Kelley v. Wofford
Filing
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ORDER DENYING PETITION for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Terminate Case; and ORDER DECLINING Issuance of Certificate of Appealability signed by Magistrate Judge Stanley A. Boone on 4/1/2014. CASE CLOSED. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARC A. KELLEY,
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Case No. 1:13-cv-01313-SAB-HC
Petitioner,
ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS
v.
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND
TERMINATE CASE
CARL WOFFORD, Warden,
Respondent.
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
19 pursuant to 28 U.S.C. §2254. The parties have consented to the exercise of Magistrate Judge
20 jurisdiction pursuant to 28 U.S.C. § 636(c).
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I.
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BACKGROUND
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Petitioner is currently in the custody of the California Department of Corrections and
24 Rehabilitation pursuant to a judgment of the Superior Court of California, County of Fresno,
25 following his conviction by jury trial on September 20, 2011, of assault with a deadly weapon
26 (Cal. Penal Code § 245(a)(1)) and two counts of resisting an officer (Cal. Penal Code § 69).
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1 (LD1 1.) He was sentenced to a total determinate term of 15 years and 8 months.
Petitioner timely filed a notice of appeal. On December 28, 2012, the Fifth District Court
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3 of Appeal affirmed the judgment. (LD 1.) Petitioner did not petition for review in the California
4 Supreme Court. However, he filed a petition for writ of habeas corpus in the California Supreme
5 Court on March 25, 2013. (LD 5.) The petition was summarily denied on May 15, 2013. (LD
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On August 19, 2013, Petitioner filed the instant federal habeas petition in this Court. He
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8 raises the following grounds for relief: 1) He alleges the trial court erred by admitting testimony
9 of Petitioner’s prior violent contacts with law enforcement; 2) He contends the trial court erred
10 by failing to review records of charging officers pursuant to his discovery request under Pitchess
11 v. Superior Court, 11 Cal.3d 531 (1974); 3) He claims the prosecutor committed misconduct; and
12 4) He alleges the evidence denied him was exculpatory and material. On February 5, 2014,
13 Respondent filed an answer to the petition. Petitioner did not file a traverse.
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II.
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STATEMENT OF FACTS2
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Testimony of Jimmy Perez
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On November 22, 2010, appellant, Jimmy Perez, and other people were homeless
and living in Pilibos Park in southeast Fresno. On that afternoon, Perez was
barbecuing food at the park and was sitting with a number of friends, including
Aaron Aylward and Matthew Ortega. Perez testified that appellant approached
him and claimed that Perez has sexually assaulted one of his relatives. Appellant
then began hitting Perez with a board that was “[a]bout six feet tall with a little
point on the end ... a little tiny stick sticking out of it, like a point.” Appellant
struck Perez five or six times on the arm and broke his limb and the board itself.
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Perez testified, “He [appellant] came to me. He was all loaded. He was on
methamphetamine. He was loaded. He didn't want to f* * *ing calm down or
nothing. He just kept on hitting me.” The prosecutor asked Perez whether he had
ever stolen anything from appellant. Perez said, “I don't steal from him. I don't
steal from nobody. I'm a homeless guy. I don't like stealing. If you're homeless,
you don't steal.”
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“LD” refers to the documents lodged by Respondent with his answer.
The appellate court’s summary of the facts in its December 28, 2012, opinion is presumed correct. 28 U.S.C. §§
2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the Court adopts
the factual recitations set forth by the Fifth DCA. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir.2009),
cert. denied, 130 S.Ct. 1086 (2010) (“We rely on the state appellate court’s decision for our summary of the facts of
the crime.”).
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Testimony of Aaron Aylward
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Aylward was sitting at a picnic table when appellant approached and began to
speak with Perez. Aylward said appellant was “carrying a 2 x 4, I don't know,
maybe four or five feet long.” Appellant started circling the picnic tables near the
barbecue but kept his eye on Perez. According to Aylward, appellant said he
knew what Perez had done. Aylward also remembered appellant saying
something about Perez raping his niece and then hitting Perez with the board.
Aylward said appellant swung the board like an ax and caught Perez in the left
arm. Aylward said appellant struck Perez at least two times and then walked away
“towards the back end of the park,” near Willow Avenue. Aylward said that Perez
had been drinking on November 22, and that Perez had been known to steal
possessions from other people in Pilibos Park. However, Aylward said Perez and
appellant had no problems in the past.
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Preliminary Hearing Testimony of Matthew Ortega
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Matthew Ortega was unavailable to testify as a witness at trial and his preliminary
hearing testimony was read into the record. Ortega said he was preparing food and
barbecuing in the park late on the afternoon of November 22 while others sat
around a picnic table. Ortega testified that appellant angrily approached Perez,
struck him several times with a long piece of two-by-four board, and then walked
away. Ortega heard appellant say something about Perez raping his niece. Ortega
said he was surprised by appellant's anger because he saw appellant regularly and
never saw him display that emotion.
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Testimony of Melanie Dorian
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Fresno Police Officers Melanie Dorian and Gregory Catton responded to Pilibos
Park to investigate the incident. They contacted Perez, who was agitated and
upset. He told the officers a black male adult had struck him with a board and that
the man was still in the park. His left ear was bleeding and he was holding his left
arm. Dorian observed a large bump on the forearm close to his elbow. Perez
indicated that the suspect had gone to the northeastern portion of the park and the
two officers contacted appellant there. Appellant was holding two long pieces of
wood and appeared to be moving them in a martial arts style. Dorian said the two
pieces fit together to form one piece of wood and that a sharpened wooden dowel
about seven inches long had been affixed to the long piece of wood. At trial, one
of the two long pieces of wood measured 38 inches long and the other measured
48 inches long.
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The two officers ordered appellant to drop the sticks and he complied after
hesitating several seconds. Dorian said that after hesitating, appellant first
dropped one piece of wood and then the other. Dorian and Catton ordered him to
raise his hands above his head because the two pieces of wood were within his
reach and his hands were at his sides. Dorian said appellant bent his elbows and
raised his hands, palms out, to the height of his chin. The officers then repeatedly
ordered him onto his knees, but appellant went down only on one knee.
According to Dorian, appellant never said that he could not get down on his other
knee because it hurt or was injured. Dorian explained that one knee was
insufficient because, “He could easily push off of one knee and charge us or run
away. He's not controlled.” She also explained that “[w]hen his hands were at
shoulder height, he was still glancing at the ground, glancing back at us, and I
believed he was considering reaching down and grabbing the pieces of wood.”
