Hughes v. Walker
Filing
74
ORDER signed by Magistrate Judge Gregory G. Hollows on 12/16/14 ordering that petitioner's request for an evidentiary hearing is denied. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
DEANGELO ANTOINE HUGHES,
12
Petitioner,
13
14
No. 2:10-cv-3024 WBS GGH
v.
ORDER DENYING EVIDENTIARY
HEARING
JAMES WALKER,
15
Respondent.
16
17
18
INTRODUCTION AND SUMMARY
19
Petitioner is a state prisoner proceeding, through counsel, with a petition for a writ of
20
habeas corpus pursuant to 28 U.S.C. § 2254. A jury found petitioner guilty of first degree murder
21
and attempted robbery and found true sentencing enhancements of felony murder and personal
22
use of a firearm. Petitioner challenges his conviction and sentence on the following grounds: 1)
23
violation of the Confrontation Clause by the introduction of prior testimony by Timothy Clay;
24
and 2) prosecutorial misconduct by dissuading a witness in the case to not appear at trial (based
25
on the Clay declaration and that of Ketora Clay).1 For the reasons set forth below, the court
26
27
28
1
Petitioner initially stated three claims for relief which included a claim for prosecutorial
misconduct based on the prosecutor’s closing argument. ECF No. 54. Petitioner has abandoned
this claim. ECF No. 73, at 2.
1
1
concludes that an evidentiary hearing should not be held to determine the credibility of Timothy
2
Clay as it relates to petitioner’s claims, nor should the Ketora Clay declaration be considered.
3
BACKGROUND
4
In its unpublished memorandum and opinion affirming petitioner’s judgment of
5
conviction on appeal, the California Court of Appeal for the First Appellate District provided the
6
following factual summary:
7
The Crime
8
Defendant and his friend Jamar Woodson agreed to help Woodson's
cousin, Alexander Glaude, find someone to sell him marijuana.
Glaude followed defendant and Woodson as they drove from
Fairfield to the apartment of O'Brian Buchanan at 1718 Santa Clara
Street in Vallejo.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Buchanan lived on the ground floor of a two-story apartment
building and a stairway to the second floor units was just outside
his apartment door. A walkway along the north side of the building
leads to a rear parking lot.
Glaude arrived there carrying $1,753 in cash between 11 p.m. and
midnight with his girlfriend, Lynesse Hamilton. He parked in the
rear parking lot, told Hamilton he would return soon, and went
inside. He returned about 15 minutes later and moved the car to a
spot on Santa Clara Street, across from the apartment building. He
left Hamilton waiting in the car with the engine running and
returned to Buchanan's apartment.
Sometime later Hamilton noticed a man standing near the corner of
Buchanan's apartment with a white shirt or towel covering his face.
She thought he had a gun because of the way he was holding his
hands, but she did not see any weapon. The man was of a medium
build and dark complected or wearing a dark shirt. Glaude emerged
from the apartment about 15 feet from where the man was standing
and tussled with someone near the front of the building. Hamilton
heard gunshots and was frightened. She ducked and then moved the
car onto the street. As she did so she heard more gunshots. When
Glaude did not appear after a couple of minutes, she drove to the
next block and asked a woman to call 911.
Eileen Vargas lived on the second floor in Buchannan's apartment
building. Shortly after midnight she heard men arguing in the
stairwell area about “weed,” followed quickly by gunshots. She
heard a muffled voice say “Don't look at my face” and “Do you
want me to uncover my face?” Then the voice said “Get down on
the ground” and demanded “Where's the money? and “Where's the
shit?” After that she heard two series of gunshots that totaled about
six shots. The first series of shots came from the front corner area
of the building at the bottom of the stairs. The second series
sounded like it came from the back of the building. Then she heard
2
1
someone say “I've been shot in the hand.”
2
Jerry Rozewski lived across the street from Buchanan's apartment
complex. Shortly after midnight he also heard gunshots coming
from the apartment. From his window he saw a man holding his left
arm leave the apartment complex and get in the back seat of a car
facing the wrong way on Santa Clara Street. Rozewski was unable
to get a good view, but he could see that the man was an adult
African-American with probably a shaved head.
3
4
5
6
Timothy Clay was 19 years old at the preliminary hearing. He was
playing video games with four or five friends in Buchanan's
apartment the night of the shooting, when Woodson (known as
“Mar”) and defendant (known as “Turtle,” “Wax,” or “Turtle
Wax”) arrived. Woodson and defendant kept entering and leaving
the apartment. Their behavior made Clay nervous, so he left. He
walked out to the front of the apartment complex and tried to call
his friend Alton, who was still inside.
7
8
9
10
Detective Robert Reynolds interviewed Clay two days after the
shooting. Reynolds testified that Clay initially denied that he
witnessed the shooting and claimed he was inside the apartment at
the time, but after further questioning Clay acknowledged that he
was outside at the time, and he identified defendant as the shooter.
He was in front of the apartment when he saw a man with a white
shirt or cloth covering his face. He described the man as about six
feet tall and weighing 220 to 230 pounds. The assailant was holding
a gun in each hand and ordered Glaude and Woodson to lie on the
ground. They complied at first, but then Glaude got up and fled.
Defendant fired three shots. He hit Glaude at least once and shot
himself in the hand. Glaude went down, but when defendant
dropped one of his guns Glaude got up and fled down the walkway
toward the back parking lot. Defendant picked up his gun and fired
two or three more shots at Glaude. Then, defendant and Woodson
ran across Santa Clara Street and got in a car.
11
12
13
14
15
16
17
18
19
Over defense objections, Clay was declared an unavailable witness
and his preliminary hearing testimony was read to the jury. In the
preliminary hearing Clay denied that he saw the shooting and was
questioned about the statements he made to Detective Reynolds two
days after the shooting. He disavowed his earlier statement to
Detective Reynolds, and claimed he was merely repeating what
Buchanan had told him might have happened. The prosecution
impeached Clay's recantation with his prior statement to the
detective.
20
21
22
23
24
After the shooting defendant and Woodson drove from Vallejo to
San Francisco General Hospital to get defendant's hand treated. An
emergency room surveillance tape showed that defendant arrived
not wearing a shirt. When he was questioned by police in the
emergency room, defendant said he had been robbed and shot in
West Point. When officers went to West Point they found no
evidence of a crime.
