Marks v. Frauenheim

Filing 31

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 8/11/2017 DENYING petitioner's 29 request for the appointment of counsel. IT IS RECOMMENDED that petitioner's 28 motion for a stay be denied as moot; petitioner's 29 request for an evidentiary hearing be denied; and petitioner's petition for writ of habeas corpus be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL MARKS,

12

Petitioner,

13
14

No. 2:15-cv-0665 JAM DB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

SCOTT FRAUENHEIM,

15

Respondent.

16
17

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ

18

of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered

19

against him on November 18, 2011 in the Sacramento County Superior Court on counts of

20

inflicting traumatic injury on a cohabitant, assault with a deadly weapon, kidnapping, criminal

21

threat, and false imprisonment by violence or menace. He seeks federal habeas relief on the

22

grounds that: (1) the trial court erred when it denied his motion for a new trial; (2) trial counsel

23

was ineffective; (3) appellate counsel was ineffective; (4) the prosecutor committed misconduct;

24

and (5) petitioner’s inability to cross-examine the victim at trial violated the Confrontation

25

Clause. All pleadings have been submitted and this case is ready for decision on petitioner’s

26

claims. Also before the court are petitioner’s motions for a stay, for the appointment of counsel,

27

and for an evidentiary hearing.

28

////
1

1

Upon careful consideration of the record and the applicable law, the undersigned denies the

2

motion for appointment of counsel and recommends that petitioner’s motions for a stay and for an

3

evidentiary hearing be denied and that his application for habeas corpus relief be denied.

4
5

BACKGROUND
In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction

6

on appeal, the California Court of Appeal for the Third Appellate District provided the following

7

factual and procedural summary:

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Dena [Marks] told emergency room personnel on November 24[,
2009] that the prior evening, her boyfriend hit her with his fists, cut
her palm with a kitchen knife, hit the back of her head with a board
(causing her to lose consciousness), and held her against her will in
his mother's house. Dena identified defendant as her assailant. She
had a bruise on her right cheek, abrasions to her face, a bruise on
her left shoulder, and a cut to her right palm. She did not have any
bump on her head or mark on her neck. A chest X-ray and
computed tomography (CT) scan of her head and face revealed no
fractures or internal injuries. The emergency room nurse contacted
law enforcement authorities.
City of Sacramento Police Officer Dustin Henderson interviewed
Dena at the hospital. Dena again identified defendant as her
assailant. She related the following to Officer Henderson:
Around 8:00 or 9:00 p.m. on November 23, defendant told Dena,
“[y]ou're gonna die tonight.” He barricaded the door to Dena's
bedroom and began to punch Dena on her head and face with both
of his closed fists. He cut Dena's hand with the blade of a kitchen
knife when she put her hands up to stop his strikes. He also grabbed
Dena by the neck and choked her. At one point, defendant removed
a gun and a razor or box cutter from his pocket and placed them on
a dresser.
Defendant beat Dena throughout the evening. Around midnight, he
forced her into his car at gunpoint, telling her that his friends had
her daughter and he would tell his friends to rape and kill the
daughter if Dena did not comply.
Defendant took Dena to a river. He said he was going to drown the
demons out of her. He punched her and then hit her in the back of
her head with a piece of wood, causing her to lose consciousness.
Defendant then took Dena to his mother's house. He carried her into
his bedroom, blocked the bedroom door, and placed Dena in the
closet. He hit Dena some more until he got tired.
The next morning, defendant told Dena “to act straight” in front of
his mother, otherwise she would not get her daughter back.
2

1

Defendant's mother took Dena to the hospital when she saw Dena's
injuries.

2
3
4
5
6
7
8
9
10
11

Officer Henderson searched defendant's residence and questioned
defendant's mother Virginia Marks. The officer found a pile of
clothes behind the door of defendant's bedroom, which was
consistent with Dena's statement that defendant put things against
his bedroom door to block the door. Virginia initially denied taking
Dena to the hospital, but eventually admitted that she drove Dena to
the hospital that morning. Virginia said, in response to the officer's
further questioning, “It's my son. I don't know anything.”
Sacramento Police Officer Lisa Nou Khang–Her interviewed Dena
by telephone on November 25. The officer read the statement Dena
provided to Officer Henderson verbatim and asked Dena if she
wanted to make any changes to the statement. Dena confirmed the
statement was correct, but changed the length of time she had dated
defendant. Dena told the officer defendant assaulted her, the assault
began in Dena's home, defendant had a gun, he took her to a river
and then to his mother's house against her will, and he continued to
hit her there. Dena said she was afraid defendant would kill her and
she was going to stay with her mother until defendant was arrested.

12
13
14

Three days after Dena was assaulted, Sacramento County Deputy
Sheriff Corey Newman responded to a report that defendant
kidnapped Dena. Dena's mother Theresa Marks informed the
deputy that defendant threatened Dena's family and then grabbed
Dena and drove away in his car.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Dena subsequently failed to appear for an appointment to sign a
form for Officer Khang–Her, and later told the officer that the
kidnapping and assault never occurred. However, Dena then said
the kidnapping and assault occurred, but she did not know who
assaulted her. She claimed defendant was not her assailant and said
she did not want to press charges against defendant.
Dena said her injuries were from a fight with another woman. She
also said she did not know what really happened because of her
various medical conditions. Then, she said that a male family
member assaulted her and forced her to say defendant was
responsible, but she would not say who assaulted her.
Testifying under a grant of immunity, Dena offered yet another
story at defendant's preliminary hearing. Defendant's jury heard this
preliminary hearing testimony because the district attorney's office
could not locate Dena for the trial, despite its reasonably diligent
efforts to find her. Dena testified at the preliminary hearing that
defendant did not assault her. Instead, Terry Stephens, a family
friend with whom Dena had been having an affair, assaulted her in
his motor home. According to Dena, Stephens slapped and punched
her on and off all day, threatened to kill her, and displayed a gun
during the assault. Dena said Stephens dropped her off near a
hospital the next day and instructed her to blame defendant for her
injuries. Dena claimed she did what Stephens told her to do because
she was scared about what Stephens might do to her children. Dena
3

1

also said she was high when Officer Henderson interviewed her,
and she was mad at defendant because he left her. She said she
sometimes lashed out at him because she was jealous. Dena
declared she loved defendant with all her heart, noting that
defendant helped her raise her children and he was the father of
Dena's 16–year–old daughter.

2
3
4

Dena also testified that she asked defendant to pick her up from her
mother's house on November 26 and she left willingly in
defendant's car. Theresa likewise told the jury that her report of a
kidnapping was based on a misunderstanding. Theresa denied at the
trial that defendant threatened Dena or Theresa on November 26.

5
6
7

The prosecution played a recording of a jailhouse telephone
conversation between Dena and defendant. The conversation
occurred about three months before the start of the trial. Defendant
told Dena in the conversation that if she did not go to court, the
prosecution will have no case. Defendant said “[d]on't say nothin”
and “don't even come in the courtroom.”

8
9
10
11

Regarding the November 23 incident, the jury convicted defendant
of inflicting injury upon a cohabitant resulting in a traumatic injury
(count one—Pen. Code, § 273.5, subd. (a)),2 assault with a deadly
weapon (count two—§ 245, subd. (a)(1)), kidnapping (count
three—§ 207, subd. (a)), criminal threat (count four—§ 422), and
false imprisonment by violence or menace (count five—§§ 236,
237). The jury found that Dena was developmentally disabled and
defendant knew and reasonably should have known of her condition
(§ 667.9).3 The jury was deadlocked on counts six (criminal
threats) and seven (kidnapping), which relate to the November 26
incident, and the trial court declared a mistrial as to those counts.
The trial court found the allegation that defendant had suffered
three prior serious felony convictions to be true. It denied
defendant's motion for a new trial and motion to strike his prior
convictions, and sentenced defendant to 25 years to life in prison on
count one, a consecutive 25 years to life in prison on count three,
two years for the section 667.9, subdivision (b) enhancement [crime
against a developmentally disabled victim], and a total of 20 years
for the prior strikes, for an aggregate prison term of 22 years plus
50 years to life. The trial court imposed but stayed sentences of 25
years to life on counts two, four and five.