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Dorian told appellant that he was in danger of being shot with a “less lethal”
beanbag shotgun. Appellant did not respond to Dorian's statement. Officer Catton
attempted to grab appellant's hands, and appellant began to fight with him. Dorian
covered appellant as Catton attempted to “grab ahold of his hands.” Appellant
struck Catton's hands away. As appellant attempted to lie on his back, Dorian
fired one shot, and the beanbag struck appellant in the lower chest/mid-torso area,
without effect. Dorian determined the “less lethal” shotgun was not going to be an
effective weapon against appellant and she did not shoot any more rounds.
Dorian said she and Catton engaged in “an ongoing physical struggle where we
were constantly moving in to try to control his hands and Mr. Kelley was
punching at us and kicking at us and causing us to back away....” Dorian said
Catton continued to struggle with appellant and Catton deployed his Taser three
times. Dorian explained the functioning of a Taser in this fashion: “The Taser has
a cartridge that fits on the end of it, and inside the cartridge are two darts and they
are connected to two wires, and the wires are 25 feet long. They come in different
lengths. You can deploy the Taser either [with or] without the cartridge, in which
case you would have to push it up against somebody and it would, you know,
only affect the area where they are struck, or if you fire it with the darts and both
of the darts hit the target, it creates a circuit and it causes their muscles to seize,
and usually they're unable to move for several seconds. The Taser cycles about
three seconds, so it would be three seconds of feeling that.” Dorian further
explained that when Taser darts are affixed to an individual's body, an officer can
make multiple applications of the Taser. On cross-examination, Dorian said the
Taser device has a voltage of 50,000. She added that individuals who are Tased
frequently “clench up, ball up, [are] unable to move. However, Mr. Kelley
seemed to be able to fight through it and continue to move.” The Taser darts
initially had an effect on appellant but, according to Dorian, appellant “was able
to work through that and began to fight us again.” After the first deployment of
the Taser, appellant stopped moving, and the officers unsuccessfully attempted to
turn him on his stomach and handcuff him. When appellant worked through the
effects of the first Tasering, he punched and kicked at the officers. After the
second application of the Taser, appellant tore Taser darts from his chest and then
kicked Dorian in the collar bone and diaphragm area, knocking the wind out of
her. Dorian said the darts were still attached to appellant's body when Catton
deployed the Taser a third time. The third application of the Taser did not subdue
appellant, and he continued to kick at the officers. Dorian said they continued to
struggle with him and tried to roll him over but he was very strong and “a skilled
fighter.” The officers eventually subdued appellant by each grabbing one of his
hands and rolling him over on his stomach. Dorian handed her handcuffs to
Catton, who placed them on appellant. Dorian said they were able to subdue
appellant after he kicked at her a second time.
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Officer Dorian said the struggle lasted around four minutes, and then the officers
requested emergency medical services to obtain treatment for appellant's injuries.
The emergency personnel took appellant to the hospital, and the officers went
with him. At the hospital, appellant waived his rights and agreed to talk to Dorian.
Appellant told Dorian he had consumed methamphetamine and Dr. Pepper that
day. Appellant also said that he was present in Pilibos Park that day because “he
likes to come to the park to watch the pretty females.” Appellant said he saw one
female who appeared to have been hurt by someone, although appellant admitted
that he did not speak with her. Appellant said he knew this by looking in her eyes.
After observing the female, appellant went near Perez and thought he heard Perez
say under his breath that “he had done it.” At that point, appellant ordered Perez
to leave the park. After Perez refused, appellant struck him with one of the sticks.
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Although Aylward testified the wood that appellant held was in the nature of a
two-by-four piece of lumber, the officers referred to the broken wood as “sticks.”
Appellant explained he struck Perez in order to “save face” in the park
community because “he had told Mr. Perez to leave and Mr. Perez had not
listened to him.” Appellant told Dorian at the hospital that he did not know Perez
and that “his leg had accidentally flown up” to hit her chest twice during their
encounter. She acknowledged that appellant was wearing tennis shoes at the time
of their contact.
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Testimony of Gregory Catton
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Officer Catton testified he and Dorian were on patrol duty in southeast Fresno on
the late afternoon of November 22, 2010. Catton said he and Dorian went to
Pilibos Park at the corner of Lane and Winery Avenues, drove onto the park
property, and contacted Jimmy Perez in the center of the park. Catton said Perez
appeared a little intoxicated and had a lot of blood on his body. Catton saw
injuries to Perez's left ear and also said “his left arm was deformed near the elbow
and swollen.” According to Catton, Perez said a person had approached him with
a wooden pole, accused him of committing crimes against a family member, and
then struck him in the head and arm with the pole. Perez did not point out the
assailant to Catton but described him as a black male in his 50s dressed in a
sweatshirt and shorts. Perez told Catton the individual had walked northeast into
the park. Catton drove in that direction and located appellant in 10 to 15 seconds.
Catton said appellant was holding two pieces of two-by-four wood, one in each
hand. Catton explained, “[I]t looked like he was doing martial arts or that he knew
what he was doing with the boards. He was twirling them and that kind of thing.”
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Catton recognized appellant from a prior contact and called out to him from a
distance of 15 or 20 yards, “Marc, put the sticks down.” Catton said he had his
pistol drawn and pointed at appellant when he issued the command. Appellant did
not immediately obey the command. Catton said he waived the sticks for about 10
seconds and posed in a threatening manner. Catton said appellant eventually
placed the sticks about a foot away from his feet. When appellant dropped the
sticks, Catton told him to place his hands on his head and walk toward the two
officers. Appellant stood still and did not obey the commands. He eventually
placed his hands at his sides “kind of in a cross position.” Catton told appellant to
get down on his knees, and he eventually got down on one knee. Appellant did
not tell the officers he had something wrong with his legs, and Catton did not see
a brace on either of appellant's knees.
Catton and Dorian ultimately approached appellant “at angles.” Catton had his
gun in his hand and Dorian had the less lethal shotgun in her hands. Catton put his
gun away when he was approximately two feet away from appellant. At that point
appellant was on one knee and Catton grabbed appellant by the left wrist.
Appellant slapped Catton's hand away. Catton grabbed appellant's arm and wrist
again and tried to place him in a rear wrist lock. However, appellant struggled out
of it and laid on his back. Catton said the weapons were still within appellant's
reach at that point. Catton said appellant rolled from side to side and kicked “with
both of his feet up in the air towards myself several times, and I saw him kick
towards Officer Dorian, also.” Catton said he and Dorian were “pretty much
shoulder to shoulder” at this point in time.
While appellant was kicking in the air, Catton unholstered his Taser, explaining,
“I was going to apply the Taser because I could create some distance between
myself and Mr. Kelley kicking.” As Catton removed his Taser, he heard Dorian
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say, “Less lethal,” and then fire one round. Catton did not know whether the less
lethal discharge hit appellant because it had no immediate effect on appellant.
