifty years to life in 4 Andrade and twenty-five years to life in Ewing. Further, 5 Petitioner’s offense involved injury to the person and victimization 6 of a minor. In addition, Petitioner’s significant history of 7 continuing criminality is appropriately addressed by California’s 8 recidivist statute. In light of the limited range of 9 disproportionate sentences recognized as Eighth Amendment violations 10 under Supreme Court authority, and considering the nature of 11 Petitioner’s commitment offense, Petitioner’s prior convictions and 12 long history of serious criminality involving both violent and 13 acquisitive offenses, it would not be objectively unreasonably for a 14 fairminded jurist to conclude that Petitioner’s sentence was not 15 disproportionate and did not offend the Eighth and Fourteenth 16 Amendments. 17 Accordingly, Petitioner’s claim of cruel and unusual punishment 18 will be denied. 19 VI. Ineffective Assistance of Counsel 20 Petitioner alleges that multiple omissions of his trial counsel 21 constituted the ineffective assistance of counsel (IAC). Although 22 Respondent argues that Petitioner’s failure properly to present most 23 of his IAC claims to the state court in a petition for review has 24 resulted in a forfeiture of all of his IAC claims except for one 25 relating to mitigation of sentence, Respondent also addresses the 26 claims on the merits. In the interest of efficiency, the Court will 27 address all Petitioner’s IAC claims. 28 /// 24 1 2 A. Standard of Review The law governing claims concerning ineffective assistance of 3 counsel is clearly established for the purposes of the AEDPA 4 5 6 7 8 deference standard set forth in 28 U.S.C. ' 2254(d). Premo v. Moore, B U.S. B, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151 F.3d 1226, 1229 n.2 (9th Cir. 1998). To demonstrate ineffective assistance of counsel in violation 9 of the Sixth and Fourteenth Amendments, a convicted defendant must 10 show that 1) counsel=s representation fell below an objective 11 standard of reasonableness under prevailing professional norms in 12 light of all the circumstances of the particular case; and 2) unless 13 prejudice is presumed, it is reasonably probable that, but for 14 counsel=s errors, the result of the proceeding would have been 15 different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984); 16 Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). 17 With respect to this Court’s review of a state court’s decision 18 concerning a claim of ineffective assistance of counsel, the Supreme 19 Court has set forth the standard of decision as follows: 20 21 22 23 To establish ineffective assistance of counsel “a defendant must show both deficient performance by counsel and prejudice.” Knowles v. Mirzayance, 556 U.S. ––,––,129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). In addressing this standard and its relationship to AEDPA, the Court today in Richter, –– U.S., at –– – ––, 131 S.Ct. 770, gives the following explanation: 24 25 26 27 28 “To establish deficient performance, a person challenging a conviction must show that ‘counsel's representation fell below an objective standard of reasonableness.’ [Strickland,] 466 U.S., at 688 [104 S.Ct. 2052]. A court considering a claim of ineffective assistance must apply a ‘strong presumption’ 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 that counsel's representation was within the ‘wide range’ of reasonable professional assistance. Id., at 689 [104 S.Ct. 2052]. The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ Id., at 687 [104 S.Ct. 2052]. “With respect to prejudice, a challenger must demonstrate ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ... “ ‘Surmounting Strickland’s high bar is never an easy task.’ Padilla v. Kentucky, 559 U.S. ––, –– [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689–690 [104 S.Ct. 2052]. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is ‘all too tempting’ to ‘secondguess counsel's assistance after conviction or adverse sentence.’ Id., at 689 [104 S.Ct. 2052]; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052. 28 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ id., at 689 [104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is ‘doubly’ so, Knowles, 556 U.S., at ––––, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at –––– [129 S.Ct., at 1420]. 