25
26
27
28
///
3
1
The Investigation
2
Vallejo Police Corporal Steve Darden arrived at the scene at 12:16
a.m. shortly after the shooting. Glaude was lying in shrubbery in the
back of the complex. He had been shot and was in bad condition.
Darden saw two distinct trails of blood leading from the area of the
shooting, one led down the stairwell along the northeast side of the
complex to where Glaude was laying in the bushes. The other went
the opposite direction, to the spot on Santa Clara Street, where the
injured shooter got in a car.
3
4
5
6
7
8
Several bullet fragments and two spent casings were found in the
stairway area next to the entrance to Buchanan's apartment. Three
more casings and additional bullet fragments were found near the
driveway. Defendant's white T-shirt was in the stairwell with a
bullet fragment on top of it.
9
10
11
12
13
14
15
16
17
18
DNA testing confirmed that blood on the T-shirt was defendant's.
[N.1] His blood was also found in samples from both blood trails,
indicating that defendant pursued Glaude down the north walkway
to the parking lot before he fled south along the street to his car.
[N1] The genetic profile in the bloodstain would be
expected to occur in only one in 433 quadrillion AfricanAmericans.
A forensic pathologist testified that Glaude was shot four times:
once through his right hand, twice in the front of his left thigh, and
once in the center of his back. His hand was shot from a distance of
a few inches, and the lethal wound to his back was fired from
approximately one to two feet away.
Cell phone records showed defendant called Woodson around five
minutes before the murder. In the four hours before the murder,
Woodson called Glaude's cell phone 15 times. The final call was 10
minutes before the murder.
19
20
After he was arrested, defendant told his girl-friend in a telephone
call from jail: “Hey, you know, where I fucked up at? [¶] ... [¶]
Going to the hospital.”
21
Defense
22
23
24
25
26
27
28
Defendant testified that sometime on the day of the shooting,
Glaude called Woodson to ask about buying marijuana. Woodson
and defendant met Glaude in a parking lot in Fairfield and Glaude
followed them in his car to Buchanan's apartment. Defendant went
into the apartment with Woodson and Glaude and waited as they
talked, but he grew impatient and left after 10 or 15 minutes.
Defendant said he tried to drive to the freeway, but got lost and
found himself back on Santa Clara Street driving in the wrong
direction. He parked and walked back towards Buchanan's
apartment via the rear driveway. As he turned the corner, he said,
he stumbled into the middle of a robbery. Glaude was lying prone
4
1
2
3
4
5
6
7
8
9
10
11
12
13
on the ground and a man wearing some kind of white mask was
standing over him holding a gun. Defendant froze. The masked man
pointed the gun at him and started to approach. Defendant grabbed
the gun and they wrestled. Glaude got up and came to defendant's
assistance. The robber started shooting. Defendant managed to free
himself from the robber's grasp, but more shots were fired as he ran
up the stairs and he was hit in the hand.
Defendant fled along the north walkway and around the front of the
building, and lost his T-shirt as he ran. He ran to his car and drove
away. As he turned the corner he saw Woodson running and picked
him up. Defendant testified that they drove to San Francisco rather
than to a hospital in Vallejo because he was afraid the gunman
might come after him to “finish [him] off, so I was trying to get as
far as possible.” He said he lied to the officers who questioned him
in the emergency room because he was afraid of retribution from
the assailants if he told the police about their operation.
The jury found defendant guilty of first degree murder and
attempted robbery and found allegations of special circumstance
felony murder and personal weapon use to be true. Woodson had
been charged with the same offenses. The court declared a mistrial
as to him because the jury was unable to reach a verdict. The court
denied defendant's motion for a new trial and sentenced him to life
in prison without parole and a consecutive term of 25 years to life
in prison for the gun use enhancement. This appeal timely followed.
14
15
16
People v. Hughes, 2008 WL 3889946, at **1–3 (Cal. App. 1 Dist. August 22, 2008).
Petitioner appealed to the California Court of Appeal after his conviction and sentence.
17
Resp’t’s Lod. Doc. 4. The California Court of Appeal affirmed the judgment on August 22, 2008.
18
See Hughes, 2008 WL 3889946, at *13. Petitioner then filed a petition for review to the
19
California Supreme Court. Resp’t’s Lod. Doc. 8. The Supreme Court summarily denied that
20
petition without comment or citation by order dated December 10, 2008. Resp’t’s Lod. Doc. 9.
21
On March 3, 2010, petitioner initiated this federal habeas corpus action. ECF No. 1. On
22
September 30, 2011, while the case remained under submission, petitioner filed a motion for stay
23
and abeyance to afford him an opportunity to exhaust his state judicial remedies with respect to
24
newly-discovered claims. ECF No. 23. The newly-discovered claims were based on a post-
25
conviction affidavit executed by Timothy Clay, a witness whose prior testimony was read to the
26
jury at trial. Id. The court granted petitioner’s motion for stay. ECF No. 31. Petitioner filed a
27
habeas petition with the Solano County Superior Court, requesting an evidentiary hearing because
28
his entitlement to relief depended on the credibility of Clay’s declaration. Resp’t’s Lod. Doc. No.
5
1
14 at 45–46. The Solano County Superior Court denied the petition without holding an
2
evidentiary hearing finding that the Clay declaration lacked credibility. ECF No. 54-1, at 15–16.
3
Subsequently, the Court of Appeal denied petitioner’s second state habeas petition on the ground
4
that petitioner failed to include a copy of the superior court’s order denying his petition for a writ
5
of habeas corpus. Id. at 18. The California Supreme Court denied petitioner’s subsequent state
6
habeas petition without comment or citation. Id. at 20. On September 23, 2013, petitioner filed
7
his first amended petition and the Court subsequently lifted the stay. ECF Nos. 54, 56.
8
Respondent filed an answer and petitioner filed a traverse. ECF Nos. 64, 73.
9
DISCUSSION
10
11
I. AEDPA Standards
The statutory limitations of federal courts’ power to issue habeas corpus relief for persons
12
in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
13
Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
14
15
16
17
18
19
20
21
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(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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed “that §
22
2254(d) does not require a state court to give reasons before its decision can be deemed to have
23
been ‘adjudicated on the merits.’” Harrington v. Richter, 131 S. Ct. 770, 785 (2011). Rather,
24
“when a federal claim has been presented to a state court and the state court has denied relief, it
25
may be presumed that the state court adjudicated the claim on the merits in the absence of any
26
indication or state-law procedural principles to the contrary.” Id. at 784–785, citing Harris v.