Appellant continued to kick and roll and would not submit his hands for cuffing.
At that point, Catton applied the Taser and appellant became rigid and stopped
moving for about five seconds, the normal cycle of the device. After the five
seconds elapsed, appellant began to kick and roll again, despite Catton's verbal
commands to comply with the officers' orders. Catton said he applied the Taser
three or four more times.
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Catton said appellant pulled the Taser darts from his skin and the device was no
longer effective. Catton said he had employed his Taser on 10 or 15 previous
occasions and no one before had removed the Taser darts. Catton said appellant
began to kick and fight the officers again. When Catton took time to manually
reload the Taser, he saw appellant kick Dorian “hard” in the chest and leg area.
Catton reloaded the Taser and applied it again. He said the Taser was effective
during the five-second cycle and that appellant continued to fight and kick after
the cycle elapsed. After one application of the Taser, appellant rolled onto his
stomach during the cycle and the officers were able to handcuff him. An
ambulance took appellant to the hospital and the officers followed him there.
Catton said the fighting between appellant and the officers took a minute and onehalf. Catton saw Perez at the hospital and said he had lacerations on the top and
front portion of his left ear.
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Testimony of Clifton MacDonald
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Fresno Police Officer Clifton MacDonald testified that he obtained witness
statements in connection with the November 22, 2010, incident. He said he spoke
to Aaron Aylward, who had been at the park at the time of the incident. Aylward
said he and his friend, Jimmy, were sitting on benches in the center of Pilibos
Park and someone named Mark was standing nearby. Aylward heard Marc mutter
something under his breath and then proceed to circle the benches. According to
Aylward, Marc told Jimmy that “he knew what he did.” Jimmy responded, “‘I
don't know what you're talking about.’” Marc continued to circle the benches and
said, “‘You're gonna pay. I know you raped my niece.’” Marc said the niece's
name was “Kayla.” Jimmy replied, “‘I don't know what you're talking about. I
don't know your niece.’” Aylward said Marc was holding a wood stick with nails
at one end and struck Jimmy in the shoulder with the stick. When Jimmy jumped
off the park bench, Marc struck Jimmy an additional four to six times in the
shoulder, head, and back. Although four or five other people were present in
Pilibos Park at the time of the interview, MacDonald did not talk to anyone else.
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Defense Evidence
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Appellant testified on his own behalf. Appellant said Perez had approached him
on two occasions prior to November 22, 2010, and demanded cash and beer at
knifepoint. Appellant also said that Perez had stolen his personal possessions on
other occasions. Appellant said he approached Perez on the afternoon of
November 22 and politely asked him for the return of his personal possessions. In
making the request, appellant told Perez, “I didn't appreciate how he recklessly
eye-balled or raped my niece when she came up to the park to pick me up one
day.” Appellant explained that Perez leered at his niece and other Sunnyside High
School students and made sarcastic remarks and sexual innuendos. Appellant said
Perez became very hostile and angry, turned red, and made a racial slur.
According to appellant, Perez then put his hands in his jacket pocket and then
pulled out a knife with a four-to-six-inch blade. On an earlier occasion, Perez
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allegedly told appellant, “‘I can get away with carrying this knife because I am
considered crazy ... so I won't get in trouble.’”
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Appellant said Perez lunged at him several times with the knife and said appellant
did not know what he was talking about. At that point, appellant picked up a
board to protect himself. Appellant said he struck Perez with the board to
disengage the knife. Appellant said the knife struck Perez's arm and ear. Although
appellant's blows did not cause Perez to drop the knife, Perez responded by
throwing canned goods at appellant. At that point, appellant went to the “northeast
corner” of the park, away from appellant and his friends.
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Appellant said police officers arrived at the scene and ordered him to drop the
sticks. Appellant said he complied with their command. Appellant said he
complied with the officers' order to raise his hands above his head but could not
comply with their order to get down on both knees. Appellant explained that he
had surgery on his left knee, which prevented him from getting down “all at once
on two knees.” Appellant said he explained this condition to the officers.
According to Officer Dorian, appellant did not mention an injury to his leg on the
date of the incident in Pilbios Park. She said she had contact with him in May
2010 and at that time appellant was wearing a leg brace. Dorian said she
questioned the necessity for appellant's brace in 2010, testifying: “Early in the
afternoon when I contacted him [in May 2010], he was wearing a brace. He made
a big deal out of being unable to bend his leg to get in the patrol car. Later in the
evening I had reason to come in contact with him again, at which point he ran
from us full sprint weaving, dodging back and forth. He looked like a football
player, you know, running down the field. He looked like he was in very good
health.” Dorian added that she could not observe anything wrong with his leg
when he ran at the time of that second contact in May 2010. Appellant also said
he eventually complied with the officers' orders to lay face down on his stomach.
After he did so, he experienced convulsions and blacked out from being Tased.
Appellant said the officers applied the Taser multiple times, but he did not try to
punch either of them. He said he was in pain and could not really understand what
the officers were saying. He also said he could not see or control his body because
of the Tasering.
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Appellant said he spoke with Officer Dorian at the hospital. He claimed she
intimidated him by placing her hand on the Taser while speaking with him. He
denied telling Dorian that he was on methamphetamine that day. On crossexamination, appellant admitted he was convicted of felonious assault on June 29,
2007. However, he denied having an encounter with Dorian in May 2010, a
number of months before the incident underlying this case. Appellant said he
defended and protected himself against Perez because Perez lunged at him with a
knife. Appellant said he did not hit or kick the two officers. Appellant admitted
that he had a previous encounter with Dorian, and that she knew he had used
methamphetamine in the past. Appellant also said that at their prior encounter,
Officer Dorian “told me that the next time she sees me, every time she sees me
she's gonna bust me. She's gonna haul me in.”
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Rebuttal Evidence
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Officer Dorian testified that appellant was not Tased because of prior incidents
with police. She said that force was applied in this instance because the situation
dictated it. She explained, “My prior experience with Mr. Kelley, my knowledge
of his methamphetamine use, my knowledge from training and experience that
people who use methamphetamine are unpredictable and dangerous, the situation
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at hand in which Mr. Kelley was holding the weapons with which he had actually
injured somebody, visible very distinct injury, we felt the need, I felt the need to
use force to protect myself, to protect my partner, to protect the number of people
that were at the park. There were people playing soccer. There were families.
There were a lot of people at the park that day.” Dorian said she did not threaten
appellant to get him to speak with her at the hospital and did not hold her Taser
when she spoke with him.
(LD 1.)
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III.
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DISCUSSION
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A.
