Murphy v. Unknown

Filing 32

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 08/23/12 recommending that petitioner's petition for writ of habeas corpus be denied and that all pending motions be denied as moot. Petition 9 and motions 11 and 27 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARMEL MURPHY,

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Petitioner,

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No. 2:11-CV-1523-JAM-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

WALTER MILLER,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner’s petition

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for a writ of habeas corpus (Doc. 9), respondent’s answer (Doc. 26), and petitioner’s reply (Doc.

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29).

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I. BACKGROUND
A.

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Facts1
The state court recited the following facts, and petitioner has not offered any clear

and convincing evidence to rebut the presumption that these facts are correct:

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About 10:30 p.m. one night in February 2005, Rogers drove
Monica Bracamonte (who was the sister of Roger’s brother’s girlfriend) to
the store in his Cadillac to get some milk for Bracamonte’s niece. At the
store, Rogers received a phone call from Howard to pick him up at
Howard’s house and take him to the park to meet Howard’s girlfriend.
After picking up Howard, Rogers drove with Howard and Bracamonte to
the park. At the park, Howard walked to a nearby building, talked on the
phone for a few minutes, came back to the car, and asked Rogers to get
out. Rogers complied, and he and Howard walked around the building out
of Bracamonte’s sight. Less than five minutes later, Bracamonte heard
two gunshots.
About 10 minutes after the gunshots, Howard returned to the car
with Murphy, and he asked Bracamonte to get out of the car. Thinking
nothing of it, Bracamonte complied. Murphy got in the car where
Bracamonte had been sitting. Howard told Bracamonte that Rogers
wanted to speak with her. As Bracamonte walked to the building with
Howard behind her, she heard a clicking noise and something fall to the
ground. She turned around and saw Howard, who was now wearing
gloves, pick up a gun off the ground and place it under his arm. He told
her to go back to the car, and she complied.
Howard drove Rogers’s Cadillac a couple blocks to where
Murphy’s Jeep was parked. Murphy got out of the Cadillac and into her
Jeep. Murphy followed Howard as he dropped off Bracamonte at
Bracamonte’s sister’s apartment. As Bracamonte got out of the Cadillac,
she heard Murphy say, “Pop her too.” When Bracamonte got to the
apartment, she told her sister and Rogers’s brother what had happened.
Roberts’s brother tried to call Rogers but received no answer.
Rogers’s brother and Bracamonte’s sister went to the park and
found Rogers’s dead body. He had been shot in the back of the head and
in the abdomen. His pants were pulled down and one of his pockets
turned inside out.
Howard and Murphy were both arrested on February 10, 2005.
They were interviewed by police separately and then placed in an
interview room together.

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Pursuant to 28 U.S.C. § 2254(e)(1), “. . . a determination of a factual issue made
by a State court shall be presumed to be correct.” Petitioner bears the burden of rebutting this
presumption by clear and convincing evidence. See id. These facts are, therefore, drawn from
the state court’s opinion(s), lodged in this court. Petitioner may also be referred to as
“defendant.”
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The state court then outlined the following summary of Howard’s defense:

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Howard’s defense was that he was the “duped pawn” and Murphy
was the “queen.” To support his defense, he introduced the testimony of
Tawon Woodruff, who had met Howard on a number of occasions.
According to Woodruff, Howard was “weak-minded,” unintelligent, and
did things he did not want to do. Howard also introduced the testimony of
his sister, Leslie Knight. According to Knight, Howard was slow to
understand things and gullible.

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As to petitioner’s defense, the court stated:

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Murphy’s defense was that she did not shoot Rogers, she never
intended to kill him, and she never intended to rob him. Howard said he
wanted to take Rogers “off the map” due to a car Rogers had stolen. Later,
Howard said he was not planning on killing Rogers, just reclaiming and
taking his money.

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B.

Procedural History
Defendants Gerald Howard and petitioner Carmel Murphy were tried in a joint

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trial with separate juries and found guilty of first degree murder while armed. Petitioner was also

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found guilty of robbery. Petitioner was sentenced to a term of life without the possibility of

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parole. The conviction and sentence were affirmed in an unpublished decision issued by the

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California Court of Appeal on January 8, 2010, and the California Supreme Court denied direct

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review on April 22, 2010. On habeas review, the Sacramento County Superior Court denied

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relief in an opinion issued on October 15, 2010. The California Court of Appeal denied habeas

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relief without comment or citation on February 10, 2011, and the California Supreme Court did

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likewise on August 10, 2011.