27
Reed, 489 U.S. 255, 265, 109 S. Ct. 1038 (1989) (presumption of a merits determination when it
28
is unclear whether a decision appearing to rest on federal grounds was decided on another basis).
6
1
“The presumption may be overcome when there is reason to think some other explanation for the
2
state court’s decision is more likely.” Id. at 785.
3
The Supreme Court has set forth the operative standard for federal habeas review of state
4
court decisions under AEDPA as follows: “For purposes of § 2254(d)(1), ‘an unreasonable
5
application of federal law is different from an incorrect application of federal law.’” Harrington,
6
supra, 131 S. Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495 (2000).
7
“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
8
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 786,
9
citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140 (2004).
10
Accordingly, “a habeas court must determine what arguments or theories supported or . . .
11
could have supported[] the state court’s decision; and then it must ask whether it is possible
12
fairminded jurists could disagree that those arguments or theories are inconsistent with the
13
holding in a prior decision of this Court.” Id. “Evaluating whether a rule application was
14
unreasonable requires considering the rule’s specificity. The more general the rule, the more
15
leeway courts have in reaching outcomes in case-by-case determinations.’” Id. Emphasizing the
16
stringency of this standard, which “stops short of imposing a complete bar of federal court
17
relitigation of claims already rejected in state court proceedings[,]” the Supreme Court has
18
cautioned that “even a strong case for relief does not mean the state court’s contrary conclusion
19
was unreasonable.” Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166 (2003).
20
The undersigned also finds that the same deference is paid to the factual determinations of
21
state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct
22
subject only to a review of the record which demonstrates that the factual finding(s) “resulted in a
23
decision that was based on an unreasonable determination of the facts in light of the evidence
24
presented in the state court proceeding.” It makes no sense to interpret “unreasonable” in §
25
2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) – i.e., the
26
factual error must be so apparent that “fairminded jurists” examining the same record could not
27
abide by the state court factual determination. A petitioner must show clearly and convincingly
28
that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct.
7
1
969, 974 (2006).
2
The habeas corpus petitioner bears the burden of demonstrating the objectively
3
unreasonable nature of the state court decision in light of controlling Supreme Court authority.
4
Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner “must
5
show that the state court’s ruling on the claim being presented in federal court was so lacking in
6
justification that there was an error well understood and comprehended in existing law beyond
7
any possibility for fairminded disagreement.” Harrington, 131 S. Ct. at 786–787. “Clearly
8
established” law is law that has been “squarely addressed” by the United States Supreme Court.
9
Wright v. Van Patten, 552 U.S. 120, 125, 128 S. Ct. 743, 746 (2008). Thus, extrapolations of
10
settled law to unique situations will not qualify as clearly established. See e.g., Carey v.
11
Musladin, 549 U.S. 70, 76, 127 S. Ct. 649, 653–54 (2006) (established law not permitting state
12
sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear
13
prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly
14
established law when spectators’ conduct is the alleged cause of bias injection). The established
15
Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other
16
controlling federal law, as opposed to a pronouncement of statutes or rules binding only on
17
federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).
18
When a state court decision on a petitioner’s claims rejects some claims but does not
19
expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that
20
the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, 133 S. Ct.
21
1088, 1091 (2013). However, if the state courts have simply not adjudicated the merits of the
22
federal issue, no AEDPA deference is given; the issue is reviewed de novo under general
23
principles of federal law. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2012).
24
The state courts need not have cited to federal authority, or even have indicated awareness
25
of federal authority in arriving at their decision. Early, 537 U.S. at 8, 123 S. Ct. at 365. Where
26
the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the
27
federal court will independently review the record in adjudication of that issue. “Independent
28
review of the record is not de novo review of the constitutional issue, but rather, the only method
8
1
by which we can determine whether a silent state court decision is objectively unreasonable.”
2
Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
3
II. Application of AEDPA to Petitioner’s Claims
Petitioner contends that no AEDPA deference is due to the state court’s rejection of his
4
5
claims because the decisions were based on an unreasonable determination of the facts in light of
6
the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d)(2). There are two
7
ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th
8
Cir. 2012). He may show the state court’s findings of fact “were not supported by substantial
9
evidence in the state court record” or he may “challenge the fact-finding process itself on the
10
ground it was deficient in some material way.” Id. (citing Taylor v. Maddox, 366 F.3d 992, 999–
11
1001 (9th Cir. 2004). The standard for determining whether the state court’s fact finding process
12
is insufficient requires the federal court to “be satisfied that any appellate court to whom the
13
defect [in the state court’s fact-finding process] is pointed out would be unreasonable in holding
14
that the state court’s fact-finding process was adequate.” Hibbler, 693 F.3d at 1146–47 (quoting
15
Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state court’s failure to hold an
16
evidentiary hearing does not automatically render its fact finding process unreasonable. Id. at
17
1147. However, the Ninth Circuit has explained that federal standards for determining when an
18
evidentiary hearing is mandatory are a useful guide to determining the reasonableness of the state
19
court’s refusal to hold a hearing:
20
A state court's decision not to hold an evidentiary hearing does not
render its fact-finding process unreasonable so long as the state
court could have reasonably concluded that the evidence already
adduced was sufficient to resolve the factual question. See Earp,
431 F.3d at 1170 (noting that a state court is not required to hold an
evidentiary hearing when it is possible to resolve the factual
question “based on ‘documentary testimony and evidence in the
record’” (citation omitted)); Perez v. Rosario, 459 F.3d 943, 950
(9th Cir. 2006) (holding that it is reasonable for a state court to
resolve a disputed factual question without an evidentiary hearing
when the petitioner's allegations are “incredible in light of the
record, or . . . when the record already before the court is said to
establish a fact conclusively”). The ultimate issue is whether the
state's fact-finding procedures were reasonable; this is a fact-bound
and case-specific inquiry.
