Peeler v. Davey
Filing
40
MEMORANDUM AND DECISION signed by Senior Judge James K. Singleton on 07/15/19 DENYING Petition for Writ of Habeas Corpus; Court DELCINES to issue COA. CASE CLOSED (Benson, A.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BRICE ANTHONY PEELER,
No. 2:15-cv-02582-JKS
Petitioner,
MEMORANDUM DECISION
vs.
TAMMY FOSS, Acting Warden, Salinas
Valley State Prison,1
Respondent.
Brice Peeler, 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. Peeler is in the custody of the California
Department of Corrections and Rehabilitation and incarcerated at Salinas Valley State Prison.
Respondent has answered, and Peeler has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On March 20, 2014, Peeler was charged by second amended information with two counts
of assault on a peace officer with a semiautomatic firearm (Counts 1 and 2), evading a peace
officer while driving recklessly (Count 3), and being a felon in possession of firearm (Count 4).
The information alleged as to Counts 1 and 2 that Peeler personally used a firearm. The
information additionally alleged as enhancements that Peeler had suffered a prior serious felony
conviction for criminal threats, had suffered a prior strike conviction, and had served three prior
prison terms. Peeler pled not guilty, denied the allegations, and proceeded to a jury trial. On
1
Tammy Foss, Acting Warden, Salinas Valley State Prison, is substituted for Dave
Davey, former Warden, California State Prison-Corcoran. FED. R. CIV. P. 25(c).
direct appeal of his conviction, the California Court of Appeal laid out the following facts
underlying the charges against Peeler and the evidence presented at trial:
Sacramento County Sheriff’s Detective Kevin Reali testified he received a call
from Nevada County Sheriff’s Detective Bingham on September 14, 2012, asking for
help in serving a felony warrant on [Peeler]. Bingham told him [Peeler] might be armed
with a handgun. Five days later, Bingham called again and asked Reali to check a house
in the Antelope area of Sacramento. Reali saw a man leave the house, put something in
the trunk of a Volvo, and get in the driver’s seat. After a woman entered the Volvo, the
Volvo left, and Reali tried to reach Bingham, without success. Reali reached Detective
Jeff Martin, who asked him to check on a white panel van at a Walmart, because [Peeler]
was thought to use it to hide things. Martin testified he told Reali that multiple
informants had recently seen [Peeler] with “a handgun and/or a small assault style rifle”
and that he always carried those weapons with him. Reali saw the van, called back-up,
and when other officers arrived, Reali returned to the Antelope house.
Reali learned a team comprised of Nevada and Placer County officers had found
the Volvo in Orangevale, and went to discuss with those officers how to apprehend
[Peeler] safely, given that they understood he might be armed, and there were two
females in the Volvo, which was in motion. Reali entered Sergeant Gregory Coauette’s
unmarked Ford Expedition, “and we were maybe fifth or sixth . . . in the conga line, as
you might say, into following the Volvo away. . . .”
The Volvo turned into a parking lot and most of the “conga line” followed, but
Reali and Coauette remained on Greenback Lane, so that when the Volvo unexpectedly
left the parking lot, they were directly behind [Peeler] in the Ford. Coauette thought the
line of unmarked cars behind them was perhaps eight or nine vehicles long. The Volvo’s
occupants looked back at the cars following them, and accelerated suddenly. The officers
activated the Ford’s lights and siren and pursued [Peeler], who attempted to elude the
officers at high speed, running stop signs. When he stopped the Volvo, [Peeler] fled on
foot. Reali saw [Peeler] held a handgun; Coauette ducked because [Peeler] pointed his
gun over his shoulder, towards the officers, as he ran in front of their car. By the time
Reali was able to get out of the car, [Peeler] had reached a lawn and jumped over a fence.
To Reali, [Peeler] seemed to aim more towards Coauette. Coauette saw the gun “pointed
straight in the window at me.” “That handgun stayed on target [i.e., pointed at Coauette]
for quite a while.” Reali had feared he and Coauette would be shot. Although Reali
planned to shoot [Peeler] due to the risk he presented to the public and to the officers, by
the time he got out of the car, [Peeler] had made it to the fence.