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II. STANDARDS OF REVIEW

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Because this action was filed after April 26, 1996, the provisions of the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are presumptively

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applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct.

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(Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA

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does not, however, apply in all circumstances. When it is clear that a state court has not reached
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the merits of a petitioner’s claim, because it was not raised in state court or because the court

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denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal

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habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir.

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2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach

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petitioner’s claim under its “re-litigation rule”); see also Killian v. Poole, 282 F.3d 1204, 1208

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(9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on

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perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the

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evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing

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petition de novo where state court had issued a ruling on the merits of a related claim, but not the

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claim alleged by petitioner). When the state court does not reach the merits of a claim,

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“concerns about comity and federalism . . . do not exist.” Pirtle, 313 F. 3d at 1167.

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Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is

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not available for any claim decided on the merits in state court proceedings unless the state

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court’s adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

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Under § 2254(d)(1), federal habeas relief is available only where the state court’s decision is

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“contrary to” or represents an “unreasonable application of” clearly established law. Under both

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standards, “clearly established law” means those holdings of the United States Supreme Court as

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of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006)

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(citing Williams, 529 U.S. at 412) . “What matters are the holdings of the Supreme Court, not

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the holdings of lower federal courts.” Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en

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banc). Supreme Court precedent is not clearly established law, and therefore federal habeas

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relief is unavailable, unless it “squarely addresses” an issue. See Moses v. Payne, 555 F.3d 742,
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753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S. Ct. 743, 746 (2008)).

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For federal law to be clearly established, the Supreme Court must provide a “categorical answer”

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to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a

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state court’s decision that a defendant was not prejudiced by spectators’ conduct at trial was not

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contrary to, or an unreasonable application of, the Supreme Court’s test for determining prejudice

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created by state conduct at trial because the Court had never applied the test to spectators’

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conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court’s

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holdings. See Carey, 549 U.S. at 74.

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In Williams v. Taylor, 529 U.S. 362 (2000) (O’Connor, J., concurring, garnering a

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majority of the Court), the United States Supreme Court explained these different standards. A

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state court decision is “contrary to” Supreme Court precedent if it is opposite to that reached by

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the Supreme Court on the same question of law, or if the state court decides the case differently

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than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state

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court decision is also “contrary to” established law if it applies a rule which contradicts the

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governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate

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that Supreme Court precedent requires a contrary outcome because the state court applied the

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wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme

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Court cases to the facts of a particular case is not reviewed under the “contrary to” standard. See

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id. at 406. If a state court decision is “contrary to” clearly established law, it is reviewed to

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determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040,

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1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which

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case federal habeas relief is warranted. See id. If the error was not structural, the final question

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is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.

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State court decisions are reviewed under the far more deferential “unreasonable

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application of” standard where it identifies the correct legal rule from Supreme Court cases, but

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unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S.

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510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested

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that federal habeas relief may be available under this standard where the state court either

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unreasonably extends a legal principle to a new context where it should not apply, or

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unreasonably refuses to extend that principle to a new context where it should apply. See

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Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court

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decision is not an “unreasonable application of” controlling law simply because it is an erroneous

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or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63,

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75-76 (2003). An “unreasonable application of” controlling law cannot necessarily be found

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even where the federal habeas court concludes that the state court decision is clearly erroneous.

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See Lockyer, 538 U.S. at 75-76. This is because “[t]he gloss of clear error fails to give proper

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deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75.

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As with state court decisions which are “contrary to” established federal law, where a state court

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decision is an “unreasonable application of” controlling law, federal habeas relief is nonetheless

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unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.

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The “unreasonable application of” standard also applies where the state court

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denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d

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848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions

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are considered adjudications on the merits and are, therefore, entitled to deference under the

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AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982.

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The federal habeas court assumes that state court applied the correct law and analyzes whether

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the state court’s summary denial was based on an objectively unreasonable application of that

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law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.

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III. DISCUSSION

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Petitioner raises the following 13 claims:

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Ground 1

The trial court erred by allowing “inconsistent statements” and
“false testimony” from witnesses Monica Bracamonte, Victoria
Bracamonte, Willie Rogers, and Stephon Williams.

Ground 2

Trial counsel was ineffective for failing to adequately investigate
“mitigating circumstances.”

Ground 3

The trial court denied a fair trial by making a “prejudicial and
unfair statement.”

Ground 4

The trial court erred in failing to instruct the jury regarding
unconsciousness and voluntary intoxication.

Ground 5

The trial court and prosecution failed to properly lodge evidence.

Ground 6

The trial court erred by allowing “street slang” into evidence
despite a pre-trial order precluding such evidence.