21
22
23
24
25
26
27
28
/////
9
1
2
3
4
5
6
7
8
9
10
11
Because AEDPA does not provide any specific guidance on what
sort of procedural deficiencies will render a state court's factfinding unreasonable, we have sometimes turned for guidance to
cases considering a similar issue in a different context: when a
federal district court considering a habeas petition must or should
conduct an evidentiary hearing. See Earp, 431 F.3d at 1166–67,
1169–70 (looking to Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct.
745, 9 L.Ed.2d 770 (1963), which governs when a federal district
court reviewing a habeas petition de novo must grant an evidentiary
hearing, in determining whether the state court decision was based
on an unreasonable determination of the facts). In this context, the
Supreme Court has recently clarified that, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition's
factual allegations, which, if true, would entitle the applicant to
federal habeas relief.” Landrigan, 550 U.S. at 474. More
specifically, “[i]f the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.” Id. “‘[A]n evidentiary
hearing is not required on issues that can be resolved by reference
to the state court record.’” Id. (quoting Totten v. Merkle, 137 F.3d
1172, 1176 (9th Cir. 1998)).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
While this framework for determining when a district court errs in
failing to conduct an evidentiary hearing provides useful guidance,
it is useful only by analogy and does not answer conclusively
whether the state court's adjudication “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.” § 2254(d)(2)
. . . . Unlike our review of a district court's determination that an
evidentiary hearing is unnecessary, which is for abuse of discretion,
see Landrigan, 550 U.S. at 474–75, we may not “second-guess a
state court's fact-finding process” unless we determine “that the
state court was not merely wrong, but actually unreasonable.”
Taylor, 366 F.3d at 999. Nevertheless, the rules governing when a
district court must grant an evidentiary hearing are informative: if a
district court would be within its discretion in denying an
evidentiary hearing, a state court's similar decision is probably not
objectively unreasonable.
Accordingly, in considering a petitioner's argument that the state
court's failure to hold an evidentiary hearing rendered its factual
findings unreasonable, we may first consider whether a similarly
situated district court would have been required to hold an
evidentiary hearing. See Earp, 431 F.3d at 1167. We begin with
the rule that no such hearing is required “[i]f the record refutes the
applicant's factual allegations or otherwise precludes habeas relief.”
Landrigan, 550 U.S. at 474; see also Perez, 459 F.3d at 950; see
also Lambert, 393 F.3d at 965–66 (holding that an evidentiary
hearing is not a prerequisite to an adjudication on the merits
triggering AEDPA deference). The ultimate question, however, is
whether an appellate court would be unreasonable in holding that
an evidentiary hearing was not necessary in light of the state court
record. Taylor, 366 F.3d at 1000.
28
10
1
Hibbler, 693 F.3d at 1147–48.2
2
Petitioner first contends, insofar as Clay’s unavailability is concerned, that the state
3
court’s findings of fact were not supported by substantial evidence in the state appellate record,
4
and secondly contends the fact-finding process regarding the credibility of Timothy Clay’s post-
5
trial affidavit was deficient in a material way. Petitioner also adds for the first time in federal
6
court the declaration of Clay’s mother on the topic of prosecutorial misconduct.
7
A. The State Court’s Decision Based on the Appellate Record
8
Petitioner contends that the state court’s decision upholding the trial court’s finding that
9
10
Timothy Clay was unavailable is based on a mistaken reading of the appellate record and violates
federal law.
11
The Sixth Amendment provides that a criminal defendant has the right to confront the
12
witnesses against him. See U.S. CONST. amend. VI. This is a fundamental right which applies
13
to all out-of-court testimonial statements (“testimonial hearsay”) offered for the truth of the
14
matter asserted. See Crawford v. Washington, 541 U.S. 36, 68 (2004). Testimonial hearsay is
15
inadmissible, unless (1) the witness is unavailable; and (2) the criminal defendant had an
16
opportunity to cross-examine the declarant at the action or proceeding where the testimony took
17
place. See id.; Jackson v. Brown, 513 F.3d 1057, 1082-83 (9th Cir. 2008). In Crawford, the
18
Supreme Court refused to spell out a comprehensive definition of what constitutes “testimonial,”
19
however, the Court explained that it applied “at a minimum to prior testimony at a preliminary
20
hearing, before a grand jury, or at a former trial; and to police interrogations.” 541 U.S. at 68.
21
A witness is not unavailable for purposes of the exception to the Confrontation Clause “unless the
22
prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”
23
Barber v. Page, 390 U.S. 719, 725 (1968). It is the prosecution’s burden to demonstrate that it
24
took reasonable steps to secure the witness’s presence at trial. See Ohio v. Roberts, 448 U.S. 56,
25
2
26
27
28
The undersigned is aware of Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014) (If a state court
makes factual findings without an opportunity for the petitioner to present evidence, the factfinding process is deficient and the state court opinion is not entitled to deference.), petition for
cert. filed, 82 USLW 3009 (Jun. 17, 2013). To the extent that Hurles imposes a per se bar to a
state court’s credibility finding without an evidentiary hearing, it is inconsistent with Hibbert (not
cited in the Hurles majority opinion); the undersigned will follow the earlier Ninth Circuit case.
11
1
74-75 (1980), abrogated on other grounds by, Crawford, 541 U.S. 36.
The California Court of Appeal analyzed the prosecutor’s due diligence in deciding
2
3
Petitioner’s Confrontation Clause claim on direct appeal as follows:
As explained by our Supreme Court, “A defendant has a
constitutional right to confront witnesses, but this right is not
absolute. If a witness is unavailable at trial and has testified at a
previous judicial proceeding against the same defendant and was
subject to cross-examination by that defendant, the previous
testimony may be admitted at trial. [Citations.] The constitutional
right to confront witnesses mandates that, before a witness can be
found unavailable, the prosecution must ‘have made a good-faith
effort to obtain his presence at trial.’ [Citations.] The California
Evidence Code contains a similar requirement. As relevant, it
provides that to establish unavailability, the proponent of the
evidence, here the prosecution, must establish that the witness is
absent from the hearing and either that ‘the court is unable to
compel his or her attendance by its process' [citation] or that the
proponent ‘has exercised reasonable diligence but has been unable
to procure his or her attendance by the court's process' [Citation].
The constitutional and statutory requirements are ‘in harmony.’”
