Abella v. Biter

Filing 28

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 9/14/17, ORDERING that the Petition under 28 U.S.C. § 2254 for Writof Habeas Corpus is DENIED. The Court DECLINES to issue a Certificate of Appealability. CASE CLOSED (Kastilahn, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRANK ABELLA,
No. 2:15-cv-00424-JKS
Petitioner,
MEMORANDUM DECISION
vs.
DAVID BAUGHMAN, Warden, California
State Prison-Sacramento,1
Respondent.

Frank Abella, 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. Abella is in the custody of the California
Department of Corrections and Rehabilitation and incarcerated at California State PrisonSacramento. Respondent has answered, and Abella has not replied. On January 13, 2017, this
Court denied the petition for habeas relief filed by Abella’s co-defendant, James Washington, in
Washington v. Vazquez, No. 2:14-cv-01618-JKS. Abella’s Petition involves the same facts but
presents different claims for relief.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 5, 2009, Abella, along with his co-defendant Washington, was charged with
first-degree murder committed during the commission of a robbery, second-degree robbery, and
torture. The information further alleged as to all counts that Abella personally used a deadly and
dangerous weapon while committing the offenses. Abella pleaded not guilty and denied the

1

David Baughman, Warden, California State Prison-Sacramento, is substituted for
M.D. Biter, former Warden, Kern Valley State Prison. FED. R. CIV. P. 25(c).

allegations. On direct appeal of his conviction, the California Court of Appeal laid out the
following facts underlying the charges against Abella:
During the early morning hours of June 7, 2008, [Abella] and Washington were
hanging out together at an apartment complex in Rancho Cordova where [Abella]’s
mother lived. At the time, Washington was dating Abella’s sister, E.G., who was also
present. Abella was several weeks shy of his 18th birthday.
At approximately 2:40 a.m., [Abella] and Washington walked to a nearby
7–Eleven store. The events that occurred thereafter were captured in large part on
surveillance cameras mounted at the 7–Eleven and at an adjacent check-cashing store.
At approximately 2:50 a.m., [Abella] and Washington left the 7–Eleven and
approached 50–year–old William Deer, who was sitting on a curb outside the
check-cashing store drinking coffee he had just purchased at the 7–Eleven. Deer was
both mentally and physically handicapped due to a motorcycle accident more than 20
years earlier.
Earlier that evening, Deer’s mother had dropped him off at a bus stop in
Sacramento so he could visit friends in Rancho Cordova. At the time, Deer wore a fanny
pack around his waist in which he carried various personal items, including a cell phone
charger, a toothbrush, cigarettes, and money. He also carried with him a cell phone.
Deer was wearing the fanny pack in the 7–Eleven approximately 30 minutes before he
was approached by [Abella] and Washington.
What transpired during the initial encounter with Deer is not altogether clear.
However, what is clear is that, at some point, [Abella] and Washington beat, kicked and
stomped on Deer and then ran from the scene.
Approximately 30 minutes later, Washington returned to the area with E.G. By
that time, Washington had changed his shirt. The two approached Deer, who was still
lying where [Abella] and Washington had left him following the beating. E.G. could see
that Deer was hurt but he was still alive. Washington and E.G. departed.
Seven minutes later, [Abella] and Washington returned to where they had left
Deer. Less than a minute later, they again ran from the scene.
[Abella] and Washington returned a third time approximately 30 minutes later,
this time with a BB gun. They shot Deer 19 times in the face and abdomen and then fled
the scene.
Police were eventually dispatched to the 7–Eleven and found Deer still alive.
They did not find a fanny pack or cell phone in the area; nor did they find any
identification for the victim. Deer was taken to the hospital, where he later died. The
cause of death was determined to be multiple blunt force head injuries plus multiple BB
pellet injuries.
Five days later, [Abella] and Washington were arrested. They were charged with
murder, robbery and torture and were tried separately.