A pistol was found in a tomato garden of a residential yard not far from where
[Peeler] was captured, after he repeatedly defied orders to stop. The chamber was clear,
as shown by moving the slide back, but the magazine was loaded. According to the
testimony, “All you had to do was pull back on the slide and it would load the next
cartridge [in the magazine].” The pistol, magazine, and cartridges from the magazine,
were introduced into evidence and shown to the jury. The gun was not fired, nor was an
effort made to chamber a round to see if it would jam.
2
A binder was found in the Volvo which contained pages listing different law
enforcement radio frequencies.
The parties stipulated [Peeler] was a convicted felon.
People v. Peeler, No. C076528, 2015 WL 1254623, at *1-2 (Cal. Ct. App. Mar. 17, 2015).
At the conclusion of the three-day trial, the jury found Peeler guilty on Counts 1, 3, and
4, and not guilty on Count 2. The jury also found true the firearm enhancement, and the trial
court found true the prior conviction and prior prison term enhancements. The trial court
subsequently sentenced Peeler to an aggregate determinant imprisonment term of 38 years and 8
months.
Through counsel, Peeler appealed his conviction. On appeal, Peeler: 1) sought review of
the materials reviewed in camera during his Pitchess hearing;2 2) contended that no substantial
evidence showed that the pistol he used was operable; and 3) argued that trial counsel was
ineffective because she conceded liability on one count and failed to promptly move to strike an
officer’s “gratuitous” testimony. The Court of Appeal unanimously affirmed the judgment
against Peeler in a reasoned, unpublished decision issued on March 17, 2015. Peeler, 2015 WL
1254623, at *4. The California Supreme Court summarily denied review on June 25, 2015.
Peeler then filed in the Sacramento County Superior Court a pro se petition for writ of
habeas corpus that raised 38 grounds for relief. The superior court denied the petition, finding
2
In Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), the California Supreme
Court recognized that a criminal defendant may, in some circumstances, compel the discovery of
evidence in the arresting law enforcement officer’s personnel file that is relevant to the
defendant’s ability to defend against a criminal charge. In 1978, the California Legislature
codified the privileges and procedures surrounding what had come to be known as a Pitchess
motion through the enactment of California Penal Code §§ 832.7 and 832.8 and California
Evidence Code §§ 1043 through 1045. People v. Mooc, 36 P.3d 21, 24 (Cal. 2001) (citations
omitted).
3
that the claims were largely raised on appeal or should have been raised on appeal, see In re
Dixon, 264 P.2d 513, 514 (Cal. 1953) (holding that habeas relief is unavailable if “the claimed
errors could have been, but were not, raised upon a timely appeal from a judgment of
conviction”), and the remainder of the claims lacked merit.
Peeler then raised those 38 claims in a pro se habeas petition in the Court of Appeal,
which Respondent opposed by way of informal response. The Court of Appeal denied the
petition without comment on September 15, 2016. The Supreme Court also summarily denied a
similar petition on December 14, 2016.
Peeler timely filed a pro se Petition for a Writ of Habeas Corpus to this Court about a
week later. Docket No. 1; see 28 U.S.C. § 2244(d)(1)(A). Briefing on the First Amended
Petition at Docket No. 22 (“Petition”) is now complete, and the case is before the undersigned
judge for adjudication.