(People v. Smith (2003) 30 Cal.4th 581, 609; see also People v.
Cromer (2001) 24 Cal.4th 889, 896-897; Evid.Code, §§ 1291, subd.
(a)(2), 240, subd. (a)(5).)
4
5
6
7
8
9
10
11
12
13
14
The diligence required is “‘incapable of a mechanical definition,’
but it ‘connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.’” (People v. Cromer,
supra, 24 Cal.4th at p. 904.) On the other hand, although the
prosecution must take reasonable steps to locate an absent witness,
it “need not do ‘a futile act.’” (People v. Smith, supra, 30 Cal.4th at
p. 611.) We independently review the trial court's determination
that the prosecution's efforts to locate an absent witness are
sufficient to justify an exception to the defendant's right of
confrontation. (Cromer, at p. 901.)
15
16
17
18
19
20
Here, our independent review satisfies us that the evidence supports
the court's determination. The court held an evidentiary hearing on
the due diligence issue. Solano County District Attorney's
Investigator Arthur Gerrans testified about his efforts over the
course of 18 months to find and serve Clay for various court dates
leading up to and including the trial. Gerrans first attempted to find
and serve Clay in September 2004, for the November 2004
preliminary hearing. At that time he had a listing for Clay's address
at his mother's home at 6 Tolentino Drive. Gerrans went there
several times but found no one home. He left a business card, but
was not contacted. He tried Clay's cell phone number and found it
was no longer in service.
21
22
23
24
25
26
27
/////
28
/////
12
1
On October 1, 2004, Gerrans called the home number at 6
Tolentino Drive and spoke to Clay's mother, Ketora Clay. Ms. Clay
told him her son still lived there, but that he did not want to talk to
the police or be involved in the trial. She agreed to help Gerrans,
and with her assistance Gerrans was able to serve Clay at the
Tolentino Drive address on October 5, 2004.
2
3
4
Clay appeared and testified at the preliminary hearing and a second
preliminary hearing on December 10, 2004. The trial date was
scheduled for May 23, 2005, and then reset for July 18, 2005, and
again for February 27, 2006. While it is unnecessary to
exhaustively recount Gerrans's numerous different attempts to
locate and serve Clay for these trial dates, we note that he made 23
attempts for the May 23, 2005, date before he successfully served
Clay; he then made 11 attempts to serve Clay for the July 18, 2005,
date before he was able, again with Ms. Clay's intervention, to
arrange a meeting and serve Clay with a subpoena; and then he
made another 23 attempts before he managed to effect service for
the February 27, 2006, trial date. The majority of these attempts
involved visiting and calling Ms. Clay at the Tolentino Street
address. Gerrans also ran a criminal history check on Clay, checked
Department of Motor Vehicles (DMV) records and other
information from the Vallejo Police Department, ran a Solano
County public records check, gave a subpoena to Detective
Reynolds with the Vallejo Police Department, contacted Clay's
former employer, United Parcel Service (UPS), for current
information, and ran Clay's information through the district
attorney's “Crimes” database and county welfare records. He did
not check postal records because Ms. Clay had told him that Clay
moved out of his parents' house and was transient and staying with
various friends while “on the run.”
5
6
7
8
9
10
11
12
13
14
15
16
17
The trial was ultimately reset for April 10, 2006. Gerrans made 39
more attempts to serve Clay, but was ultimately unsuccessful. On
January 11, 2006, he discovered that Clay had been cited on July
22, 2005, for false impersonation and driving on a suspended
license. Gerrans checked the district attorney's database but found
no information about any court appearances on Clay's citation.
After the trial date was continued until April, he investigated further
and learned that Clay had a court date scheduled for March 10,
2006. Gerrans attended the hearing but Clay failed to appear.
Gerrans put a hold in Clay's file and requested to be notified if Clay
were to be rearrested. He also examined Clay's citation and
reviewed the court file for any new contact information, but there
was none.
18
19
20
21
22
23
24
Gerrans returned to the UPS facility to ascertain whether Clay had
resumed his former job or had provided UPS with new contact
information, also to no avail. An updated DMV records check on
January 11, 2006, still showed Clay had a suspended license and
lived at the Tolentino address. A check of county welfare records
also produced no new information.
25
26
27
28
/////
13
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
Gerrans met with Clay's parents at their home on February 25 or
February 26. Clay's father knew nothing about his son's
whereabouts, and both parents were upset by Clay's failure to keep
in contact with them. Ms. Clay said that Clay would drop by on
occasion, but she had no phone number or address for him. She said
that at one point she knew Clay had been staying with a girlfriend,
but she refused to give Gerrans the girl's name or phone number.
She explained that Clay was transient and staying with “all kinds of
different girls and different people.” Investigator Gerrans last spoke
with Ms. Clay on April 7, 2006, the Friday before trial began. She
promised to call Gerrans if her son contacted her over the weekend.
The court found that Gerrans exercised due diligence in his efforts
to find Clay. It explained that “defendants are entitled to a fair trial,
not a perfect one, and as a taxpayer in this county, you know, I, like
everybody else, hope that our law enforcement agencies that we pay
for do[ing] a good job and that we get a dollar's worth of work for a
dollar's worth of our taxpayers' dollars. And I think that although
the efforts in this case may not have been perfect, and it appears
they were not successful, that extreme due diligence was
exercised....” We agree. The record reflects diligent and prolonged
efforts to locate and serve Clay to compel his attendance at trial,
starting in September 2004 and continuing intermittently until the
trial began in April 2006. Although defendant criticizes Investigator
Gerran's efforts to find Clay at his mother's home as “geared toward
finding him at a place where for at least a year or longer he knew
that Clay would not be located,” the criticism falls wide of the
mark. Ketora Clay was Gerran's strongest connection to Clay, and
his painstaking cultivation of that connection, with some success,
was the most likely means for Gerrans to contact and serve Clay. It
was eminently reasonable to pursue that avenue of investigation.
This is a far cry from the situation in Cromer on which defendant
relies. The prosecution there knew that a witness disappeared in
June 1997, but made no serious effort to locate her until a month
before trial in December 1997. Even then, the prosecution's
investigators' only efforts were to visit the witness's former address
five or six times after being told she no longer lived there. Two
days before trial they were told the witness was staying at her
mother's house, but they delayed going to the mother's house for
another two days. When they finally did, a woman told them the
mother would be gone until the following day and that the witness
did not live there. The investigators left a subpoena for the witness
but did not return the next day or attempt to contact the mother by
other means. (People v. Cromer, supra, 24 Cal.4th at pp. 903-904.)
