Morgan v. Ray et al
Filing
23
MEMORANDUM DECISION AND ORDER signed by Senior Judge James K. Singleton on 12/16/2014 ORDERING the Amended Petition under 28:2254 for Writ of Habeas Corpus is DENIED; the Court DECLINES to issue a Certificate of Appealability; the Clerk of the Court is to enter judgment accordingly. CASE CLOSED (Reader, L) Modified on 12/17/2014 (Reader, L).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHRISTOPHER MORGAN,
No. 2:12-cv-02269-JKS
Petitioner,
MEMORANDUM DECISION
vs.
HEIDI M. LACKNER, Warden, Sierra
Conservation Center,1
Respondent.
Christopher Morgan, a state prisoner represented by counsel, filed a Petition for Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. Morgan is in the custody of the California
Department of Corrections and Rehabilitation and incarcerated at the Sierra Conservation
Center. Respondent has answered, and Morgan has replied. This Court recently denied the
petition for habeas relief filed by Morgan’s co-defendant, Paula R. Moyer, in Moyer v. Johnson,
No. 2:12-cv-01170-JKS. Morgan’s Petition raises many of the same issues raised in Moyer’s
case.
I. BACKGROUND/PRIOR PROCEEDINGS
On September 11, 2007, Morgan and his co-defendants, Moyer and James Ray, were
charged with murder in connection with the May 5, 2006, killing of a 78-year-old man. The
information also alleged robbery and burglary special circumstances.
1
In his initial Petition, Morgan listed his co-defendants as Respondents in this
case. Heidi M. Lackner, Warden, Sierra Conservation Center, is substituted as the proper
Respondent in this case. FED. R. CIV. P. 25(c); Rule 2(a), Rules Governing Section 2254 Cases
in the United States District Courts (“If the petitioner is currently in custody under a state-court
judgment, the petition must name the state officer who has custody.”); Stanley v. Cal. Supreme
Court, 21 F.3d 359, 360 (9th Cir. 1994).
On direct appeal of his conviction, the California Court of Appeal recounted the
following facts underlying the case against Morgan:
Farhan Jweinat lived in the Vacaville home of his son Suleiman2 and his family.
Farhan was in good health for his age, although he suffered from coronary artery disease
and had stents in two arteries. On the afternoon of May 5, 2006, while other members of
the Jweinat family were not at home, neighbors discovered Farhan standing in the front
yard, covered in blood with his hands tied behind his back. Farhan said in broken
English, “[T]hey won’t stop hitting me, they won’t stop hurting me, they just keep hitting
me over and over.” He said they had wanted money and he gave them $700. Farhan was
taken to the hospital for treatment, where he told Detective Carey of the Vacaville Police
Department that his attackers were two “American” men in their 30s.
FN2. Because this opinion refers to family members who share the same last
name, we sometimes refer to them by their first names only. No disrespect is
intended.
Farhan’s daughter-in-law Vera Jweinat rushed home after she learned what had
happened. She walked through the house with Detective Carey and saw that every room
had been ransacked. There was blood on the floor in the kitchen, family room, Farhan’s
bedroom and an adjacent bathroom. Farhan’s bedroom, which was usually spotless, was
in disarray, and his dentures were found in a large pool of blood in the kitchen. Vera
found a bottle of pepper spray on her bedroom dresser that did not belong to her, and
Detective Carey smelled pepper spray and noticed a liquid that appeared to be pepper
spray on the kitchen floor. Vera discovered that gold jewelry worth between $50,000 and
$70,000 was missing, as was a computer, a Gameboy, her son’s tennis shoes and various
household decorations. One of the neighbors had seen a blue car parked in the Jweinats’
driveway and had noticed a woman with long black hair and a red sweater near the car.
Appellant Moyer, who has long black hair, had recently worked as a housekeeper
for the Jweinats. Farhan had been home when Moyer came to clean, although the two
did not have much interaction because Farhan’s English was limited. In March 2006,
Vera Jweinat had discovered that about $60,000 to $70,000 in casino winnings was
missing from its hiding place in her master bedroom, and she suspected Moyer of taking
it. She reported the theft to police, but then asked them to stop the investigation because
her daughter was afraid. Vera had asked Moyer to return for one final cleaning job,
intending to confront her, but when Moyer came over, Vera changed her mind and
decided not to raise the subject.
After reviewing the police report regarding the March 2006 theft, Detective Carey
decided to contact Moyer about the current burglary and assault on Farhan. Carey went
with other officers to Moyer’s house in Woodland at about 11:45 p.m. on May 5, 2006,
the same day as the burglary and assault. They found a black ring on the counter next to
Moyers’s purse and a bracelet inside the purse, both of which were later identified by
Vera Jweinat as belonging to her. The purse also contained a receipt from a McDonald’s
2
located about half a mile from the Jweinats’ home, which was generated on May 5, 2006,
at 12:33 p.m. Moyer’s boyfriend Paul Hinojosa was present and his black Acura was
parked in the driveway. The car was impounded and later searched, during which time
officers found a red sweatshirt and three rings belonging to Vera Jweinat.
