Patrick v. Fillon

Filing 46

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 11/8/2013 ORDERING the Petition under 28:2254 for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court DECLINES to issue a Certificate of Appealability. The Clerk of the Court is to enter judgment accordingly. CASE CLOSED (Reader, L)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
NICHOLAS PATRICK,
No. 2:11-cv-1195-JKS
Petitioner,
MEMORANDUM DECISION
vs.
RANDY GROUNDS, Warden, Salinas
Valley State Prison,1
Respondent.

Nicholas Patrick, a state prisoner represented by counsel, timely filed a Petition for a
Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Patrick is currently in the
custody of the California Department of Corrections and Rehabilitation and is incarcerated at
Salinas Valley State Prison. Respondent has answered, and Patrick has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On January 3, 2006, Patrick and his co-defendant, Jose Anthony Sterling, were charged
by information with the murder of James Fullard, Jr., and Doretha Moore and robbery of Fullard.
The information also charged multiple murder and robbery special circumstances and alleged
that, during the commission of each offense, each defendant personally used a firearm and
discharged a firearm resulting in death.
On direct appeal, the California Court of Appeals summarized the facts underlying
Patrick’s indictment as follows:
In the afternoon on September 11, 2005, [Patrick] and Sterling met near Sterling’s
residence. They decided to obtain some marijuana. [Patrick] was a seller of marijuana,
1

Randy Grounds is substituted for Alfonso Fillon as warden of Salinas Valley
State Prison. FED. R. CIV. P. 25(c).

and Fullard was his supplier. [Patrick] used a cell phone to call Fullard from Sterling’s
residence, and Fullard agreed to come to Sterling’s residence. About 20 or 30 minutes
later, [Patrick] and Sterling received a call that Fullard and Moore were outside in a car.
[Patrick] and Sterling went outside and got into the backseat of the car. Moore was
driving, and Fullard was in the front passenger seat. [Patrick] was seated behind Fullard,
and Sterling was seated behind Moore.
Moore drove the car down the street, while Fullard and [Patrick] talked about the
marijuana. Moore made a U-turn, as Fullard gave [Patrick] two or three ounces of
marijuana. It was much more marijuana than Sterling thought they were buying. Fullard
asked for the money, and [Patrick] acted as if he was reaching into his pocket for money.
Instead, he pulled out a gun and shot Fullard twice in the head. Moore began screaming,
and [Patrick] shot her three times. Both Fullard and Moore were killed by the gunshots.
The car crashed into six other cars. When it came to a stop, [Patrick] and Sterling
ran from the scene. A witness recounted that one of them yelled, “Cover your face, cover
your face.” Both covered their faces with their shirts, and Sterling held the waistband of
his baggy shorts.
[Patrick] and Sterling went to Sterling’s residence. Sterling washed his face and
hands. [Patrick] and Sterling changed out of their clothes, which were stained with
blood. [Patrick] borrowed some of Sterling’s clothing and left. Before he left, [Patrick]
tried to get Sterling to leave the residence with him, but Sterling stayed.
On the same day as the shootings, Stockton Police Department detectives went to
Sterling’s residence and questioned him. While there, they saw the bloody clothing.
They collected the clothing, and later analysis showed Fullard’s blood on [Patrick’s]
shorts and shirt, as well as on Sterling’s shirt. Moore’s blood was on Sterling’s shorts
and shoes.
Sterling was arrested and taken to the police station. The next morning, [Patrick]
was arrested and also taken to the police station.
A search was conducted at [Patrick’s] residence. No guns were found. However,
in the backyard was a shoebox containing about two ounces of marijuana–the marijuana
that [Patrick] took from Fullard.
After [Patrick] and Sterling were interviewed separately, they were put together in
a room where their conversation could be recorded. Sterling started the conversation by
stating that the detectives thought that he and [Patrick] were involved in a shooting other
than of Fullard and Moore. [Patrick] then told Sterling that the detectives had let him
listen to the tape of Sterling’s interview, and [Patrick] accused Sterling of lying that
[Patrick] was present when Fullard and Moore were shot.
[Patrick] told Sterling that all he had to say to the detectives was that [Patrick]
was not there and that he was not the shooter. [Patrick] rehearsed with Sterling what
Sterling would tell the detectives: that Sterling called [Patrick] for some marijuana, they
got into the car along with a person named “CJ” (a made-up name), and “CJ” shot Fullard
and Moore.
Broderick Huggins was in jail at the same time as [Patrick] and Sterling. At
separate times he was housed with each of them. Sterling told Huggins that he and
[Patrick] planned to rob Fullard, but Sterling did not know that [Patrick] intended to
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shoot Fullard and Moore. [Patrick] offered to pay Huggins to discredit Sterling.
[Patrick] wrote scripts for Huggins to use in talking to authorities. [Patrick] admitted to
Huggins that he and Sterling set up Fullard to rob him of the marijuana and that he shot
Fullard and Moore because he was afraid Fullard would retaliate for the robbery and that
Moore would be a witness against him. [Patrick] tried to get Sterling to go with him after
they returned to Sterling’s residence after the shootings so that [Patrick] could kill
Sterling. [Patrick] also asked another inmate, Ashton Bennett, to lie to authorities on his
behalf.
Expert testimony established that Fullard and Moore were shot from inside the
car. The shots came from between the victims, the gun being somewhere in the middle·of
the backseat. All of the shots came from the same gun.
In the defense case, there was testimony that Fullard had been arrested 10 years
earlier in connection with a shooting for which other people went to prison. (The name
“Rocquemore” was associated with that crime.) Fullard did not go to prison, and there
was speculation that he had avoided prison by cooperating with the authorities.
[Patrick] testified that Fullard was a family friend. On the day of the shooting,
[Patrick] called Fullard on behalf of Sterling, who wanted to buy marijuana. When
Fullard and Moore arrived, [Patrick] and Sterling got into the backseat. Sterling pulled a
gun from his waistband and said, “This is for snitching on Rocquemore.” He then shot
Fullard and Moore.
Patrick and Sterling were tried in the same proceeding but by separate juries. Sterling’s
jury acquitted him of all charges. Patrick’s jury found him guilty on all counts and found all the
allegations to be true. The trial court sentenced Patrick to a determinate term of three years for
the robbery, with an additional indeterminate term of 25 years to life for discharge of a firearm
resulting in death. For each of the two murders, the court sentenced Patrick to an indeterminate
term of life without possibility of parole, plus 25 years to life for discharge of a firearm resulting
in death. All of the terms were to run consecutively.
Through counsel, Patrick appealed his conviction, arguing that: 1) his trial counsel was
ineffective for failing to object to the admission of Huggins’s statements as hearsay; 2) the trial
court erred in admitting his police-initiated conversation with Sterling; 3) the trial court erred in
allowing the prosecution and Sterling to pose questions that invaded Patrick’s attorney-client
privilege; 4) he was subject to ineffective assistance of counsel when the trial court found that
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defense counsel’s continued representation of Patrick did not constitute a conflict; 5) the trial
court abused its discretion when it instructed the jury that it could consider Patrick’s refusal to
continue with cross-examination when evaluating his credibility; 6) the trial court erroneously
admitted into evidence items found in Patrick’s blood-stained shorts; 7) the prosecutor
committed misconduct; 8) his consecutive sentence violated California Penal Code § 654; and 9)
the existence of cumulative error required reversal of his conviction.
The California Court of Appeal affirmed his conviction in an unpublished, reasoned
decision. First, the appellate court rejected his contention that trial counsel was ineffective for
failing to object to the admission of Huggins’s statement after finding that the statement was
admissible as a statement against penal interest. The appellate court likewise determined that the
admission of Patrick’s conversation with Sterling was proper “because the taint of the
involuntary confession had been purged by intervening circumstances.” Third, the court found
that Patrick voluntarily waived his attorney-client privilege when he volunteered during crossexamination that he had told his attorney about the evidence. The court also found that Patrick’s
defense counsel had no actual conflict of interest because there was no reason for his defense
counsel to testify in the case and that the trial court properly sanctioned Patrick for refusing to
continue cross-examination by giving the jury the credibility instruction. The court likewise
concluded that the trial court properly admitted evidence found in Patrick’s shorts after finding
no break in the chain of custody. As to Patrick’s claim that the prosecutor committed
misconduct, the court found Patrick’s claim without merit because the theories the prosecutor
presented to the juries were not inconsistent, her approach was justified, and there was no
resulting injustice. The court likewise rejected his multiple punishment in sentencing claim,