Here, the prosecution began its investigation early and renewed
efforts to locate Clay over a period of some 18 months each time
the trial date was reset. Gerrans made numerous visits to Clay's
mother because she was his best link to Clay, and was willing to
help the prosecution contact her son. Gerrans also contacted Clay's
former employer more than once, searched criminal and welfare
databases, and attempted to serve Clay at a hearing in a different
matter. No similar effort was shown in Cromer.
28
14
1
2
3
4
5
6
7
8
9
While it is true that Gerrans could have pursued additional avenues
of investigation-defendant specifically faults him for failing to
search postal records and pursue potential leads from a civil
paternity case against Clay-there is no indication that these efforts
would have borne fruit. [N.2] In any event, “[d]efendant's
contention that the People should have done more ... is irrelevant to
our analysis. ‘That additional efforts might have been made or other
lines of inquiry pursued does not affect [our] conclusion.... It is
enough that the People used reasonable efforts to locate the
witness.’” (People v. Wise (1994) 25 Cal .App.4th 339, 344; see
also People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641 [the
prosecution “need not exhaust every potential avenue of
investigation to satisfy its obligation to use due diligence ....”],
disapproved on another point in People v. Cromer, supra, 24
Cal.4th at p. 901, fn. 3.) Diligence, not perfection, is the required
standard. We agree with the trial court that the prosecution's efforts
demonstrate due diligence.
10
[N.2] Defendant also complains that Gerrans could have
tried to serve Clay at three prior court dates in other cases,
but overlooks that those dates were all well before the
February 26, 2006, trial date for which Gerrans had
successfully located and served Clay.
11
12
13
14
Hughes, 2008 WL 3889946 at **5-8.
In Hardy v. Cross, the Supreme Court stated that, under AEDPA, a federal court may not
15
overturn a state’s decision on unavailability simply because the federal court would have required
16
the State to do more:
17
18
19
20
21
22
23
24
As we observed in Roberts, when a witness disappears before trial,
it is always possible to think of additional steps that the prosecution
might have taken to secure the witness’ presence, see 448 U.S. at
75, 100 S.Ct. 2531, but the Sixth Amendment does not require the
prosecution to exhaust every avenue of inquiry no matter how
unpromising. And, more to the point, the deferential standard of
review set out in 28 U.S.C. § 2254(d) does not permit a federal
court to overturn a state court’s decision on the question of
unavailability merely because the federal court identifies additional
steps that might have been taken. Under AEDPA, if the state-court
decision was reasonable, it cannot be disturbed.
132 S. Ct. 490, 495 (2011).
Petitioner contends that footnote two of the California Court of Appeal’s opinion was a
25
mistaken view of the facts and thus, the state court’s decision was based on an unreasonable
26
determination of the facts. The footnote states that Gerrans successfully served Clay for the
27
February 26, 2006 trial date. The court has previously found that the “record is at best unclear
28
regarding whether the prosecutor was successful in serving Clay with a subpoena after May
15
1
2005.” ECF No. 30, at 14–15.
2
However, as respondent asserts, the footnote was presented as an after-thought by the
3
court and thus was not material to its conclusion that the State had been diligent in attempt to
4
serve Timothy Clay. Hughes, 2008 WL 3889946 at *8. The text preceding this footnote
5
dismissed petitioner’s suggestion that the district attorney should have done more. Id. The state
6
court’s decision relied upon the state’s “diligent and prolonged efforts to locate and serve Clay to
7
compel his attendance at trial, starting in September 2004 and continuing intermittently until the
8
trial began in April 2006.” Id. at *7. As noted above, a federal court may not overturn the state
9
court’s decision on unavailability merely because it identifies additional steps that could have
10
been taken. Hardy, 132 S. Ct. at 495. Accordingly, the state court’s decision rejecting
11
petitioner’s Sixth Amendment claim based on unavailability was not based on a mistaken reading
12
of the state court record.
13
B. The State Court’s Credibility Determination of Timothy Clay
14
During the pendency of the instant action, petitioner received an affidavit signed by
15
Timothy Clay and notarized. ECF No. 23 at 3–4. The affidavit explained that Clay had lied
16
when he was interviewed by the police shortly after the shooting occurred and that District
17
Attorney Investigator Gerrans instructed him that Clay would not attend or testify at trial, that he
18
should leave the county for a month or so, and that he should stay out of trouble. Resp’t’s Lod.
19
Doc. No. 10 at 14. The court granted petitioner’s request to stay the federal habeas petition so
20
that he could exhaust his newly-discovered claims based on the Clay affidavit. ECF No. 30 at 15.
21
Petitioner filed a habeas petition with the Solano County Superior Court, requesting an
22
evidentiary hearing because his entitlement to relief depended on Clay’s credibility. Resp’t’s
23
Lod. Doc. No. 14 at 45–46.3 In denying petitioner’s state superior court habeas petition, the
24
Solano Superior Court concluded as follows:
25
/////
26
27
28
3
The court does not have copies of petitioner’s state superior court habeas petition. Respondent
has only lodged a copy of petitioner’s habeas petition to the California Supreme Court which
appears to be a reiteration of petitioner’s state superior court habeas petition.
16
1
2
3
4
5
6
7
On April 2, 2012, Petitioner Deangeleo Hughes filed this petition
for writ of habeas corpus. Petitioner seeks to overturn his criminal
conviction in case number VCR174438 based on newly discovered
evidence. Namely, Petitioner presents an affidavit allegedly
authored by Timothy Clay, who testified as a witness at Petitioner’s
preliminary hearing and whose testimony was introduced at
Petitioner’s trial, in which Mr. Clay states that he saw another man
commit the crimes Petitioner was convicted of. Mr. Clay also
asserts that he lied to police about seeing Petitioner commit the
crime because he was jealous of Petitioner’s relationship with a
woman, Petitioner paid him $500.00 to recant statements
inculpating Petitioner at the preliminary hearing, and the D.A.’s
investigator instructed Mr. Clay to leave the county so that he
would be unavailable at trial.