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.” Premo v. Moore, 131 S.Ct. at 739-40 (quoting Harrington v. Richter, 131 S.Ct. 770 (2011)). B. Failure to Confer with Petitioner Petitioner alleges that his trial counsel failed to confer with him adequately before trial, having visited Petitioner only once in the nine months preceding the trial. (Pet., doc. 1 at 11.) With respect to this generalized claim of failure to confer, Petitioner has not shown what information would have been exchanged, how a general failure to exchange information about the crime would have had any effect on the defense’s presentation of evidence or argument at trial, or how failure to communicate before trial would have influenced the trier of fact. Even if the claim is reviewed de novo, the dearth of information does not overcome the strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment required by Strickland. Cf. Burt v. Titlow, - U.S. -, 134 27 1 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). 2 Accordingly, Petitioner is not entitled to relief on this 3 claim. 4 5 C. Failure to Present the Testimony of Witnesses Petitioner alleges that his counsel failed to subpoena and 6 present the testimony of Adam Tafoya and Stacey, whom Petitioner 7 characterizes as two crucial witnesses; instead, counsel simply 8 “Googled” the names. (Doc. 37 at 14; doc. 1 at 12.) Petitioner 9 asserts that the witnesses were mentioned in statements made by 10 other witnesses and in police reports, and he characterizes them as 11 “eyewitnesses” who could have established that Petitioner did not 12 inflict injury on the victim. 13 (Doc. 37 at 31-32, 14.) Reference to the police report that Petitioner submitted as an 14 attachment to the petition reveals that Petitioner came to the 15 residence of T and M on the evening of the offense with his friends, 16 Adam and Stacey. Adam and Stacey then departed. Although 17 Petitioner was a friend of the father of T and M, the father 18 instructed Petitioner to leave because he himself had to depart. 19 However, it may be inferred that Petitioner had obtained a key to 20 the residence before he left and used the key to re-enter later. T 21 and M separately informed police that Adam and Stacey had left 22 earlier, even before their father or Petitioner departed. There is 23 no indication that either Adam or Stacey was present at the time of 24 the assault or in the victim’s presence thereafter. (Doc. 1, 47- 25 49.) 26 Although Petitioner generally alleges that Adam and Stacey 27 would testify on his behalf, Petitioner has not shown that either 28 Adam or Stacey was a witness to either any of the conduct 28 1 constituting the offense or the extent of the injuries manifested by 2 the victim after the offense. Further, Petitioner has not shown 3 that the witnesses were available to testify. Petitioner has not 4 shown that if counsel had presented Adam and Stacey as witnesses, 5 they would have had any information that could have changed the 6 defense or that would have had any effect or influence on the 7 verdict. Even if the claim is reviewed de novo, Petitioner has not 8 established that counsel acted in an objectively unreasonable 9 manner; however, even assuming that showing had been made, 10 Petitioner has not shown that he suffered any prejudice. 11 Thus, Petitioner is not entitled to relief on this claim. D. 12 13 Failure to Investigate and Develop Strategy or Tactics Petitioner alleges that counsel refused to collaborate in order 14 to develop trial strategy and tactics based on facts instead of 15 simply hoping that the jury believed that Petitioner did not commit 16 the crime. (Doc. 1, 12.) Petitioner further alleges that counsel 17 failed to perform unspecified tasks relating to investigating the 18 case. (Id.) Petitioner alleges that counsel relied on discovery 19 documents and the complaint, and he failed to conduct any 20 independent investigation or attempt to interview the prosecution 21 witnesses who testified at trial. 22 (Id. at 16.) Petitioner has not set forth any facts that would establish or 23 even suggest that counsel failed to discover any useful information 24 or evidence. It is unclear whether counsel could have interviewed 25 any of the three juvenile witnesses, and it is possible that counsel 26 could have made a tactical decision not to interview them in light 27 of the fact that significant inconsistencies, such as that relating 28 to M’s observation of striking, were already present in the record. 29 1 It is unknown what any further investigation could have uncovered. 