Muhammad v. Diaz

Filing 33

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 6/19/14 ORDERING that the 1 Petition for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED that this Court ISSUE a Certificate of Appealability only with respect to Muhammad 9;s interrelated claims that the trial judge prejudiced the jury with his comments about the death and capture of Osama bin Laden, and that trial and appellate counsel were ineffective for failing to alleviate any potential problems caused by the jud ge's comments. This Court DECLINES to issue a Certificate of Appealability with respect to all other claims. Any further request for a Certificate of Appealability as to the other claims must be addressed to the Court of Appeals. The Clerk of the Court is to ENTER judgment accordingly. CASE CLOSED. (Meuleman, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MAURICE MUHAMMAD,
No. 2:13-cv-00153-JKS
Petitioner,
MEMORANDUM DECISION
vs.
JOE PILKINGTON, Correctional
Commander, Delano Modified Community
Correctional Facility,1
Respondent.

Maurice Muhammad, a state prisoner proceeding pro se, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Muhammad is currently in the
custody of the California Department of Corrections and Rehabilitation and is incarcerated at
Delano Modified Community Correctional Facility. Respondent has answered, and Muhammad
has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
The California Court of Appeal set forth the factual background of this case as follows:
The alleged victim was [Muhammad’s] wife, I.H., and by the time of trial she had
tried to have the charges against [Muhammad] dropped. The People’s case was based
largely on pretrial statements made by I.H., eyewitness testimony, and evidence that
[Muhammad] had abused I.H. in the past.

Witness Testimony
1

Joe Pilkington, Correctional Commander, Delano Modified Community
Correctional Center, is substituted for Ralph M. Diaz, former Warden, Corcoran State Prison.
FED. R. CIV. P. 25(c).
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Sergeant Jennifer Garcia testified that on the morning of the charged offenses,
I.H. was scared, crying, and had visible spit on her face. I.H. reported that [Muhammad]
had threatened her by text and telephone messages the night before, and at the parking lot
had grabbed her by the hair, spun her around, threatened her, spat on her, and grabbed her
purse and ran off. I.H. reported that in the prior messages, [Muhammad] called her a
“whore and bitch. And then [I.H.] also said that he was going to get her[.]” While
[Muhammad] had I.H. in a bear hug at the parking lot, he said that if he could not have
I.H., nobody would, and he yelled about “kicking her ass right there[.]” I.H. later
reported that when her purse was returned, money was missing. At the police station,
I.H. received texts and phone messages from [Muhammad], which Sergeant Garcia was
able to hear or read, and [Muhammad] stated I.H. would not get her purse back and that
[Muhammad] would kill her. I.H. was visibly afraid, complained of neck pain, and
showed the officer a tangled clump of hair.
Two witnesses saw I.H. being attacked. One saw a man grab a woman and “head
bump her,” then saw the man grab something off of the woman’s shoulder and run off.
The other eyewitness saw the man grab the woman from behind, by the hair, and saw him
butt his head “into her forehead.”
Detective Dennis Prizmich testified as an expert on intimate partner battering.
Based on his training and experience, he described the “cycle of violence” by which
tension between intimate partners repeatedly builds up, the aggressor does a physically or
verbally violent act, and then there is a “honeymoon stage where they make up.” Often
the victim will downplay the extent of the abuse or wholly deny that it occurs, recanting
prior statements and becoming uncooperative with law enforcement.
A peace officer testified that in 2004, I.H. reported that [Muhammad] had
punched her in the stomach. Another officer testified that in 2006, I.H. reported that
[Muhammad] chased her in the family law court parking lot.
I.H.’s Testimony
I.H. testified she was divorcing [Muhammad] and no longer lived with him. She
worked at the UC Davis Medical Center. On April 17, 2009, she received several texts
and voice messages from [Muhammad], but testified she did not recall them or consider
them to be threatening. She recalled speaking to Sergeant Garcia on that day, but denied
telling the officer [Muhammad] threatened her and did not recall saying she had received
50 texts from [Muhammad].1 I.H. testified she had not been afraid, and had not told the
officer she was afraid.
FN1. I.H. had also spoken to Detective Mary Garcia about this case, and it
appears she confused which officer she talked to at which time. Because any such
discrepancies are not material, we will not attempt to reconcile them.
I.H. denied recalling receiving specific texts, including but not limited to the
following texts copied from her phone by a peace officer: (1) “‘Slut ass stank bitch. Hate
your whore ass. Allah is gonna destroy your ass. I hope you and [your] mismatched
children die, slut bitch. Kamelion 8:41 am[;]’” (2) “‘San Leandro Bitch hug: Lying cop
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calling slut! Disrespect breeds disrespect [you] piece of shit sorry whore! Fuck [you]
and I appreciate [your] help prostitute. Kamileon 8:49 am[;]’” and (3) “‘Die bitch. Die!’”
I.H. admitted that on April 17, 2009, she did not park in her usual parking
structure, to prevent [Muhammad] from knowing whether she was at work, but denied
she had been afraid of him. She saw [Muhammad’s] vehicle driving toward the parking
structure, but “just kept walking” to work. [Muhammad] called out to her, got out of his
car, walked fast toward her, pulled her around to face him, and tried to kiss her. I.H.
denied telling Sergeant Garcia that she tried to run away, that [Muhammad] pulled her by
the hair, or that she had been afraid. I.H. conceded that [Muhammad] had called her a
“bitch” and a “whore” and sprayed her with saliva while he talked, but denied that he
purposefully spat at her or that she told Sergeant Garcia he had done so. [Muhammad]
took her backpack, but I.H. denied reporting that he ripped it off her shoulder. Later that
day, a friend returned the backpack, but I.H. denied recalling reporting that money was
missing.
While she was at the police station that day, I.H. received a telephone call from
[Muhammad], but she denied that he said anything like “‘I’m going to kill you, bitch[.]’”
She denied telling the police that [Muhammad] caused her a headache or neck pain, or
showing the police where he had pulled some of her hair out in clumps.
I.H. denied she had applied for a restraining order against [Muhammad] that day,
but eventually conceded she signed such an application that had been filled out by
somebody else. She also conceded she had obtained a prior restraining order against
[Muhammad] in 2006. In her application for the earlier restraining order, she stated
[Muhammad] struck her in the face, and she testified he had done so. She denied
[Muhammad] punched her in the stomach in 2004 and denied recalling that he chased her
around the family law court parking lot in 2006. She admitted trying to get the present
charges dismissed, and trying to reconcile with [Muhammad] in June 2009.
People v. Muhammad, No. C068493, 2012 WL 3026387, at *1-2 (Cal. Ct. App. July 25, 2012).
Muhammad did not testify at trial. On May 2, 2011, after deliberating for less than half
an hour, a jury convicted Muhammad of stalking, making criminal threats, false imprisonment,
robbery, and spousal battery.
On May 31, 2011, Muhammad filed a pro se Marsden motion requesting the substitution
of counsel. See People v. Marsden, 465 P.2d 44 (Cal. 1970) (holding it was error for the trial
court to deny a defendant’s motion to relieve his court-appointed attorney without holding a
hearing to allow the defendant to explain its grounds). Muhammad argued that trial counsel:
1) failed to ask for a curative instruction that Muhammad’s Islamic faith should have no bearing
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on jury deliberations after the trial judge mentioned the capture and death of Osama bin Laden
just prior to jury deliberations; 2) failed to confer with him about trial strategy; 3) failed to
subpoena favorable witnesses and effectively cross-examine one witness; 4) failed to adequately
investigate before trial; 5) failed to “have a defense” at a preliminary hearing; 6) failed to present
any expert witnesses; 7) failed to file a motion for dismissal and a motion to suppress other
uncharged allegations made against him; 8) failed to impeach witnesses for the prosecution; 9)
failed to present to the court a 13-page document from I.H. exonerating him; and 10) failed “to
declare prejudice” with respect to prior uncharged crimes that were admitted. Muhammad filed
an additional “notice of motion and motion for substitution of counsel to file new trial motion or
writ of mandate.” After a June 10, 2011, hearing on the motions, the court concluded that
Muhammad had made an insufficient showing that defense counsel’s representation fell below
the requisite standard of competence. The court stated, “I’m going to find there’s not been a
prima facie showing, so I’m not going to appoint an attorney to make a motion for you for a new
trial.” The court concluded: “You’ve been caught. You want out of it. You’re trying to do
everything you can to get out of it. I don’t find any error in your representation, in your trial and
anything that happened. So I’m going to deny your motion as untimely in simply attempting to
defer the consequences of this conviction[.]” The court then sentenced Muhammad to 7 years’
imprisonment.
On October 31, 2011, Muhammad filed a counseled appeal to the Court of Appeal,
arguing that: 1) there was insufficient evidence to support his convictions for stalking and
criminal threats; 2) the trial court erred in admitting evidence of intimate partner battering; and
3) the imposition of consecutive sentences violated state law. Appellate counsel did not raise