Jurisdiction
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Relief by way of a petition for writ of habeas corpus extends to a person in custody
10 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
11 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v.
12 Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as
13 guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County
14 Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28
15 U.S.C. § 2241(d).
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
17 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
18 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
19 Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is
20 therefore governed by its provisions.
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B.
Standard of Review
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Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is
23 barred unless a petitioner can show that the state court’s adjudication of his claim:
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(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
(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.
27 28 U.S.C. § 2254(d); Harrington v. Richter, __ U.S. __, __, 131 S.Ct 770, 784, 178 L.Ed.2d 624
28 (2011); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
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As a threshold matter, this Court must "first decide what constitutes 'clearly established
2 Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71
3 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is "clearly established Federal law," this
4 Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as
5 of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words,
6 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles
7 set forth by the Supreme Court at the time the state court renders its decision." Id. In addition,
8 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal
9 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in
10 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of
11 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009) (quoting Wright v.
12 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
13 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
14 end and the Court must defer to the state court’s decision. Carey, 549 U.S. 70; Wright, 552 U.S.
15 at 126; Moses, 555 F.3d at 760.
16
If the Court determines there is governing clearly established Federal law, the Court must
17 then consider whether the state court's decision was "contrary to, or involved an unreasonable
18 application of,” [the] clearly established Federal law." Lockyer, 538 U.S. at 72 (quoting 28
19 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ
20 if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
21 question of law or if the state court decides a case differently than [the] Court has on a set of
22 materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at
23 72. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite
24 in character or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster's
25 Third New International Dictionary 495 (1976)). “A state-court decision will certainly be
26 contrary to [Supreme Court] clearly established precedent if the state court applies a rule that
27 contradicts the governing law set forth in [Supreme Court] cases.” Id. If the state court decision
28 is “contrary to” clearly established Supreme Court precedent, the state decision is reviewed
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1 under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en
2 banc).
3
“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if
4 the state court identifies the correct governing legal principle from [the] Court’s decisions but
5 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
6 413. “[A] federal court may not issue the writ simply because the court concludes in its
7 independent judgment that the relevant state court decision applied clearly established federal
8 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;
9 see also Lockyer, 538 U.S. at 75-76. The writ may issue only “where there is no possibility
10 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme
11 Court’s] precedents.” Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists
12 could disagree on the correctness of the state courts decision, the decision cannot be considered
13 unreasonable.
Id.
If the Court determines that the state court decision is objectively
14 unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the
15 error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619,
16 637 (1993).
17
Petitioner has the burden of establishing that the decision of the state court is contrary to
18 or involved an unreasonable application of United States Supreme Court precedent. Baylor v.
19 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the
20 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a
21 state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669
22 (9th Cir.2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).
23
AEDPA requires considerable deference to the state courts.
“[R]eview under §
24 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
25 the merits,” and “evidence introduced in federal court has no bearing on 2254(d)(1) review.”
26 Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). “Factual determinations
27 by state courts are presumed correct absent clear and convincing evidence to the contrary.”
28 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a
10
1 state court factual finding is not entitled to deference if the relevant state court record is
2 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),
3 overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
4
C.
Review of Claims
5
1.
Admission of Prior Conduct
6
In his first claim for relief, Petitioner contends the trial court erred by admitting
7 testimony regarding his prior violent contacts with law enforcement. He alleges the evidence
8 was unduly prejudicial and may have led the jury to believe the uncharged evidence. He claims
9 the jury may have based its verdict on this evidence.
10
This claim was presented on direct appeal to the Fifth District Court of Appeal. The
11 claim was denied in a reasoned decision. Petitioner then raised the claim to the California
12 Supreme Court in a petition for writ of habeas corpus.
The petition was denied without
13 comment. When the California Supreme Court’s opinion is summary in nature, the Court must
14 “look through” that decision to a court below that has issued a reasoned opinion. Ylst v.
15 Nunnemaker, 501 U.S. 797, 804-05 & n. 3 (1991). Here, the appellate court analyzed and
16 rejected the claim as follows:
17
18
19
20
21
22
23
24
25
26
27
28
Appellant contends the trial court erroneously admitted Officer Dorian's
testimony about “a prior violent contact with appellant some months before the
current charged offense.” Appellant acknowledges “the District Attorney sought
to introduce this testimony ... to explain Officer Dorian's reactions to appellant's
conduct on November 22,” but nevertheless contends the admission of the
evidence of past contacts constituted prejudicial error.
A. Procedural History
On September 14, 2011, appellant filed a trial brief and motions in limine.
Appellant moved to exclude any reference to Officer Dorian's alleged prior
contacts with appellant, asserting: “[A]ny references to the alleged prior contacts
create an inference that Mr. Kelley is a career felon and/or trouble maker. Such
evidence has no probative value as it is not necessary to prove a fact that is of
consequence to this action and creates a substantial danger of undue prejudice to
Mr. Kelley.” At the contested hearing on the motion, the prosecutor argued, “It
goes to her reasonableness of use of force. Her prior contacts with Mr. Kelley
were resisting. In fact, one of the victims [of the earlier contacts] was the same
[officer], Melanie Dorian ... it explains the reasonableness [of] her conduct, and
that's part of PC 69's elements.”
In response to questioning by the court, defense counsel acknowledged that the
defense position was that excessive force had been used and that Officer Dorian's
11
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prior contacts were relevant. However, counsel stated, “I'm just nervous because
the jury might perceive as he's like a career felon, a troublemaker, that's my
concern.” The court noted, “It would be admitted for a limited purpose and
instructed on under a limited purpose, would it not?” Defense counsel replied,
“Well, if the Court was inclined to allow it, I would request that there would be in
limine instructions.” The court acknowledged counsel's concern and said, “[I]f
there is specific conduct that has relevance here, we've got to instruct the jury as
to the proper way to consider it.” Later in the proceedings on the in limine
motions, the prosecutor noted that Dorian's prior contacts with appellant went to
her reasonableness and her actions on November 22, 2010. The prosecutor further
noted, “Officer Dorian could only speak to her own personal experience or things
she witnessed directly, and I've instructed her as such and will instruct her again.”
The court advised, “[T]here are not to be any disparaging comments reflected
upon status or incarceration or probation or anything of that nature. It would be
directly limited to her personal prior contact with Mr. Kelley that would affect her
actions in this particular event.” The court further advised, “I think that she can
talk about the prior contact and the fact that she has had a physical confrontation.”