2 With respect to strategy or tactics, Petitioner’s trial counsel 3 called only one witness, Detective Sean Dodge, who testified to his 4 pretrial interview of M in which M made a statement that she did not 5 see Petitioner hit B, which conflicted with her later trial 6 testimony. (RT 111-13.) Counsel argued to the jury that each of 7 the three eyewitnesses was a juvenile, the witnesses had discussed 8 the events with each other, the witnesses may have lacked personal 9 knowledge of the key events, and there were still numerous 10 discrepancies in their testimony. (Id. at 134-39.) Counsel argued 11 that Petitioner should be found guilty of simple battery but was not 12 guilty of the more serious charges. 13 (Id. at 137-38.) Here, the evidence that Petitioner had assaulted the victim 14 came from multiple witnesses who lacked any apparent motive to 15 fabricate. Thus, the evidence that Petitioner engaged in some sort 16 of attack on the victim was strong, and Petitioner faced significant 17 impeachment with his criminal history if he should testify. In 18 light of the limited extent of the physical injuries, a fairminded 19 jurist could conclude that the strategy of challenging the severity 20 of the injuries was not unreasonable. See United States v. Fredman, 21 390 F.3d 1153, 1158 (9th Cir. 2004) (recognizing as reasonable 22 counsel’s tactic of admitting drug activity but contesting 23 involvement in the charged conspiracy). Even if the claim is 24 reviewed de novo, Petitioner has not shown that counsel’s strategy 25 and argument were objectively unreasonable; further, in light of the 26 strong evidence of Petitioner’s involvement in an assault, 27 Petitioner has not shown that he suffered any prejudice. 28 Thus, Petitioner is not entitled to relief on this claim. 30 1 2 E. Failure to Introduce a Photograph Petitioner alleges that counsel failed to object to the 3 omission of, and failed to introduce, favorable evidence, namely, 4 photographic exhibit number 1, which Petitioner alleges controverts 5 the allegations of serious injury and prevents establishment of the 6 “traumatic condition factor.” 7 (Doc. 1, 13.) Four photographs of the victim were introduced, but only three, 8 exhibits 2 through 4, were moved into evidence. (CT 79; Supp.CT.) 9 All four photographs were taken on the same occasion when someone 10 came out to the victim’s home the day after the offense. (RT 54.) 11 Exhibit 1 reflected the victim; exhibits 2 and 4 reflected the 12 bruise on the side of her face that Petitioner inflicted (id. at 5713 58); exhibit 3 showed the bump on top of the victim’s head (id. at 14 58). The victim testified that both exhibits 2 and 3 fairly 15 reflected what her face looked like after having been struck by 16 Petitioner. (Id. at 58.) The three photographs that were admitted 17 showed their subject matter in more detail, whereas exhibit 1 showed 18 Petitioner’s upper torso and face. 19 (Supp.CT.) Under these circumstances, because of exhibit 1’s lack of focus 20 and detail, counsel was objectively reasonable in concluding that 21 exhibit 1 was simply not probative of the extent of the injury and 22 that its usefulness was limited to authentication, and/or that 23 basing an argument on the details of a photograph taken at a 24 distance would not have been persuasive in light of the more 25 specific evidence already before the trier of fact. 26 Further, the photographs that were introduced reflected the 27 victim’s acne condition and thus permitted defense counsel to argue 28 that the redness on the victim’s face was the result of her acne and 31 1 not an assault. (RT 135.) Petitioner has not shown that a decision 2 not to admit the photograph affected the outcome of the proceeding. 3 Even if the claim is reviewed de novo, the Court concludes that 4 in light of the failure of Petitioner to show that failure to 5 introduce exhibit 1 was objectively unreasonable conduct or that its 6 omission from evidence was prejudicial, Petitioner is not entitled 7 to relief on this claim. 8 9 F. Failure to Exclude Testimony of M and T Petitioner alleges that counsel refused to object to, or to 10 file an in limine motion to exclude, the testimony of T and M, which 11 should not have been admitted because 1) before trial on October 22, 12 2008, M stated to law enforcement officers that she did not recall 13 seeing Petitioner punching the victim, and 2) the victim testified 14 at the preliminary hearing that T and M kept asking her what had 15 happened, and she told them. Petitioner argues that this evidence 16 establishes M’s and T’s lack of personal knowledge of the offense 17 and shows that the testimony given was false and thus objectionable. 