After interviewing Moyer, police went to the home of her next door neighbors,
appellant James Ray and his girlfriend Karly Harrison. Ray was discovered hiding under
the bed with a gun holster underneath him, and a handgun was found under the mattress.
He was carrying a wallet with over $400 in cash, and another $200 in cash was inside the
pocket of a pair of shorts found in the bedroom. Jewelry that was later identified as
belonging to Vera Jweinat was found in the bedroom closet, hidden between some pants
that were folded on a shelf. A pair of black pants found in the house ultimately tested
positive for Farhan Jweinat’s blood.3
FN3. The pants had a size 38 waist. The blue jeans Ray was wearing at the time
of his arrest had a size 33 waist.
Meanwhile, Farhan Jweinat remained in the hospital for treatment. On May 17,
2006, he suffered a cardiac arrest and stopped breathing after receiving surgery for a
broken jaw that he suffered during the attack. He was resuscitated, but remained in a
persistent vegetative state and ultimately died on March 19, 2007, about 10 months after
the attack. According to Dr. Arnold Josselson, who performed the autopsy, the cause of
death was “anoxic encephalopathy (loss of oxygen to the brain) due to blunt force
injuries.”
Although she initially lied to the police to protect Ray (who wrote her love letters
while they were both in jail), Karly Harrison ultimately became the principal witness for
the prosecution and was allowed to plead guilty to first degree burglary with a maximum
sentence of four years in exchange for her truthful testimony at appellants’ trial. She
testified to the following events surrounding the burglary of the Jweinat home:
Harrison had met Ray while they were both residents in a drug and alcohol
rehabilitation center in 2005. They moved in next door to Moyer and her boyfriend
Hinojosa, with whom they became acquainted. Moyer bragged to Harrison about taking
$74,000 from a house in Vacaville while she was working as a housekeeper, and said she
had bought two cars with the money after spending $5,000 on drugs and in casinos. In
March 2006, Moyer told Harrison she had been called to clean the house again and was
nervous that it might be a “setup.”
Moyer, Ray and Hinojosa discussed burglarizing the Jweinats’ house to see
whether they had more cash. Harrison was opposed, because she was worried that Ray
would get into trouble and go to prison. The plan was to commit the burglary on May 4,
2006, but it did not go forward and Hinojosa said he could not do it the following day
because he had an appointment he could not miss. Moyer came to Ray and Harrison later
that night and told them that Hinojosa’s brother Chris (appellant Christopher Morgan)
could stand in for Hinojosa.
Early the next morning, May 5, 2006, Moyer came to the house and gave
Harrison a line of methamphetamine. Moyer also brought over some beanies, walkie
3
talkies and gloves. Harrison understood that they were going to burglarize the Jweinats’
house that day, and Ray convinced her to come along so she could make sure he stayed in
the car and did not go inside the house.
Harrison and Ray drove to Vacaville in Ray’s car, a teal blue Corsica, and met
Moyer and Morgan at a McDonald’s near the Jweinats’ home. Moyer and Morgan were
driving the black Acura owned by Hinojosa. After having lunch, Moyer told Harrison to
get into the Acura with her, while Ray and Morgan got into the Corsica. Moyer led the
way to the Jweinats’ house, parked on the street and then conferred with Ray and
Morgan. Ray parked the Corsica in the Jweinats’ driveway and went toward the house
with Morgan. Moyer received a call on her cell phone and Harrison heard her tell the
caller to use the back door because it was always open.
As she and Harrison were waiting in the Acura, Moyer changed into a red
sweatshirt. After about 10 minutes, Moyer told Harrison to drive her to the Jweinats’
house so she could “get them out.” Moyer went inside the house while Harrison drove
back to their original parking place, and about 10 minutes later, Harrison saw Moyer,
Ray and Morgan come out of the house and get into Ray’s car. Harrison met them back
at the McDonald’s, where she noticed that Morgan had blood on his clothes. Moyer and
Morgan drove away in the Acura, while Harrison rode home in the Corsica driven by
Ray. Ray told her that everything had “got all fucked up,” and “the less you know the
better.” He showed her a gun in a holster and told her he got it during the burglary.4
FN4. Although Suleiman and Vera Jweinat told the police they did not have a gun
in the house, bullets were found in Farhan’s room during the investigation of this
crime.
Later that day, Moyer, Hinojosa and Morgan went to Ray’s and Harrison’s house
and divided up jewelry, watches, “little bags,” shoes, clothing and a computer. After the
others left, Ray started talking about leaving California and Harrison took him to a motel
in Sacramento. Ray returned later that night because he did not want to be without
Harrison, and Harrison began packing so they could go to Reno. At some point she
realized that police were entering Moyer’s house. She told Ray to leave, but he did not
do so and they were both arrested that night.