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any ineffective assistance of counsel claims. The Court of Appeal unanimously affirmed
Muhammad’s judgment of conviction in a reasoned, unpublished opinion on July 25, 2012.
Muhammad, 2012 WL 3026387, at *8.
On February 16, 2012, Muhammad filed a pro se petition for writ of habeas corpus with
the superior court. Muhammad argued that: 1) the People suppressed a U.C. Davis surveillance
video of his interaction with I.H. in the parking lot as well as a videotape of a U.C. Davis police
interview of I.H. which would prove “that he didn’t commit any crime whatsoever”; 2) the trial
court failed to resolve his motion for a new trial; 3) on the second day of trial, the court informed
the jury that the U.S. government had captured and killed Osama bin Laden, which was
“extremely prejudicial” because Muhammad is a “devout Muslim” who stood accused of making
“terrorist threats”; 4) he was denied his right to be judged by a jury of his peers because there
was only one African-American man on the jury, that juror was elderly, and there were no
Muslims or African-American women on the jury; 5) trial counsel was ineffective for failing to
request the allegedly exculpatory videotapes, for failing to file a Pitchess motion2 to “expose the
unethical practices” of the U.C. Davis police, for failing to file a motion to suppress “hearsay
and false eyewitness testimonies presented by the People,” for failing to interview 4 witnesses,

2

In Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), the California Supreme
Court recognized that a criminal defendant may, in some circumstances, compel the discovery of
evidence in the arresting law enforcement officer’s personnel file that is relevant to the
defendant’s ability to defend against a criminal charge. In 1978, the California Legislature
codified the privileges and procedures surrounding what had come to be known as a Pitchess
motion through the enactment of California Penal Code §§ 832.7 and 832.8 and California
Evidence Code §§ 1043 through 1045. People v. Mooc, 36 P.3d 21, 24 (Cal. 2001) (citations
omitted).

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and for misrepresenting that the District Attorney had requested a change in judges when in fact
defense counsel had requested that change; and 6) appellate counsel was ineffective for failing to
raise any ineffective assistance of trial counsel claims on direct appeal. On February 15, 2012,
Muhammad filed a pro se “motion for change of judge/disqualification,” arguing that the judge
who presided over his trial and made the allegedly prejudicial remarks about the killing of
Osama bin Laden should recuse himself or be removed from presiding over his superior court
habeas petition. The superior court denied that motion and also denied habeas relief.
Muhammad filed a motion for reconsideration which the court also denied.
On May 31, 2012, Muhammad filed a pro se petition for writ of habeas corpus with the
Court of Appeal in which he raised the same claims that he unsuccessfully raised in his petition
to the superior court. The Court of Appeal summarily denied relief on June 4, 2012.
On June 26, 2012, Muhammad filed a pro se petition for writ of habeas corpus with the
California Supreme Court, again raising the same claims that he unsuccessfully raised in his
previous two state petitions for habeas relief. The supreme court summarily denied relief on
September 26, 2012.
On August 15, 2012, Muhammad filed a pro se petition for writ of error coram nobis
with the Court of Appeal in which he argued that trial counsel misrepresented that: 1) he would
obtain the allegedly exculpatory videotape of his interaction with the victim in the U.C. Davis
parking lot and a videotape of the interview by U.C. Davis police of I.H.; 2) he would file a
Pitchess motion “to expose the acts of moral turpitude on the part of [U.C. Davis] Police”; 3) the
state lacked funding to hire expert witnesses to testify on his behalf; and 4) opposing counsel had
requested a change in judges when it was really defense counsel who had made the request. The