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finding that the evidence supported consecutive sentencing and, finally, found no cumulative
error because it found no error in the trial proceedings. Patrick petitioned for review of the
denial to the state supreme court, which was denied without comment on July 22, 2009.
On April 13, 2010, Patrick filed a pro se petition for a writ of habeas corpus with the
state superior court, asserting that his appellate counsel was ineffective for failing to “raise a
claim of lack of evidence as it relates to the two special circumstances.” The court denied the
petition in an unpublished, reasoned opinion, concluding that Patrick “failed to meet his burden
of proof that he was prejudiced by counsel’s decision not to file an appeal of the two special
circumstance allegations based upon a claim of insufficient evidence.” Patrick raised the same
claim in a pro se petition for writ of habeas corpus with the state appellate court, which was
summarily denied on July 22, 2010. Patrick then raised that claim, along with claims that his
trial counsel was ineffective for failing to object to the admission of evidence found in his shorts
and failing to “investigate or research[] the law applicable to [his case],” in a pro se habeas
petition to the state supreme court. The state supreme court denied the petition without comment
on March 30, 2011.
II. GROUNDS/CLAIMS
In his Petition before this Court, Patrick raises thirteen claims, including allegations that:
1) trial counsel was ineffective for failing to object to inadmissible hearsay evidence; 2) the trial
court erroneously admitted his taped conversation with Sterling; 3) the trial court erroneously
determined that Patrick waived his attorney-client privilege; 4) he was denied effective
assistance of counsel when the trial court determined that his counsel’s continued representation
did not present a conflict of interest; 5) the trial court denied Patrick due process when it

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instructed the jury that it could consider Patrick’s refusal to continue cross-examination in
assessing his credibility; 6) trial counsel was ineffective for failing to investigate evidence
discovered in Patrick’s shorts and failing to make a continuous objection to the discovery; 7) the
trial court erroneously admitted the items found in the shorts; 8) the prosecutor committed
reversible misconduct; 9) trial counsel was ineffective for failing to investigate his case and
adequate research case law; 10) appellate counsel was ineffective for failing to investigate the
facts of his case “as a whole”; 11) the trial court erred in imposing a consecutive sentence; 12)
trial counsel was ineffective for failing to move to dismiss the robbery charge; and 13) the
cumulative errors of claims 1-12 denied Patrick his right to a fair trial.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon

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the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).

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IV. DISCUSSION
A.

Exhaustion
On August 30, 2011, Respondent moved to dismiss Patrick’s Petition on the ground that

it contained unexhausted claims. Docket No. 13. Respondent alleged that Patrick did not raise
to the California Supreme Court the allegation that he received ineffective assistance of counsel
when his trial counsel failed to move for dismissal of the robbery charge when the evidence only
showed the crime of theft (claim 12). Id. at 4. Respondent further claimed that Patrick’s
cumulative error claim (claim 13) was unexhausted to the extent it encompassed claim 12. Id.
Patrick moved to both stay the petition and proceed only with the exhausted claims. Docket No.
18. This Court ordered Patrick to submit a written statement indicating whether he wished to
stay and abey the Petition in its entirety to allow him to exhaust his currently-unexhausted claims
in state court or to proceed in federal court by forfeiting those claims. Docket No. 19. Patrick
responded that he wished to proceed in federal court and forfeit his unexhausted claims. Docket
No. 20. On January 23, 2012, this Court ordered that the action would proceed on the merits,
“with the exception that [the Petition] shall not include Claim 12, or Claim 13 to the extent that it
includes Claim 12.” Docket No. 21. Because claim 12 has been voluntarily dismissed, this
Court will not further address that claim and will not address claim 13 to the extent that it
includes claim 12.
B.

Merits

1.

Ineffective Assistance of Counsel (claims 1, 4, 6, 9, 10)
Patrick first contends that both his trial counsel and appellate counsel rendered

ineffective assistance.

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A.

Strickland Standard on Habeas Review

To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a
reasonable probability that the outcome might have been different as a result of a legal error, the
defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376,
1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at
393-95. Thus, Patrick must show that defense counsel’s representation was not within the range
of competence demanded of attorneys in criminal cases, and that there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
474 U.S. 52, 57 (1985).
An ineffective assistance of counsel claim should be denied if the petitioner fails to make
a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697
(courts may consider either prong of the test first and need not address both prongs if the
defendant fails on one).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And,
because the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.

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Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
It is through this highly deferential lens that a federal habeas court reviews Strickland
claims under the § 2254(d) standard. See Knowles, 556 U.S. at 123 (citing Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003)).
B.

Claims 1, 4, 6, 9. Ineffective assistance of trial counsel
a.