Another important trial witness was Mariah Alsop, the significant other of
Moyer’s mother, Gail Garcia. Alsop testified at trial that on the day after Moyer’s arrest,
she and Garcia went to Moyer’s home to remove Moyer’s belongings. While Alsop was
standing outside smoking a cigarette, a man she did not then know, but whom she
identified as appellant Morgan, came up to her and started talking. He said, “I’m so
scared,” and when asked why, said it was “because they’re looking for me.” Morgan told
Alsop that they were supposed to steal a car and he was going to drive one of the cars,
then said that he waited at a McDonald’s and they were supposed to bring the car to him.
He then changed his story and said that he and Ray went into a house and found an old
man there. They bound the man and put him in the bathroom, and Morgan told him that
if he kept his mouth shut nothing would happen. Morgan went upstairs to look for things
to steal and heard Ray yelling, “You better get the f—down here, I just hit this old man.”
4
Morgan went downstairs and saw Ray viciously beating the old man, who had blood
running down his head. Morgan told Alsop that he joined Ray in the beating, and then he
and Ray left.
Ray testified in his own defense and claimed that he had moved out of the home
he shared with Harrison several days before the crime was committed and had not
participated at all. He explained that he was visiting Harrison on the night of their arrest
because they needed to discuss their relationship. Ray’s friend John Lee and other
members of Lee’s family testified that Ray was at their home in Sacramento during the
day on May 5, 2006, a fact they remembered because of the Cinco de Mayo holiday.
Ray also called Detective Carey as a witness, who testified that a man named
Jason Stevens had been discovered with jewelry taken from the Jweinats’ house. Carey
did not consider him a suspect in the case and had not tried to verify his whereabouts on
May 5, 2006. Other individuals in the Woodland and Davis areas were also caught with
jewelry that had been taken from the Jweinats’ house.
In addition to Ray’s alibi/third party culpability defense, appellants attempted to
show that they were not liable for felony murder or the special circumstances because the
injuries Farhan suffered during the robbery and burglary did not cause his death. The
medical evidence was as follows:
Farhan was initially admitted to North Bay Medical Center on the day of the
attack, and was then airlifted to U.C. Davis Medical Center for treatment, where he was
admitted in critical condition. His jaw was broken, but the necessary surgery was
delayed to allow the blood thinners that he was taking for his heart condition to leave his
system. Farhan had difficulty breathing and was placed on a ventilator several times
during his stay, and a tracheostomy tube was placed in his neck to allow him to breathe
more easily. Surgery was performed on his broken jaw on May 12, 2006 (a week after the
attack), and he remained in critical condition in the intensive care unit until May 16,
2006, when he was moved to a regular hospital ward. On May 17 he had a cardiac arrest
and stopped breathing, which deprived his brain of oxygen. It was impossible to
determine which occurred first—the cessation of breathing or the cardiac arrest.
Although Farhan was resuscitated, he remained in a persistent vegetative state until he
died 10 months later, on March 19, 2007.
Dr. Josselson, a forensic pathologist who testified as the prosecution’s expert,
testified that it was not possible to determine exactly what caused Farhan’s heart to stop.
The medical records noted that a mucous plug may have developed in his tracheostomy
tube, thus blocking the flow of oxygen and causing a cardiac arrest due to the loss of
oxygen. Though Farhan had been checked shortly before the episode, a mucous plug
could have developed suddenly. Dr. Josselson also believed that the various stresses to
Farhan—the recent attack, his stay at the hospital, the use of a breathing tube, his
inability to readily communicate with hospital staff in English, all on top of a heart
weakened by coronary disease—could have caused him to suffer cardiac arrest. The
medical notes from Farhan’s records showed that his blood pressure was elevated after
the surgery, and that the doctors were trying to control his pain, another source of stress.
Farhan had undergone a procedure on May 9, 2006 (a few days before his jaw surgery) to
5
insert a filter into his vena cava so a blood clot developing in his leg would not go into
his heart.
Farhan was not on a heart monitor at the time of his cardiac arrest, so there was
no electrocardiogram (EKG) to indicate a problem immediately before the event. Dr.
Josselson thought that both stress and a mucous plug contributed to the cardiac arrest, but
either factor alone could have been the cause. Dr. Josselson believed that the assault
during the burglary led to a chain of events causing cardiac arrest and that as a result of
the cardiac arrest, Farhan went into a vegetative state and died.
The defense presented the expert testimony of Dr. Coleman Ryan, a cardiologist.
According to Dr. Ryan, Farhan had suffered from coronary artery disease but had been
doing well for several days before and after the jaw surgery on May 12, 2006. He was no
longer on a ventilator, his oxygen readings were good and his treating physicians had
declared him stable. Dr. Ryan characterized the cause of death as a “mystery.” It was
unlikely that stress caused cardiac arrest, as stress is more likely to cause heart
arrhythmia and there was no evidence of arrhythmia. Dr. Ryan did not believe there was
any evidence of a mucous plug, although he had not been provided with a hospital note
by a U.C. Davis medical resident the day after the event noting “susp mucous plug” as a
cause. He noted that while morphine (which was being administered to Farhan) could
cause respiratory arrest, there was no indication of an excessive dose. Dr. Ryan did not
believe that the injuries Farhan suffered on May 5, 2006 caused the cardiac arrest.
