Brannigan v. Barnes

Filing 46

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 9/6/2017 ORDERING the Petition under 28:2254 for Writ of Habeas Corpus is DENIED; the Court DECLINES to issue a Certificate of Appealability; Any further request for a Certificate of Appealability must be addressed to the Ninth Circuit Court of Appeals; the Clerk of the Court is to enter judgment accordingly. CASE CLOSED(Reader, L)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JASON R. BRANNIGAN,
No. 2:13-cv-01810-JKS
Petitioner,
MEMORANDUM DECISION
vs.
DAVID BAUGHMAN, Warden, California
State Prison-Sacramento,1
Respondent.

Jason R. Brannigan, a California state prisoner proceeding pro se, filed a Petition for a
Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Brannigan is in the
custody of the California Department of Corrections and Rehabilitation and incarcerated at
California State Prison-Sacramento. Respondent has answered, and Brannigan has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On January 3, 2011, Brannigan was charged with corporal injury of a cohabitant (Count
1); two counts of criminal threats (Counts 2 and 6); false imprisonment (Count 3); two counts of
willful harm or injury or endangerment to a child (Counts 4 and 5); and felony vandalism (Count
7). The information alleged as to all counts that Brannigan had been convicted of a prior serious
felony and had one prior strike and had served a prior prison term. It further alleged as to Counts
1 through 6 that Brannigan had committed the crimes while on bail and that, as to Count 1, that
Brannigan had previously committed assault likely to cause great bodily injury. On direct appeal

1

David Baughman, Warden, California State Prison-Sacramento, is substituted for
R.E. Barnes, former Warden, Salinas Valley State Prison. FED. R. CIV. P. 25(c).

of his conviction, the California Court of Appeal recounted the following facts underlying the
charges against Brannigan:
[Brannigan] began to abuse the victim (his girlfriend) a month after he moved in
with her and her children. One day in mid–June 2009 they were running errands in her
car. [Brannigan] was upset because she talked to another man and became enraged when
she would not stop crying. He called her a whore, socked her in the jaw and punched the
inside roof of the car, ripping the head liner and popping the sunroof out of its seal.
On the way home, [Brannigan] “kept driving crazy.” He was “weaving in and out
of traffic” and driving at excessive speeds. When [Brannigan] turned a corner, the victim
heard her car make a “clicking sound” for the first time. After that day, she heard the
same clicking sound whenever she drove the car and turned a corner. The car was hard
to drive, and it shook on one side when she reached a certain speed.
When the victim took her car in for repair a month or so later, the mechanic told
her the “CV joint was busted.” The repair cost more than $500.
People v. Brannigan, No. C067460, 2012 WL 1850916, at *1 (Cal. Ct. App. May 22, 2012).
On January 18, 2011, a jury found Brannigan guilty on Counts 1, 2, 3, 6, and 7 and found
him guilty on Counts 4 and 5 to the lesser included offense of misdemeanor child endangerment.
The jury also found true all the enhancement allegations. The trial court subsequently sentenced
Brannigan to an aggregate imprisonment term of 18 years and 8 months and imposed various
fines and fees.
Through counsel, Brannigan appealed his conviction, arguing that: 1) the vandalism
conviction (Count 7) was not supported by substantial evidence; 2) the $200 court security fee
should be reduced to $40; and 3) the abstract of judgment should be corrected to reflect that the
trial court imposed the middle term on the making criminal threats conviction (Count 6).
Respondent agreed that the abstract of judgment should be corrected but otherwise opposed the
appeal. The Court of Appeal unanimously affirmed the judgment against Brannigan in an
unpublished, reasoned opinion issued on May 22, 2012. Brannigan, 2012 WL 1850916, at *3.
Brannigan petitioned the California Supreme Court for review of his claim that the vandalism
2

conviction was not supported by substantial evidence. The Supreme Court summarily denied the
petition for review on August 29, 2012.
On August 30, 2013, Brannigan, proceeding pro se, moved in this Court for an extension
of time to file a federal petition for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1)(A).
This Court, through a previously-assigned Magistrate Judge, denied the request, noting that it
could not extend time when there was presently no action pending before the Court. Docket No.
3. The Court did, however, allow Brannigan 30 days from the date of its order to file a petition
and pay the filing fee or apply for in forma pauperis status. Id. Brannigan filed his initial
petition within 30 days of the Court’s order. Docket No. 7. In that initial petition, Brannigan
argued that: 1) the jury’s verdict that he committed felony vandalism was not supported by
sufficient evidence that he acted with malicious intent when the drove the victim’s car or that he
caused damage to the car; 2) the prosecution failed to disclose evidence favorable to him in
violation of Brady v. Maryland2 by failing to disclose a work order form indicating that the
victim’s car had sustained damage prior to the incident where Brannigan had driven it
aggressively; 3-9) trial counsel was ineffective for failing to call as witnesses: a) Parole Agent
Crane; b) Sam Frye; c) Samantha Frye; d) Natasha Frye; e) Shawnee Anderson; f) Dr. Bedi; g)
Dr. Kaye Nelson; and 10) trial counsel was ineffective for failing to convey a plea offer.
Following a Court order, Brannigan moved in this Court to stay the initial petition to raise his
unexhausted claims (Claims 2 through 10) in state court.