18 (Doc. 1, 13-14.) 19 Here, insofar as Petitioner contends that the testimony of M 20 and/or T was demonstrably perjured, the Court has previously 21 addressed the related contention of prosecutorial misconduct in 22 presenting the testimony. The record reflects not the presentation 23 of false testimony with knowledge of the falsity, but rather 24 admission of eyewitness testimony that contained some 25 inconsistencies. 26 With respect to Petitioner’s IAC claim relating to admission of 27 the testimony, it may not be disputed that testimony regarding the 28 perpetration of the offense from T and M, persons who were present 32 1 during the commission of the crime and who asserted that they had 2 personal knowledge of the events constituting the body of the 3 offense, was relevant. With respect to the admission of relevant 4 evidence contended to be unreliable, the primary federal safeguards 5 are provided by the Sixth Amendment=s rights to counsel, compulsory 6 process to obtain defense witnesses, and confrontation and cross7 examination of prosecution witnesses; otherwise, admission of 8 evidence in state trials is ordinarily governed by state law. Perry 9 v. New Hampshire, 132 S.Ct at 723 (determining that the Due Process 10 Clause does not require a trial judge to conduct a preliminary 11 assessment of the reliability of eyewitness identification made 12 under suggestive circumstances not arranged by the police). The 13 reliability of relevant testimony typically falls within the 14 province of the jury to determine. Id. at 728-29. Absent improper 15 police conduct or other state action, it is sufficient to test the 16 reliability of evidence through the normal procedures, including the 17 right to counsel and cross-examination, protective rules of 18 evidence, the requirement of proof of guilt beyond a reasonable 19 doubt, and jury instructions. 20 Id. Here, at trial, the victim testified that after Petitioner 21 left, she told M and T what Petitioner had done to her. (RT 53.) 22 The eyewitnesses testified to what they saw and heard, purporting to 23 have personal knowledge of the subject matter of their testimony. 24 (Id. at 79-86, 92-95.) Each eyewitness admitted that the victim 25 later recounted Petitioner’s attack. 26 (Id. at 86, 94-95.) The witnesses’ questioning the victim for an explanation of 27 what happened does not necessarily indicate that the witnesses 28 lacked personal knowledge of the offense; rather, it could indicate 33 1 nothing more than that the witnesses sought to understand what they 2 had seen. Likewise, the post-event discussion did not render the 3 eyewitnesses incompetent to testify regarding their observations. 4 During the examination of witnesses, defense counsel repeatedly 5 objected to hearsay and nonresponsive testimony, and the objections 6 were mainly sustained. (RT 82-85.) The evidence was tested by 7 defense counsel’s cross-examination and was the subject of an 8 argument that the jury had been presented with only a “collective 9 knowledge.” (Id. at 87-91, 95-97, 138.) Thus, counsel undertook 10 reasonable measures to impeach the prosecution witnesses. 11 The failure to make a motion which would not have been 12 successful or was otherwise futile does not constitute ineffective 13 assistance of counsel. 14 1994). James v. Borg, 24 F.3d 20, 27 (9th Cir. Here, no basis for exclusion of the evidence appears. 15 Further, counsel engaged in customary advocacy by cross-examining 16 the witnesses, establishing inconsistencies, and focusing the jury’s 17 argument on the weaknesses in the witnesses’ testimony. Even if the 18 claim is reviewed de novo, Petitioner has not shown that his trial 19 counsel’s performance with respect to the juvenile witnesses was 20 objectively unreasonable or that Petitioner suffered any prejudice 21 as a result. 22 23 24 Therefore, Petitioner is not entitled to relief on this claim. G. Withdrawal of Defenses Petitioner alleges that counsel failed to perform in an 25 unspecified manner which withdrew a crucial but unspecified defense 26 or defenses such that it was reasonably probable that absent such 27 ineffective assistance, a more favorable verdict would have ensued. 28 (Doc. 1, 14.) 34 1 Petitioner’s generalized allegations are not sufficient to 2 overcome the presumption that counsel acted reasonably. Even if the 3 claim is reviewed de novo, Petitioner has not shown that 4 Petitioner’s counsel’s conduct was objectively unreasonable or that 5 Petitioner suffered any prejudice as a result. 