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Court of Appeal summarily denied relief on August 23, 2012. On August 31, 2012, Muhammad
filed a second petition for writ of error coram nobis with the Court of Appeal, raising identical
claims. The Court of Appeal summarily denied relief on September 27, 2012.
On August 27, 2012, Muhammad filed a counseled petition for review to the California
Supreme Court, raising the same claims he had unsuccessfully raised on direct appeal to the
Court of Appeal. The supreme court summarily denied relief on October 10, 2012.
On April 22, 2013, Muhammad filed a pro se “expansion” of his superior court habeas
petition. He sought to amend his original petition with the additional claim that his conviction
rested on “illegal/false evidence.” Muhammad acknowledged that he called I.H. while she was
being interviewed by the U.C. Davis police and the police listened in on the call with I.H.’s
permission. Muhammad, however, argued that evidence of that phone call was illegally
procured because he did not consent to the police listening. Muhammad also filed a writ of
mandate on February 28, 2013, arguing that the trial court judge erred in striking his earlier
motion for disqualification. On July 19, 2013, the superior court denied Muhammad relief on
both motions. Muhammad timely filed his Petition with this Court on November 21, 2012, and
Respondent concedes that he has exhausted his claims.
II. GROUNDS RAISED
In his pro se Petition before this Court, Muhammad raises the following claims: 1) the
People suppressed an exculpatory U.C. Davis surveillance video of his interaction with I.H. in
the U.C. Davis parking lot; 2) the trial court failed to rule on his motion for a new trial; 3) the
trial court made prejudicial remarks to the jury about the capture and death of Osama bin Laden;
4) the trial judge erred under state law in refusing to recuse himself from presiding over

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Muhammad’s petition for habeas relief; 5) trial counsel was ineffective for a) failing to obtain
the allegedly exculpatory videotape, b) failing to interview 4 witnesses, c) failing to file a
Pitchess motion to “expose the unethical practices of [U.C. Davis] Police who were presenting
false evidence and witnesses against [him],” d) misrepresenting that it was opposing counsel
who had requested a substitution of judges, e) failing to provide him with unidentified
transcripts, f) failing to file a motion to suppress “the hearsay and false eyewitness testimonies
presented by the People,” and g) failing to ascertain if the U.C. Davis Police officers were
qualified under state law to testify; 6) appellate counsel was ineffective for failing to raise
ineffective assistance of trial counsel claims on direct appeal; and 7) he was denied his right to a
jury of his peers because there was only one African-American man on the jury, that juror was
over the age of 60, and there were no Muslims or African-American women on the jury.
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).

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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).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
IV. DISCUSSION
Claim 1: Brady violation
Muhammad first argues that the prosecution suppressed a U.C. Davis surveillance video
of his interaction with his wife in the parking lot which would show that “it was a mutual and
amicable meeting.”
In Brady v. Maryland, the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of

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the prosecution.” 373 U.S. 83, 87 (1962). There are three elements of a true Brady violation: (1)
The evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; (2) that evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S.
263, 281-82 (1999). Exculpatory evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.” Id. at 280 (citation and quotation marks omitted).
Muhammad raised this argument in his petition for writ of habeas corpus filed with the
superior court. That court rejected this claim on the grounds that Muhammad failed to show that
the videotape existed, that it was exculpatory, and how it would have affected his case.
Muhammad has again failed to show that the videotape exists and that it would have been
helpful to his defense. His Brady claim is therefore based on speculation and is accordingly
rejected by this Court. Id. at 286 (“Mere speculation that some exculpatory material may have
been withheld is unlikely to establish good cause for a discovery request on collateral review.”);
Jensen v. Hernandez, 864 F. Supp. 2d 869, 911 (E.D. Cal. 2012) (denying petitioner’s Brady
claim where he failed to demonstrate that the medical records allegedly withheld by the
prosecution actually existed, that the records were destroyed by police, and that the records
would have been helpful to his defense); see also United States v. Finkel, 165 F. App’x 531, 533
(9th Cir. 2006) (rejecting Brady claim where petitioner failed to show that the evidence existed).
He therefore cannot prevail on this claim.

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Claim 2: Failure to rule on his motion for a new trial
Muhammad next argues that the trial court erred under state law in failing to rule on his
“motion for a new trial.” Respondent correctly contends that Muhammad fails to assert a
cognizable claim for habeas relief. See 28 U.S.C. § 2254(d). In any event, Muhammad’s claim
is meritless. He did not submit a motion for a new trial, but rather a motion for the substitution
of counsel and a “motion for substitution of counsel to file new trial motion or writ of mandate.”
After conducting a Marsden hearing, the court concluded that Muhammad failed to make a
prima facie showing that his counsel’s representation “fell below the level of competence
required,” and denied his motion “to appoint an attorney to make a motion . . . for a new trial.”
Muhammad never complained that there was a breakdown in the attorney-client
relationship. His claim was that he and counsel disagreed over trial strategy. He sought new
counsel to pursue an alternate strategy. See Murray v. Schriro, 746 F.3d 418, 457-59 (9th Cir.
2014) (petitioner not entitled to habeas relief where he disagreed with counsel over trial strategy
and did not establish an irreconcilable conflict with counsel). Therefore, the state court acted
reasonably in limiting its consideration to whether counsel provided ineffective assistance in
denying Muhammad’s proposed strategy and in concluding that rejecting that strategy was not
ineffective. Specifically, the state court did not unreasonably conclude that Muhammad failed to
present a basis for a new trial motion and that counsel’s failure to move for a new trial was not
ineffective. Muhammad does not challenge the denial of his Marsden motion in his Petition
before this Court, and he cannot prevail on this claim.