2

373 U.S. 83 (1962). The term “Brady” is a shorthand reference to the rules of
mandatory discovery in criminal cases under federal law. Brady and its progeny require the
prosecution to disclose material information that is “favorable to the accused, either because it is
exculpatory, or because it is impeaching.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
3

While his motion for a stay in this Court was pending, Brannigan filed a pro se petition
for habeas relief in the California Supreme Court dated June 23, 2014. In that petition,
Brannigan argued that the State failed to disclose evidence favorable to him in violation of Brady
v. Maryland3 by failing to disclose the work order form from the victim’s car repair as well as
testimony made in the Superior Court Family Court Services which he contended was in conflict
with the victim’s and his ex-wife’s testimony. Brannigan additionally argued that trial counsel
was ineffective for failing to conduct a reasonable pre-trial investigation; specifically, for failing
to obtain the work order form and the impeachment testimony from family court. Finally,
Brannigan claimed that his right to confrontation was violated by the introduction of the victim’s
medical records. The Supreme Court denied the petition without comment on September 10,
2014.
Shortly before the state habeas petition was denied, this Court, through a previouslyassigned District Court Judge, denied Brannigan’s stay request and directed Brannigan to file an
amended petition that included only exhausted claims. Docket No. 31. Brannigan then filed an
Amended Petition for a Writ of Habeas Corpus (“Petition,” which is the operative pleading in
this case) dated October 23, 2014. Docket No. 34. Briefing is now complete, and the case is
before the undersigned judge for adjudication.

3

373 U.S. 83 (1962). Brady and its progeny require the prosecution to disclose
material information that is “favorable to the accused, either because it is exculpatory, or because
it is impeaching.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
4

II. GROUNDS/CLAIMS
In his pro se Amended Petition before this Court, Brannigan presents the same 5 claims
that he raised in his pro se habeas petition filed in the California Supreme Court. He argues that:
1) his conviction for felony vandalism was not supported by sufficient evidence that he acted
with malicious intent when the drove the victim’s car or that he caused damage to the car; 2) the
prosecution committed a Brady violation by failing to disclose a work order form indicating that
the victim’s car had sustained damage prior to the incident where Brannigan had driven it
aggressively; 3) the prosecution committed a Brady violation by failing to disclose testimony
from Family Court that conflicted with the testimony of the victim and his ex-wife; 4) trial
counsel failed to conduct a reasonable pre-trial investigation; specifically, for failing to obtain
the work order form and the impeachment testimony from family court; 5) the admission of the
victim’s medical records violated his right to confrontation.
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).

5

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
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)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner

6

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).
Brannigan has not replied to Respondent’s answer. The relevant statute provides that
“[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show
cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the
extent that the judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also
Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no
evidence offered to contradict the allegations of the return, the court must accept those
allegations as true. See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
IV. DISCUSSION
A.

Timeliness
As an initial matter, Respondent urges the Court to dismiss a number of claims (Grounds

3, 4, and 5) as untimely. The AEDPA provides:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this
subsection.

7

28 U.S.C. § 2244(d).
Here, the California Supreme Court summarily denied Brannigan’s petition for review on
August 29, 2012. Brannigan’s case became final for AEDPA purposes when the 90-day window
for seeking review in the United States Supreme Court lapsed on November 27, 2012. Spitsyn v.
Moore, 345 F.3d 796, 798 (9th Cir. 2003). Brannigan was accordingly required to file his
Petition with this Court no later than November 27, 2013.4
As discussed more thoroughly above, Brannigan filed his initial petition in this Court on
October 9, 2013, before the expiration of the one-year AEDPA deadline. Docket No. 7.
Brannigan subsequently filed the Amended Petition on October 23, 2014, after the one-year
AEDPA period has lapsed. Docket No. 34.
The filing of a petition for writ of habeas corpus in federal court does not toll the AEDPA
limitations period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Under Federal Rule of
Civil Procedure 15(c), however, a claim raised in a later-amended federal habeas petition may
use the filing date of the prior federal petition if that claim “relates back” to a claim in the earlier
petition. Relation back is appropriate in habeas cases where the original and amended petitions
state claims that are tied to a common core of operative facts. Mayle v. Felix, 545 U.S. 664, 650
(2005). The claims raised by amendment must arise from the same core facts as the timely-filed