6 Therefore, Petitioner is not entitled to relief on this 7 generalized claim. H. 8 9 Sentencing Petitioner alleges that his counsel was ineffective at 10 sentencing because he failed to object to the aggravating factors 11 argued by the prosecution and failed to introduce evidence of 12 mitigating factors affecting Petitioner’s moral culpability, 13 including Petitioner’s medical, educational, vocational, social, 14 correctional, and family history. (Doc. 1 at 14-15, 32.) Counsel 15 failed to investigate Petitioner’s background; an investigation 16 would have revealed 1) at an unspecified time, Petitioner had been 17 diagnosed with bipolar II disorder, was taking psychotropic 18 medications, and was under a psychiatrist’s care; 2) a scratch and 19 redness were the victim’s only injuries, which even the trial court 20 characterized as insubstantial; 3) Petitioner suffered extreme 21 stress due to hospitalization of his mother for COPD, the poor 22 mental and physical health of his grandmother, and the terminal 23 cancer from which his grandfather suffered; 4) Petitioner had not 24 been convicted of a serious felony since February 1999; and 5) 25 Petitioner suffered hallucinations and permanent problems from 26 chronic methamphetamine abuse concurrently with his psychological 27 problems. 28 (Id. at 15-16.) The facts of Petitioner’s offense and Petitioner’s criminal 35 1 history have previously been summarized. 2 In Strickland, the Court expressly declined to consider the 3 role of counsel in an ordinary sentencing proceeding, and it 4 acknowledged that the sentencing context might require a different 5 approach to the definition of constitutionally effective counsel. 6 Strickland 466 U.S. at 686-87. It has been recognized in this 7 circuit that since Strickland, the Court has not delineated a 8 standard which should apply to ineffective assistance of counsel 9 claims in noncapital sentencing cases. Daire v. Lattimore, no. 12– 10 55667, - F.3d -, 2015 WL 1259551, at *5 (9th Cir. March 19, 2015); 11 Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006); Cooper-Smith 12 v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005). 13 However, even assuming for the sake of argument that 14 Strickland’s applicability is clearly established, Petitioner does 15 not prevail under either de novo review or the standard of review 16 imposed by the AEDPA. Petitioner does not set forth specific facts 17 showing the nature and effect of his symptoms or indicating how his 18 condition might have had any effect on his culpability of the 19 commitment offense or the appropriateness of any sentencing 20 decision. Evidence of Petitioner’s mental state in the record 21 includes the report of clinical psychologist Philip S. Trompetter, 22 Ph.D., dated February 7, 2009, rendered in connection with mental 23 competence proceedings in the trial court. 24 that Petitioner was competent. Dr. Trompetter opined His examination revealed a history 25 and diagnosis of, as well as symptoms consistent with, bipolar II 26 anxiety, which Trompetter described as a “mild mood disorder that 27 does not reach the severity of symptoms of a Bipolar I Disorder.” 28 (Rept., CT unpaginated, post-page 218, at 2.) 36 Petitioner was first 1 diagnosed and medicated in 2001; although he reported extreme highs 2 and lows of mood, racing thoughts, and distractibility, he had never 3 been psychiatrically hospitalized. Although he reported a history 4 of alcohol abuse and chronic methamphetamine abuse, he had never 5 been treated in a residential program for drug or alcohol abuse. 6 (Id.) Petitioner had been prescribed a number of psychotropic 7 medications in the past year (Seroquel, Remeron, Trileptal, and 8 Zyprexa), and he was prescribed medications and given a month’s 9 supply when released from prison in the first week of October 2008. 10 (Id.) Other than Petitioner’s claim that he sometimes heard 11 disparaging voices, Petitioner’s mental status examination was 12 completely normal; there was no evidence that his mood was 13 substantially disordered. 14 (Id. at 2-3.) Petitioner argued that trial counsel failed to offer any 15 evidence of mitigation at sentencing, and he failed to rebut the 16 sentencing recommendation. With respect to counsel’s failure to 17 offer evidence of mental condition or emotional circumstances in 18 mitigation, Petitioner has not alleged specific facts warranting a 19 conclusion that any of the proposed factors in mitigation actually 20 influenced or affected Petitioner with respect to his commission of 21 the crime or otherwise reduced Petitioner’s culpability. 