At trial, Officer Dorian testified on direct examination that she and Officer Catton
arrived at Pilibos Park on November 22 and saw appellant waving sticks “in a
martial arts fashion.” She testified, “I recognized him from prior contact and I
yelled his name, Marc Kelley, to get his attention.” During the prosecution's casein-chief, Dorian testified that she questioned appellant at the hospital, and he said
he had mixed methamphetamine with Dr. Pepper on the afternoon of November
22. During the direct examination in the defense case, appellant said, “[S]he
[Dorian] looked pretty angry when she came up because of previously meeting.”
He explained, “She told me that the next time she sees me, every time she sees me
she's gonna bust me. She's gonna haul me in.” On cross-examination in the
defense case, the prosecutor asked appellant about his methamphetamine use on
November 22. Appellant said he had Gatorade and food that day but did not tell
Dorian he had mixed methamphetamine with Dr. Pepper. When asked about the
latter point, appellant said, “I told her in a previous encounter, that's how she
knows. She arrested me, and that's how she knows.” On rebuttal, Dorian testified
she had prior experience with appellant and knew of his methamphetamine use.
She also testified that from her training and experience, she knew that people who
use methamphetamine can be unpredictable and dangerous.
19
B. Appellant's Specific Contention
20
21
22
23
24
Appellant contends the jury was presented with two different versions of events
and “it is more than reasonable to infer that the jury, once having heard appellant
engaged in similar conduct with Officer Dorian on a prior occasion, would find
that he resisted attempts to handcuff him and kicked her in the current case. In this
case there was no issue as to identity, motive, common design or plan. None of
the normal reasons for admitting testimony under [Evidence Code] section
1101(b) existed in this case. The only reason was to establish that appellant was a
person who had shown a propensity to violently resist law enforcement officers
when contacted by them.”
25
C. Analysis
26
27
28
Appellant's contention must be rejected for several reasons. First, Officer Dorian
did not testify about prior contacts with appellant in which appellant resisted
Dorian or obstructed the performance of her official duties. At most, the evidence
showed that appellant and Dorian had prior contacts, and that she was aware of
12
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7
8
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12
his methamphetamine usage from those contacts. Second, the motion in limine at
trial was based on “relevancy and [section] 352 of the Evidence Code.” Appellant
did not move in limine or interpose an objection based on Evidence Code section
1101, the statute relied on in his appellate briefs. Questions relating to the
admissibility of evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground sought to be urged on
appeal. (People v. Seijas (2005) 36 Cal.4th 291, 302.)
Finally, at the September 14, 2011 hearing outside the jury's presence, the court
asked defense counsel, “As I understood our informal discussions, Mr. Moore,
wasn't part of your position here that there was excessive force used [by the
officers]?” Defense counsel responded, “Yes, there was.” The court then asked,
“And, therefore, wouldn't all of that [evidence of prior contacts between Dorian
and appellant] be relevant?” Counsel replied, “It would. I'm just nervous because
the jury might perceive [that appellant is] like a career felon, a troublemaker,
that's my concern.” From the entirety of the record, it seems clear that appellant
and Dorian had a contact prior to November 22, 2010, and that appellant had used
methamphetamine before seeing Dorian and Catton on November 22, 2010.
However, the two brief references to Dorian's prior contact with appellant and
appellant's consumption of methamphetamine and soda did not equate to a
depiction of appellant as a career felon or troublemaker. Moreover, these two
brief references in the prosecution's case-in-chief fell far short of appellant's
assertion that the trial court admitted “testimony of Officer Dorian regarding prior
violent contacts with appellant.”
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21
22
Appellant must be mindful that he was charged with two counts of resisting an
executive officer (§ 69). Section 69 sets forth two separate ways in which an
offense can be committed. The first is attempting by threats or violence to deter or
prevent an officer from performing a duty imposed by law. The second is resisting
by force or violence an officer in the performance of his or her duty. (In re
Manuel G. (1997) 16 Cal.4th 805, 814–815.) Section 69 is designed to protect
police officers against violent interference with performance of their duties. While
the object of the offense may not be to attack a peace officer, its consequence is
frequently to inflict violence on peace officers or subject them to the risk of
violence. (People v. Martin (2005) 133 Cal.App.4th 776, 782.) A violation of
section 69 does not require a showing of the state of mind of the recipient of the
threat. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153.) Nevertheless, evidence
of appellant's prior contact with Dorian was probative to the extent it showed that
appellant knew that Dorian was performing her duty when he acted and whether
or not she used unreasonable or excessive force in the performance of her duties
(CALCRIM No. 2652).
The trial court did not commit reversible evidentiary error arising from Officer
Dorian's testimony about her prior contact with appellant.
23
24 (LD 1.)
25
A federal court in a habeas proceeding does not review questions of state evidence law.
26 Our inquiry is limited to whether the evidence ruling “resulted in a decision that was contrary to,
27 or involved an unreasonable application of, clearly established Federal law, as determined by the
28 Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Thus, the question here is not
13
1 whether the state’s exclusion of evidence violated state evidentiary rules, but whether the
2 exclusion of evidence resulted in a decision contrary to or that involved an unreasonable
3 application of established Supreme Court precedent. Id., Williams, 529 U.S. at 412. It is, in fact,
4 possible for a state court to violate its rules of evidence without resulting in a trial so unfair as to
5 violate due process. Jamaal, 926 F.2d at 919. “A state court's evidentiary rulings can form the
6 basis for habeas relief under the due process clause only when they were so conspicuously
7 prejudicial or of such magnitude as to fatally infect the trial and deprive the defendant of due
8 process.” Osborne v. Purkett, 411 F.3d 911, 917 (8th Cir. 2005) (citing Parker v. Bowersox, 94
9 F.3d 458, 460 (8th Cir. 1996)).
10
With respect to the admission of evidence, there is no Supreme Court precedent
11 governing a court’s discretionary decision to admit evidence as a violation of due process. In
12 Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.2009), the Ninth Circuit stated:
13
17
The Supreme Court has made very few rulings regarding the admission of
evidence as a violation of due process. Although the Court has been clear that a
writ should be issued when constitutional errors have rendered the trial
fundamentally unfair, [Citation omitted.], it has not yet made a clear ruling that
admission of irrelevant or overtly prejudicial evidence constitutes a due process
violation sufficient to warrant issuance of the writ. Absent such “clearly
established Federal law,” we cannot conclude that the state court's ruling was an
“unreasonable application.” [Citation omitted.] Under the strict standards of
AEDPA, we are therefore without power to issue the writ . . . .
18
Indeed, the Supreme Court has expressly reserved consideration of whether admission of
14
15
16
19 propensity evidence may violate due process. Alberni v. McDaniel, 458 F.3d 860, 863-64 (9th
20 Cir.2006); Estelle, 502 U.S. at 75, n. 5. Since there is no clearly established Supreme Court
21 precedent governing a trial court’s discretionary decision to admit evidence as a violation of due
22 process, habeas relief is foreclosed.