4

The statute of limitations period may be tolled during the pendency of a properly
filed application for state post-conviction relief. See 28 U.S.C. § 2244(d)(2). In this case,
however, Brannigan’s state habeas petition was filed approximately 7 months after the one-year
AEDPA period expired. It thus did not “restart” the AEDPA limitations period. See Ferguson v.
Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that “section 2244(d) does not permit the
reinitiation of the limitations period that has ended before the state petition was filed”).
8

claims and must depend upon events not separate in “both time and type” from the originally
raised episodes. Id. at 657.
The United States Supreme Court has provided examples of cases where relation back
was appropriate. See id. at 664 n.7. For instance, it has found relation-back proper where the
original petition alleged discovery violations and “the amended petition alleged the
Government’s failure to disclose a particular report.” Id. (“Both pleadings related to evidence
obtained at the same time by the same police department” (citing Mandacina v. United States,
328 F.3d 995, 1000-01 (8th Cir. 2003)). In contrast, a claim that is “separated in time and type”
from the prior claim does not relate back. For example, a petitioner’s claim that jury instructions
improperly lowered the government’s burden of proof did not relate back to a claim that his due
process rights were violated by the improper introduction of evidence, since these claims did not
share a “common core of operative fact” even though the claims both related to the same
proceedings before the jury. See Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008).
Importantly, the Ninth Circuit has construed the “time and type” language as referring to the
facts that support the grounds for relief as opposed to the claims. See Nyugen v. Curry, 736 F.3d
1287, 1297 (9th Cir. 2013) (“All of Nyugen’s asserted grounds for relief—cruel and unusual
punishment, double jeopardy, and appellate-counsel IAC for failing to raise double jeopardy—
are supported by a common core of facts.”).
In this case, Brannigan raised Ground 1 (insufficiency of the evidence claim) and Ground
2 (Brady claim relating to the work order form) in the initial petition, and they are therefore
clearly timely. In his amended petition, Brannigan raises an additional Brady claim relating to
alleged impeachment testimony from Family Court (Ground 3). Because Brannigan did not raise

9

this claim or any claim related to the impeachment testimony in his initial petition, Ground 3 is
untimely and is denied on that basis.
Brannigan additionally asserts in his petition an ineffective assistance of counsel claim
that faults counsel for failing to obtain the work order form and the impeachment testimony
(Ground 4). Although Brannigan raised an ineffective assistance of counsel claim in his initial
petition, that claim solely related to counsel’s failure to call certain witnesses at trial, which was
abandoned in the amended petition. Respondent thus argues that the ineffective assistance claim
in the amended petition should be dismissed in its entirety as untimely. The Court agrees with
respect to the argument relating to the impeachment testimony (Ground 4b). However, because
Brannigan’s Brady violation claim in the initial petition is supported by the same facts as the
corresponding ineffective assistance claim, the Court concludes that Ground 4a relates back to
the initial petition and is therefore timely.
Finally, Brannigan claims in his amended petition that his right to confrontation was
violated by the admission of the victim’s medical records (Ground 5). Because Brannigan did
not raise this claim or any claim related to the medical records in his initial petition, Ground 5 is
untimely and is denied on that basis as well.
B.

Merits of Timely Claims
1.

Insufficiency of the Evidence (Ground 1)

Brannigan first argues that the evidence presented is legally insufficient to sustain his
conviction for felony vandalism. Specifically, Brannigan contends that there was insufficient
evidence that he acted with malicious intent when he drove the victim’s car or that he caused
damage to the car.