People v. Abella, No. C066010, 2013 WL 28896, at *1-2 (Cal. Ct. App. Jan. 3, 2013).
2

At the conclusion of Abella’s trial, the jury found Abella guilty of all counts and also
found true the special circumstance alleged in Count 1 and the weapon enhancement alleged as
to Counts 1 and 3 (it found not true the weapon enhancement alleged as to Count 2).2 The trial
court subsequently denied Abella’s request for probation and sentenced him to serve a term of
life imprisonment without the possibility of parole (“LWOP”) for committing murder while
engaged in robbery, consecutive to a 2-year term for the robbery conviction, consecutive to a life
term for the torture conviction, plus 2 consecutive 1-year terms for the personal use of a
dangerous or deadly weapon alleged as Counts 1 and 3.3 The court stayed the punishment
imposed on Counts 2 and 3 pursuant to California Penal Code § 654.4
Through counsel, Abella appealed his conviction, arguing that: 1) there was insufficient
evidence to support the robbery conviction and special circumstance allegation; and 2) his
LWOP conviction constituted cruel and unusual punishment in light of the nature of the offense
and Abella’s age and mental disabilities. Counsel also filed a supplemental brief arguing that
Abella’s sentence violated Miller v. Alabama, in which the U.S. Supreme Court held that the
Eighth Amendment forbids a sentencing statute that requires a sentence of LWOP for juvenile
offenders. 132 S. Ct. 2455, 2469 (2012); see also Montgomery v. Louisiana, 136 S. Ct. 718, 736

2

Washington’s jury found him guilty of all counts and also found true the
enhancements alleged on each count.
3

The court imposed a nearly-identical sentence upon Washington, except his
sentence included an additional consecutive 1-year term for the weapon enhancement alleged as
to Count 2.
4

Section 654 provides in relevant part that “[a]n act or omission that is punishable
in different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or omission
be punished under more than one provision.” CAL. PENAL CODE § 654.
3

(2012) (holding that Miller announced a new substantive constitutional rule that was retroactive
on state habeas review). The brief also contended that there was insufficient evidence of torture.
In a reasoned, unpublished opinion issued on January 3, 2013, the Court of Appeal affirmed the
judgment against Abella in all respects. Washington, 2013 WL 28896, at *8.5 Abella petitioned
for review in the California Supreme Court, which was denied on April 10, 2013.6

5

The Court of Appeal likewise affirmed the judgment against Washington. People
v. Washington, No. C065636, 2013 WL 29097, at *13 (Cal. Ct. App. Jan. 3, 2013).
6

The California Supreme Court denied the petition without prejudice to any relief
to which Abella might be entitled after it decided People v. Gutierrez, No. S206365. Roughly
one later, the Supreme Court in Gutierrez held that Section 190.5(b) of the California Penal
Code gives a sentencing court the discretion to impose either LWOP or a term of 25 years to life
on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption
in favor of LWOP. 324 P.3d 245, 267 (Cal. 2014). In so holding, the Gutierrez court
disapproved People v. Guinn, 33 Cal. Rptr. 2d 791, 797 (Cal. Ct. App. 1994), in which the
California Court of Appeal had interpreted Section 190.5(b) to mean “that 16 or 17-year-olds
who commit special circumstance murder must be sentenced to LWOP, unless the court, in its
discretion, finds good reason to choose the less severe sentence of 25 years to life.” The
Gutierrez court concluded that a presumption in favor of LWOP as stated in Guinn would raise
serious constitutional concerns in light of Miller. Gutierrez, 33 Cal. Rptr. 2d at 262.
Here, Abella was sentenced to LWOP after being convicted as a juvenile of special
circumstance murder. The record reflects that the sentencing judge cited Guinn when imposing
Abella’s LWOP sentence as “authorizing . . . a presumptive penalty of life without parole for a
16- or 17-year-old special circumstances murderer or at the discretion of the Court 25-years-tolife.” Reporter’s Transcript at 763. Abella has not raised in this Petition a sentencing claim
challenging his LWOP sentence pursuant to Gutierrez. In a previous filing with this Court,
Abella moved for a stay and abeyance in these proceedings, indicating that he was to be resentenced under Miller in Superior Court. Docket No. 24. A previously-assigned Magistrate
Judge denied the stay request without prejudice, and set a deadline for the parties to file a
stipulation that these proceedings be stayed pending resolution of Abella’s re-sentencing request.
Docket No. 25. Neither party submitted any filings regarding Abella’s re-sentencing request, see
Docket No. 26, and the publicly-available dockets of the California courts do not indicate
whether Abella has been re-sentenced. Thus, nothing has changed that would warrant this Court
to reconsider the earlier denial of Abella’s motion to stay.
Judgment in this matter, however, does not prevent Abella from filing a habeas petition
in the California courts that challenges his LWOP sentence under Gutierrez, Miller, and
Montgomery. Likewise, because the Supreme Court denied his petition for review without
prejudice, he may be able to renew his direct appeal sentencing claim to that court by filing
4