12
13
14
15
16
17
18
19
20
21
22

People v. Marks, No. C069757, 2013 WL 6327418, at *1-3 (Cal. Ct. App. 2013).1

23

PROCEDURAL HISTORY

24

Petitioner appealed his conviction. The Court of Appeal for the Third Appellate District

25

struck the sentencing enhancement for a developmentally disabled victim and affirmed the

26

judgment in all other respects. (Ex. A to Answ. (ECF No. 17-1).) Petitioner filed a petition for

27
28

1

A copy of the opinion of the Court of Appeal can also be found attached to the Answer as
Exhibit A. (ECF No. 17-1.)
4

1

review with the California Supreme Court. Therein, he raised one claim – that the trial court

2

erred when it denied his motion for a new trial based on new evidence in the form of another

3

recantation from the victim. (Pet. for Rev. (LD 52).) The California Supreme Court denied

4

review on February 11, 2014. (LD 6.)

5

Petitioner then sought habeas relief from the state courts. He raised multiple claims of

6

ineffective assistance of trial and appellate counsel, a claim of prosecutorial misconduct, and a

7

confrontation clause claim. (See LD 7, 9, 13.) On November 19, 2014, the superior court issued

8

a reasoned order denying the ineffective assistance of counsel claims and the prosecutorial

9

misconduct claim on the merits. The court denied petitioner’s confrontation clause claim on the

10

grounds that the issues raised in that claim were raised, and rejected, on appeal. (LD 8.) The

11

California Court of Appeal and California Supreme Court denied petitioner’s claims summarily in

12

2015. (LD 12, 14.)

13

On March 23, 2015, petitioner initiated this action by filing a motion for a stay to permit him

14

to exhaust his claims in state court. (ECF No. 1.) Petitioner was ordered to file a petition and,

15

after his state habeas proceedings concluded, filed a first amended petition (“FAP”) here on

16

September 14, 2015. (ECF No. 8.) Respondent filed an answer on November 24, 2015 (ECF No.

17

17) and lodged the state court record here on December 10, 2015 (see ECF No. 19). On

18

December 11, 2015, petitioner filed a traverse. (ECF No. 20.)

19

On April 27, 2017, petitioner filed a document in which he requested a stay of this

20

proceeding to permit him to “resolve some issues with the state courts in concerns of the photo

21

evidence that this court would not consider and the issue with trying to get the knife tested.”

22

(ECF No. 28.) On July 12, 2017, petitioner filed a request for an evidentiary hearing and

23

appointment of counsel. (ECF No. 29.) Also on July 12, petitioner filed a notice with the court

24

that an “appeal” he had filed with the California Supreme Court had been denied. (ECF No. 30.)

25

Petitioner states that the appeal concerned “evidence that my trial lawyer was ineffective for not

26

2

27
28

Respondent lodged copies of records from the state trial, appellate, and habeas proceedings.
(See Notice of Lodging (ECF No. 19).) Lodged documents are identified by the lodging number
assigned them by respondent as “LD;” the record of the trial transcript is “RT;” and the clerk’s
transcript is “CT.”
5

1

presenting and not having the knife tested that the alleged victim said I cut her with.” (Id. at 1.)

2

Attached to petitioner’s filing are copies of orders from California courts denying petitioner's

3

recent habeas petitions. The California Court of Appeal for the Third Appellate District denied

4

the petition in In re Marks, No. C084244 (Apr. 3, 2017), without comment or citation to

5

authority. (Id. at 5.) The California Supreme Court denied the petition in In re Marks, No.

6

S241457 (June 21, 2017) on the grounds that the petition was untimely and successive, among

7

other reasons. (Id. at 4.)

8
9

STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS
An application for a writ of habeas corpus by a person in custody under a judgment of a state

10

court can be granted only for violations of the Constitution or laws of the United States. 28

11

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

12

application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

13

U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

14
15
16
17
18
19
20
21
22

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

23

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings

24

of the United States Supreme Court at the time of the last reasoned state court decision. Greene v.

25

Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing

26

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be persuasive

27

in determining what law is clearly established and whether a state court applied that law

28

unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.
6

1

2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of

2

Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

3

announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 567

4

U.S. 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely

5

accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be

6

accepted as correct.” Id. at 1451. Further, where courts of appeals have diverged in their

7

treatment of an issue, it cannot be said that there is “clearly established Federal law” governing

8

that issue. Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

9

A state court decision is “contrary to” clearly established federal law if it applies a rule

10

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

11

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003)

12

(quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §

13

2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct

14

governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that

15

principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

16

(quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]

17

federal habeas court may not issue the writ simply because that court concludes in its independent

18

judgment that the relevant state-court decision applied clearly established federal law erroneously

19

or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;

20

see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not

21

enough that a federal habeas court, in its independent review of the legal question, is left with a

22

firm conviction that the state court was erroneous.” (Internal citations and quotation marks

23

omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief

24

so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.”

25

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

26

664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a

27

state prisoner must show that the state court's ruling on the claim being presented in federal court

28

////
7

1

was so lacking in justification that there was an error well understood and comprehended in

2

existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

3

There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 F.3d

4

1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not supported

5

by substantial evidence in the state court record” or he may “challenge the fact-finding process

6

itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox, 366

7

F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.

8

2014) (If a state court makes factual findings without an opportunity for the petitioner to present

9

evidence, the fact-finding process may be deficient and the state court opinion may not be entitled

10

to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel,

11

applying the normal standards of appellate review,” could reasonably conclude that the finding is

12

supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

13

The second test, whether the state court’s fact-finding process is insufficient, requires the

14

federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact-

15

finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding

16

process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d

17

943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not

18

automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may

19

make factual findings without an evidentiary hearing if “the record conclusively establishes a fact

20

or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459

21

F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).

22

If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews the

23

merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also

24

Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may

25

not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we

26

must decide the habeas petition by considering de novo the constitutional issues raised.”). For the

27

claims upon which petitioner seeks to present evidence, petitioner must meet the standards of 28

28

U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the] claim
8

1

in State court proceedings” and by meeting the federal case law standards for the presentation of

2

evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011).

3

The court looks to the last reasoned state court decision as the basis for the state court

4

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

5

“[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from

6

a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the

7

reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en

8

banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim

9

has been presented to a state court and the state court has denied relief, it may be presumed that

10

the state court adjudicated the claim on the merits in the absence of any indication or state-law

11

procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be

12

overcome by showing “there is reason to think some other explanation for the state court's

13

decision is more likely.” Id. at 99-100 (citing Ylst, 501 U.S. at 803). Similarly, when a state

14

court decision on a petitioner's claims rejects some claims but does not expressly address a

15

federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was

16

adjudicated on the merits. Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).

17

A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle

18

v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). Where the state court reaches a decision on the

19

merits but provides no reasoning to support its conclusion, a federal habeas court independently

20

reviews the record to determine whether habeas corpus relief is available under § 2254(d).

21

Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent

22

review of the record is not de novo review of the constitutional issue, but rather, the only method

23

by which we can determine whether a silent state court decision is objectively unreasonable.”

24

Himes, 336 F.3d at 853 (citing Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)). This court

25

“must determine what arguments or theories . . . could have supported, the state court's decision;

26

and then it must ask whether it is possible fairminded jurists could disagree that those arguments

27

or theories are inconsistent with the holding in a prior decision of th[e] [Supreme] Court.”

28

Richter, 562 U.S. at 102. The petitioner bears “the burden to demonstrate that ‘there was no
9

1

reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir.

2

2013) (quoting Richter, 562 U.S. at 98).

3

When it is clear, however, that a state court has not reached the merits of a petitioner's claim,

4

the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court

5

must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099,

6

1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

7

PETITIONER'S CLAIMS

8

Petitioner references attachment A to his petition for his claims. (FAP (ECF No. 8 at 47, et

9

seq.).) His first claim is a copy of the argument in his petition for review to the California

10

Supreme Court that the trial court erred when it denied his motion for a new trial and some

11

additional argument. (Id. at 47-55.) His subsequent claims appear to be identical to those raised

12

in his state habeas petitions –multiple claims of ineffective assistance of trial counsel, ineffective

13

assistance of appellate counsel, prosecutorial misconduct, and violation of the Confrontation

14

Clause. (Id. at 56-84.) Each is addressed below.

15

I.