Dr. Steven Karch, an expert in cardiac pathology, also testified for the defense.
Dr. Karch believed the cause of death was undetermined, but was definitely not a heart
attack, as the EKGs had been normal and there was no evidence of stressors. In his
opinion, a mucous plug was unlikely to have been the cause because a person deprived of
oxygen in this manner is apt to thrash around trying to breathe, and there is no evidence
that this occurred. Dr. Karch acknowledged that Farhan’s hands had been tied to the bed
to prevent him from pulling out the tracheostomy tube. Farhan suffered from an enlarged
heart, which can cause sudden cardiac arrest and death.
People v. Ray, Nos. A127613, A127690, 2011 WL 3930322, *1-5 (Cal. Ct. App. Sept. 8, 2011).
On November 10, 2009 a jury found Moyer, Ray, and Morgan guilty of murder. The jury
found true as to all three defendants the burglary special circumstance allegation and also found
true as to Ray and Morgan the robbery special circumstance. On February 3, 2010, the trial
court sentenced each of the defendants to a term of life imprisonment without possibility of
parole.
Through counsel, Morgan appealed his conviction, arguing that: 1) the trial court erred in
instructing on proximate cause because it failed to instruct on supervening or intervening cause;
6
2) the evidence was insufficient to prove that the injuries Jweinat suffered during the burglary
were the cause of his death; 3) the trial court erred by failing to answer the jury’s question about
the term “acted with reckless indifference to human life” and denied Morgan the right to counsel
when it answered the jury’s question off the record and without the presence of counsel; 4) the
prosecutor committed misconduct by misstating the burden of proof; and 5) the existence of
cumulative error warranted the reversal of his conviction. On September 8, 2011, the California
Court of Appeal affirmed Morgan’s conviction in a reasoned, unpublished opinion. Ray, 2011
WL 3930322, at *17. Again proceeding through counsel, Morgan sought review in the
California Supreme Court, raising the same claims he had unsuccessfully presented to the Court
of Appeal. The supreme court summarily denied the petition on December 14, 2011.
Morgan timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
August 30, 2012. After this Court appointed counsel to represent him, Docket No. 7, Morgan
filed an Amended Petition.
II. GROUNDS/CLAIMS
In his counseled Petition before this Court, Morgan raises the following grounds for
relief: 1) the trial court erred by failing to instruct on supervening cause; 2) there was insufficient
evidence that the victim died of injuries suffered during the burglary; 3) the prosecutor
committed misconduct in explaining the meaning of reasonable doubt; and 4) the existence of
cumulative error warrants reversal of his conviction.
7
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
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
8
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)). If the last reasoned state court
decision adopts or substantially incorporates the reasoning from a previous state court decision,
this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 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).
IV. DISCUSSION
A.
Causation Issues (Claims 1, 2)
Morgan first argues that the trial court violated his right to due process by failing to
instruct the jury on supervening cause when it instructed on proximate cause and that his trial
counsel was ineffective for failing to request a supervening cause instruction. He similarly
argues in claim 2 that there was insufficient evidence that the injuries Jweinat suffered during the
burglary proximately caused his death. Because the resolution of claim 1 requires consideration
of whether the evidence was sufficient to establish that Jweinat’s death was caused by the
9
injuries he suffered during the burglary, the causation question raised in claim 2 is addressed
first.
1.
Sufficiency of the Evidence to Establish Causation
Morgan argues he “was convicted without sufficient evidence of a necessary element of
the crime, namely, that his acts or those of his co-defendants proximately causes Mr. Jweinat’s
death.” The California Court of Appeal rejected this argument on direct appeal, concluding:
In this case, the evidence showed that [Jweinat] was severely beaten by appellants
Morgan and Ray while burglarizing his home. Appellant Moyer aided and abetted
Morgan and Ray in the burglary, knowing that [Jweinat] lived in the house. Morgan
and/or Ray struck [Jweinat] with enough force to knock out his dentures and break his
jaw. When he was admitted to the hospital, [Jweinat] had difficulty breathing and was
given a tracheostomy tube to help him breathe. After he underwent the surgery necessary
to repair his broken jaw, he suffered a cardiac arrest and his brain was deprived of
oxygen. Although he was resuscitated, he remained in a persistent vegetative state before
dying several months later. Dr. Josselson, the forensic pathologist who conducted the
autopsy and reviewed the medical records associated with the injuries, believed the
cardiac arrest that ultimately lead to [Jweinat’s] death was caused by either a mucous
plug in the tracheostomy tube, or the stress of his injuries and hospitalization, or some
combination thereof. He explained, “[T]he assault led to a train of events that caused his
cardiac arrest; and as a result of the cardiac arrest, he went into this persistent vegetative
state and died.” Dr. Josselson’s testimony provided substantial evidence that [Jweinat’s]
death was caused by the violent acts committed against him.