Holley, 568 F.3d at 1101. Therefore, Petitioner cannot
23 demonstrate that the state court decision was contrary to, or involved an unreasonable application
24 of, clearly established federal law. See 28 U.S.C. § 2254(d). The claim must be denied.
Discovery of Police Officers’ Personnel Files
25
2.
26
Petitioner next alleges the trial court erred by failing to conduct an in camera review of
27 the police officers’ personnel files pursuant to Petitioner’s discovery request under Pitchess v.
28 Superior Court, 11 Cal.3d 531 (1974). Petitioner complains that the files may have contained
14
1 evidence of the officers using excessive force in the past, and this evidence would have been
2 useful to the defense.
3
This claim was also presented on direct appeal to the Fifth District Court of Appeal
4 where it was denied in a reasoned decision. It was then raised to the California Supreme Court
5 by petition for writ of habeas corpus, whereupon it was summarily denied. When the California
6 Supreme Court’s opinion is summary in nature, this Court must “look through” to the reasoned
7 decision of the court below. Ylst, 501 U.S. at 804-05 & n. 3. The appellate court denied the
8 claim as follows:
9
10
Appellant contends the trial court committed reversible error by denying his
request for a pretrial review of the personnel records of Officers Dorian and
Catton under Pitchess v. Superior Court (1974) 11 Cal.3d 531.
11
A. Procedural History
12
On July 11, 2011, appellant filed a motion for pretrial discovery under Pitchess.
His counsel stated in an accompanying declaration: “The information contained in
the personnel files of Officer Catton and Officer Dorian would be used by the
defense to enable it to effectively cross-examine the officers during the trial for
impeachment, in that Mr. Kelley herein alleges that Officer Dorian and Officer
Catton used excessive force, and may have falsified their investigation reports in
order to support the probable cause for the charged offenses.” Counsel also
declared on information and belief that “from time to time persons who have been
arrested and/or detained by Officer Dorian and Officer Catton have made
complaints to their police agencies alleging they have also been victims of
excessive force, aggressive conduct, violence, fabrication, or falsification of
police reports.”
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The court conducted a hearing on the motion on August 15, 2011. Defense
counsel argued: “Your Honor, I think in the motion we lay out that Mr. Kelley ...
was tasered multiple times, shot with a ... rubber gun. He complied with [the]
officers['] request, and I think the officers conducted in—it was excessive force.”
Counsel for the Fresno Police Department custodian of records stated, “The police
department does indicate that he was shot with the less lethal [beanbag shotgun].
It indicates all the things [defense] Counsel is saying. The only issue here is
whether in Mr. Kelley's [case]—it [the report] doesn't say he didn't resist arrest. It
doesn't give [any] factual basis for getting into in camera....”
The trial court denied the motion stating: “Well under Evidence Code [section]
1043, a motion to discover a peace officer's personnel records [has] to be
supported by an affidavit that shows good cause and supports materiality of the
requested information. And that all depends on the sufficiency of the factual
allegations. [¶] You failed to state any plausible factual allegations or any
scenario of excessive force other than what has already been stated as having
occurred. Therefore the motion is denied due to the insufficiency of the affidavit
and declaration.”
28
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1
B. Appellant's Specific Contention
2
Appellant contends “the trial court refused to even examine the records in camera
although they were apparently present in court with counsel representing the
Fresno Police Department. It seems totally unreasonable, based upon appellant's
motion and declarations, to fail to review the records and determine whether or
not either Officer Catton or Officer Dorian had a history of aggressive behavior
toward arrestees or other citizens. In this case there was clearly a difference of
opinion as to what occurred between appellant and the officers on November
22.[¶] If the file contained complaints of excessive force against either officer,
disclosure of the complainants and permitting appellant to investigate those
complaints was clearly in order.”
3
4
5
6
7
C. Applicable Law
8
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In Pitchess, supra, 11 Cal.3d 531, the Supreme Court recognized that a criminal
defendant has a limited right to discovery of a peace officer's confidential
personnel records if those files contain information that is potentially relevant to
the defense. To initiate discovery, a defendant must file a motion seeking such
records. The motion must include affidavits showing good cause for the discovery
or disclosure sought, and set forth the materiality thereof to the subject matter
involved in the pending litigation. (Evid.Code, § 1043, subd. (b)(3).) Good cause
requires the defendant to establish a logical link between a proposed defense and
the pending charge, and to articulate how the discovery would support such a
defense or how it would impeach the officer's version of events. The threshold for
establishing good cause is relatively low. The proposed defense must have a
plausible factual foundation supported by the declaration of defendant's counsel
and other documents. A plausible scenario is one that might have or could have
occurred. “The ‘defendant must also show how the information sought could lead
to or be evidence potentially admissible at trial. Once that burden is met, the
defendant has established materiality under [Evidence Code] section 1043.’
[Citation.]” (People v. Moreno (2011) 192 Cal.App.4th 692, 700–701; Garcia v.
Superior Court (2007) 42 Cal.4th 63, 69.)
If the defendant establishes good cause, the trial court must review the requested
records in camera to determine what information, if any, should be disclosed.
Subject to certain statutory exceptions and limitations, the trial court should
disclose to the defendant such information that is relevant to the subject matter
involved in the pending litigation. An appellate court reviews the denial of a
Pitchess, supra, 11 Cal.3d 531 motion for abuse of discretion. (People v. Moreno,
supra, 192 Cal.App.4th at p. 701.) “‘[A]ll discretionary authority is contextual.’”
(People v. Carmony (2004) 33 Cal.4th 367, 377.) All exercises of legal discretion
must be grounded in reasoned judgment and guided by legal principles and
policies appropriate to the particular matter at issue. Nevertheless, the abuse of
discretion standard is deferential. (People v. Cluff (2001) 87 Cal.App.4th 991,
998.) An appellate court does not substitute its judgment for that of the trial court.
(People v. Myers (1999) 69 Cal.App.4th 305, 310.) An exercise of trial court
discretion is reviewable only for abuse and “will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.” (People
v. Rodriguez (1999) 20 Cal.4th 1, 9–10; People v. Carmony, supra, 33 Cal.4th at
p. 377.)
27
28
16
1
D. Analysis
2
In this case, the court concluded that the affidavit of appellant's trial counsel was
insufficient because it “failed to state any plausible factual allegations or any
scenario of excessive force other than what has already been stated as having
occurred.” Although appellant's trial counsel acknowledged this ruling, counsel
observed, “I think that the conduct in itself is sufficient.” On appeal, appellant
contends his motion and counsel's declaration “stated adequate grounds for the
court to, at a minimum, review the officers' files in camera and determine[ ] what
if any information was to be disclosed to the defendant.”