Failure to object to Huggins’s testimony

Patrick first claims that his trial counsel was ineffective for not objecting when Huggins
testified that Sterling told him that he and Patrick planned to rob the victim. According to
Patrick, Huggins’s testimony was inadmissible hearsay because Sterling’s statement did not
qualify as a declaration against penal interest under California Code of Evidence § 1230. Patrick
raised this claim on direct appeal, which the appellate court rejected after finding that the
statement was admissible as a statement against penal interest. The court reasoned:
As a codefendant in the case, Sterling was unavailable to the prosecution as a
witness during the prosecution’s case-in-chief, even though Sterling later testified during
the defense portion of the case. A criminal defendant has a privilege not to testify. (Evid.
Code, § 930.) “‘[U]unavailable as a witness’ means that the declarant is . . . [e]xempted
or precluded on the ground of privilege from testifying concerning the matter to which
his or her statement is relevant.” (Evid. Code, § 240, subd. (a) (1).) Until a defendant
waives this privilege, he is unavailable.
[Patrick’s] claim that the evidence was too unreliable to be admissible is also
without merit. Because the trial court did not have the opportunity to exercise its
discretion to determine whether to admit Sterling’s statement to Huggins, we must
determine only whether admitting the evidence was within the realm of the trial court’s
appropriate discretion. We conclude that it was.
....
Here, there are indications of both reliability and unreliability in Sterling’s
statement to Huggins. He may have been attempting to deflect blame, and his statement
was partially exculpatory (saying he did not know that [Patrick] would shoot Fullard and
Moore). However, the statements were not made to authorities. Instead, they.were made
to a fellow inmate in a noncoercive situation.
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Because [Patrick] claims that Sterling’s statement should not have been available
to establish the corpus of the robbery, the only part of the statement relevant to our
inquiry is Sterling’s statement that he thought that he and [Patrick] were going to rob
Fullard. This statement directly incriminated Sterling; therefore, it is more reliable than
his associated statement that he did not know that [Patrick] was going to shoot Fullard
and Moore. While we recognize that the statement about the robbery was part of the
broader statement, it was not so suspect as to be inadmissible as a declaration against
penal interest.
The trial court would have been well within the scope of its discretion in
admitting the statement if it had been presented with the question by proper objection.
Therefore, [Patrick] has not established that counsel was deficient.
Patrick cannot prevail on this ineffective assistance claim. First, he cannot make the
requisite showing of deficient performance. The record here indicates that Patrick’s counsel
attempted to discredit Huggins’s testimony on cross-examination by eliciting testimony that
there was no corroborating evidence to support Huggins’s assertions. Counsel’s determination
to waive any argument that the statements were inadmissible to instead focus on the stronger
argument that they were not supported by corroborating evidence was a reasonable strategic
decision that this Court may not second-guess. See Strickland, 466 U.S. at 690-91; United States
v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (on direct appeal rejecting defendant’s claim that
counsel was ineffective for failing to argue that statements were not against declarant’s penal
interest).
Moreover, even if he could prove that his trial counsel was deficient, he cannot show that
he was prejudiced by counsel’s deficient performance. On direct appeal, the California Court of
Appeal determined that counsel was not ineffective because the statement was admissible under
California Code of Evidence § 1230 as a hearsay exception for a declaration against penal
interest. When a habeas petitioner argues that his trial counsel rendered ineffective assistance by
failing to object to certain evidence as inadmissible under the state’s evidentiary rules, the state

11

court’s determination that the evidence at issue would have been properly admitted at trial under
state law establishes that counsel’s failure to object was neither deficient performance nor
prejudicial for purposes of the Sixth Amendment. See Hebner v. McGrath, 543 F.3d 1133, 1137
(9th Cir. 2008) (rejecting claim that counsel was ineffective for failing to object to rape victim’s
testimony where state appellate court ruled that the evidence would have been admitted under a
different California evidence rule). Furthermore, Patrick does not assert that the admission of
Huggins’s testimony violated his confrontation rights. Even if he had, Patrick does not allege
facts that would raise a Confrontation Clause issue under federal law. See United States v.
Farhane, 634 F.3d 127, 162 (2d Cir. 2011) (“[A] declarant’s statements to a confidential
informant, whose true status is unknown to the declarant, do not constitute testimony within the
meaning of Crawford [v. Washington, 541 U.S. 36 (2004)].” (quoting United States v. Saget, 377
F.3d 223, 229 (2d Cir. 2004)). Patrick is therefore not entitled to relief on this claim.
b.

Conflict of interest

Patrick next argues that he was deprived effective assistance of counsel when the trial
court determined that his counsel’s continued representation did not present a conflict of interest.
During trial, Patrick testified that Sterling pulled a gun from his waistband and said,
“This is for snitching on Rocquemore,” before shooting Fullard. According to Patrick, he
informed his trial counsel about the statement, and, after investigation, counsel found that
Fullard and Rocquemore were “in a case together or something.” During cross-examination, the
prosecution suggested that Patrick fabricated the “Rocquemore events” and asked whether
Patrick knew that his trial counsel had previously represented Rocquemore; Patrick replied that
he did not. Patrick testified that he talked only to his counsel about the Rocquemore events.

12

Trial counsel informed the court after this testimony that it might be necessary for the
court to declare a conflict between counsel and Patrick and relieve counsel because the
prosecutor and Sterling’s attorney wanted to impeach Patrick by arguing that the name
Rocquemore came from counsel rather than from Patrick’s observations of the crime. After
appointing conflict counsel for Patrick, Patrick decided not to waive any conflict, and the court
found no conflict between Patrick and his trial counsel based on counsel’s prior representation of
Rocquemore.
On direct appeal, Patrick challenged the trial court’s failure to relieve counsel, arguing
that it placed counsel in the position of either violating the rules of professional conduct and
testifying or leaving the jury with the impression that Patrick had fabricated the Rocquemore
events. The appellate court rejected Patrick’s contention, finding that the evidence that Patrick
and his counsel colluded to have Patrick lie about Rocquemore was “insubstantial.” It
determined:
There was no actual conflict. While [Patrick’s] attorney asserted that the
evidence had already planted in the juror’s minds the possibility that [Patrick and
counsel] arranged for [Patrick] to lie about Rocquemore, in fact, the evidence does not
support that assertion. [Patrick] testified that he told [previous counsel] before he told
[trial counsel] about Rocquemore. And McGuire, the investigator, testified that [Patrick]
had mentioned Rocquemore. The prosecutor’s question to [Patrick] about whether he
knew that Schick had represented Rocquemore was just that–a question. [Patrick] replied
in the negative. The trial court instructed the jury not to consider questions as evidence.
Accordingly, there was no reason for Schick to testify and there was no conflict between
[Patrick and trial counsel].
“In order to prevail on an ineffective assistance of counsel claim based on [a] conflict of
interest, a defendant must show that ‘an actual conflict of interest adversely affected his lawyer’s
performance.’” United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992) (quoting Cuyler
v. Sullivan, 446 U.S. 335, 350 (1980)). Although a petitioner who “shows that a conflict of
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interest actually affected the adequacy of his representation need not demonstrate prejudice in
order to obtain relief,” Mickens v. Taylor, 535 U.S. 162, 171 (2002) (emphasis omitted), as the
state appellate court recognized, Patrick has not demonstrated that there was an actual, rather
than potential, conflict of interest. An actual conflict may exist in a case of successive
representation if the two cases are substantially related or if the attorney may be required to
reveal any privileged communication or otherwise divide his loyalty. Maiden v. Bunnell, 35
F.3d 477, 480 (9th Cir. 1994); Mannhalt v. Reed, 847 F.2d 576, 583 (9th Cir. 1988). Patrick
does not allege that either circumstance is present here.
Even assuming that Patrick were able to establish an actual conflict, he must still
demonstrate that the conflict adversely affected counsel’s performance. However, the state
appellate court ultimately determined that there was evidence in the record to rebut any
“insubstantial” inference that Patrick and his counsel colluded about the Rocquemore events
such that it was unnecessary for counsel to testify. In light of the evidence in the record, the
court’s determination that any potential conflict of interest did not result in adverse performance
is both reasonable and not contrary to federal law. See 28 U.S.C. § 2254(d)(1). Accordingly,
Patrick is not entitled to relief on his conflict of interest claim.
c.