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Claim 3: Remarks about the capture and death of Osama bin Laden
Osama bin Laden was captured and killed by the United States in the late evening of May
1, 2011. On the following morning, prior to starting that day’s proceedings, the court allegedly
made a “celebratory” remark about that event. According to Muhammad, the court stated “We
got him! We got that Moslem [sic] terrorist!” Muhammad claims that the jury went into a
“frenzy,” and that some jurors “applauded,” “yelled and screamed,” and that several “gave a
standing ovation.” The court’s comments were not transcribed by the court reporter and
Respondent does not offer any version of the court’s alleged statements. Defense counsel did
not object or make a record regarding what was said or argue at trial or on appeal that the
remarks prejudiced Muhammad and denied him a fair trial.
During the Marsden hearing, Muhammad argued that the court’s statements about Osama
bin Laden prejudiced the jury against him because Muhammad is Muslim and because there has
been an “anti-Islamic sentiment” in America since the 9-11 attacks. Although the members of
the jury had not been made directly aware of his faith, Muhammad argued that they could have
inferred that he was Muslim based on his surname which he shares with “the founder of Islam in
the world.” Muhammad believed that the court’s comments about bin Laden the day after he
was captured and killed by the U.S. government caused the jury to return a verdict against him,
an African-American Muslim male, within half an hour. Muhammad suggested that his counsel
should have requested some sort of curative instruction after the court’s comments, informing
the jury that he is Muslim, or probed into jurors’ beliefs about Islam during further voir dire.
Muhammad additionally stated that the court’s statements made him “cringe” because they were
insensitive to the death of another human being. The court acknowledged that it had made a

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comment about Osama bin Laden, but did not restate or summarize its original comments.
Instead, it characterized its statement as having “to do with hoping that on that day there would
also be a remembrance for people who had died in 2011 [sic].” Defense counsel did not attempt
at that time to make a record of what the court said or give any explanation for failing to request
an instruction or to voir dire the jury. The court did not further discuss Muhammad’s claim that
its comments prejudiced the jury, and, as discussed supra, denied Muhammad’s motion for the
substitution of counsel. Muhammad did not appeal the denial of his Marsden motion.
Muhammad directly appealed his judgment of conviction through counsel. Appellate
counsel did not raise any claims regarding the trial court’s statement or trial counsel’s failure to
adequately respond to those comments on direct appeal to either the Court of Appeal or the
California Supreme Court.
In his pro se petition for habeas relief filed with the superior court, however, Muhammad
argued that the court made “inflaming and insensitive” comments which “fatally prejudiced
[him].” According to Muhammad, “the court made extremely prejudicial remarks under
extremely prejudicial circumstances,” and the jury was incapable of setting those comments
aside because trial counsel failed to object to the comments and/or request a curative instruction.
He claimed that he complained about his trial counsel to the state bar association and made
appellate counsel aware of his complaint with trial counsel. Muhammad claimed that appellate
counsel stated that “he wasn’t going to oppose his colleague” by raising any ineffective
assistance of counsel issues on appeal. Muhammad then complained to the “California
Appellate Program” about appellate counsel’s “nonfeasance.” He also apparently filed a motion
to dismiss and for the appointment of new counsel, which the Court of Appeal denied.

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Muhammad also filed a pro se motion requesting that the trial court judge recuse himself
or be disqualified from presiding over his habeas petition because one of his major complaints
was that the trial court made improper remarks which prejudiced the jury against him. He
claimed that he had complained about the judge to the state bar association and the “Commission
on Judicial Performance,” and that it would be impossible for his trial judge to be impartial in
ruling on his plea for habeas relief.
His trial court judge presided over both motions, striking the motion to disqualify him.
Citing the California Code of Civil Procedure, the court noted that the fact that a judge has
expressed views on a legal or factual issue is insufficient on its own to warrant disqualification.
According to the court, if a judge does not disqualify himself, the state code of civil procedure
dictates that a party must file a verified statement setting forth the facts supporting
disqualification at the “earliest practicable time after discovery of the qualifying facts,” and that
the party personally serve the judge or his clerk with the statement. The court additionally
concluded that under state case law, when a judge is assigned a habeas proceeding that attacks an
underlying criminal proceeding which he presided over, the habeas petition is “deemed a
continuation of the underlying proceeding.” The court denied relief, concluding that the motion
was untimely because the alleged remarks had been made over a year prior to the filing of the
motion and because Muhammad failed to personally serve the judge with the statement of
disqualification.
The trial court also denied Muhammad habeas relief, specifically addressing
Muhammad’s claim that the court made improper remarks about Osama bin Laden. Again,
however, the court did not clarify what it had stated to the jury. Since the remarks about Osama

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bin Laden were outside the record, the court construed Muhammad’s complaint as one of
ineffective assistance of counsel. The court first reasoned that Muhammad failed to demonstrate
that counsel was ineffective because he did “not attach any documentary evidence to support this
claim that the trial court made any comments about bin Laden that were not recorded.” The
court additionally reasoned that even if the trial court made such comments,“there [was] no
indication that [Muhammad’s] religion was known to the jury or any parties or that the charges
against him (generally relating to domestic violence) could in any way have been associated with
or compared to the terroristic activities of bin Laden.”
Muhammad filed a pro se motion for the appointment of counsel as well as an
amendment to his petition for habeas relief. The same judge who presided over his trial and first
habeas petition again presided over both motions and denied relief. The court construed
Muhammad’s amendment as a motion for reconsideration and concluded that although
Muhammad had attached a partial transcript of the Marsden hearing in which the trial judge’s
comments about bin Laden were discussed, the transcript did “not support [Muhammad’s] claim
relating to the statements about Osama bin Laden.” The court reasoned, “It is unclear from the
transcripts whether the statements were made on or off the record. However, even assuming
they were made off the record, the transcript indicates that the jurors were not aware of
[Muhammad’s] religion as [Muhammad] alleged during the Marsden motion that counsel should
have informed the jurors of [Muhammad’s] faith.”
Muhammad then filed a writ of mandate with the trial court, which the court construed as
another petition for habeas relief. Muhammad again argued that the trial judge should have been
disqualified from ruling on his previous habeas petition and that the judge erred in striking his

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motion for disqualification. The trial court, this time by way of a different judge, concluded that
Muhammad’s claims were repetitive or successive or both. With respect to his claim that the
trial judge should have been disqualified from presiding over his habeas petition, the court
concluded that Muhammad should have appealed the trial court’s judgment to the Court of
Appeal, as he was seeking review of that judge’s order. Citing In re Alberto, 125 Cal. Rptr. 2d
526, 102 Cal. App. 4th 421 (Cal. Ct. App. 2002), the court concluded that it was not appropriate
for one superior court judge to review a ruling by another superior court judge.3 Moreover,
under state law it was appropriate to assign a habeas petition to the judge who presided over the
criminal trial if that judge is available. Nor was it improper for the trial court judge to strike the
motion for disqualification because a trial judge has the statutory authority to strike such a
motion where it is untimely or discloses no legal grounds for disqualification. The court
concluded that the motion for disqualification was untimely as the comments had been made
over a year prior to the filing of the motion, and that the trial judge had not been properly served.