II. GROUNDS RAISED
In his pro se Petition before this Court, Peeler raises the 38 claims he raised to the
California state courts on habeas review, namely that: 1) trial counsel rendered ineffective
assistance by failing to consult a handwriting expert in an attempt to show that a handwritten
radio frequency document did not belong to Peeler; 2) Peeler’s right to a fair trial was violated
when the trial court informed the jury that he was in custody; 3) the prosecutor engaged in
vindictive prosecution by amending the information to add a criminal charge after the
preliminary hearing was held; 4) the admission of hearsay testimony by several law enforcement
witnesses violated his rights to due process, a fair trial, and to confront the witnesses against
him; 5) trial counsel rendered ineffective assistance by failing to object to the admission of
4
hearsay evidence that law enforcement officers were aware of the possibility that Peeler
possessed one or more firearms; 6) the inclusion of peace officers as a sworn juror and an
alternate violated his rights to a fair trial and impartial jury; 7) trial counsel was ineffective for
allowing a peace officer to be impaneled as a juror; 8) trial counsel was ineffective for failing to
object to the court informing the jury that Peeler was in custody; 9) the admission of a
photograph of Peeler lying on the ground in handcuffs violated his right to a fair trial because it
depicted tattoos that were inherently prejudicial; 10) trial counsel was ineffective for failing to
object to the admission of the photograph; 11) trial counsel was ineffective for failing to object
to a statement that wig-wag lights are only available for law enforcement vehicles; 12/13/14) the
prosecutor committed misconduct by presenting false testimony; 15) his convictions were
obtained as a result of an illegal wiretap, and trial counsel was ineffective for failing to move to
suppress evidence that law enforcement tracked his cell phone using GPS without a warrant;
16/17) counsel was ineffective for failing to impeach law enforcement witnesses regarding
alleged inconsistencies in their testimony; 18/25) there was insufficient evidence that his firearm
was operable to support his assault on a peace officer with a semiautomatic firearm conviction
and the true finding on the firearm enhancement; 19) the trial judge was biased against him in
violation of his due process rights; 20) the imposition of a prior prison term enhancement was
improper under Proposition 47; 21) the trial court violated his right to a fair trial and the
presumption of innocence by informing the jury of his prior conviction; 22) trial counsel was
ineffective for failing to file a motion to sever the felon in possession of a firearm charge; 23)
appellate counsel was ineffective for failing to raise meritorious issues on appeal; 24) his Eighth
Amendment rights were violated when the trial court imposed excessive restitution without
5
considering his ability to pay; 26) trial counsel was ineffective for conceding guilt on the
evading charge; 27) trial counsel was ineffective for failing to object to prejudicial statements
during Detective Reali’s testimony; 28) the cumulative effect of the errors warranted reversal of
his conviction; 29) the prosecutor violated Brady3 by failing to investigate and prove that the
handwriting of the radio frequency documents was not his; 30) trial counsel was ineffective for
advising Peeler not to testify; 31) trial counsel was ineffective for failing to object to the court’s
failure to instruct the jury on lesser related offenses; 32) his sentence violated due process and
the constitutional prohibition against double jeopardy; 33) trial counsel was ineffective for
failing to file a Pitchess motion as to Sergeants Barnhart and Machado; 34) trial counsel was
ineffective for failing to object when the prosecutor allegedly gave his personal opinion in
summation that Peeler was guilty as charged; 35) appellate counsel was ineffective for failing to
raise prosecutorial misconduct on direct appeal; 36/38) trial counsel was ineffective for failing to
present the defenses of voluntary intoxication and entrapment; and 37) the admission of the
binder of law enforcement radio frequencies found in Peeler’s car violated the Confrontation
Clause.
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
3
Brady v. Maryland, 373 U.S. 83 (1962), and its progeny require the prosecution to
disclose material information that is “favorable to the accused, either because it is exculpatory,
or because it is impeaching.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
6
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
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).
7
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).
IV. DISCUSSION
A.
Procedural Bar
As an initial matter, Respondent urges the Court to find that a large number of Peeler’s
claims are procedurally defaulted from habeas review. 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
8
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).