10

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
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

11

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).
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 v. Delo, 513
U.S. 298, 330 (1995). 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)).
In addressing Brannigan’s claim on direct appeal, the Court of Appeal laid out the
elements of felony vandalism as follows:
A person who maliciously causes damage to the real or personal property of
another is guilty of vandalism. (§ 594, subds.(a), (b)(1); see also In re Leanna W. (2004)
120 Cal. App. 4th 735, 743.) The word “ ‘maliciously’ import [s] a wish to vex, annoy,
or injure another person, or an intent to do a wrongful act . . . .” (§ 7, subd. 4.).
Brannigan, 2012 WL 1850916, at *2.
In support of his claim, Brannigan argues that the “erratic manner of his driving was done
to avoid other cars, rather than to vex, injure, or annoy” the victim and that there was insufficient
12

evidence that the victim’s car was damaged by Brannigan’s driving and not a pre-existing
problem. But this argument simply points out inconsistencies and shortcomings in the evidence
before the jury; the defense presented these arguments to the jury for its assessment. This Court
is precluded 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). As the Court of Appeal reasonably concluded:
It is enough that a reasonable jury could have concluded from the circumstantial
evidence [Brannigan] intentionally drove so as to vex or annoy the victim, or to damage
her car. (§ 7, subd. 4.) The victim testified that moments before she first heard the sound
indicating damage to her car, [Brannigan] threw the car keys at her, yelled at her and
belittled her, hit her in the face, punched the roof of her car and drove her car erratically.
Based on this evidence, the jury could reasonably conclude [Brannigan] intended to vex
or annoy the victim and intended to cause damage to her car. There was ample evidence
to support the jury’s implicit finding [Brannigan] acted maliciously.
Substantial evidence also supports the inference that [Brannigan] caused damage
to the car in an amount over $400. After [Brannigan] drove the victim’s car erratically
and at excessive speed, the victim heard for the first time a clicking sound when the car
turned a corner. The car became difficult to drive and shook on one side when the victim
reached a certain speed. Repairs to the car would cost over $500. The jury could
reasonably conclude from the evidence that [Brannigan’s] driving caused the damage to
the victim’s car and that the damage was over $400.
Brannigan, 2012 WL 1850916, at *2.
Although it might have been possible to draw a different inference from the totality of the
evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson,
443 U.S. at 326. Thus, considering the deference owed under Jackson, Cavazos, and the
AEDPA, and for the reasons persuasively explained by the Court of Appeal, this Court
concludes that there was sufficient evidence of malicious intent and actual damage introduced at
trial from which a rational trier of fact could have found beyond a reasonable doubt that

13

Brannigan was guilty of felony vandalism. Brannigan is therefore not entitled to relief on his
insufficiency of the evidence claim.
2.

Brady Violation (Ground 2)

Brannigan next argues that the prosecution wrongfully withheld an exculpatory vehicle
repair estimate that would prove that the identified problems with the car were pre-existing and
not the result of Brannigan’s driving. The record indicates that, on January 4, 2011, the
prosecution marked as an exhibit a work order form dated October 24, 2008, prior to when
Brannigan drove the victim’s car in June 2009. The prosecution withdrew the exhibit, without
comment, on January 11, 2011. One week later, the jury’s verdict was rendered.
“[T]he Constitution does not require the prosecutor to share all useful information with
the defendant.” United States v. Ruiz, 536 U.S. 622, 629 (2002) (citing Weatherford v. Bursey,
429 U.S. 545, 549 (1977) (“There is no general constitutional right to discovery in a criminal
case.”). Brady v. Maryland, 373 U.S. 83 (1962), and its progeny require the prosecution to
disclose material information that is “favorable to the accused, either because it is exculpatory,
or because it is impeaching,” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A Brady
violation occurs only where there is a “reasonable probability” that a different verdict would
have resulted from disclosure of the information that the defendant claims was suppressed.
Strickler, 527 U.S. at 281. That is, “a constitutional error occurs, and the conviction must be
reversed, only if the evidence is material in the sense that its suppression undermines confidence
in the outcome of the trial.” United States v. Bagley, 473 U.S. 667, 678 (1985).
Brannigan cannot show a Brady violation here. First, Brannigan fails to show that the
evidence was suppressed because, as he acknowledges, the prosecution entered it as an exhibit.

14

To the extent that Brannigan bases his Brady claim on a theory of delayed disclosure, the Ninth
Circuit has held that evidence disclosed to the defense even as late as trial does not violate Brady
so long as the disclosure was “made at a time when disclosure would be of value to the accused.”
United States v. Gordon, 844 F.3d 1397, 1403 (9th Cir. 1988) (quoting United States v.
Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985)). Brannigan does not allege in his Petition that
his defense was prejudiced by the timing of the disclosure.
He also cannot show prejudice because the evidence in question was not exculpatory.
Although he contends in his Petition that the “damages [the victim] attributes to petition
previously existed” since the date of the work order form, he provides no support or other
evidence that would link the repair issues identified in the work order repair form to the
problems that the victim identified after the incident. See Kimbrough v. Bradt, 949 F. Supp. 2d
341, 355 (N.D.N.Y. 2013) (“It is well-settled in this Circuit that vague and conclusory
allegations that are unsupported by specific factual averments are insufficient to state a viable
claim for habeas relief.”). Rather, the victim testified that, after the incident, the car began to
make a “‘clicking sound’ for the first time” and became “hard to drive, and it shook on one side
when she reached a certain speed.” Brannigan, 2012 WL 1850916, at *2. She further testified
that it cost her more than $500 when she took her car in for repair about a month or so later.5 Id.
Brannigan thus fails to demonstrate that the evidence was suppressed or material and
consequently cannot prevail on his Brady claim.