Failure to object to lack of discovery of items in his shorts

Patrick additionally argues that trial counsel was ineffective for “fail[ing] to make [a]
continuous objection as lack of discovery and . . . fail[ing] to investigate newly discovered
evidence during trial.” Patrick raised this claim in his habeas petition to the state supreme court,
which was summarily denied.

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On direct appeal, the Court of Appeal described the facts underlying this claim as
follows:
On September 12, 2005, the day after the shootings, the Stockton Police
Department searched Sterling’s residence. During the search, a pair of red and black
shorts was found. As was everything else found in the search, the shorts were put into a
separate plastic bag and taken to the police department, where the bag was sealed.
Detective Jim Ridenour, who collected the items found during the search, signed the
sealed bag containing the shorts.
Elizabeth Schreiber, a criminalist, obtained the red and black shorts in the bag
sealed by Detective Ridenour. She tested the shorts for the presence of human blood.
She found human blood on the shorts. At the same time, in a pocket of the shorts,
Schreiber found a lighter, a blue washcloth, keys, and five one-dollar bills. The contents
in the pocket were not itemized by the detectives who conducted the search of Sterling’s
residence, even though it is standard practice to book each item separately. Detective
Eduardo Rodriguez, who was the lead investigator during the search of Sterling’s
residence, testified that, except for the failure to book the items found in the pocket
separately, the shorts were collected and retained according to proper procedure and the
items were in the pocket when the shorts were found during the search.
...
[Patrick] objected to the admission of the shorts and the items found in the pocket.
Referring to both the shorts and the items from the pocket, defense counsel stated that
“there’s no proper chain of custody established as to show that that item has gone from
one hand to another, and on the basis of that, that evidence should not be admitted before
the Court.” The trial court overruled the objection, finding that there had been a proper
foundation laid for the chain of custody.
In his Petition before this Court:
[Patrick] asserts that he received ineffective assistance of counsel when his trial
attorney failed to investigate the newly discovered evidence at the time his trial attorney
became aware of the new evidence [b]ecause the evidence was damaging and adverse to
[Patrick’s] defense and it withdrew from [Patrick] a crucial and potential meritorious
defense on all levels. Furthermore, [Patrick] asserts that by trial attorney failing to make
a continuous objection on proper grounds of discovery he was denied the effective
assistance of trial counsel. [Patrick] asserts that his trial counsel should have made a
motion for mistrial on discovery grounds and lack of preparation. [Patrick’s] trial
attorney had no time to neither [sic] prepare nor investigate the facts surrounding the new
evidence to prepare a crucial and meritorious defense on [Patrick’s] behalf. [Patrick]
contends that by his trial attorney[’s] failure to work diligently and actively on the facts
stated above he was denied effectiveness of counsel.

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While Patrick contends that his trial counsel “should have made a motion for mistrial on
discovery grounds and lack of preparation,” the record shows that his counsel made an oral
motion for mistrial “for failure to discover,” stating that the items found in the shorts came as
“totally new information.” In response to counsel’s motion, the prosecutor stated that she and
defense counsel had found the items two weeks earlier when they opened the package containing
the shorts. Because defense counsel had been aware of the items, the court noted that his
objection could not be “a request for mistrial based on a failure to provide discovery,” and
counsel changed its mistrial theory to a “failure to prove through the chain of custody.”
It therefore appears that the thrust of Patrick’s claim is that trial counsel was deficient for
failing to investigate the items when he first discovered them two weeks prior to their admission.
However, Patrick fails to identify what his counsel could have discovered had he conducted a
more thorough investigation of the evidence at issue. The Ninth Circuit has routinely rejected
ineffective assistance of counsel claims based on a failure to investigate where the petitioner has
not identified the specific exculpatory evidence that should have been presented. See, e.g., Ceja
v. Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996) (petitioner failed “to explain how an investigation
of aggravation evidence would have negated the evidence of the multiple gunshot wounds”);
Hendricks v. Calderson, 70 F.3d 1032, 1042 (9th Cir. 1995) (“Absent an account of what
beneficial evidence investigation into any of these issues would have turned up, [petitioner]
cannot meet the prejudice prong of the Strickland test.”).
Patrick further requests that, “if the court finds [his] trial attorney effective, please
consider the ambush tactics according to the newly discovered evidence in the way it was
presented to [Patrick’s] trial attorney and the abuse of discretion of the trial court[’s] denial of

16

[his] motion [for] mistrial failure to provide discovery and chain of custody.” This Court, having
considered the method in which the evidence was introduced, as further discussed with regard to
claim 7, infra, cannot find that Patrick is entitled to habeas relief due to the admission of the
items found in his shorts or based on his counsel’s performance with respect to that issue.
d.