Abella then filed a pro se petition for habeas relief in the California Superior Court in
which he alleged that counsel was ineffective for failing to “track down and secure” as a witness
Todd Schoborg, a homeless man who called 911 to report finding the victim and for arguing
during closing without Abella’s consent that the jurors should convict on the two lesser-included
offenses of voluntary manslaughter and involuntary manslaughter. He additionally argued that
his Sixth Amendment right to confrontation was violated by the prosecution’s play of
Schoborg’s 911 call. The Superior Court denied the petition in a reasoned, unpublished opinion
issued on March 21, 2014. Abella raised the same claims in habeas petitions filed in the Court of
Appeal and Supreme Court, which were summarily denied on May 1, 2014, and December 17,
2014, respectively.
Abella then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
February 3, 2015. See 28 U.S.C. § 2244(d)(1)(A).
II. GROUNDS/CLAIMS
In his pro se Petition before this Court, Abella raises the three claims he unsuccessfully
raised to the state courts by habeas petition. First, he argues that trial counsel was ineffective for
failing to call Schoborg as a witness. He additionally contends that trial counsel was ineffective
for arguing on summation that jury should find Abella guilty of lesser-included offenses and not
guilty of special-circumstance murder. Finally, he claims that his right to confrontation was
violated by the admission of Schoborg’s 911 call.

another petition for review.
5

III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary

6

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
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).
Abella 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).

7

IV. DISCUSSION
A.

Ineffective Assistance of Counsel (Grounds 1 and 2)
Abella first argues that trial counsel was ineffective for failing to secure and call as a

witness the homeless man who placed the 911 call that he had found the victim’s body and for
arguing during summation that the jury should convict Abella of the lesser-included offenses
rather than for special circumstances murder.
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.7 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:

7

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”).
8

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).
Thus, Abella 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).
Neither of Abella’s ineffective assistance claims have merit. As an initial matter,
Respondent points out that, in denying Abella’s claims on state habeas review, the state court
cited In re Swain, 209 P.2d 793, 796 (Cal. 1949), and In re Harris, 855 P.2d 391, 397 n.5 (Cal.
1993) in finding that his claims were barred because he failed to either allege his claims with
sufficient particularity or support the claims with reasonably available documentary evidence.
After reviewing the facts and applicable law, the Court agrees that the nature of the procedural
bar means that his claim that counsel was ineffective for failing to call Schoborg as a witness
(Ground 1) fails to meet the exhaustion requirement because it was not“fairly presented” to the
state courts.