3

In In re Alberto, the California Court of Appeal granted a petitioner habeas relief
where the trial judge increased the petitioner’s bail based on the judge’s belief that the original
judge did not comply with the statutory requirements for departing from the bail schedule,
because the second judge’s decision did not comport with California Penal Code § 1289, which
provides that a court may only change bail upon a showing of “good cause.” 102 Cal. App. 4th
at 426. The court concluded that allowing one superior court judge to correct an erroneous
ruling of another superior court judge would place the second judge “in the role of a one-judge
appellate court,” and also could lead to forum shopping by parties. Id. at 427-28. Two
exceptions apply to the general rule prohibiting one trial judge from reconsidering an issue
already decided by a colleague: 1) where the first judge is unavailable, or 2) where the first order
was made through inadvertence, mistake, or fraud. Id. at 430. Although the second judge could
have changed bail based on a showing of good cause, good cause must be founded on changed
circumstances relating to the petitioner or the proceeding, and not on the conclusion that a judge
previously presiding over bail committed legal error. Id.
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Muhammad then filed a pro se petition for habeas relief with the Court of Appeal
alleging, inter alia, that he was fatally prejudiced by the trial court’s remarks and counsel’s
failure to object to the remarks or request a curative instruction. The Court of Appeal summarily
denied relief. Muhammad filed a habeas petition with the California Supreme Court raising the
same issues. The supreme court summarily denied habeas relief.
Muhammad again asserts in his Petition before this Court that the trial court “made
extremely prejudicial remarks under extremely prejudicial circumstances[,] i.e. Bin Laden’s
death, which the jury was incapable of ignoring nor being prejudicially influenced by.”
Muhammad argues that the remarks fatally prejudiced him by stirring the passions of the jury
and causing the jury to quickly return a verdict against him.
The Supreme Court held long ago that a “fair trial in a fair tribunal is a basic requirement
of due process.” In re Murchison, 349 U.S. 133, 136 (1955). “Fairness of course requires an
absence of actual bias in the trial of cases.” Id.; cf. Mistretta v. United States, 488 U.S. 361, 407
(1989) (“The legitimacy of the Judicial Branch ultimately depends on its reputation for
impartiality and nonpartisanship.”). Fairness additionally requires the absence of even the
appearance of bias. In re Murchison, 349 U.S. at 136. “This most basic tenet of our judicial
system helps to ensure both the litigants’ and the public’s confidence that each case has been
adjudicated fairly by a neutral and detached arbiter.” Hurles v. Ryan, __F.3d__, 2014 WL
1979307, at *15 (9th Cir. May 16, 2014). The Supreme Court has suggested that due process
may require recusal where a judge makes comments critical of or hostile to counsel, the parties,
or their cases where that opinion derives from an “extrajudicial source,” and will require recusal
if the judge’s comments “reveal such a high degree of favoritism or antagonism as to make fair

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judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994) (citing Berger v.
United States, 255 U.S. 22, 28 (1921) (judge made biased remarks toward German-American
defendants where he stated: “One must have a very judicial mind, indeed, not to be prejudiced
against the German-Americans in this country. Their hearts are reeking with disloyalty.”)).
Assuming that Muhammad is correct regarding what was said, the judge’s comments did
not address Muhammad or his case. The judge’s comments were nevertheless poorly timed and
ill-advised given that they were made during the trial of an American defendant named
Muhammad. However, they were made the morning after the government finally captured and
killed someone generally perceived to be a nemesis of the United States and who had
orchestrated the death of thousands of Americans. The trial court’s comments most likely
reflected feelings about international terrorism and not Muslim-Americans, and expressed a
general relief most Americans felt after learning bin Laden would no longer be a threat to public
safety. Even assuming, as this Court must, that Muhammad accurately restated the court’s
comments, they cannot be construed as displaying any untoward opinion toward the
circumstances of Muhammad’s case where he was an American accused of engaging in violence
toward his wife and did not pose a larger threat to society.4 His circumstances were not by any

4

While Muhammad’s complaints regarding the judge’s comments raise a number
of issues, the only one that appears to be fully exhausted and preserved is his claim that trial and
appellate counsel failed to object and preserve issues regarding the trial judge’s comments and
possible bias and make an appropriate record. For the purposes of this decision, this Court will
assume the truth of Muhammad’s description of what the trial judge said and the response of the
jury and any spectators and decide whether trial counsel was ineffective in failing to recognize
potential prejudice and take steps to alleviate it and whether appellate counsel was ineffective in
failing to preserve the issue of trial counsel’s ineffectiveness.
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means comparable to those of Osama bin Laden. Therefore, the judge’s failure to sua sponte
recuse himself did not deny Muhammad a fair trial.
Because the state courts denied Muhammad’s claim without holding an evidentiary
hearing, this Court may liberally construe his claim as a challenge to the fact-finding process
itself. See Taylor v. Maddox, 366 F.3d 992, 999, 1001 (9th Cir. 2004). The Ninth Circuit has
held in “some limited circumstances . . . the state court’s failure to hold an evidentiary hearing
may render its fact-finding process unreasonable under § 2254(d)(2).” Hibbler v. Benedetti, 693
F.3d 1140, 1147 (9th Cir. 2012); Taylor, 366 F.3d at 1001. However, the Ninth Circuit “ha[s]
never held that a state court must conduct an evidentiary hearing to resolve every disputed
factual question; such a per se rule would be counter not only to the deference owed to state
courts under AEDPA, but to Supreme Court precedent.” Pizzuto v. Blades, 729 F.3d 1211, 1219
(9th Cir. 2013) (quoting Hibbler, 693 F.3d at 1147).
In determining whether the state court’s failure to hold an evidentiary hearing rendered
its fact-finding process unreasonable, the Ninth Circuit has instructed that courts may turn for
guidance to cases considering when a federal district court on habeas review must conduct an
evidentiary hearing. Hibbler, 693 F.3d at 1147. In deciding whether to grant an evidentiary
hearing, “a federal court must consider whether such a hearing would enable an applicant to
prove the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). It is clear that trial counsel,
appellate counsel and the state courts did not consider the trial judge’s comments as creating any
risk of prejudice to Muhammad and thus did not impose a duty on defense counsel to object,
seek a curative instruction, or take any other steps to alleviate prejudice. The question for this