8
9
10
11
12
13
14
Petitioner fails to state a prima facie case for relief with regard to
this newly discovered evidence claim. (People v. Duvall (1995) 9
Cal.4th 464, 475.) The affiant here, Mr. Clay, lacks credibility. (In
re Weber (1974) 11 Cal.3d 703, 723-25; In re Hall (1981) 30 Cal.3d
408, 418.) Considering Mr. Clay’s lack of credibility, Petitioner
has failed to show entitlement to relief on his claim of actual
innocence. (In re Lawley (2008) 42. Cal.4th 1231, 1239 & 124546; People v. Gonzalez (1990) 51 Cal.3d 1179, 1246.)
ECF No. 54-1, at 15–16.
Petitioner contends that the state court’s failure to conduct an evidentiary hearing on the
15
credibility of Timothy Clay (ECF No. 23, at 7–24) rendered its decision on petitioner’s state court
16
habeas petition an unreasonable determination of the facts. Petitioner’s claim here is somewhat
17
unusual in that the prior testimony given by Clay, subject to cross-examination at the preliminary
18
hearing, was favorable to petitioner. It was only the unsworn statement given by Clay to the
19
police officer (the second rendition of the facts), used to impeach Clay’s testimony, which
20
inculpated petitioner. But the detective witness who actually presented Clay’s interrogation
21
statement was subject to cross-examination at trial. Thus in terms of harmfulness, Clay’s actual
22
testimony at preliminary hearing, while not affirmatively exonerating petitioner, was not harmful
23
in the least except insofar as he was impeached. In fact, if petitioner’s more recent statements are
24
to be believed, he was pleased with Clay’s preliminary hearing testimony.
25
Petitioner has filed a new Clay declaration in federal court (ECF No. 54-1, Ex. F),
26
removing, as petitioner’s counsel asserts, immaterial matter, making the declaration easier to
27
read. Filed for the first time is a declaration by Clay’s mother (ECF No. 54-1, Ex. G.) attesting to
28
facts regarding whether Clay was dissuaded from testifying by the prosecution’s investigator.
17
1
The first topic of discussion is what declaration(s) may be reviewed here.
2
For reasons set forth at length below, the recent federal court Clay declaration is much
3
more than a mere grammatical reformulation or deletion of truly irrelevant matters. Rather the
4
credibility- bursting Clay statements in the declaration before the state court (ECF No. 23, at 7–
5
24)4 on exhaustion have been deleted. Clay’s bizarre statements concerning the why’s and
6
wherefore’s of his actions, and his complete obliviousness to the need to testify truthfully,
7
reflected in the statements which have been sanitized from his recent federal declaration, are the
8
very statements which would lead a state judge to opine that the declaration lacks credibility on
9
its face. Moreover, the recent federal declaration was not before the state court; there is no need
10
to review anything else but the declaration before the state court however phrased.
Of course, Clay’s mother’s declaration was not before the state court in any fashion. As
11
12
held by Cullen v. Pinholster, __U.S. __, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011), only
13
those evidentiary submissions which were before the state court can be determinative of whether
14
the state court acted AEDPA unreasonably. Even if Clay’s mother’s declaration could be
15
considered, it conflicts with the Clay declaration in fundamental ways. Whether the investigator
16
affirmatively told Clay to “get lost during petitioner’s trial” in the physical presence of Clay and
17
his mother (ECF No. 54-1, Ex. G [Ketora Clay’s version]), or to Clay only by telephone (ECF No.
18
54-1, Ex. F [Timothy Clay’s version]), is much more than a mere detail on which otherwise
19
truthful witnesses sometimes disagree. Rather, it bespeaks the flippant manner in which the truth
20
has been treated in this habeas action by the percipient actors.5 Accordingly, only the Clay
21
declaration presented to the state courts on exhaustion will be reviewed in detail here. ECF No.
22
23, at 7–24.
23
Respondent has exhaustively detailed the reasons why the infrequent exception to making
24
a credibility analysis on the papers applies here. Certainly, the state courts cannot be found
25
AEDPA unreasonable in determining the lack of credibility on the face of Clay’s declarations.
26
4
27
28
The parties do not dispute that the Clay declaration, ECF 23, presented with the Motion to Stay,
was the declaration presented to the state courts.
5
None of the court’s observations are intended to reflect on petitioner’s counsel.
18
1
2
The undersigned highlights below the especially pertinent facts.
As an initial matter, it is worth noting that recantations of given testimony are highly
3
disfavored. Indeed, the Ninth Circuit has adopted a characterization that a recantation “usually
4
isn’t worth the time it takes to prepare.” Carriger v. Stewart, 132 F.3d 463, 483 n.1 (9th Cir.
5
1997). Clay’s declaration/recantation is an example of why the Ninth Circuit adopts this view.
6
The most salient feature concerning Clay’s lack of credibility was the many stories he
7
made up about the pertinent events for various personal purposes with complete disregard for the
8
truth. He even testified falsely, he admits, under penalty of perjury at the preliminary
9
examination.
10
First, Clay asserts that he was jealous of petitioner because he coveted a girlfriend of
11
petitioner, at least thought by Clay to be a girlfriend. Clay then made a plan to inculpate
12
petitioner with the ostensible purpose of then swooping in for his catch.
13
Then, despite his knowledge that petitioner Hughes was in custody, he formulates his next
14
plan to await the announcement of an award from the police, after which he will then ostensibly
15
relate the true facts presumably inculpating petitioner again. The court finds two possible
16
inferences to be drawn by this plan, both of which do not inure to a finding of Clay’s good
17
credibility: (1) Clay is fabricating this mind-set; or (2) he really is so oblivious to the criminal
18
justice system that he believes the authorities will pay for testimony from a percipient witness (as
19
opposed to paying an award which will led to the capture of a suspect).
20
However, when first questioned by the police, he apparently forgot all about the plans he
21
had just made, and related that he had not seen anything. Clay asserts that he was “surprised” by
22
the police appearance at his place of work despite his formulated plan. However, when pressed
23
by the police questioners because they did not believe his first story, Clay then manages to get it
24
all together, and relates that petitioner was the assailant.