Failure to investigate applicable law

Patrick also contends that trial counsel was ineffective for failing to investigate his case
and research applicable case law. Patrick raised this claim in his habeas petition to the state
supreme court. He argued:
The prosecutor charged [Patrick] and codefendant Sterling both with a personal
discharge of a firearm. [D]uring preliminary hearing there w[as] testimony from expert
Parvis Pakdaman that either defendant could have been the shooter but his testimony was
based on assumptions. Also there w[as] testimony during [trial] that either defendant
could have been the shooter but there w[as] no expert testimony that could make a
determination who the shooter was. [Patrick] assert[s] that he received ineffective
assistance of counsel when he failed to investigate and research[] the law applicable to
him. [Patrick] assert[s] that he was denied the 6th Amendment and his due process of
law.
The state supreme court summarily denied the claim. In this appeal, he expands upon his
claim:
[Patrick] asserts that his trial attorney should have investigated the facts of his
case and researched case law which supported a pre[-]trial motion to dismiss for lack of
evidence as far as personal discharge of a firearm allegation. Since two defendants could
not be culpable of an act that only one defendant could be responsible for.
[Patrick] asserts that if trial counsel made a pre[-]trial motion to dismiss for lack
of evidence as to the personal discharge of firearm allegation, it is more th[a]n likely that
[Patrick] would have received a more favorable outcome for 1) the prosecution would
have had to get her story straight as to which defendant to charge with discharging a
firearm. It is also likely that Petitioner would have been exonerated of the gun allegation
due to the prosecution[’]s view expressed during closing argument that “the evidence
prove that Sterling was the shooter” . . . and 2) the Jury would have been afforded the
opportunity to consider a lesser crime for [Patrick] or if any crime.

17

As Respondent notes, Patrick failed to raise before the state courts his argument that trial
counsel should have filed a pre-trial motion to dismiss based on the personal discharge of
firearm allegation. This Court may not consider claims that have not been fairly presented to the
state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing
cases). Exhaustion of state remedies requires the petitioner to fairly present federal claims to the
state courts in order to give the state the opportunity to pass upon and correct alleged violations
of its prisoners’ federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). To have properly
exhausted his state court remedies, Patrick must have presented both the legal arguments and the
factual basis to the highest state court. See Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th
Cir. 2003). Although he addressed this ground in his Traverse, Traverse at Claim 9, Patrick does
not argue that this claim was properly exhausted. Unexhausted claims must be dismissed. See
Rhines v. Weber, 544 U.S. 269, 275-78 (2005).
In any event, Patrick’s conclusory allegation does not assert a basis for granting habeas
relief. First, as discussed more fully below with respect to claim 12, infra, the state appellate
court determined that the prosecutor did not present inconsistent theories with respect to the
charging of both defendants with a personal use of a firearm allegation. Second, Patrick cites no
authority to support his implication that the trial court has the power to entertain a motion–made
in the pretrial stages of a criminal proceeding–to dismiss the charges based on insufficient
evidence. In any event, at the close of evidence at trial, the trial court denied defense counsel’s
motion for a new trial based on the same facts that would have underlay such pre-trial motion.
Accordingly, Patrick is not entitled to relief on this claim.

18

C.

Claim 10. Ineffective assistance of appellate counsel

Patrick claims that he likewise received ineffective assistance of counsel when appellate
counsel “failed to investigate the facts of [Patrick’s] case as a whole.” In support of this claim,
Patrick complains that appellate counsel “did not raise a claim [of] lack of evidence as to the
personal discharging of a firearm . . . [b]ecause, on record there was evidence in equipoise as to
which defendant was the shooter.” Citing Strickland and state case law, the state superior court
denied the claim, stating that “[Patrick] has failed to meet his burden of proof that he was
prejudiced by counsel’s decision not to file an appeal of the two special circumstance allegations
based upon a claim of insufficient evidence. The Petition therefore does not include any factual
allegations sufficient to make a prima facie showing to support [Patrick’s] allegations.”
Analysis of an ineffective assistance of appellate counsel claim starts with the rule that
the failure of appellate counsel to raise meritless or weak issues does not constitute ineffective
assistance of counsel. See Lockhart v. Fretwell, 506 U.S. 364, 374 (1993) (O'Connor, J.,
concurring) (failing to raise a meritless objection cannot constitute prejudice under a Strickland
ineffective assistance of counsel claim); Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (appellate
counsel does not have an obligation to raise every nonfrivolous argument); Miller v. Keeney, 882
F.2d 1428, 1434-35 (9th Cir. 1989) (appellate counsel’s failure to raise a weak issue did not
constitute ineffective counsel). Thus, in order to assess whether appellate counsel rendered
constitutionally adequate representation, this Court must determine whether Patrick’s claim that
there was insufficient evidence to show that Patrick discharged a firearm was either meritless or
weak under the standards California appellate courts use to evaluate insufficient evidence claims.

19

“On appeal, an appellate court deciding whether sufficient evidence supports a verdict
must determine whether the record contains substantial evidence–which we repeatedly have
described as evidence that is reasonable, credible, and of solid value–from which a reasonable
jury could find the accused guilty beyond a reasonable doubt.” People v. Hovarter, 189 P.3d
300, 312 (Cal. 2008) (citations and emphasis omitted). As a California appellate court
explained:
In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. We resolve all conflicts in the evidence and
questions of credibility in favor of the verdict, and indulge every reasonable inference the
jury could draw from the evidence. This standard applies whether direct or
circumstantial evidence is involved . . . . Reversal is unwarranted unless upon no
hypothesis whatever is there sufficient substantial evidence to support [the conviction].
People v. Mendez, 114 Cal. Rptr. 3d 870, 877 (Cal. Ct. App. 2010) (citations and internal
quotation marks omitted).
A review of the record dictates that Patrick cannot meet the heavy burden imposed by
California courts upon a defendant challenging on direct appeal the sufficiency of the evidence
underlying his conviction. In Patrick’s case, the evidence supporting the jury’s finding that he
discharged a firearm was substantial. First, Sterling testified that Patrick shot the victims, which
the jury apparently found credible. See Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004)
(noting that a “jury’s credibility determinations are . . . entitled to near-total deference”). Two
other inmates also testified that Sterling told him that Patrick shot the victim and that Patrick
offered to pay them to say that Sterling admitted to being the shooter, and wrote out a script of
what they should say. The record does not compel the conclusion that no rational trier of fact
could have found proof that Patrick was the shooter and Patrick therefore cannot prove that he
20

would have prevailed on his claim on appeal. Consequently, Patrick cannot show that appellate
counsel was ineffective for failing to raise it, and he is not entitled to relief on this ground.
2.

Evidentiary Error (claims 2, 3, 7)
Patrick also asserts that the trial court made three evidentiary errors that warrant habeas

relief.
A.