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Court is not whether those legal conclusions were correct, but whether reasonable courts and
counsel could reach them.
The fact that the jury returned a verdict within half an hour is problematic. Nevertheless,
while reasonable judges might differ, the state court did not act unreasonably in failing to hold
an evidentiary hearing and in implicitly deciding that the jury quickly returned a verdict based on
the evidence against Muhammad rather than any passions stirred as a result of what might be
construed as a passing, spontaneous comment by the trial judge. There is no evidence that
Muhammad was foreign-born,5 and the jury was not directly aware of Muhammad’s faith. The
domestic violence charges he stood accused of in no way compared or related to Osama bin
Laden’s scheme of international terrorism. Moreover, the evidence against Muhammad was
overwhelming. Sergeant Garcia testified that on the morning of the charged offense, I.H. was
scared, crying, and had visible spit on her face. I.H. reported that Muhammad had threatened her
and then assaulted her in the parking lot. At the police station, I.H. received a threatening phone
call as well as threatening texts and messages from Muhammad. The police were able to make a
contemporaneous record of these threats. Two eyewitnesses saw Muhammad head-butt I.H.
The only evidence favorable to Muhammad was I.H.’s recantation, but she was substantially
impeached. She admitted to prior instances of violence by Muhammad against her, that she had
not parked in her usual parking structure to avoid Muhammad, and that she applied for a
restraining order against Muhammad that day as well as on a previous occasion. Even if

5

It appears that Muhammad is an American male who converted to Islam. In the
Marsden hearing, he claimed that the jury could have inferred his faith based on his last name,
and also stated that it was not his parents’ surname. He seems to have adopted it as an adult as
part of his conversion.
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Muhammad were able to establish in an evidentiary hearing that the court did make the
comments and the jury and audience responded as he asserts, he still would not be entitled to
relief given the overwhelming evidence against him. Thus, although the judge’s comments were
imprudent, the state courts were not unreasonable in concluding without a hearing that the
evidence, rather than any passion stirred by the judge’s comments, caused the jury to quickly
convict him.
Claim 4: Failure of superior court judge to recuse himself from the habeas proceeding
Muhammad next argues that he was denied due process because the judge who presided
over his trial failed to recuse himself from presiding over his superior court habeas petition in
violation of state law. As discussed supra, the superior court denied relief on procedural
grounds, also concluding that “there [was] no indication that [Muhammad’s] religion was known
to the jury or any parties or that the charges against him (generally relating to domestic violence)
could in any way have been associated with or compared to the terroristic activities of bin
Laden.” Muhammad’s motion for reconsideration was similarly denied, as was his writ of
mandate, which the court construed as a second habeas petition.
In claiming that the trial judge should have recused himself or been disqualified from
presiding over his habeas petition, Muhammad relies on arguments previously discussed in this
opinion—namely, the trial court judge’s comments about Osama bin Laden. Muhammad argues
that the Sixth Amendment entitled him to a habeas proceeding before an unbiased judge. That is
true. Again, however, although the judge’s comments appear imprudent and poorly timed, they
appear to have been spontaneous comments about a significant news event rather than an
untoward comment on Muhammad or his case. Moreover, it appears that the California courts

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could reasonably have concluded that the jury’s quick verdict was based on the overwhelming
evidence against Muhammad rather than an emotional response to news of Osama bin Laden’s
capture and death.
Claims 5 and 6: Ineffective assistance of trial and appellate counsel
A.