Denial of Motion for a New Trial

16

The victim, Dena Marks (hereafter “Dena”) did not testify at trial because the prosecution was

17

unable to locate her. Evidence was presented at trial that petitioner spoke with Dena on the phone

18

several months before trial and told her that if she did not come to court, the prosecution would

19

not have a case. Defendant told her, “[d]on't say nothin” and “don't even come in the courtroom.”

20

At trial, evidence was presented about Dena’s original story to police – that petitioner kidnapped

21

and beat her – and about her various recantations of that story.
Just days after the conclusion of trial, Dena contacted petitioner’s trial attorney. (See Mot. for

22
23

New Trial at 6 (CT 374).) She told him she had been angry at petitioner and had inflicted her

24

injuries herself. Based on this new recantation, petitioner sought a new trial to allow Dena to

25

testify in person. The trial court denied the motion. The trial judge concluded that Dena’s new

26

story was not “reliable, trustworthy or credible.” (RT 535.) He further concluded that the new

27

evidence was cumulative and would not change the result on any retrial. (RT 535-36.)

28

////
10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A. State Court Decision
The decision of the California Court of Appeal is the last reasoned decision of the state courts.
The Court of Appeal held:
Defendant's motion for a new trial was based on a posttrial
notarized declaration by Dena which stated: “To whom it may
concern I Dena Marks am very sorry for all the trouble I put
Michael Marks threw by lieing on him First of all Mr. Marks never
hit me I had hurt myself and cut my hand as well I was on a high
dose of pain killers ant Fentenal patches and also street drugs I was
totaly outa control I thought he used me and went back to his x wife
so I was very hurt and with the drugs and my deppresson it all
turned to anger and not let him be with any other women but me Im
sorry for lieing Please forgive my actions.”
The trial court denied defendant's motion, concluding that the
declaration was not credible, hearing yet another explanation from
Dena would add little to the case, and admission of the declaration
would not change the result on retrial.
The determination of a motion for a new trial rests so completely
within the court's discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly
appears. (People v. Howard (2010) 51 Cal.4th 15, 42–43.) In ruling
on a motion for a new trial based on newly discovered evidence, the
trial court considers the following factors: whether (1) the evidence
was newly discovered, (2) the evidence was not cumulative, (3)
admission of the evidence could render a different result probable
on a retrial of the cause, (4) the party could not with reasonable
diligence have discovered and produced the evidence at the trial,
and (5) these facts were shown by the best evidence of which the
case admits. (Id. at p. 43.) The trial court may also consider the
credibility of the evidence in order to determine whether its
introduction in a new trial would render a different result
reasonably probable. (Ibid.) Each case is judged on its own facts.
(Ibid.) And the trial court presumes the verdict is correct. (People v.
Davis (1995) 10 Cal.4th 463, 524.)
The fact that an important prosecution witness has recanted does
not necessarily compel the granting of a motion for a new trial.
(People v. Langlois (1963) 220 Cal.App.2d 831, 834.) In fact, a
posttrial retraction is looked upon with suspicion. (Ibid.) In such a
case, the trial court weighs the evidence offered in support of the
motion, and the trial court may reject the recantation if it is
unworthy of belief. (Ibid.)
Here, the trial court determined that Dena's declaration was not
worthy of credence. It pointed out that Dena was eager to help
defendant. She recanted her statement to police and blamed Terry
Stephens for her injuries at the preliminary hearing. When
defendant was held to answer despite her preliminary hearing
testimony, she absented herself from the trial after she and
defendant discussed how her nonappearance would help defendant's
11

case. “Conveniently or miraculously, notwithstanding an
outstanding bench warrant and her failure to appear [at the trial],
after the verdict, she reappears in short order, with yet a third story
of what happened in the case.” The trial court said the statements
Dena provided on November 24, under stress or excitement, were
more reliable and trustworthy.

1
2
3
4

The trial court was well within its discretion to find Dena's posttrial
declaration not credible. (People v. Delgado (1993) 5 Cal.4th 312,
328–329 [posttrial statement by a witness that she, not defendant,
was responsible for the victims' injuries lacked credibility in light of
the witness's “obvious continued attachment to defendant” and
other evidence contradicting her posttrial statement]; People v.
Langlois, supra, 220 Cal.App.2d. at pp. 834–835 [posttrial
recantation by prosecution witness not credible where witness
claimed to be in love with defendant and desired to help him avoid
punishment].) Dena told medical personnel and police officers,
close to the time of the attack, that defendant was responsible for
her injuries. Her report was corroborated in part by defendant's
mother and evidence in defendant's bedroom. The statement by
Dena's mother that defendant was “crazy” because he thought Dena
was cheating on him provided a possible motive for the November
23 attack. Dena changed her story after she had contact with
defendant on November 26. Consistent with her professions of love
for defendant, all of the stories Dena told after November 26
exonerated defendant. Moreover, two days after the jury rendered
verdicts against defendant, Dena contacted defendant's attorney and
offered to provide a notarized statement confessing that her injuries
were self-inflicted and defendant “never laid a finger” on her.

5
6
7
8
9
10
11
12
13
14
15
16

The trial court also found Dena's posttrial declaration to be
cumulative, because the jury already heard Dena recant her
complaint against defendant and blame someone else for the attack,
and already heard that Dena had lied. The record supports these
findings. Additionally, there was evidence presented at defendant's
trial that Dena was heavily medicated and she was motivated by
jealousy when she first reported the assault. Hearing those facts
again would not likely render a different result at a retrial.

17
18
19
20

Defendant claims Dena's injuries were not consistent with her
report of a beating, but were instead consistent with self-inflicted
injuries. However, the emergency room doctor who treated Dena
testified as an expert on emergency medicine and indicated that
Dena's injuries were consistent with Dena's statements at the
hospital.

21
22
23
24

On this record, the trial court did not abuse its discretion in denying
the motion for retrial.

25
26

Marks, 2013 WL 6327418, at *6-7.

27

////

28

////
12

1

B. Analysis of Claim re Denial of Motion for a New Trial

2

Petitioner does not allege that the trial court’s denial of his motion violated any specific

3

federal constitutional right. Petitioner encouraged the California Supreme Court to grant review

4

“for the purpose of establishing a fair and equitable rule as to when a new trial motion should be

5

granted.” (LD 5 at 2.) In that petition, and here, petitioner relies solely upon state case law

6

holding that newly discovered evidence could be the basis for habeas relief where it is “credible”

7

and “undermines the entire case of the prosecution.” In re Hall, 30 Cal. 3d 408, 417 (1981); see

8

also People v. Gonzalez, 51 Cal. 3d 1179, 1246 (1990) (“[A] criminal judgment may be

9

collaterally attacked on the basis of “newly discovered” evidence only if the “new” evidence casts

10

fundamental doubt on the accuracy and reliability of the proceedings. At the guilt phase, such

11

evidence, if credited, must undermine the entire prosecution case and point unerringly to

12

innocence or reduced culpability.”)

13

Even if petitioner’s state-court petition can be construed as raising a federal claim, and the

14

California Supreme Court decision can be construed as denying review of that claim, petitioner

15

fails to demonstrate a basis for habeas relief.

16

Petitioner’s claim of actual innocence based on the newly discovered evidence has “never

17

been held to state a ground for federal habeas relief absent an independent constitutional violation

18

occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400

19

(1993); see also McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (“We have not resolved whether a

20

prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”)

21

(citing Herrera, 506 U.S. at 404-05); Dist. Attorney's Office for Third Judicial Dist. v. Osborne,

22

557 U.S. 52, 71 (2009) (Whether there exists a federal constitutional right to be released upon

23

proof of “actual innocence” is an open question.) Therefore, assuming the Court of Appeal

24

addressed, and rejected, that issue, such rejection was not contrary to, or an unreasonable

25

application of, clearly established federal law “as determined by the Supreme Court of the United

26

States.” See Acuna v. Ducart, No. CV 14-5664-RGK (RZ), 2015 WL 1809244, at *1 (C.D. Cal.

27

Apr. 14, 2015) (freestanding claim of actual innocence not cognizable on habeas).

28

////
13

1

Even assuming that freestanding actual innocence claims based on newly discovered evidence

2

can state a ground for federal habeas relief, a “‘habeas petitioner asserting a freestanding

3

innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively

4

prove that he is probably innocent.’” Jackson v. Calderon, 211 F.3d 1148, 1164 (9th Cir. 2000)

5

(quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)). Newly discovered evidence is a

6

ground for habeas corpus relief only when it bears on the constitutionality of an applicant's

7

conviction and would “probably produce an acquittal.” Swan v. Peterson, 6 F.3d 1373, 1384 (9th

8

Cir. 1993); see also Spivey v. Rocha, 194 F.3d 971 (9th Cir. 1999) (new evidence that witnesses

9

may have lied about whether shooting victims were armed did not undermine structure of

10

prosecution's case).