Claim 2. Conversation with Sterling

Patrick first claims that the trial court erred in admitting his taped conversation with
Sterling, contending that “[b]ecause [Patrick’s] police[-]initiated conversations with codefendant
Sterling w[ere] tainted by [Patrick’s] earlier coerced statements to the police, the erroneous
admission of the conversation violated his Fourteenth Amendment right to due process and his
Fifth Amendment right to remain silent.” The appellate court rejected this claim on Patrick’s
direct appeal of his conviction:
We agree with the trial court that, even though the police purposefully put
[Patrick] and Sterling together to see if [Patrick] would make incriminating statements,
the statements made by [Patrick] under those circumstances were not tainted by
[Patrick’s] earlier involuntary confession. [Patrick] and Sterling did not know that they
were being monitored and recorded and therefore could not have been simply attempting
to appease the police. During [Patrick’s] conversation with Sterling, the police conduct
that rendered [Patrick’s] confession involuntary (promise of leniency and threat to
prosecute relatives) appeared to have no bearing on [Patrick’s] statements. [Patrick] was
interested, simply and foremost, in getting Sterling to lie to the police about [Patrick’s]
involvement. Thus, the intervening circumstance of placing [Patrick] in a room where he
conversed with Sterling, free of any perceived police coercion, purged the taint of the
police conduct which led to the involuntariness of the prior confession. Because the
prosecutor successfully showed this break in the causal connection between [Patrick’s]
involuntary confession and the subsequent conversation with Sterling, the trial court
properly denied the motion to exclude the statements that [Patrick] made during the
conversation.
The Supreme Court has acknowledged its “traditional reluctance to impose constitutional
restraints on ordinary evidentiary rulings by state trial courts.” Crane v. Kentucky, 476 U.S. 683,
21

689 (1986). The Supreme Court has further made clear that federal habeas power does not allow
granting relief on the basis of a belief that the state trial court incorrectly interpreted the state
evidence code in ruling on the admissibility of evidence. Estelle, 502 U.S. at 72 (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).
The erroneous admission of evidence does not provide a basis for federal habeas relief
unless it rendered the trial fundamentally unfair in violation of due process. Holley v.
Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Evidence violates due process only if “there
are no permissible inferences the jury may draw from the evidence.” Jammal v. Van de Kamp,
926 F.2d 918, 920 (9th Cir. 1991) (emphasis omitted). A writ of habeas corpus will be granted
for an erroneous admission of evidence “only where the ‘testimony is almost entirely unreliable
and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and
take due account of its shortcomings.’” Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002)
(quoting Barefoot v. Estelle, 463 U.S. 880, 899 (1983)).
Under these standards, the state court’s rejection of Patrick’s claim does not support
habeas relief because the admission of the taped conversation did not violate any clearly
established federal law. See Holley, 568 F.3d at 1101. It was not objectively unreasonable for
the court of appeal to conclude that Patrick’s statements had not been tainted or were otherwise
involuntary. The record supports each of the factual predicates relied upon by the court in
making that determination, and Patrick has failed to establish that this evidentiary ruling
rendered his trial fundamentally unfair. See Foster v. Jones, No. 97-17415, 2000 WL 1836731,
at *1 (9th Cir. Dec. 13, 2000) (admission of taped conversations into evidence did not violate

22

due process because, “[i]n light of witnesses’ testimony implicating [petitioner] in the
conspiracies to manufacture methamphetamine and commit murder, admission of the challenged
tape recorded conversations did not have a ‘substantial and injurious effect or influence in
determining the jury’s verdict’” (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Patrick is not entitled to relief on this ground.
B.

Claim 3. Attorney-client privilege determination

Patrick additionally argues that the trial court abused its discretion and violated his due
process when it erroneously allowed the prosecution and Sterling’s counsel to invade Patrick’s
attorney-client privilege by sustaining counsel’s objections to questioning on the Rocquemore
events. As previously discussed, to rebut the prosecution’s implication that he had fabricated the
Rocquemore events, Patrick testified on cross-examination that he had told his counsel about
those events. During questioning on those events, defense counsel attempted to make a
continuing objection that the questioning violated Patrick’s attorney-client privilege. Counsel
later moved for a mistrial based on the alleged violation, which the court denied.
On direct appeal of his conviction, Patrick argued that he did not waive the attorneyclient privilege because the waiver was not unambiguous and his statement did not disclose a
significant part of the communication. The appellate court disagreed, finding that he
unambiguously waived the privilege because “[t]he question posed by the prosecutor was
whether [he] had recently fabricated his testimony. The prosecutor said nothing of [Patrick’s]
conversation with counsel. [Patrick] volunteered that he had told his attorney about the evidence
to bolster his own credibility.” The court further found that the “statement, though brief, went to
the very core of communication with his attorney, at least with respect to the matter of recent

23

fabrication. The statement did not merely disclose that there had been a discussion but, instead,
disclosed the substance of that discussion.”
Patrick’s claim that the trial court abused its discretion in determining that he waived his
attorney-client privilege raises an issue of state law that is not cognizable on federal habeas
review. See Swarthout, 131 S. Ct. at 863; Estelle, 502 U.S. at 67-68. Although the Ninth Circuit
has suggested that an abuse of discretion may also amount to a constitutional violation, see
Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc), the Supreme Court has never
held that abuse of discretion is an appropriate basis for granting federal habeas relief.2 Indeed,
quite to the contrary, the Supreme Court has strongly suggested that, while abuse of discretion is
an appropriate standard on direct review, in a federal habeas proceeding it is not. Renico v. Lett,
559 U.S. 766, 772-73 (2010) (“It is not even whether it was an abuse of discretion for her to have
done so–the applicable standard on direct review. The question under AEDPA is instead
whether the determination of the Michigan Supreme Court that there was no abuse of discretion
was “an unreasonable application of . . . clearly established Federal law.” (quoting §
2254(d)(1))).
Moreover, Patrick fails to allege facts supporting a finding that his due process rights
were violated. A petitioner may not transform a state-law issue into a federal one by simply
asserting a violation of constitutional law. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.

2

At one time, the Ninth Circuit viewed a state court ruling to be “objectively
unreasonable” if it amounted to a clear error. Van Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th
Cir. 2000). This is the test the Ninth Circuit uses in reviewing a trial court decision under the
abuse of discretion standard. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en
banc). The Supreme Court noted Van Tran’s statement of the test and expressly rejected it as
inappropriate under the AEDPA. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (clear error
standard is insufficiently deferential to state courts).
24

1996). And even if Patrick could prove that the trial court abused its discretion in allowing
testimony that invaded his attorney-client privilege, Patrick would still not be entitled to habeas
relief. The attorney-client privilege is an evidentiary privilege, not a constitutional right. Lange
v. Young, 869 F.2d 1008, 1012 n.2 (7th Cir. 1989). The violation of a defendant’s attorney-client
privilege thus does not require the suppression of derivative evidence. See United States v.
Marashi, 913 F.2d 724, 731 n.11 (9th Cir. 1990) (stating that “no court has ever applied [the fruit
of the poisonous tree doctrine] to any evidentiary privilege”). Accordingly, Patrick is not
entitled to relief on this evidentiary claim either.
C.