Ground 7

The prosecutor committed misconduct by calling petitioner a
“murderer” and “liar” during opening statements and closing
arguments.

Ground 8

The trial court erred by failing to allow the defense to adequately
confront witness Tiana Smith-Anderson.

Ground 9

Appellate counsel was ineffective for failing to raise all possible
claims for relief on appeal.

Ground 10

The sentence of life without the possibility of parole constitutes
cruel and unusual punishment.

Ground 11

The evidence does not support a gun enhancement.

Ground 12

The trial court erred by admitting into evidence a joint
conversation between petitioner and co-defendant Howard.

Ground 13

The trial court erred by failing to properly transcribe the
conversation between petitioner and co-defendant Howard.

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Respondent argues that a number of claims are unexhausted and that the remaining claims should

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be denied on the merits.

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A.

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Exhaustion
Respondent argues that a number of claims raised in the instant petition are

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unexhausted. Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required

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before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy,

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455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v.

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Pliler, 336 F.3d 839 (9th Cir. 2003). Claims may be denied on the merits notwithstanding lack of

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exhaustion. See 28 U.S.C. § 2254(b)(2). “A petitioner may satisfy the exhaustion requirement

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in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of

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the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal

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court no state remedies are available to the petitioner and the petitioner has not deliberately

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by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations

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omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to

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give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard

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v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.

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Regardless of whether the claim was raised on direct appeal or in a post-

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conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the

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state’s highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion

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doctrine requires only the presentation of each federal claim to the highest state court, the claims

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must be presented in a posture that is acceptable under state procedural rules. See Sweet v.

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Cupp, 640 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is

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denied by the state courts on procedural grounds, where other state remedies are still available,

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does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488

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(1979); Sweet, 640 F.2d at 237-89.2

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This situation of procedural deficiency is distinguishable from a case presented to
the state court using proper procedures but where relief on the merits is precluded for some
procedural reason, such as untimeliness or failure to raise the claim on direct appeal. The former
represents an exhaustion problem; the latter represents a procedural default problem.
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A review of petitioner’s opening brief on direct appeal reflect that petitioner
raised the following three claims:
Claim I

The trial court erred by not redacting the transcript of a taped
conversation between petitioner and Howard.

Claim II

The trial court erred by permitting witnesses Tawon Woodruff and
Leslie Knight, called by co-defendant Howard, to testify in front of
petitioner’s jury.

Claim III

The trial court erred in imposing a parole revocation fine.

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A number of other claims were raised by Howard only. In her petition for direct review by the
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California Supreme Court, petitioner did not raise her claim regarding the parole revocation fine,
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instead focusing solely on the first two claims listed above.
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In her state habeas petition filed in the Sacramento County Superior Court,
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petitioner raised the following 14 claims:
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Ground 1

The trial court erred by allowing “inconsistent statements” and
“false testimony” from witnesses Monica Bracamonte, Victoria
Bracamonte, Willie Rogers, and Stephon Williams.

Ground 2

Trial counsel was ineffective for failing to adequately investigate
“mitigating circumstances.”

Ground 3

The trial court denied a fair trial by making a “prejudicial and
unfair statement.”

Ground 4

The trial court erred in failing to instruct the jury regarding
unconsciousness and voluntary intoxication.

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Ground 5

The trial court and prosecution failed to properly lodge evidence.

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Ground 6

The trial court erred by allowing “street slang” into evidence
despite a pre-trial order precluding such evidence.

Ground 7

The prosecutor committed misconduct by calling petitioner a
“murderer” and “liar” during opening statements and closing
arguments.

Ground 8

The trial court erred by failing to allow the defense to adequately
confront witness Tiana Smith-Anderson.

Ground 9

The trial court erred by failing to award pre-sentence custody
credit.

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Ground 10

Appellate counsel was ineffective for failing to raise all possible
claims for relief on appeal.

Ground 11

The sentence of life without the possibility of parole constitutes
cruel and unusual punishment.

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Ground 12

The evidence does not support a gun enhancement.

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Ground 13

The trial court erred by admitting into evidence a joint
conversation between petitioner and co-defendant Howard.

Ground 14

The trial court erred by failing to properly transcribe the
conversation between petitioner and co-defendant Howard.

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Ground 9 above is not raised in the instant federal petition. Petitioner raised the same
claims as she raises in the instant federal petition in her habeas petition to the California Court of

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Appeal, which denied relief without comment or citation. While neither respondent nor

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petitioner provide a copy of any habeas petition filed in the California Supreme Court, petitioner

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attaches to her federal petition a copy of an August 10, 2011, order from the California Supreme

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Court denying habeas relief with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995), and In

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re Swain, 34 Cal.2d 300, 304 (1949).