11

Thus, at a minimum, petitioner must show that the new evidence “would be sufficient to

12

establish by clear and convincing evidence that . . . no reasonable factfinder would have found

13

[him] guilty of the underlying offense.” West v. Ryan, 652 F.3d 1071, 1081 (9th Cir. 2011)

14

(internal quotations and citations omitted). Petitioner has not met this burden. As explained by

15

the Court of Appeal, petitioner shows only that the victim made one additional recantation. The

16

jury heard the victim’s other recantations during trial and defendant’s instruction to her not to

17

come to testify. In addition, the victim’s statement to police was not the only evidence

18

identifying petitioner as her assailant. The jury heard testimony that the day after the assault,

19

petitioner’s mother told officers, “It’s my son. I don’t know anything.” In addition, evidence at

20

petitioner’s mother’s house corroborated Dena’s testimony. The fact of one additional

21

recantation from a domestic violence victim is not the sort of clear and convincing evidence of

22

innocence required to establish “actual innocence.” For these reasons, petitioner’s claim of trial

23

court error in the denial of his motion for a new trial should be denied.

24

II.

Ineffective Assistance of Counsel Claims

25

Petitioner makes the following claims of ineffective assistance of trial counsel (1) Claims 2

26

and 3 - failure to investigate and present evidence; (2) Claim 4 - failure to request DNA testing of

27

a knife; (3) Claim 5 - failure to investigate and hire an expert regarding the victim’s psychiatric

28

disorders and other health problems; (4) Claim 7 - failure to research the law regarding the
14

1

sentencing enhancement; (5) Claim 8 - failure to conduct pre-trial investigation and urging

2

petitioner to go to trial; and (6) Claim 9 - failure to investigate (crime scene and police report),

3

call witnesses, hire a private investigator, and request photos. In addition, in claim 11, petitioner

4

argues that his appellate counsel failed to raise claims based on evidence petitioner provided him.

5
6

A. Applicable Legal Standards
To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1) his

7

counsel's performance was deficient and that (2) the “deficient performance prejudiced the

8

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel is constitutionally

9

deficient if his or her representation “fell below an objective standard of reasonableness” such

10

that it was outside “the range of competence demanded of attorneys in criminal cases.” Id. at

11

687–88 (internal quotation marks omitted). “Counsel's errors must be ‘so serious as to deprive

12

the defendant of a fair trial, a trial whose result is reliable.’” Harrington v. Richter, 562 U.S. 86,

13

101, 104 (2011) (quoting Strickland, 466 U.S. at 687).

14

A reviewing court is required to make every effort “to eliminate the distorting effects of

15

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

16

conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 669; see Richter, 562

17

U.S. at 107. Reviewing courts must also “indulge a strong presumption that counsel's conduct

18

falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

19

This presumption of reasonableness means that the court must “give the attorneys the benefit of

20

the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel

21

may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 195 (2011)

22

(internal quotation marks and alterations omitted).

23

Prejudice is found where “there is a reasonable probability that, but for counsel's

24

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

25

U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

26

outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”

27

Richter, 562 U.S. at 112. A reviewing court “need not determine whether counsel's performance

28

was deficient before examining the prejudice suffered by the defendant as a result of the alleged
15

1

deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of

2

sufficient prejudice . . . that course should be followed.” Pizzuto v. Arave, 280 F.3d 949, 955

3

(9th Cir. 2002) (quoting Strickland, 466 U.S. at 697), amended and superseded on other grounds,

4

385 F.3d 1247 (9th Cir. 2004); United States v. Ray, No. 2:11-cr-0216-MCE, 2016 WL 146177,

5

at *5 (E.D. Cal. Jan. 13, 2016) (citing Pizzuto, 280 F.3d at 954).

6
7
8
9

B. Ineffective Assistance of Trial Counsel
1.

Decision of the State Court

The state superior court issued a reasoned decision in its rejection of petitioner’s claims.
Because the Court of Appeal and California Supreme Court summarily rejected petitioner’s

10

claims, the decision of the superior court is the “last reasoned decision” of a state court and the

11

one considered here. See Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011).

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

To show ineffective assistance of counsel, petitioner must show that
counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. (Harris, supra,
5 Cal.4th at 832-833; Strickland v. Washington (1984) 466 U.S.
668, 687-688.) Generally, appellate counsel performs “properly and
competently when he or she exercises discretion and presents only
the strongest claims instead of every conceivable claim.” (In re
Robbins (1998) 18 Cal.4th 770, 810.) It is not a court’s duty to
second-guess counsel and great deference is given to an attorney’s
tactical decisions. (In re Avena (1996) 12 Cal.4th 694, 722.)
More importantly, the petitioner must show actual prejudice,
meaning that there is a reasonable probability that, but for the
attorney’s error(s), the result would have been different. (Strickland
v. Washington, supra, 466 U.S. at 694.) If no prejudice is
established, it is unnecessary to determine whether counsel’s
performance was deficient. (In re Fields (1990) 51 Cal.3d 1063,
1079.)
First, Petitioner makes several claims that counsel was ineffective
for failing to investigate and present evidence that undermined the
victim’s credibility. He alleges that his attorney should have fought
the court’s decision to exclude evidence of the victim’s December
13, 2010 arrest because evidence from that case was important to
show her ability to lie to police and the type of behavior of which
she was capable. Petitioner also claims that his attorney should have
retained an expert to review the victim’s mental health issues since
she suffered from conditions that might cause her to hallucinate or
make up stories. He further contends that his attorney should have
requested a DNA test on the knife allegedly used in the crime as he
believes the victim’s reported wound was actually the result of her
conducting her blood glucose tests on her hand. Lastly he argues
that his counsel erred in not introducing an arrest report from
16

1
2
3
4
5
6
7
8
9
10

Nevada, in which the victim accused the defendant of holding her
against her will. He claims the arrest report was imperative to refute
the prosecution’s theory that the victim later recanted her
accusations against him because she loved him. He also argues that
it would have shown that he was never formally charged with
kidnapping in Nevada following that arrest, which proves that the
victim makes false allegations against him.
However, petitioner fails to show that but for the purported errors
listed above, the outcome would have been different. During the
trial the jury heard evidence that the victim initially told law
enforcement that petitioner assaulted her and kidnapped her, that
she later recanted her story, and instead provided an ever-changing
account of the events in question and who was involved in each
version. Thus, the jury was presented with and considered evidence
raising questions regarding the victim’s credibility and what
happened, but ultimately made a finding of guilt. As such, he has
failed to show how this reportedly omitted evidence would have
changed those findings. Accordingly, there is no showing that these
errors were prejudicial.

11
12
13
14
15
16
17
18
19
20

Additionally, he claims his attorney erred in allowing his burglary
case to be tried separately following the domestic violence case.
The victim was arrested for a 2009 burglary and implicated
Petitioner as an accomplice. He alleges that had his attorney done a
thorough investigation on the burglary charges, counsel would have
found evidence showing that the victim fabricated accusations in
that case, too. Because the burglary case was trailed and later
dropped by the prosecution following his conviction in this case, he
claims he was deprived of the opportunity to present evidence
showing the victim [was] tried “to set me up.” But again, the jury
was already presented with ample evidence undermining the
victim’s credibility. Even if evidence from the burglary case proved
the victim was a liar, it would have been cumulative. Furthermore,
given that the pre-trial motions show that the prosecution indicated
that it would use evidence from the burglary case to show motive –
i.e. that the assault was done in retaliation for the victim implicating
him in that case – it was not unreasonable for Petitioner’s attorney
to move to have the burglary case tried separately and any evidence
from it excluded.