3
4
5
6
7
8
9
10
11
12
13
“To show good cause as required by [Evidence Code] section 1043, defense
counsel's declaration in support of a Pitchess motion must propose a defense or
defenses to the pending charges. The declaration must articulate how the
discovery sought may lead to relevant evidence or may itself be admissible direct
or impeachment evidence [citations] that would support those proposed defenses.”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.) To obtain in-chambers
review of documents or information in an officer's personnel file that is
potentially relevant to claimed misconduct, “a defendant need only demonstrate
that the scenario of alleged officer misconduct could or might have occurred.” (Id.
at p. 1016.) The defendant must “not only establish a logical link between the
defense proposed and the pending charge, but also articulate how the discovery
being sought would support such a defense or how it would impeach the officer's
version of events.” (Id. at p. 1021.) Counsel's affidavit must describe a factual
scenario supporting the claimed officer misconduct. (Warrick v. Superior Court,
supra, 35 Cal.4th at pp. 1016, 1021.)
14
15
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20
21
22
23
24
25
26
27
28
In this case, the notice of motion filed July 11, 2011, characterized appellant's
defense in this fashion: “[T]hat the involved officers, Dorian (V3320), and Catton
(P1497), may have made deliberate false material misrepresentations and/or
omissions in the incident report ... and/or used excessive force during the arrest of
Mr. Kelley.” The accompanying declaration of counsel alleged: “Specifically, I
am informed and believe to be true that Officer Dorian and Officer Catton used
excessive force upon Mr. Kelley during this incident. The officers might claim
Mr. Kelley was resisting therefore they initiate[d] enough force to effectuate the
arrest.” (Italics omitted.) The written opposition of the custodian of records, filed
August 2, 2011, observed: “Defense has not stated any defense or any logical
connection between the charges the Defendant faces and their defense. Defense
merely states that the force used was excessive and does not dispute the facts as
set forth in the police reports.”
“‘[A]n affirmative defense is one which presumes the prima facie elements of the
crime are true, but exculpates the defendant because of excuse or justification.
[Citations.] Stated another way, an affirmative defense is one which does not
negate any element of the crime, but is new matter which excuses or justifies
conduct that would otherwise lead to criminal responsibility.’” (People v. Spry
(1997) 58 Cal.App.4th 1345, 1368–1369.) Appellant cites no authority for the
proposition that asserted false reports and excessive force on the part of law
enforcement officers comprise an affirmative defense to section 69. As
respondent notes on appeal, the prosecution did not dispute the nature and extent
of the force employed by Officers Catton and Dorian and detailed in their police
reports. The declaration of appellant's trial counsel summarily accused the two
officers of using excessive force but did not address or contradict the factual
elements of the police reports, i.e., that appellant resisted arrest; failed to raise his
arms, drop to both knees, and rest on his stomach upon the orders of the officers;
17
1
2
3
kicked Dorian in the upper chest; and fought with Catton. Further, the declaration
of appellant's trial counsel did not aver the absence of resistance on appellant's
part or explain how the officers' personnel records—records of past incidents, if
any—would lead to relevant evidence or admissible impeachment evidence in this
case, particularly where the officers fully acknowledged the types and degrees of
force employed in the current incident.
4
5
6
7
8
In our view, appellant has not set forth a proposed defense, established a plausible
factual foundation for the alleged officer misconduct, or articulated a valid theory
as to how the requested information might be admissible at trial. Given the
foregoing circumstances, appellant was not entitled to have the trial court review
the requested records in camera to determine what information, if any, should be
disclosed. (People v. Gaines (2009) 46 Cal.4th 172, 178–179.) The trial court did
not abuse its discretion by declining to conduct an in camera Pitchess review of
the officers' personnel records. (Uybungco v. Superior Court, supra, 163
Cal.App.4th at p. 1049.)
9
10 (LD 1.)
11
On habeas corpus review, a federal court is limited to deciding whether a conviction
12 violated the Constitution, laws or treaties of the United States. Habeas relief does not lie for
13 errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). To the extent Petitioner is
14 claiming that the trial court's denial of his Pitchess motion violated state law, the claim is not
15 cognizable on federal habeas review. Id. Thus, this Court limits its consideration to the claim of
16 a federal constitutional violation.
17
A trial court's denial of a defendant's Pitchess motion is cognizable in habeas corpus
18 where the denial implicates the defendant's due process right to receive material exculpatory and
19 impeachment evidence. See Gordon v. Puckett, 2010 WL 891265, at *10 (C.D.Cal. March 7,
20 2010) (“Although a Pitchess motion is a creature of state law, it may implicate a prisoner's due
21 process right to receive material exculpatory and impeachment evidence.”) (citing Harrison v.
22 Lockyer, 316 F.3d 1063, 1065-66 (9th Cir.2003)). The prosecutor is obligated to produce to the
23 defendant any evidence, material either to guilt or punishment, that is favorable to the accused.
24 Brady v. Maryland, 373 U.S. 83, 87 (1963). This obligation extends to impeachment evidence
25 and to evidence that was not requested by the defense. United States v. Bagley, 473 U.S. 667,
26 676, 682 (1985); see also United States v. Agurs, 427 U.S. 97, 107-10 (1976). To prevail on a
27 Brady claim, a defendant must show that “(1) the evidence was exculpatory or impeaching; (2) it
28 should have been, but was not produced; and (3) the suppressed evidence was material to his
18
1 guilt or punishment.” United States v. Antonakeas, 255 F.3d 714, 725 (9th Cir.2001) (citing
2 Paradis v. Arave, 130 F.3d 385, 392 (9th Cir.1997)); see Harrison, 316 F.3d at 1065-66.
3 Evidence is “material” for the purpose of a Brady analysis “if there is a reasonable probability
4 that, had the evidence been disclosed to the defense, the result of the proceeding would have
5 been different.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citation omitted). However,
6 “mere speculation about materials in the government's files” does not require a court to make the
7 materials available for a defendant's inspection. United States v. Michaels, 796 F.2d 1112, 1116
8 (9th Cir.1986) (quoting United States v. American Radiator & Standard Sanitary Corp., 433 F.2d
9 174, 202 (3d Cir.1970)); see Agurs, 427 U.S. at 109-10 (“The mere possibility that an item of
10 undisclosed information might have helped the defense, or might have affected the outcome of
11 the trial, does not establish ‘materiality’ in the constitutional sense.”).