Claim 7. Chain of custody objection

Patrick likewise contends that the trial court should not have admitted the items found in
his blood-stained shorts because the prosecution could not establish a continuous chain of
custody of the items. The appellate court rejected this claim on direct appeal:
[Patrick] argues that the failure of the detectives to document and book separately
the items in the pocket of the red and black shorts was a break in the chain of custody
and, therefore, the trial court abused its discretion in admitting the evidence. We
disagree.
Without more, the failure to discover, document, and book separately the items
from the pocket did not result in a break of the chain of custody. Because the shorts were
discovered and sealed into a bag by detectives and the criminalist found the items in the
pocket when she examined the contents of the bag, the evidence was sufficient to
establish an inference that the items were in the pocket when the shorts were discovered
by the detectives. “[T]aking all the circumstances into account including the ease or
difficulty with which the particular evidence could have been altered, it is reasonably
certain that there was no alteration.” That there was a bare possibility that those items
were not in the·pocket when the shorts were discovered is not enough to prevent the trial
court from exercising its discretion in admitting the items. A reasonable certainty that
there was not alteration is sufficient.
The California Court of Appeal concluded that the evidence was admissible because
there was no chain of custody problem under California law. Again, this Court is bound by the

25

state court’s interpretation of California state law. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005). The appellate court’s determination that enough custody had been shown to reject
Patrick’s claim cannot be said to be contrary to, or an unreasonable application of, clearly
established federal law. See 28 U.S.C. § 2254(d). Moreover, even if Patrick could show a defect
in the chain of custody, “a defect in the chain of custody goes to the weight, not the
admissibility, of the evidence introduced.” United States v. Matta-Ballesteros, 71 F.3d 754, 769
(9th Cir. 1995) (citation omitted). Accordingly, the admission of the evidence found in his
shorts did not violate Patrick’s constitutional rights to a fair trial and due process, and Patrick is
therefore not entitled to relief on this claim.
3.

Jury Instruction Error (claim 5)
Patrick additionally claims that, “[b]ecause [Patrick] had been subjected to extensive

cross-examination, the trial court erroneously infringed on [his] ability to present a defense and
his right to due process of law when it instructed the Jury that it could consider [Patrick’s]
refusal to continue cross-examination when evaluating his credibility.” Patrick raised this claim
on direct appeal, essentially arguing that the extensive questioning he faced during crossexamination, which he characterized as “argument to the jury disguised as questions,” compelled
his refusal to testify because both the prosecution and Sterling’s attorney “had multiple
opportunities to cross-exam[ine] [Patrick] on all aspects of his testimony.” While Patrick
acknowledged that California law permits a trial court to impose sanctions when a party refuses
to submit to cross-examination, including striking the party’s testimony in whole or part or
giving the jury the instruction he challenged, he “assert[ed] that sanctions should be imposed
only when the refusal to submit to continued cross-examination impairs the truth-finding process

26

and the reliability of the defendant’s testimony.” The state appellate court rejected this
argument, noting that the trial court selected the less drastic sanction available and that it was
“not a close case.”
Patrick fails to identify any Supreme Court precedent that even suggests that a
defendant’s due process rights are violated by a jury instruction permitting a jury to consider the
defendant’s refusal to testify in assessing his credibility. In the absence of such holding, this
Court cannot find the state court’s decision was an unreasonable application of clearly
established federal law. See Greene v. Fisher, 132 S. Ct. 38, 45 (2011).
Indeed, federal precedent strongly indicates that the state court’s finding is both
reasonable and not contrary to federal law. “Once a defendant testifies, he exposes himself to
full cross-examination concerning matters relevant to his testimony.” United States v. King, 200
F.3d 1207, 1216-17 (9th Cir. 1999) (citing Brown v. United States, 356 U.S. 148, 155-57 (1958);
United States v. Panza, 612 F.2d 432, 437 (9th Cir. 1980)). Similar to California state courts,
district courts within the Ninth Circuit are authorized to impose the following sanctions upon a
defendant who refuses to answer questions on cross-examination: “(1) permit the prosecution to
comment on the defendant’s unprivileged refusal to answer; (2) permit the prosecution to
impeach the defendant’s direct testimony by continuing to elicit his unprivileged refusal to
answer; (3) instruct the jury that it may take the defendant’s refusal to answer various questions
into account when reaching a verdict; and/or (4) strike the defendant’s direct testimony.” Patrick
does not point to–nor can this Court find–any precedent suggesting that a defendant is immune
from such sanctions upon a showing that the prosecution was able to fully cross-examine the

27

defendant prior to his refusing to continue. Patrick is therefore not entitled to relief on his jury
instruction claim.
4.

Prosecutorial Misconduct (claim 8)
Patrick further asserts that “[t]he prosecution committed misconduct and denied [Patrick]

due process of law when she charged each defendant with personal use of a gun when in fact
only one gun was involved. Furthermore, the Prosecution argued to codefendant Sterling[’s]
Jury that the physical evidence shows that he/Sterling was the shooter.” The appellate court
rejected this claim on direct appeal of Patrick’s conviction, concluding:
Defendant’s contention is without merit because (1) the theories presented to the
juries by the prosecutor were not inconsistent, (2) the prosecutor’s approach was
justified, and (3) there was no injustice here in the form of a false conviction.
Although the prosecutor argued to the Sterling jury that Sterling was the shooter,
she acknowledged that there was conflicting evidence and told the Sterling jury that it
was up to them to decide who the shooter was. The prosecutor’s argument to [Patrick’s]
jury was not inconsistent because, as the prosecutor told the Sterling jury, the evidence
potentially supported a decision either way on the identity of the shooter. Even though
both defendants were charged with personal use of a firearm, the prosecutor was not
attempting to get a true finding on that allegation for both defendants.
The approach taken by the prosecutor was justified by the facts. The shots came
from around the middle of the backseat. Therefore, either [Patrick] or Sterling could
have been the shooter. The evidence was conflicting. The prosecutor told each jury that
it was up to them to decide who fired the shots, and that was appropriate given the
evidence.
To prevail on a claim of prosecutorial misconduct, Patrick must show that the conduct
“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 181 (1986). “To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to result in the denial of the
defendant’s right to a fair trial.” Greer v. Miller, 483 U.S. 756, 765 (1987) (citation and internal
quotation marks omitted). Even if a prosecutor’s conduct amounts to constitutional error,