5

The victim also testified that, although Brannigan punched the roof of the car and
popped the window out of the ceiling, she could not afford to get that fixed, and the damage to
the sunroof was therefore not included in the $500 repair cost. It is conceivable that the damage
to the sunroof may have independently been greater than the $400 threshold required by the
statute.
15

3.

Ineffective Assistance of Counsel (Ground 4a)

Brannigan likewise alleges that counsel failed to conduct a reasonable pre-trial
investigation because he did not obtain the work order form. 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. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
standard is applied and federal courts do not engage in a separate analysis applying the Brecht
harmlessness standard.6 Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also
Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing
ineffective assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.

6

See Brecht v. Abrahamson, 507 U.S. 619, 639 (1993) (instructing that, where the
standard applies, habeas relief is not warranted unless the error “had [a] substantial and injurious
effect or influence in determining the jury’s verdict”).
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Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Brannigan must show that defense counsel’s representation was not within the
range of competence demanded of attorneys in criminal cases, and 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).
Brannigan fails to satisfy either prong. As previously discussed, because the evidence
was entered as an exhibit, Brannigan fails to show that counsel failed to obtain the work order
form. And for the reasons discussed above, Brannigan similarly does not show that he was
prejudiced by counsel’s failure to obtain the work order form earlier. To the extent Brannigan’s
ineffective assistance claim may be liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), to additionally argue that counsel was ineffective for failing to enter the
exhibit for the defense after it was withdrawn by the prosecution, Brannigan cannot prevail on
that claim either. At trial, defense counsel argued that it was unlikely that the extreme car
problems identified during the victim’s testimony could be caused by a single incident of erratic
driving. As forementioned, the victim testified that the problems began only after Brannigan
drove the car in that manner. The jury apparently found the victim’s testimony credible.
Because, as discussed above, there was no evidence linking the issues identified in the work
order form with the car troubles highlighted in the victim’s testimony, and Brannigan does not

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specifically identify evidence that counsel should have found that would have made such link,
counsel cannot be deemed ineffective for not entering the work order form as a defense exhibit,
and there was no reasonable probability that the admission of the work order form would have
led to a different result. Brannigan is therefore not entitled to relief on this ground.
B.

Request for an Evidentiary Hearing
Brannigan further requests an evidentiary hearing on all of his claims. A district court

may not hold an evidentiary hearing on a claim for which a petitioner failed to develop a factual
basis in state court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of
constitutional law that the Supreme Court has made retroactive to cases on collateral review, or
(b) a factual predicate that could not have been previously discovered through the exercise of
due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable fact finder would have
found the petitioner guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).
Where the failure to develop the factual basis for the claim in the state court proceedings
is not attributable to the petitioner, to receive an evidentiary hearing, the petitioner must make a
colorable claim for relief and meet one of the factors set forth in Townsend v. Sain, 372 U.S. 293
(1963). Insyxiengmay v. Morgan, 403 F.3d 657, 670-71 (9th Cir. 2005). In Townsend, the
Supreme Court concluded that a federal habeas petitioner is entitled to an evidentiary hearing on
his factual allegations if: (1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported by the record as a whole;
(3) the fact-finding procedure employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material

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facts were not adequately developed at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at
670 (quoting Townsend, 372 U.S. at 313), overruled in part by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992).
As discussed above, Brannigan has failed to assert a colorable claim for relief. See
Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir. 1984) (holding an evidentiary hearing is not
required on issues which can be resolved on the basis of the state court record). Because he does
not cite to new laws or underlying facts that were not developed on the record before the state
courts with respect to this claim, he has also failed to satisfy his burden of proof under 28 U.S.C.
§ 2254(e)(2). Brannigan’s request for an evidentiary hearing must therefore also be denied.
V. CONCLUSION AND ORDER
Brannigan is not entitled to relief on any ground raised in his Petition and is not entitled
to an evidentiary hearing.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the request for an evidentiary hearing 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,

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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: September 6, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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