Ray, 2011 WL 3930322, at *6.
As articulated by the Supreme Court in Jackson, the federal constitutional standard for
sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This
Court must therefore determine whether the California court unreasonably applied Jackson. In
making this determination, this Court may not usurp the role of the finder of fact by considering
10
how it would have resolved any conflicts in the evidence, made the inferences, or considered the
evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical
facts that supports conflicting inferences,” this Court “must presume–even if it does not
affirmatively appear in the record–that the trier of fact resolved any such conflicts in favor of the
prosecution, and defer to that resolution.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).
Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system
is “that a state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the
state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be
accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith
v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted). It is through this lens
that this Court must view an insufficiency of the evidence claim.
Under California law, “[t]o constitute murder, there must be, in addition to the death of a
human being, an unlawful act which was the proximate cause of that death. [¶] The proximate
cause of a death is a cause which in natural and continuous sequence, produces the death and
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without which the death would not have occurred.” People v. Catlin, 26 P.3d 357, 405 (Cal.
2001) (quoting CALJIC Nos. 8.55 and 8.58), overruled on other grounds. “[A]s long as the jury
finds that without the criminal act the death would not have occurred when it did, it need not
determine which of the concurrent causes was the principal or primary cause of death.” Id.
“Rather, it is required that the cause was a substantial factor contributing to the result.” Id. This
holds true even where the victim’s preexisting physical condition was a substantial factor
causing death. Id. “So long as a victim’s predisposing physical condition, regardless of its
cause, is not the only substantial factor bringing about his death, that condition . . . in no way
destroys the [defendant’s] criminal responsibility for the death.” Id. (citations omitted).
Morgan contends:
Dr. Josselson’s opinions and speculations were legally inadequate to establish the
proximate cause of death, because none of his opinions rose to the level of a “medical
probability.” . . . [A review of the medical evidence] clearly shows Dr. Josselson was not
able to express a reasonable medical probability, as to any particular cause of death. The
lack of oxygen to the brain was associated with a cardiac arrest. Dr. Josselson could not
say whether there had been a breathing problem, which caused the heart to stop beating;
or whether there had been a heart problem, which in turn resulted in the lack of oxygen to
the brain. He had no idea how or why the oxygen deprivation occurred.
Morgan’s argument is nothing more than an attack on Dr. Josselson’s testimony. This
Court is precluded, however, from either re-weighing the evidence or assessing the credibility of
witnesses. Schlup v. Delo, 513 U.S 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957-58
(9th Cir. 2004). Morgan specifically takes issue with the Court of Appeal’s statement that Dr.
Josselson was “certain” about the cause of death. He argues that “a fair review of the record
shows that this conclusion is a patently unreasonable application of the law to the facts.” But
Morgan cites no federal law to support his claim. Although he cursorily refers to the Fifth and
Fourteenth Amendment right to due process, the gravamen of his claim is that the trial court
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misapplied California state law, which this Court notes arises in the context of personal injury
actions and not criminal cases, requiring expert testimony of a reasonable medical probability to
establish causation. Even if this Court could find error under state law, it cannot support the
granting of habeas relief in federal court. See Estelle, 502 U.S. at 67-68, 71-72 (federal habeas
corpus relief is not available for violations of state law or for alleged error in the interpretation or
application of state law).
Under Jackson, this Court’s role is simply to determine whether there is any evidence, if
accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup, 513 U.S. at 330.
The United States Supreme Court has recently even further limited a federal court’s scope of
review under Jackson, holding that “a reviewing court may set aside the jury’s verdict on the
ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.”
Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Jackson “makes clear that it is the
responsibility of the jury—not the court—to decide what conclusions should be drawn from
evidence admitted at trial.” Id. at 3-4. Under Cavazos, “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’” Id. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773
(2010)).
Although it might have been possible to draw a different inference from the evidence,
this Court is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S.
at 326. Viewing the evidence in the light most favorable to the verdict, this Court concludes that
there was sufficient evidence introduced at Morgan’s trial from which a rational trier of fact
13
could have found beyond a reasonable doubt that the injuries he sustained during the burglary
“caused” the death of Jweinat, as that term is defined by California law. The record does not
compel the conclusion that no rational trier of fact could have found proof that the actions of
Morgan and his codefendants caused Jweinat’s death, especially considering the deference owed
under Jackson, Cavazos, and the AEDPA. The state court’s rejection of Morgan’s legal
sufficiency claim is therefore not “objectively unreasonable” under Cavazos. 132 S. Ct. at 4.
Accordingly, Morgan is not entitled to habeas relief on his claim that the evidence introduced at
trial was insufficient to support the jury’s finding that the injuries inflicted upon Jweinat during
the robbery were the cause of his death.
2.
Failure to Instruct—Supervening Cause/Ineffective Assistance of Counsel
In support of his claim that the trial court erred in failing to sua sponte instruct the jury
on a supervening cause, Morgan asserts:
Dr. Josselson insisted that a likely cause of death was that there might have been a
mucous plug which clogged Mr. Jweinat’s breathing tube. Ordinarily if that happened,
the patient would be able to resolve the problem by dislodging the breathing tube.