28

however, habeas relief will be granted only if Patrick can establish that the error had a
substantial and injurious effect or influence in determining the jury’s verdict. Shaw v. Terhune,
380 F.3d 473, 378 (9th Cir. 2004) (citing Brecht, 507 U.S. at 637-38).
At the close of trial, Patrick moved for a new trial, claiming that the prosecution
presented inconsistent factual versions of the events in the case to each jury during closing
arguments. The trial court denied the motion. A review of the record shows that the prosecutor
argued in her rebuttal arguments that both Patrick and Sterling were guilty of first degree murder
because the murders were committed in the course of a robbery. The prosecutor first told
Sterling’s jury that they had to decide who the shooter was and referred to evidence suggesting
that Sterling was the shooter. The prosecutor also told Patrick’s jury that they had to decide who
the shooter was and pointed to evidence suggesting that Patrick’s version of the events was not
credible. The appellate court’s conclusion that the prosecutor’s theories at trial were not
inconsistent is therefore supported by this Court’s review of the record, and this Court can find it
neither unreasonable nor contrary to federal law. That the prosecution explicitly told each jury
that it had to determine which defendant was the shooter and properly relied on facts adduced at
each trial makes this case quite different than the case the Ninth Circuit faced in Thompson v.
Calderon, in which the Ninth Circuit found that the prosecutor, during the second trial of a
codefendant, manipulated evidence and witnesses and “essentially ridiculed the theory he had
used to obtain a conviction and death sentence at [the first defendant’s] trial.” 120 F.3d 1045,
1057-58 (9th Cir. 1997) (en banc), reversed on other grounds, 523 U.S. 538 (1998).
Moreover, even if Patrick could demonstrate that the prosecution theories should
somehow be construed as consistent, there is no clearly established Supreme Court precedent to

29

support his claim that due process prohibits a prosecutor from arguing inconsistent theories.
“This Court has never hinted, much less held, that the Due Process Clause prevents a State from
prosecuting defendants based on inconsistent theories.” Bradshaw v. Stumpf, 545 U.S. 175, 190
(2005) (Thomas, J., concurring). Without such holding, this Court cannot find the state court’s
decision was an unreasonable application of clearly established federal law. See Greene, 132 S.
Ct. at 45. While the Ninth Circuit has found that “a prosecutor’s pursuit of fundamentally
inconsistent theories in separate trials against separate defendants charged with the same murder
can violate due process if the prosecutor knowingly uses false evidence or acts in bad faith,” it
has also recognized that there is no per se constitutional bar against a prosecutor presenting
fundamentally inconsistent theories of guilt against conspirators who are tried separately,
particularly where the “arguments were consistent with the evidence adduced at each trial.”
Nguyen v. Lindsey, 232 F.3d 1236, 1240 (9th Cir. 2000).
Because the prosecution’s theories before Patrick’s and Sterling’s juries were not
fundamentally inconsistent, and the evidence presented at Patrick’s trial sufficiently supported
the jury’s finding that Patrick was the shooter, Patrick’s prosecutorial misconduct claim must
fail.
5.

Sentencing Error (claim 11)
Patrick additionally claims that the trial court erred when it failed to stay sentencing on

his conviction. On direct appeal of his conviction, Patrick raised this claim, alleging that his
“consecutive sentence for robbery in count 3 violated the proscriptions of Penal Code section

30

654.”3 Relying on state case law and statutory law, the appellate court rejected his claim,
concluding there was ample support for the trial court’s implicit findings of separate objectives
and intents for the robbery and murder and that the statutory section did not apply to special
circumstances.
The thrust of Patrick’s claim is that the trial court improperly imposed his sentence in
violation of Penal Code § 654. The essence of Patrick’s argument is that the state appellate
court’s interpretation of California sentencing law in the sentence determination is incorrect, but
this Court is bound by the state court’s interpretation of California state law. See Bradshaw, 546
U.S. at 76. Again, a petitioner may not transform a state-law issue into a federal one by simply
asserting a violation of due process. See Langford, 110 F.3d at 1389. The state appellate court’s
determination that the trial court properly imposed Patrick’s sentence is both reasonable and not
contrary to federal law. Patrick is therefore not entitled to habeas relief on this claim.
6.

Cumulative Error (claim 13)
Finally, Patrick contends that the cumulative effect of the alleged errors deprived him of

a fair trial. This claim was raised and rejected on direct appeal.

3

Section 654(a) provides:
An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and sentence
under one bars a prosecution for the same act or omission under any other.

CAL. PENAL CODE § 654(a).
31

“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th
Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)). Such “infection”
occurs where the combined effect of the errors had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (citation omitted). In other
words, where the combined effect of individually harmless errors renders a criminal defense “far
less persuasive than it might [otherwise] have been,” the resulting conviction violates due
process. See Chambers, 401 U.S. at 294.
As discussed above, Patrick does not allege any claims that amount to error.
Accordingly, he demonstrates no errors that can accumulate to a level of a constitutional
violation, and the state courts therefore did not unreasonably deny him relief on this claim. See
Mancuso, 292 F.3d at 957.
C.

Evidentiary Hearing
With respect to each of his claims, Patrick also requests that this Court grant him an

evidentiary hearing. Patrick fails, however, to specify what evidence he wishes to present for
each claim. A district court may not hold an evidentiary hearing on a claim for which a
petitioner failed to develop a factual basis in state court unless the petitioner shows that: (1) the
claim relies either on (a) a new rule of constitutional law that the Supreme Court has made
retroactive to cases on collateral review, or (b) a factual predicate that could not have been
previously discovered through the exercise of due diligence, and (2) the facts underlying the
claim would be sufficient to establish by clear and convincing evidence that, but for

32

constitutional error, no reasonable fact finder would have found the petitioner guilty of the
underlying offense. 28 U.S.C. § 2254(e)(2).
Where the failure to develop the factual basis for the claim in the state court proceedings
is not attributable to the petitioner, to receive an evidentiary hearing, the petitioner must make a
colorable claim for relief and meet one of the factors set forth in Townsend v. Sain, 372 U.S. 293
(1963), overruled on other grounds by Kenney v. Tamayo-Reyes, 504 U.S. 1 (1992).
Insyxiengmay v. Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005). In Townsend, the Supreme
Court concluded that a federal habeas petitioner is entitled to an evidentiary hearing on his
factual allegations if: (1) the merits of the factual dispute were not resolved in the state hearing;
(2) the state factual determination is not fairly supported by the record as a whole; (3) the
fact-finding procedure employed by the state court was not adequate to afford a full and fair
hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts
were not adequately developed at the state-court hearing; or (6) for any reason it appears that the
state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 670
(quoting Townsend, 372 U.S. at 313).
As discussed above, Patrick has failed to assert a colorable claim for relief as to any of
his claims. Because he does not cite to new laws or underlying facts that were not developed on
the record before the state courts, he also has failed to satisfy his burden of proof under 28
U.S.C. § 2254(e)(2). Accordingly, Patrick’s request for an evidentiary hearing also must be
denied.

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V. CONCLUSION AND ORDER
Patrick is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); Ninth Circuit R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: November 8, 2013.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

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