9

Federal courts “will not review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent of the federal question and
adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). This
Court may not reach the merits of procedurally defaulted claims, that is, claims “in which the
petitioner failed to follow applicable state procedural rules in raising the claims.” Sawyer v.
Whitley, 505 U.S. 333, 338 (1992). “The state-law claim may be a substantive rule dispositive of
the case, or a procedural barrier to adjudication of the claim on the merits.” Walker v. Martin,
131 S. Ct. 1120, 1127 (2011). Procedural default does not preclude federal habeas review unless
the last state court rendering judgment in a case “clearly and expressly” states that its judgment
rests on a state procedural bar. Teague v. Lane, 489 U.S. 288, 298-99 (1989) (quoting Harris v.
Reed, 489 U.S. 255, 262-63 (1989)). “In order to constitute adequate and independent grounds
sufficient to support a finding of procedural default, a state rule must be clear, consistently
applied, and well established at the time of the petitioner’s purported default.” Morales v.
Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks and citation omitted).
In re Swain stands for the rule that a California habeas petition must state “with
particularity the facts” upon which relief is sought. 209 P.2d at 796. In re Harris stands for the
additional proposition that documentary evidence must be provided. 855 P.2d at 397 n.5 (“Such
factual allegations should also be supported by ‘[reasonably available] documentary evidence
and/or affidavits.” (quoting In re Clark, 855 P.2d 729, 749 n.16 (Cal. 1993)). If a petition is
dismissed for failure to state the facts with particularity—that is, with a cite to Swain—the
petitioner may file a new petition curing the defect. See Gaston v. Palmer, 417 F.3d 1030, 1037
(9th Cir. 2005); see Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). There is no reason

10

the result should be any different when the defect in the state petition is the failure to attach
documentary evidence. Neither the failure to attach documentary evidence nor the failure to
plead with particularity are irremediable errors. It therefore appears that the California courts
would have allowed Abella to file a new state petition remedying these defects. Accordingly,
the Harris/Swain bar did not cause these claims to be procedurally defaulted in state court and
thus this bar does not cause them to be procedurally defaulted in federal court either. See Cross
v. Sisto, 676 F.3d 1172, 1177 (9th Cir. 2012) (California state court’s denial of petitioner’s
habeas petition with citation to Swain constituted dismissal without prejudice and with leave to
amend to plead required facts with particularity and thus did not signify that petitioner’s claims
were procedurally barred as a matter of state law).
However, in Kim, the Ninth Circuit also stated that it was “incumbent” on the district
court, in determining whether the federal standard of “fair presentation” of a claim to the state
courts had been met, to independently examine Kim’s petition to the California Supreme Court.
799 F.3d at 1320. “The mere recitation of In re Swain does not preclude such review.” Id. A
review of Abella’s state petition here shows, as Respondent has noted, that Abella failed to recite
sufficient facts to address his claim in Ground 1 that counsel was ineffective for failing to call
Schoborg as a witness. In his state habeas petitions, Abella states only that “Counsel’s failure to
secure Schoborg as a witness so that he could produce testimony on behalf of the Petitioner’s
defense was detrimental. Schoborg could’ve produced testimony that could’ve helped the
Petitioner in his fight against the murder-robbery allegation. Had counsel secured Schoborg as a
witness, the outcome of this trial would’ve been different.” A review of the record thus reveals

11

that this ineffective assistance claim was tersely presented, without factual detail or elaboration
as to how Abella’s testimony would have been helpful.
Accordingly, the California courts’ denial of this claim with citations to Swain and
Harris indicate that it was not “fairly presented” to the state high court and that Abella could
have re-submitted a state habeas petition with greater specificity but did not. Abella’s failure to
do so means that this ineffective assistance claim is unexhausted. See Rose v. Palmateer, 395
F.3d 1108, 1111 (9th Cir. 2005) (stating federal nature of claim must be pled with specificity
before state courts and substance of alleged violation must be pled with some particularity in
order to satisfy exhaustion requirement); see also Picard v. Connor, 404 U.S. 270, 278 (1971)
(holding that the substance of a federal habeas corpus claim must first be presented to the state
courts). Ground 1 is therefore denied as unexhausted.8