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Based on the foregoing, the court concludes that petitioner’s claims regarding

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admission of evidence of the taped conversation between Howard and petitioner are exhausted.

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These claims were presented to the California Supreme Court on direct review. None of

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petitioners other claims, however, is exhausted, as indicated by the California Supreme Court’s

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citations to Duvall and Swain. The Swain citation indicates that petitioner did not “allege with

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particularity the facts upon which he would have a final judgment overturned.” Id. Under

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California law, a denial of relief under Swain is without prejudice to the filing of a new state

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court petition which meets the requirements described in the case. See id. Because citation to In

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re Swain as the basis for denying a state habeas petition generally indicates that the petitioner has

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not alleged with particularity sufficient facts in support of his petition, and is without prejudice to

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the filing of a subsequent petition meeting the pleading requirements, such denials do not

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establish the exhaustion of available state remedies. See Kim v. Villalobos, 799 F.2d 1317, 1319
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(9th Cir. 1986). However, a Swain denial does not per se establish that the claim is unexhausted

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if the federal court independently determines that the claim could not have been alleged with any

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greater particularity. See id. at 1320. Here, this court need not engage in this analysis because

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the California Supreme Court also cited to Duvall as a reason to deny habeas relief.

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As to the state court’s citation to People v. Duvall, that case outlines the various

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procedural requirements for a state habeas petition. See 9 Cal.4th 464, 474. Among other

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things, the petition must “include copies of reasonably available documentary evidence

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supporting the claim, including pertinent portions of the trial transcripts and affidavits or

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declarations.” Id. A failure to comply with this requirement is a pleading defect subject to cure

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by amendment. Here, there is no evidence that petitioner ever filed an amended petition in the

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California Supreme Court attempting to cure this defect. For this reason, the court finds that the

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Duvall citation is a sufficient and valid basis to conclude that the claims raised in petitioner’s

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state habeas petitions were not exhausted in the California Supreme Court.

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B.

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Merits
For the reasons discussed above, the court finds that the only claims properly

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exhausted and before this court are those relating to evidence admitted at trial of the taped

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conversation between petitioner and Howard. The California Court of Appeal outlined the issue

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on direct appeal as follows:

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Murphy contends the court erred in failing to redact certain
portions of the videotaped conversation between her and Howard.
Specifically, she argues three paragraphs were erroneously admitted as
admissions or adoptive admissions and at least eight references to the
words “you” and “we” were erroneously admitted despite the rule against
introduction of incriminating extrajudicial statements bo a non-testifying
co-defendant.

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The court then addressed whether the statements constituted an admission:

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The three paragraphs Murphy takes issue with are those she labeled
paragraph 1, 2, and 18. They provide as follows:

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Paragraph 1: Murphy: “You going to sit here and lie, bud? You are
going to sit here and lie? What happened to, ‘I’m going to take the rap.
I’m going to take the fall?’”
Howard: “So what? You want me to take it all?”

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Paragraph 2: Murphy: “I’m going to take the rap. I’m going to take
the fall. I don’t care. I don’t care. You got Deovion [Murphy’s son]. I’m
going to take the rap. I’m going to take the fall. But now I done pulled the
trigger? I killed him? It’s enough I got to deal with this bitch-assed nigger
on the streets. I got to deal with this in here, too, now?”

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Paragraph 18: Murphy: “[Unintelligible]. I know they took my
[Unintelligible]. The fuck is you going to do, blood? Going to tell them
you have a confession to make or what?”

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Howard: “Not right now, [Murphy].”

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Murphy agrees these paragraphs “were not admissions because
they were questions posed to Howard and were not express unequivocal
adoptive admissions.” She is wrong on the law and in her analysis.

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Under California law, there are only two requirements for the
introduction of adoptive admissions: (1) the party must have knowledge of
the content of another’s hearsay statement; and (2) having such
knowledge, the party must have used words or conduct indicating her
adoption or belief in the truth of such hearsay statement. (citation
omitted).
Howard’s hearsay statement was he did not pull the trigger (and, by
implication, that Murphy did) and they had an arrangement where he
would take the fall for the killing. Murphy’s statements (at least the ones
she takes issue with in paragraphs 1, 2, and 18) did not deny she pulled the
trigger and admitted the existence of the arrangement. In paragraph 1,
Murphy never said Howard was lying with regard to her involvement in
the killing or the existence of the arrangement. In paragraphs 2 and 18,
she simply asked, “I. . . pull[ed] the trigger” and “I killed him” and
questioned Howard whether he was going to confess. In these excerpts,
she never denied pulling the trigger or killing Rogers. On this record, the
court correctly admitted the statements as adoptive admissions.