22 Petitioner’s arguments are conclusory. Petitioner was diagnosed and 23 was receiving medication at the time of the offense and nevertheless 24 offended; counsel might have decided to forego the evidence because 25 it would warrant a conclusion that despite treatment and control of 26 Petitioner’s mild mood disorder, his recidivist tendencies were 27 independent and resulted in continued criminality. 28 Lattimore, 2015 WL 1259551, at *5-*6. 37 Cf. Daire v. 1 Further, there were five or six aggravating factors that were 2 relied on by the trial court in sentencing Petitioner, including the 3 vulnerability of the victim, infliction of emotional injury upon the 4 victim, active participation in the offense, an absence of 5 provocation by the victim, lack of any expression of remorse, and 6 danger to society. (RT 306.) It could reasonably be concluded that 7 a mental condition exacerbated by the stress of family illness might 8 not outweigh the multiple factors in aggravation of the term that 9 were relied on by the trial court. 10 Counsel addressed the sentencing recommendation by arguing for 11 the striking of a prior conviction, which would have reduced the 12 sentence by a year. (RT 305.) See, Cal. Pen. Code § 667.5(b). 13 Further, when the Court heard Petitioner’s motion to strike 14 Petitioner’s prior robbery conviction, counsel argued that the prior 15 robbery was not of a serious nature. (RT 221.) The granting of 16 this motion could have reduced the sentence up to five years. 17 Pen. Code § 667(a), (d).) (Cal. The argument for a mitigated term would 18 have netted at most two years pursuant to Cal. Pen. Code § 273d(a)) 19 (providing for lower, middle, and upper terms of two, four, and six 20 years, respectively). It would not have been objectively 21 unreasonable for counsel to have concluded that the argument in 22 favor of mitigation was weak, but the argument minimizing prior 23 misconduct was strong and potentially productive. Even if the claim 24 is reviewed de novo, Petitioner has not shown that any omission of 25 counsel was objectively unreasonable or resulted in any prejudice to 26 Petitioner. 27 In summary, the Court concludes that Petitioner is not entitled 28 to relief on this claim. 38 I. 1 2 Cumulative Error Petitioner argues that the cumulative effect of counsel’s 3 errors was to fail to develop a defense of self-defense and 4 imperfect self-defense. 5 (Doc. 1 at 32.) Here, Petitioner’s identity was known to the victim and the two 6 juvenile witnesses. The victim’s testimony reflected her personal 7 knowledge of the attack and contained facts adequate to support a 8 conclusion that Petitioner had attacked the child as she slept, hit 9 her repeatedly, retreated only partially, and remained in in the 10 residence feigning sleep. Two witnesses testified to their 11 observations of portions of the course of conduct that constituted 12 the offense. Petitioner, who had a history of committing offenses 13 that involved violence and moral turpitude, inflicted violence upon 14 the person of an under-age and particularly vulnerable victim only 15 three days after he had been released on parole. In light of the 16 strength of the evidence, the combined omissions of counsel that are 17 established by the evidence have not been shown to have rendered the 18 proceedings fundamentally unfair or to have had any potential effect 19 or influence on the verdict. 20 In summary, Petitioner’s IAC claims will be denied. 21 Further, because the Court has now set forth its determination 22 of the petition on the merits, Petitioner’s request for a ruling, 23 filed on August 15, 2014, will be dismissed as moot. 24 VII. Request for Evidentiary Hearing 25 The decision to grant an evidentiary hearing is generally a 26 matter left to the sound discretion of the district courts. 28 27 U.S.C. ' 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465, 28 473 (2007). To obtain an evidentiary hearing in federal court under 39 1 the AEDPA, a petitioner must allege a colorable claim by alleging 2 disputed facts which, if proved, would entitle him to relief. 3 Schriro v. Landrigan, 550 U.S. at 474. 