21
22
23
24
25
26
27
28

He also claims that his attorney was ineffective for failing to
properly investigate leads that he provided to him. This argument
also fails due to lack of prejudice. A petitioner alleging ineffective
assistance of counsel based on the failure to obtain favorable
evidence must show what evidence should or could have been
obtained and what effect it would have had. (People v. Geddees
(1991) 1 Cal.App.4th 448, 454.) Petitioner claims he told his
attorney about inconsistencies in the victim’s statements to police,
which counsel did not investigate or sufficiently point out at trial.
For example, he points out that the victim’s actions were
inconsistent with a kidnapping. The victim told police she did not
leave the car when they stopped for gas because he threatened to
hurt her daughter, but he argues that a real kidnapping victim in fear
for her life would have tried to escape and flag down help. Another
17

example he provides is the victim’s 250 pound size and that his
attorney never measured the closet to see if she fit in the closet that
Petitioner allegedly locked her in. However, the leads raised by
Petitioner are speculative and do not point unerringly to his
innocence.

1
2
3

As to petitioner’s claims that counsel failed to properly research the
law on enhancements, the appellate court struck the Penal Code
section 667.9 enhancement at issue. Accordingly, the claim is moot.

4
5
6

(Ex. B to Answ. (ECF No. 18) at 1-3.)
2.

7

Analysis of Petitioner’s Claims of Ineffective Assistance of Trial Counsel
a.

8

Failure to Investigate and Present Evidence

In his first two ineffective assistance of counsel claims, petitioner alleges trial counsel failed

9
10

to investigate and present evidence to challenge Dena’s credibility. First, petitioner alleges

11

counsel should have introduced a Nevada police report showing that on April 15, 2010, Dena told

12

police petitioner had kidnapped her and threatened her. (See FAP (ECF No. 8 at 56-58).)

13

According to petitioner, this evidence would have contradicted the prosecution’s theory that Dena

14

was changing her story only to exculpate him. And, because petitioner was never charged as a

15

result of the Nevada case, petitioner contends that would have shown other instances in which

16

Dena made false charges against him. However, the fact that petitioner was not charged in

17

Nevada does not establish that the charges were false. In fact, an argument could have been made

18

that a likely reason was that Dena, again, changed her story, and officials in Nevada decided not

19

to pursue the case. Further, the evidence could very well have been considered by the jury as

20

additional proof that plaintiff abused Dena. A decision not to present that evidence was not

21

unreasonable.
Second, plaintiff contends counsel should have made an effort to introduce evidence that on

22
23

December 13, 2010 Dena stabbed Blancy Adams. (See id. at 59-62.) Plaintiff contends the

24

evidence would “impeach Dena with moral turpitude” and establish that Dena did not appear for

25

trial because she was fleeing that arrest warrant. Plaintiff also contends Dena’s attempts to “look

26

innocent” after the stabbing could have been used by his attorney to show Dena could change her

27

appearance, and thus may have done so to convince people that petitioner had attacked her.

28

////
18

1

In the motion for a new trial, petitioner’s trial attorney argued that the trial court’s refusal to

2

permit the evidence of the stabbing of Blancy Adams was grounds for a new trial. The attorney

3

added a comment that, in the alternative, his failure to make a motion at trial challenging the trial

4

court’s ruling was ineffective assistance of counsel. (RT 525-26.) The court responded, “Go for

5

the incorrect ruling, because you at least raised the issue with the Court and counsel. And I told

6

you that I would not allow it.” (RT 526.) In other words, the trial court felt petitioner’s trial

7

attorney had properly raised the issue for the court’s consideration. Accordingly, petitioner’s

8

claim that counsel failed to raise the issue lacks a factual basis.

9
10

b. Failure to Have Knife Tested
Petitioner next contends his trial attorney erred when he failed to request DNA testing of the

11

knife Dena claimed petitioner used to cut her hand. (FAP (ECF No. 8 at 63-64).) Petitioner

12

states that he asked counsel to have the knife tested, and told him the cut on Dena’s hand could

13

have been one she inflicted to check her blood sugar level, but his trial attorney told him that the

14

judge would not grant such a motion. As support for this argument, petitioner presents an order

15

from the superior court granting petitioner’s request for appointment of an attorney to determine

16

whether a motion for DNA testing of the knife was appropriate. (Ex. J to FAP (ECF No. 8 at

17

204-208).) However, the court’s grant of the request was contingent upon the availability of

18

funding for habeas discovery under California Penal Code § 1405. Apparently, counsel was not

19

appointed, no motion was made, and the knife was never tested.

20

Petitioner does not explain what DNA testing might have shown that would have exculpated

21

him. The superior court’s contingent grant of funding for the appointment of an attorney simply

22

to determine whether a motion for DNA testing might be appropriate is a far cry from a holding

23

that DNA testing was, in fact, appropriate, nor does it say anything about what that DNA testing

24

might have shown. Petitioner fails to show any prejudice from the lack of DNA testing of the

25

knife.

26
27
28

c.

Failure to Present Evidence of Victim’s Health Problems

Petitioner next contends that his trial attorney should have hired an expert to testify about
Dena’s mental, emotional, and physical disorders. (FAP (ECF No. 8 at 65-68).) Primarily,
19

1

petitioner alleges Dena has mental health disorders that cause her to suffer from, among other

2

things, auditory and visual hallucinations, paranoia, and suicidal thoughts. He also contends

3

Dena had opiates and benzodiazepine in her system when she was tested at the hospital after the

4

assault. He argues these problems could have caused Dena to lie, and caused her to be itchy,

5

which resulted in the scratches to her face.

6

The jury did hear evidence at trial that Dena was taking a large number of medications at the

7

time of the assault. At the preliminary hearing, Dena testified that in 2009 she was taking about

8

60 different medications every day, a third of which were for mental disorders. (RT 211.) She

9

testified that those medications caused her to have memory problems. (Id.)

10

In addition, the jury heard evidence that the day after the assault, when she was in the

11

hospital, Dena did not appear to be having problems with memory or any other mental health

12

issues. The emergency room doctor who saw Dena when she was taken to the hospital conducted

13

a “standard” psychiatric exam. (RT 317.) She testified that Dena exhibited “normal judgement,”

14

nothing indicated she was hallucinating or that she was intoxicated by her pain medication. (RT

15

317, 320.) Officer Henderson interviewed Dena at the hospital. He found her to be “lucid” and

16

testified that she appeared to be “thinking clearly.” (RT 242.)

17

In the face of this evidence of Dena’s demeanor and mental status when she was seen at the

18

hospital immediately after the assault, petitioner fails to show a reasonable probability that

19

evidence of Dena’s health problems would have caused the jury to find Dena’s statements made

20

at that time to be unbelievable. The state court’s determination that petitioner failed to show

21

prejudice from any failure of counsel to present testimony regarding Dena’s health was not

22

contrary to or an unreasonable application of federal law or an unreasonable determination of the

23

facts.

24

d. Failure to Research the Law re Sentence Enhancement

25

Petitioner argues here that his trial attorney rendered ineffective assistance when he failed to

26

successfully defend against the charged sentencing enhancement for a developmentally disabled

27

victim. (FAP (ECF No. 8 at 71).) On appeal, the Court of Appeal struck the sentencing

28

enhancement as unsupported by sufficient evidence. See People v. Marks, No. C069757, 2013
20

1
2

WL 6327418, at *5 (Cal. Ct. App. 2013).
Petitioner contends that he was prejudiced at trial by the prosecution “painting a picture that

3

Dena was developmentally disabled.” However, petitioner fails to show what his trial attorney

4

should have done. Whether or not the jury concluded that Dena met the statutory definition of a

5

“developmentally disabled” victim, the jury would still have heard evidence about Dena’s various

6

disabilities, including her lack of one leg, diabetes, congestive heart failure, kidney failure,

7

asthma, heart attacks, and strokes. See id. Petitioner fails to show how his attorney acted

8

unreasonably or how any such conduct prejudiced him.

9

e.

Moving to Exclude Burglary Case

10

In claim 8, petitioner argues that had his lawyer investigated the burglary charge, he would

11

have concluded that Dena lied about petitioner’s involvement in that case. Therefore, he should

12

have sought to combine the two trials. (FAP (ECF No. 8 at 72-74).) According to petitioner, had

13

the jury heard evidence about the burglary charge, they would have known that Dena had a habit

14

of lying to implicate him. Petitioner also argues that the burglary case would have shown Dena’s

15

motive to lie about the assault. However, petitioner does not explain why this is so. In fact,

16

according to petitioner’s trial attorney’s motion to exclude evidence of the burglary case, the

17

prosecutor intended to use the burglary case, and Dena’s identification of petitioner as her co-

18

perpetrator in that case, to show that petitioner assaulted Dena in retaliation. (See CT 214-17.) A

19

reasonable attorney could certainly have determined that any possible benefit from allowing

20

evidence of the burglary case was outweighed by the potential for the prosecutor to argue it

21

provided a motive. Petitioner fails to show his attorney acted unreasonably.