12
In this case, Petitioner’s Pitchess motion failed to provide a sufficient basis for the trial
13 court to be required to grant discovery pursuant to Brady. Petitioner fails to set forth any
14 evidence with respect to information that might be contained in the officers’ personnel files, or
15 that there was a reasonable probability that the trial would have turned out differently had the
16 material evidence been produced. Accordingly, any argument that this might have been so is
17 merely speculation, which is insufficient to warrant habeas relief. See Agurs, 427 U.S. at 10918 10; see also Ritchie, 480 U.S. at 58 n. 15 (a criminal defendant “may not require the trial court to
19 search through” sensitive records “without first establishing a basis for his claim that [such
20 records] contain[ ] material evidence”) (citing United States v. Valenzuela-Bernal, 458 U.S. 858,
21 867 (1982) (a criminal defendant “must at least make some plausible showing of how [the
22 evidence sought] would have been both material and favorable to his defense”)); see also
23 Harrison, 316 F.3d at 1066 (trial court did not violate petitioner's due process rights in denying
24 motion to discover police officer's personnel file where petitioner “made no showing that ... [the]
25 file contained complaints material to his defense”). Therefore, Petitioner fails to demonstrate
26 that the state court rejection of his claim was contrary to, or an unreasonable application of,
27 clearly established Supreme Court authority. 28 U.S.C. § 2254(d).
28 ///
19
1
3.
Prosecutorial Misconduct
2
In his third claim for relief, Petitioner makes a vague claim that the prosecutor committed
3 misconduct concerning Officer Dorian’s testimony that she recognized Petitioner from “prior
4 contact.” (Pet. at 8.) It appears Petitioner is attempting to challenge the admission of the same
5 evidence at issue in the first claim he raised, but in the context of prosecutorial misconduct.
6
Respondent acknowledges that a claim of prosecutorial misconduct relating to the
7 admission of prior conduct evidence was first presented by habeas petition to the California
8 Supreme Court; however, Respondent argues that the claim as stated is too conclusory to warrant
9 relief. The Court agrees.
10
The petition presented to the California Supreme Court was summarily denied. (LD 6.)
11 The claim was not presented to any court below. Therefore, there is no reasoned state court
12 decision. In such a case, the Supreme Court has stated that “a habeas court must determine what
13 arguments or theories supported . . . or could have supported, the state court’s decision; and then
14 it must ask whether it is possible fairminded jurists could disagree that those arguments or
15 theories are inconsistent with the holding in a prior decision of this Court.” Harrington, 131 S.Ct
16 at 784. Petitioner bears the burden of showing that “there was no reasonable basis” for the state
17 court decision. Pinholster, 131 S.Ct. at 1402.
18
A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct “so infected
19 the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly
20 v. DeChristoforo, 416 U.S. 637, 643 (1974).
To constitute a due process violation, the
21 prosecutorial misconduct must be “of sufficient significance to result in the denial of the
22 defendant’s right to a fair trial.” Greer v. Miller, 485 U.S. 756, 765 (1987) (quoting United
23 States v. Bagley, 473 U.S. 667 (1985)).
Any claim of prosecutorial misconduct must be
24 reviewed within the context of the entire trial. Id. at 765-66; United States v. Weitzenhoff, 35
25 F.3d 1275, 1291 (9th Cir. 1994). The court must keep in mind that “[t]he touchstone of due
26 process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the
27 culpability of the prosecutor” and “the aim of due process is not punishment of society for the
28 misdeeds of the prosecutor but avoidance of an unfair trial to the accused.” Smith v. Phillips,
20
1 455 U.S. 209, 219 (1982).
“Improper argument does not, per se, violate a defendant's
2 constitutional rights.” Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (quoting Jeffries
3 v. Blodgett, 5 F.3d 1180, 1191 (9th Cir.1993)). If prosecutorial misconduct is established, and it
4 was constitutional error, the error must be evaluated pursuant to the harmless error test set forth
5 in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Thompson, 74 F.3d at 1577 (“Only if the
6 argument were constitutional error would we have to decide whether the constitutional error was
7 harmless.”).
8
The knowing use of false or perjured testimony against a defendant to obtain a conviction
9 is unconstitutional. Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Supreme Court held
10 that the knowing use of false testimony to obtain a conviction violates due process regardless of
11 whether the prosecutor solicited the false testimony or merely allowed it to go uncorrected when
12 it appeared. Id. at 269. The Court explained that the principle that a State may not knowingly
13 use false testimony to obtain a conviction-even false testimony that goes only to the credibility of
14 the witness-is “implicit in any concept of ordered liberty.”
Id.
Nevertheless, simple
15 inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted
16 the admission of false testimony.
United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th
17 Cir.1995). “Discrepancies in . . . testimony . . . could as easily flow from errors in recollection as
18 from lies.” Id.
19
In this case, Petitioner fails to demonstrate that the testimony of Officer Dorian
20 concerning her prior contacts with Petitioner was false, let alone demonstrate that the prosecutor
21 knew it to be false. Respondent correctly argues that the claim is completely conclusory and
22 speculative. James v. Borg, 24 F.3d 20, 26 (9th Cir.1994). The claim must be denied.
23
4.
Exculpatory Evidence
24
The entirety of Petitioner’s claim is: “Petitioner allege that he show that evidence denied
25 him was in fact exculpatory, evidence was material and.” (Pet. at 10.) Respondent correctly
26 argues that the claim is conclusory and merely a restatement or further argument of the prior
27 claims. The claim does not warrant review.
28 ///
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1
IV.
2
CERTIFICATE OF APPEALABILITY
3
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
4 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.
5 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining
6 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
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(a) In a habeas corpus proceeding or a proceeding under section 2255 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.
(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 issue or issues satisfy the showing required by paragraph (2).
If a court denies a petition, the court may only issue a certificate of appealability “if
20 jurists of reason could disagree with the district court’s resolution of his constitutional claims or
21 that jurists could conclude the issues presented are adequate to deserve encouragement to
22 proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).
23 While the petitioner is not required to prove the merits of his case, he must demonstrate
24 “something more than the absence of frivolity or the existence of mere good faith on his . . .
25 part.” Miller-El, 537 U.S. at 338.
26
In the present case, the Court finds that reasonable jurists would not find the Court’s
27 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
28 deserving of encouragement to proceed further. Petitioner has not made the required substantial
22
1 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to
2 issue a certificate of appealability.
3
V.
4
ORDER
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Accordingly, IT IS HEREBY ORDERED:
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1) The petition for writ of habeas corpus is DENIED WITH PREJUDICE;
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2) The Clerk of Court is DIRECTED to enter judgment and terminate the case; and
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3) The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.
Dated:
April 1, 2014
UNITED STATES MAGISTRATE JUDGE
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