4 The determination of entitlement to relief is, in turn, is 5 limited by 28 U.S.C. ' 2254(d)(1), which requires that to obtain 6 relief with respect to a claim adjudicated on the merits in state 7 court, the adjudication must result in a decision that was either 8 contrary to, or an unreasonable application of, clearly established 9 federal law. Schriro v. Landrigan, 550 U.S. at 474. Further, in 10 analyzing a claim pursuant to ' 2254(d)(1), a federal court is 11 limited to the record that was before the state court that 12 adjudicated the claim on the merits. Cullen v. Pinholster, 131 13 S.Ct. 1388, 1398 (2011). 14 Thus, when a state court record precludes habeas relief under 15 the limitations set forth in ' 2254(d), a district court is not 16 required to hold an evidentiary hearing. Cullen v. Pinholster, 131 17 S.Ct. 1388, 1399 (2011) (citing Schriro v. Landrigan, 550 U.S. at 18 474). An evidentiary hearing may be granted with respect to a claim 19 adjudicated on the merits in state court where the petitioner 20 satisfies ' 2254(d)(1), or where ' 2254(d)(1) does not apply, such as 21 where the claim was not adjudicated on the merits in state court. 22 Cullen v. Pinholster, 131 S.Ct. at 1398, 1400-01. 23 An evidentiary hearing is not required where the state court 24 record resolves the issues, refutes the application=s factual 25 allegations, or otherwise precludes habeas relief. 26 Landrigan, 550 U.S. at 474. No evidentiary hearing is required for 27 claims based on conclusory allegations. 28 662, 679 (9th Cir. 1994). Schriro v. Campbell v. Wood, 18 F.3d Likewise, an evidentiary hearing is not 40 1 required if the claim presents a purely legal question, there are no 2 disputed facts, or the state court has reliably found the relevant 3 facts. Beardslee v. Woodford, 358 F.3d 560, 585-86 (9th Cir. 2004); 4 Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992). 5 Here, the state court record precludes habeas relief pursuant 6 to § 2254(d). Further, to the extent that § 2254(d) does not 7 preclude relief, then Petitioner has not alleged a colorable claim 8 by alleging facts which, if proved, would entitle him to relief. 9 Accordingly, Petitioner’s motion for an evidentiary hearing 10 will be denied. 11 VIII. Certificate of Appealability 12 Unless a circuit justice or judge issues a certificate of 13 appealability, an appeal may not be taken to the Court of Appeals 14 from the final order in a habeas proceeding in which the detention 15 complained of arises out of process issued by a state court. 28 16 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 17 (2003). A district court must issue or deny a certificate of 18 appealability when it enters a final order adverse to the applicant. 19 Habeas Rule 11(a). 20 A certificate of appealability may issue only if the applicant 21 makes a substantial showing of the denial of a constitutional right. 22 ' 2253(c)(2). Under this standard, a petitioner must show that 23 reasonable jurists could debate whether the petition should have 24 been resolved in a different manner or that the issues presented 25 were adequate to deserve encouragement to proceed further. Miller- 26 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 27 473, 484 (2000)). A certificate should issue if the Petitioner 28 shows that jurists of reason would find it debatable whether: (1) 41 1 the petition states a valid claim of the denial of a constitutional 2 right, and (2) the district court was correct in any procedural 3 ruling. 4 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 5 claims in the habeas petition, generally assesses their merits, and 6 determines whether the resolution was debatable among jurists of 7 reason or wrong. Id. An applicant must show more than an absence 8 of frivolity or the existence of mere good faith; however, the 9 applicant need not show that the appeal will succeed. Miller-El v. 10 Cockrell, 537 U.S. at 338. 11 Here, it does not appear that reasonable jurists could debate 12 whether the petition should have been resolved in a different 13 manner. Petitioner has not made a substantial showing of the denial 14 of a constitutional right. 15 Accordingly, the Court will decline to issue a certificate of 16 appealability. 17 IX. Disposition 18 In accordance with the foregoing analysis, it is ORDERED that: 19 1) The petition for writ of habeas corpus is DENIED; 20 2) Petitioner’s motion for an evidentiary hearing is DENIED; 21 3) The Clerk shall ENTER judgment for Respondent; 22 4) Petitioner’s motion for a ruling is DISMISSED as moot; and 23 5) The Court DECLINES to issue a certificate of appealability. 24 25 IT IS SO ORDERED. 26 27 Dated: /s/ Barbara March 25, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28 42

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