8

Because there is no strict time limit for filing a state habeas petition in California,
it appears that Abella could still adequately present this claim to the state court. See In re Clark,
855 P.2d 729, 764 (Cal. 1993). This Court could therefore stay the Petition and allow Abella to
return to state court to satisfy the exhaustion requirement. See Mena v. Long, 813 F.3d 907, 911
(9th Cir. 2016). However, Abella has not requested that this Court stay and hold his petition in
abeyance. Moreover, the Supreme Court has held that it is an abuse of discretion to stay a
petition pending exhaustion where: 1) the petitioner has not shown good cause for failing to
exhaust all available state court remedies; and 2) the unexhausted claims are “plainly meritless.”
Rhines v. Weber, 544 U.S. 269, 277 (2005). District courts within the Ninth Circuit have found
“good cause” to require at a minimum a showing of some “circumstance over which [petitioner]
had little or no control” that prevented the petitioner from asserted the unexhausted claims in
state court. Ringer v. Crawford, 415 F. Supp. 2d 1207, 1211 (E.D. Nev. 2006); see also
Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 2005) (adopting the “good cause”
standard of procedural defaults in which “a petitioner ordinarily must show that the default
resulted from an objective factor external to the petitioner which cannot fairly be attributed to
him”). Abella does not reply to Respondent’s opposition, and therefore does not make any
argument regarding or showing of good cause. Accordingly, the Court finds that Abella has not
demonstrated good cause for his failure to exhaust and declines to exercise its discretion to stay
the Petition and hold it in abeyance under Rhines.
12

Moreover, the lack of particularity also bars any meaningful review of Ground 1 in
federal court, independent of his failure to fairly present the claim to the state courts. Pro se
habeas filings must be construed liberally. See Roy v. Lampert, 465 F.3d 964, 970 (9th Cir.
2006) (“We must construe pro se habeas filings liberally.”) (internal quotation marks and
citations omitted). However, “[c]onclusory allegations which are not supported by a statement
of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see
also Jones v. Gomez, 66 F.3d 199, 204-205 (9th Cir. 1995); Greenway v. Schriro, 653 F.3d 790,
804 (9th Cir. 2011) (“[C]ursory and vague claim[s] cannot support habeas relief.”). A petitioner
must state his claims with sufficient specificity. See Wacht v. Cardwell, 604 F.2d 1245, 1246-47
(9th Cir. 1979). Here, Abella has not shown that, at the time of trial, Schoborg would have been
willing to testify, what his testimony would have been, or that the testimony would have been
sufficient to create a reasonable doubt as to his guilt. See Wildman v. Johnson, 261 F.3d 832,
839 (9th Cir. 2001) (speculation that a witness would provide favorable testimony on petitioner’s
behalf is insufficient to establish Strickland prejudice); Grisby v. Blodgett, 130 F.3d 365, 373
(9th Cir. 1997). Abella’s vague and conclusory statement that Schoborg would have provided
helpful testimony sufficient to change the outcome of his case is insufficient to warrant relief.
See Blackledge v. Allison, 431 U.S. 63, 75 (1977) (“The allegations in this case were not in
themselves so vague (or) conclusory as to warrant dismissal for that reason alone.”) (internal
citations and quotation marks omitted). Because Abella has failed to provide a factual basis for
this claim, the state court’s denial of it was reasonable and not contrary to federal authority.
Nor is Abella entitled to relief on his claim that counsel was ineffective for arguing in
favor of a lesser-included offense. A review of the record reflects that the California Supreme

13

Court could reasonably have found that the challenged conduct was tactically motivated to avoid
a greater conviction and steeper sentence. Unsuccessful trial strategies are not alone ineffective
assistance. See Strickland, 466 U.S. at 699 (counsel not ineffective even though defense strategy
was unsuccessful because his strategy was the result of reasonable professional judgment). In
light of the strong evidence against Abella, Abella’s unsupported speculation that the result of
his trial would have been different absent counsel’s arguments in favor of the lesser-included
offenses is insufficient to establish relief. See Landry v. Lindsey, 8 F. App’x 650, 651 (9th Cir.
2001) (“Although counsel conceded some guilt and recommended that the jury consider the
lesser included offense . . . , we cannot, in light of the substantial evidence against [the
defendant] and his impeached testimony at trial, conclude that such an approach was outside the
range of sound trial strategy.”). Abella therefore cannot prevail on either of his ineffective
assistance claims.
B.