Alternatively, the patient could press the nurse’s call button. Here, however, Mr. Jweinat
could do neither, because his hands were tied to the bed rails. Seen in this light, the acts
of the hospital staff in restraining Jweinat’s hands could be considered in law as a
supervening or intervening cause of his death, which was not reasonably foreseeable.
A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990). The question is whether the instruction, when read in the context of the jury charges as a
whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471
U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary
14
that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the
law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the
subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at
72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is
whether there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violates the constitution and that the category of infractions that violate “fundamental
fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.” Id. at 73 (citation omitted).
Where the defect is the failure to give an instruction, the burden is even heavier because an
omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates
the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the inquiry is
whether the trial court’s refusal to give the requested instruction “so infected the entire trial that
the resulting conviction violates due process.” Id. at 156-57; Estelle, 502 U.S. at 72.
On direct appeal, the Court of Appeal concluded that the trial court was not required to
sua sponte instruct the jury on the hospital’s negligence as a superceding cause “because
substantial evidence did not support such an instruction and it did not appear the defense was
relying on that theory.” Ray, 2011 WL 3930322, at *8. The appellate court reasoned:
No expert testimony was elicited on the subject. Appellants argued at trial that
the prosecution had failed to prove the injuries inflicted on [Jweinat] were the cause of
15
his death, but they never suggested (to the court or to the jury) that the hospital was
instead responsible or that the possible mucous plug was a result of medical negligence.
Appellants contend the hospital should not have employed the wrist restraints that
were used to prevent [Jweinat] from pulling out the tracheostomy tube, because these
restraints rendered him unable to remove the tube when it became clogged. This
speculative assertion, raised for the first time on appeal, is not supported by any of the
medical testimony at trial and is not a conclusion obvious to a layperson. No substantial
evidence was presented at trial that would have supported the instruction now proposed
by the appellants.
Id. (internal citations omitted).
Morgan cites no federal law compelling the provision of a superceding cause instruction
under these circumstances and indeed cites only state law in support of his claim. However, “the
fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief.”
Estelle, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“[T]he
Due Process Clause does not permit the federal courts to engage in a finely-tuned review of the
state evidentiary rules.”)); Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) (“If a state law
issue must be decided in order to decide a federal habeas claim, the state’s construction of its
own law is binding on the federal court.”). Claims of error in state jury instructions are generally
a matter of state law that do not usually invoke a constitutional question. Gilmore v. Taylor, 508
U.S. 333, 342-43 (1993). This Court is bound by the state appellate court’s determination that
the trial court was not required under California law to sua sponte give a superceding cause
instruction in the absence of any due process violation. Morgan fails to establish a due process
violation here because he may not transform his state instructional error claim into a federal
claim by simply asserting a violation of his constitutional rights. Langford v. Day, 110 F.3d
1380, 1389 (9th Cir. 1996) (a petitioner cannot transform a state-law issue into a federal one by
simply asserting a due process violation); see also Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th
16
Cir. 1988) (an instructional error “does not alone raise a ground cognizable in a federal habeas
corpus proceeding”).
As the appellate court noted, the jury was instructed on the causation principles relevant
to this case:
CALCRIM No. 240 provided in part, “An act causes death if the death is the
direct, natural and probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes.” CALCRIM No.
620 stated, “There may be more than one cause of death. An act causes death only if it is
a substantial factor in causing the death. A substantial factor is more than a trivial or
remote factor. However, it does not need to be the only factor that causes the death. [¶]
Farhan Jweinat may have suffered from an illness or physical condition that made him
more likely to die from the injury than the average person. The fact that Farhan Jweinat
may have been more physically vulnerable is not a defense to murder. If the defendant’s
act was a substantial factor causing the death, then the defendant is legally responsible
for the death. This is true even if Farhan Jweinat would have died in a short time as a
result of other causes or if another person of average health would not have died as a
result of the defendant’s actions. [¶] If you have a reasonable doubt whether the
defendant’s act caused the death, you must find him or her not guilty.”
Ray, 2011 WL 3930322, at *8 n.5.
The Court finds no basis for disagreeing with the California Court of Appeal’s
conclusion that the trial court did not fail to sua sponte give the jury an instruction on
superceding cause. Morgan cannot establish that the omission of an instruction on superceding
cause rendered his trial fundamentally unfair in light of the causation instructions as a whole and
because sufficient evidence did not support an instruction on superseding cause. See Solis v.
Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (holding that was no constitutional error where the
trial court refused to give an instruction not supported by the evidence); United States v.
Yarbrough, 852 F.2d 1522, 1541 (9th Cir. 1988) (stating that an instruction can be given only if
there is “some foundation” in the evidence).