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The court next addressed petitioner’s argument that admission of the taped conversation violated

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the rule against introducing incriminating hearsay by a non-testifying co-defendant.

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Murphy contends admission of portions of the joint conversation
violated the “Aranda/Bruton” rule (citations omitted), because the court
failed to excise Howard’s out-of-court statements implicating Murphy in
the killing. She states generally that Howard made at least eight references
to the words “you” and “we” and that, under Aranda, Howard’s statements
“must be redacted to remove direct and indirect identifications of [her], or
it must be excluded alltogether.” Other than making this general reference
to the words “you” and “we,” Murphy points to only one example of the
allegedly improper statements, i.e., Howard’s first statement from the
transcript, “So what” You want me to take it all?” As we explain below,
Murphy applies the rule incorrectly.
The California Supreme Court anticipated the holding of Bruton
and Aranda. In Aranda, the California Supreme Court found prejudicial
the practice of permitting joint trials when the confession of one defendant
inculpates the other and is admitted in evidence, despite limiting
instructions. (citations omitted). After the passage of Proposition 8 (Cal.
Const., art. I, § 28, subd. (f)(2), former subd. (d)), the California Supreme
Court held the rule of Aranda was abrogated to the extent it required
exclusion of relevant evidence that did not have to be excluded under
federal constitutional law. (citation omitted). Accordingly, we refer to the
issue as Bruton error.
Here, there was no Bruton error. Howard’s reference to Murphy, at
least in the statements she points out, was nothing more than a repetition
of Howard’s understanding of what Murphy had just told him, i.e., she
wanted him to take the rap for everything that happened. It was Murphy
who implicated herself by her adoptive admissions. As such, Bruton did
not require the exclusion or redaction fo what, in essence, was Howard’s
parroting of Murphy’s statements.

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Under Bruton v. United States, 391 U.S. 123 (1968), the constitutional right to

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confront an out-of-court statement is not sacrificed merely because the defendant is jointly tried

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with the person making the out-of-court statement and the statement would be admissible against

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that person. As the Supreme Court has made clear, the right of confrontation under the Sixth

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Amendment only applies to testimonial statements. See Giles v. California, 554 U.S. 353, 376

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(2008); Crawford v. Washington, 541 U.S. 36, 51 (2004). A statement is testimonial only if it is

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made “with a primary purpose of creating an out-of-court substitute for trial testimony.”

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Michigan v. Bryant, 131 S.Ct. 1143, 1155 (2011). In this case, the statements made by Howard

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which petitioner challenges were clearly not testimonial. As the state court noted, Howard’s
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statements simply reiterated what he thought the arrangement was with Murphy – that he would

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take the rap for her. Thus, the real source of any inculpating statements was Murphy herself,

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which were properly admitted under state law. Clearly, in having the conversation regarding the

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arrangement that Howard would take the rap for Rogers’ murder, it was not Murphy’s intention

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(or Howard’s) to create a substitute for trial testimony. The court concludes that, while the

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statements made in the recorded conversation may certainly have been inculpating, they were not

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testimonial. As such, the Sixth Amendment right to confrontation does not apply and, therefore,

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no Bruton error occurred.

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Accordingly, the court finds that the state court’s rejection of petitioner’s claims

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relating to the taped conversation was neither contrary to nor an unreasonable application of

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clearly established federal law, and was not based on an unreasonable interpretation of the facts.

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IV. CONCLUSION

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The court notes that petitioner has filed a document captioned “Motion to Request
Evidentiary Hearing and Production of Discovery.” Petitioner states:

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COMES NOW PETITIONER Carmel Murphy by Writ of Habeas
Corpus Petition, defendant in the above entitled action, hereby respectfully
requesting the United States District Court of the Eastern District of
California to grant an Evidentiary Hearing and to make determinations of
factual issues addressed in the meritorious claims in the appellant’s
Petition for Writ of Habeas Corpus, which are unresolved and/or are
deserving of review by this Court.

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Petitioner provided no analysis or otherwise discusses why an evidentiary hearing or order for

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discovery would be appropriate in this case. Therefore, petitioner’s conclusory motion should be

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denied.

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///

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///

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///

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///
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Based on the foregoing, the undersigned recommends that petitioner’s petition for
a writ of habeas corpus be denied and that all pending motions be denied as moot.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 23, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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