Confrontation Violation (Ground 3)
Abella additionally claims that his right to confrontation was violated by the admission of

Schoborg’s 911 call. The Confrontation Clause of the Sixth Amendment mandates that a
criminal defendant has the right to confront and cross-examine the witnesses against him. See
Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). This generally means that out-of-court
testimonial statements by a witness are not admissible against a defendant unless the witness is
available for cross-examination at trial or the defendant had an opportunity to cross-examine the
witness about the statements before trial. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
The Confrontation Clause applies only to “‘witnesses’ against the accused, i.e., those who ‘bear
testimony.’” Id. at 51 (citation omitted); Davis v. Washington, 547 U.S. 813, 823–24 (2006).

14

“‘Testimony,’ in turn, is typically a solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 51 (citation and some internal
punctuation omitted); Davis, 547 U.S. at 824. As the Davis court explained:
[a] critical portion of [Crawford’s] holding . . . is the phrase “testimonial statements.”
Only statements of this sort cause the declarant to be a “witness” within the meaning of
the Confrontation Clause. It is the testimonial character of the statement that separates it
from other hearsay that, while subject to traditional limitations upon hearsay evidence, is
not subject to the Confrontation Clause.
Davis, 547 U.S. at 821 (citation omitted). Thus, nontestimonial statements do not implicate the
Confrontation Clause. Giles v. California, 554 U.S. 353, 376 (2008); Whorton v. Bockting, 549
U.S. 406, 420 (2007).
The Supreme Court in Crawford did not “spell out a comprehensive definition of
‘testimonial,’ “but it indicated that testimonial evidence includes, among other things, “police
interrogations.” Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1148 (2011) (quoting
Crawford, 541 U.S. at 68). Subsequently, in Davis, the Supreme Court explained that:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency. They are testimonial when
the circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
547 U.S. at 822.
Further, in Bryant, the Supreme Court clarified that:
[W]hen a court must determine whether the Confrontation Clause bars the
admission of a statement at trial, it should determine the ‘primary purpose of the
interrogation’ by objectively evaluating the statements and actions of the parties to the
encounter, in light of the circumstances in which the interrogation occurs. The existence
of an emergency or the parties’ perception that an emergency is ongoing is among the
most important circumstances that courts must take into account in determining whether
an interrogation is testimonial because statements made to assist police in addressing an
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ongoing emergency presumably lack the testimonial purpose that would subject them to
the requirement of confrontation.
131 S.Ct. at 1162.
Here, the record reflects that the Schoborg volunteered to the 911 operator that he had
seen 3 people standing by an injured man and that he had seen “some individuals out here earlier
beating people up.” Schoborg was not subjected to any interrogation prior to making the
declaration, and the exchange of information lacked all the hallmarks of a traditional police
interrogation conducted to prepare for a later criminal prosecution. It therefore was not an
objectively unreasonable application of clearly established federal law for the California courts
on state habeas review to conclude that the 911 call was not testimonial. As in Bryant, the
objective circumstances of the encounter indicate that the primary purpose of the statement was
to “enable police assistance to meet an ongoing emergency.” 131 S. Ct. at 1166-67 (finding that
a shooting victim’s statements were nontestimonial when he was questioned in a parking lot
prior to the arrival of emergency medical services by multiple officers in a disorganized fashion);
see also Davis, 547 U.S. at 828 (finding that an assault victim’s initial responses to questions by
a 911 operator were nontestimonial). Accordingly, Schoborg fails to show that the California
courts’ rejection of his Confrontation Clause claim was contrary to, or an unreasonable
application of, clearly established authority of the Supreme Court. He is not entitled to relief on
this ground.
V. CONCLUSION AND ORDER
Abella 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 the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: September 14, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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