17
The Court of Appeal likewise rejected Morgan’s companion claim that counsel was
ineffective for failing to request a superceding cause instruction because, “[e]ven if counsel had
requested an instruction on superseding cause based on medical negligence, there is no
reasonable probability the court would have given it when it was not supported by substantial
evidence.” Ray, 2011 WL 3930322, at *8.
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, Morgan must show that his trial 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:
18
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.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
The record indicates that Morgan’s trial counsel acknowledged that Morgan was not
relying on any medical negligence theory and agreed with counsel for Moyer and Ray that there
was no evidence to support such theory. The appellate court’s conclusion that, “[e]ven if
counsel had requested an instruction on superseding cause based on medical negligence, there is
no reasonable probability the court would have given it when it was not supported by substantial
evidence” is neither unreasonable nor contrary to federal law given that no expert testimony had
been elicited or direct argument made on that theory. Morgan therefore cannot establish that
trial counsel was ineffective for failing to request an unsupported instruction.
Nor can Morgan show that trial counsel was ineffective for failing to advance evidence in
support of a negligence theory. California law mandates that, “[w]hen a person inflicts a wound
on another which is dangerous, or calculated to destroy life, the fact that the negligence, mistake,
or lack of skill of an attending physician or surgeon contributes to the death affords no defense to
a charge of homicide.” People v. McGee, 187 P.2d 706, 712-13 (Cal. 1947) (citation omitted);
see also People v. Roberts, 826 P.2d 274, 295 (Cal. 1992) (“If a person inflicts a dangerous
wound on another, it is ordinarily no defense that inadequate medical treatment contributed to
the victim’s death”). While the California Supreme Court also held in Roberts that “when
medical treatment is grossly improper, it may discharge liability for homicide if the maltreatment
19
is the sole cause of death and hence an unforeseeable intervening cause,” 826 P.2d at 295, that
situation is not presented here. Thus, trial counsel’s disclaimer in favor of advancing other
theories was reasonable in light of California law dictating that a medical negligence theory was
not appropriate under the circumstances of this case. Accordingly, Morgan is not entitled to
relief on any claim relating to the causation issues.
B.
Prosecutorial Misconduct (Claim 3)
Morgan additionally contends that his right to due process was violated when the
prosecutor gave four analogies of the meaning of reasonable doubt “that were legally incorrect
and that unfairly trivialized the prosecution’s burden of proof.” In considering this claim on
direct appeal, the Court of Appeal laid out the following facts:
The prosecutor did not discuss the reasonable doubt standard during the initial
phase of closing argument. Moyer’s counsel described the standard as one “we don’t
really use in our lives on a day-to-day basis, even on an unusual basis. You know, the
big decisions you make, like buying a house or getting married, having kids, you don’t
use this standard of proof.” She also noted that one situation in which the reasonable
doubt standard might be employed was the decision to withdraw a family member from
life support: “[Y]ou would want to make sure you have evaluated every possible option
for that person. . . . And so that is the same standard that you would use in deciding
whether these charges are true.” Morgan’s counsel also commented on the burden of
proof, describing it as “that degree of certainty that you would make in a medical
decision where if you're wrong someone is going to die. . . . [I]f at the end of that
discussion, you have enough faith that you’re willing to risk your child’s life, that’s
beyond a reasonable doubt.” He gave a second example of reasonable doubt as “the level
of comfort in a parachute that you would have before you jump out of a plane at 30,000
feet, right.”
During rebuttal argument, the prosecutor addressed the subject of proof beyond a
reasonable doubt when discussing the import and reliability of Karly Harrison’s
testimony: “Now, what the Court told you when he was reading you the instructions is
that there has to be corroboration to accomplice testimony, and the jury instruction tells
you that it only has to be slight. There’s plenty of corroboration in this case, and what
does that give you, well, I’m going to talk about beyond a reasonable doubt, what it is
and what it isn’t. [¶] Beyond a reasonable doubt is you take a puzzle and let’s say it has
the Statue of Liberty on it, and you start putting the pieces together, and first you have
the ocean and the water, and then you start getting to the island part and pretty soon you
20
start building the Statue of Liberty and you can tell what you're building. And once the
picture becomes clear to you, then you can convict somebody.” Defense counsel made
an objection, which was overruled.
The prosecutor continued: “So the picture is clear in this case. Is there enough
pieces put together in this puzzle for you to convict these three defendants. Well, let’s
think about that. We talked a lot about Karly Harrison, the defense did. She’s just
adding pieces because there’s other pieces to this case, isn’t there. There’s the stolen
property which the Judge gave you a jury instruction that you consider as something as
evidence of a recent burglary. It can’t be the only thing you consider, but it’s one thing.
Contrary to what you were told that you can’t consider it, but you can. And there’s other
evidence . . . . [¶] What reasonable doubt is not, Ladies and Gentlemen, it is not if your
child is in the hospital and going to die that you’re going to make a decision based on
beyond a reasonable doubt. You are going to make a decision based on all doubt, and
that is not the standard in a criminal case. [¶] And I guarantee it, Ladies and Gentlemen,
when you stood up and took your vows when you got married, you didn’t do it beyond a
reasonable doubt. You had no doubt that that person you were standing next to was the
person you wanted to spend the rest of your life with. You weren’t like thinking, well,
yeah, I don’t know, are my doubts reasonable. No. Those aren’t even good comparisons.