22
23

f.

Failure to Investigate Crime Scene, Etc.

In claim 9, petitioner alleges his trial attorney failed to: (i) investigate by going to the crime

24

scene and by reading a police report, (ii) call witnesses, (iii) hire a private investigator, and (iv)

25

request photos. (FAP (ECF No. 8 at 75-79).) For the most part, petitioner fails to show what the

26

result would have been had counsel conformed to these expectations. Petitioner does not describe

27
28
21

1

the photos except to say they were of Dena and of the scene of the assault,3 explain what a private

2

investigator would have found, explain what testimony Robert Garcia, who was at petitioner’s

3

mother’s house, could give, or explain what any investigation into Dena’s story that Terry

4

Stevens assaulted her would have shown.
Therefore, petitioner fails to establish any prejudice as a result of his attorney’s failure to

5
6

conduct these investigations. To the extent petitioner claims his attorney should have made

7

additional arguments, those arguments are not evidence and many of petitioner’s points are points

8

a jury could have considered. For example, a jury would certainly have considered whether

9

Dena’s story about being afraid to flee because of petitioner’s threats to her daughter was

10

reasonable. Finally, petitioner’s argument that the attorney who represented him at the

11

preliminary hearing failed to accept a voicemail recording from his mother lacks prejudice

12

because that recording was played during trial.

13

C. Ineffective Assistance of Appellate Counsel

14

Petitioner argues his appellate counsel should have raised a number of issues which he raised

15

in his state habeas petitions, some of which are based on extra-record evidence. (FAP (ECF No.

16

8 at 83-84).)

17

1.

18

Petitioner claims his appellate counsel was deficient for refusing to
file an appeal on the grounds that the court wrongly excluded
evidence of the victim’s subsequent December 2010 arrest for an
unrelated crime, the verdict was contrary to the evidence, and in
regards to the victim’s absence at trial. He also contends that his
attorney refused to submit evidence that would prove his innocence.

19
20
21

Petitioner appears to misunderstand that an appeal is not an
opportunity to relitigate the case. Thus, it was proper for counsel to
decline presenting claims based on evidence outside the record. In

22
23
24
25
26
27
28

State Court Decision

3

Petitioner filed a “motion for an evidentiary hearing” here in August 2016. (ECF No. 24.)
Therein, petitioner stated that he had just received copies of these photos and they show a number
of things that could be considered contrary to Dena’s story to police. This court denied
petitioner’s motion as premature. (See ECF No. 27.) The court may not consider the evidence at
this juncture. It is clear from petitioner’s motion that this photo evidence was not presented to the
state court. As set out above, when considering whether petitioner meets one of the gateway
standards of 28 U.S.C. § 2254(d), this court is limited to the record that was before the state court.
Therefore, this court may not consider here petitioner’s allegations about this new evidence.
22

1

addition, it is proper for counsel to exercise discretion and present
“only the strongest claims instead of every conceivable claim.” (In
re Robbins, supra, 18 Cal 4th at 810.) Likewise, counsel is not
required to present claims without merit. Here, petitioner’s attorney
did file an appeal which included the arguments that there was
insufficient evidence to support one of the five counts, and that it
was improper to deny a new trial given the victim’s absence during
trial and sudden reappearance before judgment and sentencing.
Petitioner has not shown there were grounds to challenge the
sufficiency of the evidence supporting the other four counts. In
addition, as discussed above, the evidence from the victim’s arrest
for an unrelated crime was cumulative and petitioner has not shown
that its exclusion was prejudicial.

2
3
4
5
6
7
8

(Ex. B to Answ. (ECF No. 18) at 4.)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

2.

Analysis of Ineffective Assistance of Appellate Counsel Claim

In response to petitioner sending a package of materials to him, petitioner’s appellate lawyer
wrote petitioner to inform him that he could not raise those issues on appeal. (Ex. R to FAP (ECF
No. 8 at 325).) The state court agreed that petitioner’s claims involving extra-record evidence
could only be raised in a habeas petition. To the extent petitioner argues appellate counsel should
have raised the claims about the exclusion of evidence that Dena stabbed Blancy Adams and
confrontation clause issues, those claims were raised in his state habeas petition where they were
considered and rejected. Accordingly, petitioner cannot show prejudice from his appellate
attorney’s failure to raise them because he cannot show those issues would have been successful
on appeal. Petitioner’s claim of ineffective assistance of appellate counsel should be denied.
III.

Prosecutor’s Violation of Brady v. Maryland

Petitioner claims the prosecutor failed to disclose a video showing Dena and her teenage
daughter shoplifting merchandise from a store. (FAP (ECF No. 8 at 69-70).) Petitioner contends
the lack of this evidence was particularly prejudicial because the jury did not hear evidence that
Dena had committed other crimes, such as attempting to murder Blancy Adams.
A. Legal Standards
In Brady v. Maryland, the 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 to punishment, irrespective of the good faith or bad faith of the

28
23

1

prosecution.” 373 U.S. 83, 87 (1963); see also Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir.

2

2003). The duty to disclose such evidence is applicable even though there has been no request by

3

the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and encompasses impeachment

4

evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985).

5

A Brady violation may also occur when the government fails to turn over evidence that is

6

“known only to police investigators and not to the prosecutor.” Youngblood v. West Virginia,

7

547 U.S. 867, 870 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (2006)). “[T]he

8

individual prosecutor has a duty to learn of any favorable evidence known to the others acting on

9

the government's behalf in the case, including the police.” Kyles, 514 U.S. at 437. To prove a

10

Brady violation, a petitioner must show three things: “[t]he evidence at issue must be favorable

11

to the accused, either because it is exculpatory, or because it is impeaching; the evidence must

12

have been suppressed by the State, either willfully or inadvertently; and prejudice must have

13

ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Banks v. Dretke, 540 U.S.

14

668, 691 (2004); Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005).

15

A defendant is prejudiced by a Brady violation if the undisclosed evidence is material.

16

Strickler, 527 U.S. at 288-89. Evidence is material if “‘there is a reasonable probability’ that the

17

result of the trial would have been different if the suppressed documents had been disclosed to the

18

defense.” Id. at 289. “The question is not whether petitioner would more likely than not have

19

received a different verdict with the evidence, but whether “in its absence he received a fair trial,

20

understood as a trial resulting in a verdict worthy of confidence.” Id. (quoting Kyles, 514 U.S. at

21

434); see also Silva, 416 F.3d at 986 (“a Brady violation is established where there ‘the favorable

22

evidence could reasonably be taken to put the whole case in such a different light as to undermine

23

confidence in the verdict.’”) “Materiality pertains to the issue of guilt or innocence, and not to

24

the defendant's ability to prepare for trial.” Agurs, 427 U.S. at 112 n. 20. Once the materiality of

25

the suppressed evidence is established, no further harmless error analysis is required. Kyles, 514

26

U.S. at 435-36; Silva, 416 F.3d at 986. “When the government has suppressed material evidence

27

favorable to the defendant, the conviction must be set aside.” Silva, 416 F.3d at 986.

28

////
24

1

B. State Court Decision
Because this claim was raised in petitioner’s state habeas petitions, this court looks to the

2
3

superior court’s reasoned decision denying this claim.

4

The prosecution has the duty to disclose any material exculpatory
evidence to the defense. (Pen. Code, § 1054.1(e); Brady v.
Maryland (1963) 373 U.S. 83.) The failure to disclose Brady
evidence is only prejudicial if the evidence was “material” –
meaning that there is a reasonable probability of a different result.
(People v. Kasim (1997) 56 Cal.App.4th 1360, 1382.) Another
manner of evaluating the prejudice is whether the failure to disclose
undermined confidence in the verdict. (Kyles v. Whitley (1995) 514
U.S. 419, 434.)

5
6
7
8
9

Petitioner challenges that the prosecution failed to produce copies
of a surveillance video from July 15, 2010, which purportedly
showed the victim and her daughter shoplifting from a store. Again,
petitioner fails to show that this video footage was material or
exculpatory. He argues that this evidence would have shown that
the victim was not a trustworthy person, but the jury had already
been presented evidence of the inconsistencies in the victim’s story.
Evidence of an unrelated crime that occurred eight months after the
incident for which he was convicted would not add material new
facts to this case nor does it convincingly show that the petitioner
did not commit the crime.