25
Clay nevertheless waits and waits, and avoids attempts by law enforcement to contact
26
him, despite being interested in any reward. The bizarre series of events continues. Clay finally
27
realizes that no reward will be offered, but inconsistently hopes that the case will be dismissed.
28
Next, petitioner, still in custody and awaiting preliminary hearing, now contacts Clay with an
19
1
offer to pay for favorable testimony. This request to obstruct justice and commit perjury is then
2
amazingly reduced to a contractual writing which is given to Clay by petitioner’s girlfriend. Clay
3
accepts the offer. The agreement to commit perjury, somehow of a higher obligation than to
4
testify truthfully while under oath, is now the plan.
5
Clay is finally served with a subpoena to attend the preliminary hearing; however, he
6
testifies (again and inconsistently with his inculpatory second story given to the police) that he
7
did not see the events of the robbery/murder. Clay is impeached with his inculpatory statement to
8
the police. Because Clay did not completely exonerate petitioner, i.e., identify someone else as
9
the culprit, and because petitioner’s case will move forward towards trial, Clay becomes worried
10
that petitioner will be angry with him. Such is not the case. Petitioner purportedly gives Clay
11
praise for his preliminary hearing testimony. The deal is still on.
12
Nevertheless, Clay now “remembers” that his original plan was not to enrich himself with
13
whatever version of the facts would satisfy the paying party, but rather to inculpate petitioner so
14
that he could move in on petitioner’s girlfriend, or at least the person Clay perceives as
15
petitioner’s girlfriend. He resolves to go back to his original plan, but inconsistently with his
16
recommitted purpose, avoids the prosecution and the very proceeding which would bring finality
17
to the plan. He allegedly makes himself scarce because the prosecution’s investigator, either by
18
direct telephone call to Clay, or in person along with Clay’s mother, tells him his testimony is not
19
necessary, and to leave the county, for however long it takes for petitioner’s trial to be over.
20
More will be said about this claim of prosecution misconduct below. Clay, of course, obliges the
21
prosecution’s desires, and avoids the trial which would successfully bring to fruition any of his
22
formulated plans.
23
Petitioner is convicted, based in part, on the preliminary hearing impeachment of Clay
24
given at the preliminary hearing, and at trial. Years pass. Clay finally sees the light of truth
25
based on his changed familial status and his desire to right a wrong. The first, unsanitized
26
declaration given for petitioner’s habeas proceeding is then written, but not by Clay. Because
27
Clay asserts grammatical and writing insufficiencies, he pours out his “final” story on an impulse
28
to a complete stranger at a coffee shop. This person then gives Clay the final product which
20
1
accounts for important evidence presented at the trial Clay avoided (but somehow Clay knows),
2
most importantly, the DNA evidence tying petitioner to the shirt worn and used by the assailant.
3
Not surprisingly, Clay is unwilling or unable to identify this scrivener, a person learned in the law
4
who performed this service for Clay and then vanished.
5
Just to recite the back and forth of Clay’s first habeas declaration is to recognize the utter
6
disingenuousness of the entire declaration, including the most recent “another guy did it”
7
rendition. Clay’s credibility has been so irreparably damaged, no credence could be placed on his
8
exculpatory version. While what is really motivating the present assertion that petitioner did not
9
commit the crime will probably never be clear, in light of the entirety of the declaration, a
10
reasonable fact finder could not find the most recent Clay version credible.
11
As has been referenced above, Clay’s first habeas declaration is being used to show
12
prosecutorial misconduct as well as petitioner’s innocence. Again, a witness is not unavailable
13
for purposes of the exception to the Confrontation Clause “unless the prosecutorial authorities
14
have made a good-faith effort to obtain his presence at trial.” Barber, 390 U.S.at 725.
15
Affirmatively dissuading a witness from testifying at trial is the opposite of making a good-faith
16
effort to obtain that witness’s presence. As such, if a reasonable fact finder could determine any
17
shred of truth in the Clay declaration, the facts alleged by petitioner would present a colorable
18
claim for relief that the state court’s finding on Clay’s unavailability was unreasonable.
19
Clay asserts that the prosecution’s investigator disappointed him by telling Clay that his
20
testimony was not needed and that he was to leave the county so he could not be found for service
21
of trial subpoena. However, the credibility of these assertions regarding misconduct are not
22
immune from the taint imposed by the “petitioner did commit/did not commit the crime”
23
assertions. The old maxim, falsus in uno, falsus in omnibus (false in one, false in all) is even
24
more applicable as Clay’s various stories and motivations have been found false more than once
25
in many respects.
26
/////
27
/////
28
/////
21
1
Moreover, we are to believe by Clay’s latter-day assertion that based just on the say-so of
2
the district attorney’s investigator: he left his work, or made his presence at work more difficult,
3
divorced himself from his community, left his place of abode, etc., and despite his “contractual
4
obligation” with petitioner, or his on again-off again counter-desire to harm petitioner, gave up on
5
giving testimony. And this request/directive was undertaken by Clay with absolutely no
6
recompense or other benefit or stated, explicit threat—and this from a person who often or always
7
asked initially—what’s in it for me. The adjudicator is asked to believe that on this one occasion,
8
Clay, who was not known for his ability to conform his conduct to the law or relate consistent
9
facts, just did what he was told to do. That is difficult to believe.
10
Importantly and finally, the prosecution would have no real reason to desire Clay not to
11
appear at trial. Assuming that Clay would try to exonerate petitioner, or at least again profess
12
ignorance of the facts, he could be impeached with his inculpatory statements despite his physical
13
presence. Most prosecutors would relish the opportunity to impeach Clay in person as opposed to
14
on paper alone. And this impeachment would be made in light of the other evidence linking
15
petitioner to the crime—especially the bloody white shirt.
16
In sum, Clay’s assertion of facts constituting prosecutorial misconduct could be found
17
incredible by a reasonable trier of fact without an evidentiary hearing.
18
CONCLUSION
19
For all the foregoing reasons, petitioner has not satisfied the requirements for holding an
20
evidentiary hearing in this federal habeas action. Accordingly, IT IS HEREBY ORDERED that:
21
Petitioner’s request for an evidentiary hearing is denied.
22
Dated: December 16, 2014
23
/s/ Gregory G. Hollows
24
UNITED STATES MAGISTRATE JUDGE
25
26
GGH:016/Hugh3024
27
28
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?