Strickland standard of review

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

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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).
It is through this highly deferential lens that a federal habeas court reviews Strickland
claims under the § 2254(d) standard. See Knowles, 556 U.S. at 123 (citing Yarborough v.
Gentry, 540 U.S. 1, 5-6 (2003)).
B. Merits
Muhammad argues that trial counsel was ineffective for: 1) failing to obtain the allegedly
exculpatory videotapes; 2) failing to interview 4 witnesses; 3) failing to file a Pitchess motion to
“expose the unethical practices of [U.C. Davis] Police who were presenting false evidence and
witnesses against [him]”; 4) misrepresenting a challenge to the previous trial judge, 5) failing to
provide him with unidentified transcripts; 6) failing to file a motion to suppress “the hearsay and
false eyewitness testimonies presented by the People”; and 7) failing to ascertain if the U.C.
Davis police officers were qualified under state law to testify. He further asserts that counsel
was ineffective for failing to raise ineffective assistance of trial counsel claims on direct appeal.
Muhammad raised all of these claims, except his claim that counsel failed to ascertain
whether the police officers were qualified under state law to testify, in his petition for habeas
review to the superior court. The superior court denied Muhammad relief as follows:
[Muhammad] has not shown that the videotaped surveillance exists or what it
would have shown. Likewise, although [Muhammad] identifies four potential witnesses,
he has not attached any evidence of how they might have testified or what effect their
testimony might have had on the outcome of the trial; in fact, [Muhammad] admits that
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he does not have any information about the potential witnesses. [Muhammad] claims
that a Pitchess motion would have disclosed “unethical practices” of the [U.C. Davis]
police, as evidenced by the abuses committed by [U.C. Davis] Police on the [U.C. Davis]
campus in late 2011. First, Muhammad has not shown that any of the same officers were
involved in his case. Nor has he shown that the misconduct was remotely similar.
Finally, as [Muhammad’s] trial occurred in April and May 2011, evidence relating to
conduct occurring in November 2011 would not have been available.
Next, [Muhammad] claims that trial counsel misrepresented that the prosecutor
challenged the previously assigned trial judge, when in fact defense counsel filed the
challenge. He also claims that defense counsel never gave [him] requested transcripts
after promising to do so. Finally, he argues that counsel stated that he would file a
motion to “suppress” hearsay evidence and false testimony, but never did so.
[Muhammad] has not attached any evidence to show that counsel made the
misrepresentations. Moreover, even assuming the allegations were true, [Muhammad]
has not shown that any of the misconduct resulted in any prejudice to [his] trial.
Specifically, [Muhammad] does not explain the relevance of who challenged the
previously challenged trial judge, why the transcripts were necessary, or the legal and
factual basis for “suppressing” hearsay or false testimony.
....
[Muhammad] argues that appellate counsel refused to raise “obvious” issues of
ineffective assistance of trial counsel . . . . [Muhammad] has not attached any of the trial
transcripts to document the ineffective assistance of trial counsel that allegedly occurred
on the record. Nor does the petition identify the acts or omissions of trial counsel that
allegedly constitute ineffective assistance.
As an initial matter, this Court must dismiss Muhammad’s claim that trial counsel was
ineffective for failing to obtain the allegedly exculpatory videotape because, as discussed supra,
Muhammad has failed to establish that the videotape ever existed. His claims that trial counsel
misrepresented a challenge to the previous trial judge, failed to provide him with unidentified
transcripts, failed to file a motion to suppress with respect to unidentified hearsay, and failed to
ascertain if the police officers were qualified under state law to testify must also be dismissed
because he has failed to explain the relevance of these alleged acts and omissions and how they
might have prejudiced him. 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).

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Muhammad additionally claims that counsel was ineffective for failing to investigate and
call four witnesses. In his argument, though, he identifies five witnesses that defense counsel
should have contacted and called, including Linda Rivera and Marisol Rodriguez, who “were at
the scene and would [have] testified that no crimes against the alleged victim took place,” Rod
Modkins, who I.H. allegedly told that no crime happened, Steve, Muhammad’s landlord, who let
the police into his apartment in his absence, and Elijah, Muhammad’s son, who apparently
overheard a phone call about the alleged exculpatory videotape.
The ultimate decision of whether to call witnesses to testify is well within counsel’s “full
authority to manage the conduct of the [proceeding].” Taylor v. Illinois, 484 U.S. 400, 418
(1988) (“Putting to one side the exceptional cases in which counsel is ineffective, the client must
accept the consequences of the lawyer’s decision . . . to decide not to put certain witnesses on the
stand . . . .”). At the Marsden hearing, Muhammad claimed that trial counsel failed to call Vicki
Randolph and Rod Modkins to testify on his behalf. Defense counsel explained that Muhammad
belatedly notified him of these two witnesses and that he was unsuccessful in locating them.
Muhammad only had contact information for Modkins, who allegedly had contact information
for Randolph. Modkins, however, hung up on a defense investigator on one occasion and also
failed to return a voice mail. Defense counsel also believed that calling Modkins to testify
would be “dangerous” given that Modkins was going to present a complete alibi and testify that
Muhammad was working with him on the day of the incident, which would directly conflict with
the victim’s testimony that Muhammad was present at the parking lot that day but nothing
physical or threatening occurred. Defense counsel also claimed that Randolph would testify that
she was having an affair with Muhammad, which would have been cumulative of I.H.’s

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testimony on cross-examination. Defense counsel’s decision not to call Modkins to testify was a
reasonable tactical decision. See Denham v. Deeds, 954 F.2d 1501, 1505 (9th Cir. 1992)
(holding that counsel’s decision not to call alibi witnesses because of inconsistencies in the
proposed testimony “reflect[ed] the skill and judgment one would expect of a reasonably
competent attorney”).
It is not clear if Muhammad notified counsel of the remaining four witnesses he now
claims counsel should have called; Muhammad did not mention any other witnesses at the
Marsden hearing, and thus counsel did not have an opportunity to respond to these allegations.
Muhammad has not provided affidavits supporting his assertion that Linda Rivera and Marisol
Rodriguez would in fact testify that they observed the incident and “no crimes took place,” or
affidavits from any of the other witnesses. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000)
(denying ineffective assistance of counsel claim where there was no evidence other than
petitioner’s self-serving affidavit that the witness existed, and petitioner failed to provide an
affidavit from the alleged witness). He has failed to overcome the strong presumption that his
trial counsel’s conduct fell within the wide range of reasonable professional assistance because
he cannot show that the failure to call these witnesses was anything but a tactical decision which
this Court cannot second-guess. See, e.g., Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999)
(“Few decisions a lawyer makes draw so heavily on professional judgment as whether or not to
proffer a witness at trial.”).
At the Marsden hearing, defense counsel also stated that he did not file a Pitchess motion
with respect to the two U.C. Davis police officers who testified because “[t]here was no
indication that they were somehow acting with bias or acting illegally or pressuring [I.H.] to say

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anything that day.” Defense counsel argued that the problem was not with the police, but rather
with I.H., who purportedly exaggerated her claims to the police “to get [Muhammad] in trouble.”
Counsel “didn’t feel a Pitchess would ever get [the defense] anywhere.” A Pitchess motion
would have failed if there was no evidence of police wrongdoing, and counsel will not be
deemed ineffective for failing to raise a meritless issue. Sexton v. Cozner, 679 F.3d 1150, 1157
(9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous
claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.”)
(internal citation omitted); see also Lockhart v. Fretwell, 506 U.S. 364, 374 (1993) (O’Connor,
J., concurring) (failing to raise a meritless objection cannot constitute prejudice under a
Strickland ineffective assistance of counsel claim).
Although not directly raised in the section of his Petition addressing the ineffective
assistance of counsel, Muhammad argues elsewhere that trial counsel was ineffective for failing
to object to the court’s comments about Osama bin Laden and for failing to request a curative
instruction and/or further voir dire the jury about their ability to remain impartial and decide the
case on the evidence. Counsel may have been deficient in this regard. Reasonable counsel
might have at a minimum made a record of the court’s comments and requested a bench
conference to discuss possible risks of prejudice and possible remedies or courses of action.
None of that was done here. On the other hand, counsel may have recognized that there was no
reason that the jury would identify Muhammad with Osama bin Laden or his activities. Further,
counsel may have hesitated to discuss Muhammad’s religion with the jurors for fear of
distracting the jurors with speculation about the treatment of women in Muslim countries.
Counsel’s strategy was to implicitly concede that Muhammad and I.H. had a confrontation and