10
11
12
13
14
15

(Ex. B to Answ. (ECF No. 18) at 4-5.)
16
C. Analysis of Brady Claim
17
Petitioner fails to show evidence of shoplifting would have materially impeached Dena. A
18
video showing that months after the assault Dena and her daughter may have stolen things from a
19
20

store bears no relevance to Dena’s story about the assault. Further, it would have done little to
impeach Dena’s general credibility given her differing stories of the assault. It cannot be said that

21
no fairminded jurist could find that the failure to provide the defense with video evidence that
22
Dena and her daughter shoplifted was not prejudicial.
23
IV.

Confrontation Clause Violation

24
Petitioner contends that his inability to cross-examine Dena at trial and prior to the denial of
25
his new trial motion violated his rights under the Confrontation Clause. (FAP (ECF No. 8 at 8026
82); Traverse (ECF No. 20) at 6.)
27
////
28
25

1
2

A. Legal Standards
The Sixth Amendment to the United States Constitution grants a criminal defendant the right

3

“to be confronted with the witnesses against him.” U.S. Const. amend. VI. “The ‘main and

4

essential purpose of confrontation is to secure for the opponent the opportunity of cross-

5

examination.’” Fenenbock v. Dir. of Corrs. for Calif., 692 F.3d 910, 919 (9th Cir. 2012) (quoting

6

Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)).

7

In 2004, the United States Supreme Court held that the Confrontation Clause bars the state

8

from introducing into evidence out-of-court statements which are “testimonial” in nature unless

9

the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness,

10

regardless of whether such statements are deemed reliable. Crawford v. Washington, 541 U.S. 36

11

(2004). The Crawford rule applies only to hearsay statements that are “testimonial” and does not

12

bar the admission of non-testimonial hearsay statements. Id. at 42, 51, 68; see also Whorton v.

13

Bockting, 549 U.S. 406, 420 (2007) (“[T]he Confrontation Clause has no application to” an “out-

14

of-court nontestimonial statement.”)

15

Confrontation Clause violations are subject to harmless error analysis. Whelchel v.

16

Washington, 232 F.3d 1197, 1205–06 (9th Cir. 2000). “In the context of habeas petitions, the

17

standard of review is whether a given error ‘had substantial and injurious effect or influence in

18

determining the jury's verdict.’” Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (quoting

19

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Factors to be considered when assessing the

20

harmlessness of a Confrontation Clause violation include the importance of the testimony,

21

whether the testimony was cumulative, the presence or absence of evidence corroborating or

22

contradicting the testimony, the extent of cross-examination permitted, and the overall strength of

23

the prosecution's case. Van Arsdall, 475 U.S. at 684.

24
25
26
27
28

B. State Court Decision
Petitioner raised this issue in his state habeas petitions. The superior court held that the claim
was procedurally barred because petitioner has already raised it on appeal.
Petitioner argues that his Sixth Amendment right to confront his
accusers was violated because he was not presented the opportunity
to cross-examine the victim during trial and the trial court did not
26

1

allow her to testify before issuing its ruling on the motion for new
trial.

2
Habeas corpus cannot serve as a substitute appeal. Issues that were
actually raised and litigated on appeal may not be revisited on
habeas corpus. (In re Terry (1971) 4 Cal.3d 911, 927; In re
Waltreus (1965) 62 Cal.2d 218, 225.) As petitioner raised these
same arguments in his appeal, they cannot be addressed through a
petition for writ of habeas corpus.

3
4
5
6

(Ex. B to Answ. (ECF No. 18) at 5.)

7
8
9
10
11
12
13
14

However, a review of petitioner’s state appellate briefs, the Court of Appeal’s decision, and
his petition for review to the California Supreme Court shows that petitioner did not raise a
Confrontation Clause issue in his appeal. Therefore, the superior court’s determination was
incorrect and no state court reviewed petitioner’s Confrontation Clause claim on its merits. In
this situation, this court cannot conduct a review of the state court decision under 28 U.S.C. §
2254(d) and must review petitioner’s claim de novo. See Stanley v. Cullen, 633 F.3d 852, 860
(9th Cir. 2011); Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333
F.3d 1052, 1056 (9th Cir. 2003).

15

C. Analysis of Confrontation Clause Claim

16
17
18
19
20
21
22
23
24
25
26
27

In his petition, it is not entirely clear what petitioner is challenging. However, in his traverse,
petitioner makes clear that he is alleging a violation of his Confrontation Clause rights both at
trial and with respect to his motion for a new trial. The superior court interpreted petitioner’s
claim as alleging these two issues. Yet, respondent addresses only petitioner’s argument that the
trial court should have allowed Dena to testify before ruling on the new trial motion. Respondent
argues that the Sixth Amendment right to confront witnesses is limited to a criminal prosecution.
According to respondent, petitioner’s argument that the trial judge should have allowed Dena’s
testimony in considering the motion for a new trial seeks a new rule of law, which would be
barred by Teague v. Lane, 489 U.S. 288 (1989). This court addresses both issues raised by
petitioner below.
////
////

28
27

1
2

1.

Violation of Right to Confront Accuser at Trial

As described above, under Crawford, testimonial hearsay is barred unless (1) the witness is

3

unavailable, and (2) the defendant had a prior opportunity to cross-examine the witness. 541 U.S.

4

at 59. Prior testimony at a preliminary hearing is considered testimonial hearsay. Id. at 68. As

5

explained by the Supreme Court, a finding of unavailability requires that “the prosecutorial

6

authorities have made a good-faith effort to obtain [the witness's] presence at trial.” Barber v.

7

Page, 390 U.S. 719, 725 (1968). If the effort was made in good-faith, then the next question is

8

whether the defendant had a prior opportunity to cross-examine the witness. The Supreme Court

9

has held that “the Confrontation Clause guarantees an opportunity for effective cross-

10

examination, not cross-examination that is effective in whatever way, and to whatever extent, the

11

defense might wish.” Van Arsdall, 475 U.S. at 679 (quoting Delaware v. Fensterer, 474 U.S. 15,

12

20 (1985) (per curiam)).

13

That a defendant was unable to impeach a witness with evidence that he obtained after the

14

preliminary hearing does not render the cross-examination ineffective for purposes of the

15

Confrontation Clause: the testimony the jury actually heard was fully subject to cross-

16

examination at the preliminary hearing. See Delgadillo v. Woodford, 527 F.3d 919, 926 (9th Cir.

17

2008) (testimony of unavailable witness given at a preliminary hearing was admissible at trial);

18

see also Perez v. McDonald, No. CV 11-5724-GHK (RNB), 2012 WL 1986294, at *13 (C.D. Cal.

19

Feb. 27, 2012) (“[I]n a number of post-Crawford cases, the Ninth Circuit has held that a state

20

court did not unreasonably apply clearly established Supreme Court law in rejecting a

21

Confrontation Clause claim directed to the admission of an unavailable witness's preliminary

22

hearing testimony.”) (citing, inter alia, Smith v. Harrison, 378 F. App’x 767 (9th Cir. 2010) and

23

Rust v. Hall, 346 F. App’x 163 (9th Cir. 2009)); O’Neal v. Province, 415 F. App’x 921 (10th Cir.