Because if somebody’s life is on the line, you’re going to make sure you have every fact
and know every possible thing that you need to know before you make a decision. That
is not the standard in a criminal case. As I told you in voir dire, the standard in this case
is the same in a DUI, is the same in a petty theft.”
Ray, 2011 WL 3930322, at *11-12.
Morgan contends that the prosecutor’s references to the following analogies were
improper: 1) recognizing the image of the Statute of Liberty in a jigsaw puzzle even though
some pieces are still missing; 2) determining medical treatment for a dying child; 3) getting
married; and 4) making decisions where someone’s “life is on the line.”
To successfully raise a claim cognizable on habeas review based on a prosecutor’s
comments at trial, a petitioner must demonstrate that the prosecutor’s comments “‘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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Under this standard, only egregious prosecutorial misconduct can give rise to a
constitutional claim. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). A prosecutor’s
21
comments in summation constitute grounds for reversal only when the remarks caused actual
prejudice. Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (applying harmless error test to
claim of prosecutorial misconduct in summation). Moreover, a prosecutor must have
“reasonable latitude” to fashion closing arguments. United States v. Molina, 934 F.2d 1440,
1445 (9th Cir. 1991).
As the Court of Appeal noted, Morgan’s counsel only objected to the prosecutor’s use of
the puzzle analogy; the appellate court found that Morgan had forfeited his claim with respect to
the remaining statements. Ray, 2011 WL 3930322, at *13-14. The forfeited claims are therefore
procedurally defaulted from federal habeas review under the contemporaneous-objection rule.
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (a federal court will not review a claim if
the state court’s rejection of the claim rests on a state law ground that is independent of the
federal question and adequate to support the judgment); Inthavong v. Lamarque, 420 F.3d 1055,
1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004).
The Court of Appeal further concluded that the prosecutor’s comparisons did not
constitute misconduct. With respect to the puzzle analogy, the appellate court concluded,
“Although both courts and prosecutors are well-advised to refrain from embellishing on the
statutory definition of reasonable doubt, it is not reasonably likely the jurors applied the jigsaw
puzzle analogy in this case to lessen the prosecution’s burden of proof.” Ray, 2011 WL
3930322, at *13. The appellate court similarly found no merit with respect to her statements
referring to decisions involving a dying child or where someone’s “life is on the line.” It
reasoned:
[T]he gist of the prosecutor’s argument suggested that some decisions are so
serious that they cannot be made in the face of any doubt, whereas the reasonable doubt
22
standard does not require the elimination of all possible doubt. The underlying legal
point is an accurate description of the law, even if the factual scenario used to illustrate it
was inapt. It is not reasonably likely the jury construed the remarks in a manner that
diminished the standard of proof beyond a reasonable doubt.
Id. at *14.
Finally, the appellate court determined that “the prosecutor’s reference to marriage was
somewhat cryptic, but seemed to suggest (incorrectly) that the decision to marry is one that
typically involves no doubt. Again, however, the point being made was that proof beyond a
reasonable doubt does not require the elimination of all possible doubt. Viewing the comment in
the context of this broader point, it is not reasonably likely the jury applied the remarks in an
objectionable fashion.” Id.
In support of his claim that the challenged statements constituted misconduct, Morgan
cites only to state law. But again, federal habeas relief is not available for alleged errors of state
law. Swarthout, 131 S. Ct. at 863. Morgan points to no federal law that the appellate court’s
determinations contravene or unreasonably apply, and this Court is not aware of any. Indeed, the
trial court instructed the jury that “[p]roof beyond a reasonable doubt is proof that leaves you
with an abiding conviction that the charge is true. The evidence need not eliminate all possible
doubt because everything in life is open [to] some possible or imaginary doubt.” The jury was
further instructed that “[n]othing that the attorneys say is evidence. In their opening statements
and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” We
must presume that the jury followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 234
(2000). In light of the record and the instructions as a whole, this Court cannot say that the
appellate court’s resolution of this claim was unreasonable or that the prosecutor’s remarks
deprived Morgan of a fair trial. Morgan is therefore not entitled to relief on this claim.
23
C.
Cumulative Error (Claim 4)
Finally, Morgan argues that, “[e]ven if no single one of the errors above requires reversal
of [Morgan’s] convictions standing alone, reversal is required due to their cumulative prejudicial
effect on [his] rights to due process of law under the Fifth and Fourteenth Amendments.”
“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 v. Abrahamson, 507 U.S. 619, 623 (1993)
(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, Morgan does not allege any claims that amount to errors of
constitutional dimension. 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 v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
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V. CONCLUSION AND ORDER
Morgan is not entitled to relief on any ground raised in his Amended Petition.
IT IS THEREFORE ORDERED THAT the Amended 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); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 16, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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