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to argue that I.H. exaggerated her reports to the police and that her trial testimony more
accurately reflected what occurred.6 Counsel may have feared that discussion of the Muslim
religion would have detracted from this strategy. Finally, Osama bin Laden and his activities
were so different from Muhammad’s that prudent counsel might have concluded that reasonable
jurors would not identify Muhammad with Osama bin Laden and that to ask them about their
feelings might suggest a connection that would not otherwise have occurred to them. But even if
prudent counsel should have done more, it is clear that Muhammad was not prejudiced. The jury
had no direct knowledge of Muhammad’s faith, there was no indication he was foreign born or
had foreign connections, the charges against him had nothing to do with international terrorism,
and, as we have discussed, the evidence against him was overwhelming.
As discussed above, the majority of Muhammad’s ineffective assistance of counsel
claims are clearly without merit, and appellate counsel cannot be deemed ineffective for failing
to raise such a claim where trial counsel was not constitutionally ineffective. Sexton, 679 F.3d at
1157; Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (“the weeding out of weaker issues
is widely recognized as one of the hallmarks of effective appellate advocacy”). Appellate
counsel nevertheless was arguably deficient in failing to raise on direct appeal Muhammad’s
claims with respect to the trial court’s comments and trial counsel’s duty to make a record and

6

The fact that Muhammad was having an affair with Randolph, standing alone,
was irrelevant. The fact that I.H. knew of the affair, as she conceded on cross-examination, was
relevant to her state of mind and provided a motive for her initial complaint to the police and
explained why she might exaggerate a confrontation she had with Muhammad. I.H.’s
recantation of her complaint and favorable trial testimony including her admission that she
sought a reconciliation with Muhammad served to substantiate defense counsel’s trial strategy.
Jury speculation about the impact of the Muslim religion on domestic relations would only
undermine this strategy.
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respond to those comments and for failing to request an evidentiary hearing. Again, though,
Muhammad was not ultimately prejudiced by appellate counsel’s failure to do so because the
overwhelming evidence of Muhammad’s guilt and lack of evidence of his faith or international
connections compel the inference that the jury decided the case not on its emotions, but on the
evidence before it. It was unfortunate that Osama bin Laden was found and killed while this
case was pending, but the state courts could have reasonably concluded that there was no
possibility that bin Laden’s death influenced the verdict in this case.
Claim 7: Jury of his peers
Lastly, Muhammad, an African-American Muslim male, argues that he was denied his
right to a jury of his peers because there were no Muslims or African-American women on the
jury, and the only African-American male on the jury was over the age of 60. He claims that
“[n]one of the jury members had any knowledge of [him] as required according to the legal
definition of ‘peer.’” Muhammad raised this claim in his superior court petition for habeas
relief, and the court concluded that it did not have jurisdiction over the claim because it should
have been brought on direct appeal.
The requirement that a petit jury must be selected from a representative cross-section of
the community is an essential component of the Sixth Amendment right to a jury trial. Taylor v.
Louisiana, 419 U.S. 522, 528-29 (1975). However, Muhammad does not allege that jurors were
systematically excluded on the basis of age, religion, or race. See Berghuis v. Smith, 559 U.S.
314, 327 (2010) (to establish a prima facie violation of the Sixth Amendment’s fair cross-section
requirement, a criminal defendant must show: 1) that a group qualifying as “distinctive” 2) is not
fairly and reasonably represented in jury venires, and 3) “systematic exclusion” in the jury

-29-

selection process accounts for that underrepresentation). Rather, his complaint is that the jury
ultimately chosen did not adequately reflect his personal characteristics and thus could not judge
him fairly. However, the Supreme Court has expressly rejected the notion that a criminal
defendant is “entitled to a jury of any particular composition” so long as “the jury wheels, pools
of names, panels, or venires from which juries are drawn [do] not systematically exclude
distinctive groups in the community and thereby fail to be reasonably representative thereof.”
Taylor, 419 U.S. at 538; see also Powers v. Ohio, 499 U.S. 400, 404 (1991) (although a criminal
defendant has the right to be tried by a jury whose members are selected by non-discriminatory
criteria, a defendant does not have a right to a petit jury composed in whole or part of persons of
the same race). Muhammad has failed to allege any factual basis for concluding that the jury
was anything but impartial. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (the Sixth Amendment
guarantees criminal defendants the right to a “fair trial by a panel of impartial, ‘indifferent’
jurors”). Muhammad is therefore not entitled to relief on this claim. See Merced v. McGrath,
No. C 03-1904, 2004 WL 302347, at *7 (N.D. Cal. Feb. 10, 2004) (rejecting petitioner’s claim
that he was denied his Sixth Amendment right to a jury trial when an African-American male
was excused from the jury pool where the petitioner failed to assert that race was a factor in his
exclusion and failed to offer evidence to suggest that other African-Americans were otherwise
excluded from serving on his jury).
V. CONCLUSION AND ORDER
Muhammad is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.

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IT IS FURTHER ORDERED THAT this Court issues a Certificate of Appealability
only with respect to Muhammad’s interrelated claims that the trial judge prejudiced the jury with
his comments about the death and capture of Osama bin Laden, and that trial and appellate
counsel were ineffective for failing to alleviate any potential problems caused by the judge’s
comments. This Court declines to issues a Certificate of Appealability with respect to all other
claims. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004). Any further request
for a Certificate of Appealability as to the other claims must be addressed to the 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: June 19, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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