24

2011) (rejecting petitioner’s argument that a “preliminary hearing provides less of an opportunity

25

for cross-examination than [does] a trial”); cf. Blackwell v. Biter, No. CV 12-00624 MWF (RZ),

26

2012 WL 5989892, at *7-8 (C.D. Cal. Sept. 28, 2012) (cross-examination at preliminary hearing

27

need only be “adequate” to permit the resulting testimony to be used later if the witness is

28

unavailable), report and recom. adopted, 2012 WL 5989860 (C.D. Cal. Nov. 30, 2012).
28

1

In the present case, petitioner does not argue that the prosecution failed to make a good faith

2

effort to locate Dena. Rather, petitioner’s argument appears to focus largely on the simple fact

3

that the use of her preliminary hearing testimony violated his rights to confront her. Petitioner

4

does note that his attorney for the preliminary hearing had insufficient time to prepare and

5

therefore failed to thoroughly cross-examine Dena. However, petitioner raises just one specific

6

instances of this failure. He states that the attorney at the preliminary hearing attempted to

7

question Dena about her implication of petitioner in the burglary case. The court found those

8

questions irrelevant. It is unclear what petitioner finds unreasonable about counsel’s conduct

9

since, as discussed above, petitioner feels counsel should have attempted to bring up the burglary

10
11

charges during trial.
In any event, the Court in Crawford held that the defendant need only have had an

12

“opportunity” to cross-examine the unavailable witness. Petitioner had that opportunity. His

13

attorney at the preliminary hearing questioned Dena about the substantial number of medications

14

she was taking at the time she was assaulted (RT 210-11, 214), about her mental health diagnoses,

15

which included schizophrenia and bipolar disorder (RT 214), and about her jealousy of

16

petitioner’s relationship with his ex-wife (RT 214-15). Counsel had to walk a fine line at the

17

preliminary hearing, as counsel at trial would have had to do had Dena testified, of attempting to

18

show Dena’s story immediately following the assault was not believable but her story told at the

19

hearing was entitled to credence. The court finds no Confrontation Clause violation based on the

20

use of Dena’s preliminary hearing testimony at petitioner’s trial.

21
22

2.

Failure to Hear Dena’s Testimony on Motion for New Trial

Petitioner next argues the trial court violated his rights under the Confrontation Clause when

23

it declined to hear Dena’s testimony as part of its consideration of petitioner’s motion for a new

24

trial. Respondent argues that Sixth Amendment right to confront witnesses applies only to a

25

criminal trial. Therefore, respondent contends, petitioner seeks a “new rule” barred by Teague.

26

The non-retroactivity principle announced in Teague “prevents a federal court from granting

27

habeas corpus relief to a state prisoner based on a rule announced after his conviction and

28

sentence became final.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
29

1
2
3
4
5
6
7
8
9

“[A] case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became
final.” Teague, 489 U.S. at 301. In determining whether a state
prisoner is entitled to habeas relief, a federal court should apply
Teague by proceeding in three steps. First, the court must ascertain
the date on which the defendant's conviction and sentence became
final for Teague purposes. Second, the court must “[s]urve[y] the
legal landscape as it then existed,” Graham v. Collins, supra, 506
U.S. [461], at 468, 113 S.Ct. [892], at 898, and “determine whether
a state court considering [the defendant's] claim at the time his
conviction became final would have felt compelled by existing
precedent to conclude that the rule [he] seeks was required by the
Constitution,” Saffle v. Parks, 494 U.S. 484, 488 (1990). Finally,
even if the court determines that the defendant seeks the benefit of a
new rule, the court must decide whether that rule falls within one of
the two narrow exceptions to the nonretroactivity principle. See
Gilmore v. Taylor, 508 U.S. 333, 345 (1993).

10

Id. at 390; see also O'Dell v. Netherland, 521 U.S. 151, 157 (1997); Dyer v. Calderon, 151 F.3d

11

970, 989 (9th Cir. 1998). The two exceptions to Teague's non-retroactivity principle are: (1)

12

when the new rule forbids “punishment of certain primary conduct” or prohibits “a certain

13

category of punishment for a class of defendants because of their status or offense” or (2) the new

14

rule is a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy

15

of the criminal proceeding.” Beard v. Banks, 542 U.S. 406, 416–17 (2004) (quoting Penry v.

16

Lynaugh, 492 U.S. 302, 330 (1989)).

17

Petitioner provides no authority for the proposition that the trial court was required to hear

18

Dena’s testimony when it considered petitioner’s motion for a new trial. The Confrontation

19

Clause protects an “accused” by giving him the right in a “criminal prosecution” to “confront the

20

witnesses against him.” Crawford, 541 U.S. at 42. Petitioner’s trial had concluded. He was no

21

longer “accused;” he was convicted. The Supreme Court has stressed that the Confrontation

22

Clause right is a “trial right.” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). It “does not apply

23

to other court proceedings that are not part of the jury trial.” Penton v. Kernan, 528 F. Supp. 2d

24

1020, 1037 (S.D. Cal. 2007) (citing Ritchie, 480 U.S. at 52). In Penton, the court considered a

25

similar issue and held that petitioner Penton did “not have a right to confrontation at a post-

26

conviction new trial motion hearing because the right is a trial right.” Id.; see also Oken v.

27

Warden, MSP, 233 F.3d 86, 92-93 (1st Cir. 2000) (no Confrontation Clause right in post-

28

conviction proceedings).
30

1

Whether petitioner seeks the application of a new rule, or whether his claim simply fails on

2

its merits, this court finds petitioner’s claim that his Confrontation Clause rights were violated

3

when Dena was not permitted to testify during proceedings on the motion for a new trial should

4

be denied.

5

MOTION TO STAY CASE

6

In a document filed here on April 27, 2017, petitioner requested that this court stay

7

proceedings in this case pending his attempt to “resolve some issues with the state courts in

8

concerns of the photo evidence that this court would not consider and the issue with trying to get

9

the knife tested.” (ECF No. 28.) In his July 12, 2017 filings, petitioner indicates that he raised

10

those issues with the state courts and they were denied. (ECF No. 30.) As explained above,

11

petitioner states that the appeal concerned “evidence that my trial lawyer was ineffective for not

12

presenting and not having the knife tested that the alleged victim said I cut her with.” (Id. at 1.)

13

Attached to petitioner’s filing are copies of orders from California courts denying petitioner's

14

recent habeas petitions. (Id. at 4.) It thus appears that petitioner has had the opportunity he

15

requested to raise issues in state court. Accordingly, petitioner’s motion to stay the case should

16

be denied as moot.

17
18

REQUEST FOR APPOINTMENT OF COUNSEL
In his July 12 filings, petitioner also requests appointment of counsel. Petitioner states he has

19

little education and is “having trouble doing appeals and writs on my own and meet[ing] time

20

limits.” (ECF No. 29 at 1.) There currently exists no absolute right to appointment of counsel in

21

habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18

22

U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case “if the interests of

23

justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court

24

finds petitioner’s claims do not have merit. Therefore, the court does not find that the interests of

25

justice would be served by the appointment of counsel. Petitioner’s request will be denied.

26

REQUEST FOR EVIDENTIARY HEARING

27

Finally, petitioner again requests an evidentiary hearing. (ECF No. 29.) He states that he

28

should have an opportunity to present new evidence to challenge the victim’s credibility. As
31

1

petitioner was informed when the court denied a prior request for an evidentiary hearing, under

2

28 U.S.C. § 2254(d), this court may not consider evidence which has not been presented to the

3

state court when making a determination of whether the state court’s adjudication of the claim

4

“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

5

established Federal law” or “resulted in a decision that was based on an unreasonable determinate

6

of the facts.” See Cullen v. Pinholster, 563 U.S. 170, 182-83 (2011). Here, the court has

7

determined that petitioner does not satisfy the requirements of § 2254(d) for any claims.

8

Therefore, his request for an evidentiary hearing should be denied.

9

CONCLUSION

10

Petitioner has failed to establish that the decisions of the state courts rejecting his claims

11

were contrary to, or an unreasonable application of, clearly established federal law or were an

12

unreasonable interpretation of the facts. See 28 U.S.C. § 2254(d). Therefore, petitioner fails to

13

satisfy the requirements of § 2254(d).

14
15

Accordingly, IT IS HEREBY ORDERED that petitioner’s request for the appointment of
counsel (ECF No. 29) is denied; and

16

IT IS HEREBY RECOMMENDED that:

17

1.

18

2. Petitioner’s request for an evidentiary hearing (ECF No. 29) be denied; and

19

3.

Petitioner’s motion for a stay (ECF No. 28) be denied as moot;

Petitioner’s petition for a writ of habeas corpus be denied.

20

These findings and recommendations will be submitted to the United States District Judge

21

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

22

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

23

objections with the court and serve a copy on all parties. The document should be captioned

24

“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

25

objections shall be filed and served within seven days after service of the objections. The parties

26

are advised that failure to file objections within the specified time may result in waiver of the

27

right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the

28

objections, the party may address whether a certificate of appealability should issue in the event
32

1

an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the

2

district court must issue or deny a certificate of appealability when it enters a final order adverse

3

to the applicant).

4

Dated: August 11, 2017

5
6
7
8
9

DLB:9
DLB1/prisoner-habeas/mark0665.fr

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
33