The record reflects that Peeler raised Grounds 2-4, 6, 9, 15, 19, 21, 24, 29, 31, and 37 on
state habeas in the Sacramento County Superior Court, which found the claims to be barred
because they could have been, but were not, raised on direct appeal. See In re Dixon, 264 P.2d
513, 514 (Cal. 1953) (“The general rule is that habeas corpus cannot serve as a substitute for an
appeal, and, in the absence of special circumstances constitu[t]ing an excuse for failure to
employ that remedy, the writ will not lie where the claimed error could have been, but were not,
raised upon a timely appeal from a judgment of conviction.”); see also In re Seaton, 95 P.3d 896,
901 n.4 (Cal. 2004) (“What we mean when we invoke the Dixon bar is that the claim is based on
the appellate record, and thus was fully cognizable on appeal insofar as it was preserved at
trial.”). While the Ninth Circuit has not explicitly found that a Dixon default is an independent
and adequate state law ground, it has indicated that it is likely to do so with respect to the time
period at issue here. See Bennett v. Mueller, 322 F.3d 573, 580-86 (9th Cir. 2003) (suggesting in
dicta that Dixon rule would constitute an independent and adequate state-law ground when
applied after the California Supreme Court’s 1998 decision in In re Robbins, 959 P.2d 311 (Cal.
1998)); see also Flores v. Roe, 228 F. App’x 690, 691 (9th Cir. 2007) (finding claim
procedurally barred based on Dixon); cf. Park v. California, 202 F.3d 1146, 1152-53 (9th Cir.
2000) (holding that Dixon bar was not independent state law ground prior to Robbins). Some
courts in this district have accordingly concluded that habeas review is foreclosed when the
petitioner has failed to place the adequacy of the Dixon rule at issue and has not shown cause and
9
prejudice or that a miscarriage of justice would result if the claim were not heard. See, e.g.,
Stribling v. Grounds, No. 12-cv-3084, 2013 WL 5817668, at *4-5 (E.D. Cal. Oct. 29, 2013);
Cantrell v. Evans, No. 07-cv-1440, 2010 WL 1170063, at *13-14 (E.D. Cal. Mar. 24, 2010).
Likewise, Peeler raised Grounds 12-14 in the habeas petition in the Superior Court. The
court denied these claims for failure to state a prima facie case, with citation to People v. Duvall,
which requires that facts be stated fully and with particularity, and that documentary evidence
should be provided. 886 P.2d 1252, 1258 (Cal. 1995) (stating that habeas petitions “should both
(i) state fully and with particularity the facts on which relief is sought as well as (ii) include
copies of reasonably available documentary evidence supporting the claim, including pertinent
portions of trial transcripts and affidavits or declarations” (citations omitted)).
If a petition is dismissed for failure to state the facts with particularity—that is, with a
cite to In re Swain, 209 P.2d 793, 796 (Cal. 1949) (a California habeas petition must state “with
particularity the facts” upon which relief is sought)—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 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 Peeler to
file a new state petition remedying these defects. 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
10
particularity and thus did not signify that petitioner’s claims were procedurally barred as a matter
of state law).
It is unnecessary, however, for this Court to decide whether any procedural bar exists to
bar these claims here because, even assuming that such bar does not exist, as discussed below,
Peeler is not entitled to relief on the merits of any of his claims. See Lambrix v. Singletary, 520
U.S. 518, 525 (1997) (in the interest of judicial economy, the court may address a petition’s
merits without reaching procedural issues); cf. Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th
Cir. 2001) (declining “to reach the complex questions lurking in the time bar of the AEDPA”
where the district court “decided the case on the merits, and on the merits it was right as a matter
of law”).
B.
Merits
1.
Unfair Trial Claims (Grounds 2, 6, 19, 21)
Peeler first brings a number of claims based on an alleged deprivation of his
constitutional right to a fair trial. “Central to the right to a fair trial, guaranteed by the Sixth and
Fourteenth Amendments, is the principle that ‘one accused of a crime is entitled to have his guilt
or innocence determined solely on the basis of the evidence introduced at trial, and not on
grounds of official suspicion, indictment, continued custody, or other circumstances not adduced
as proof at trial.’” Holbrook v. Flynn, 475 U.S. 560, 567-68 (1986) (quoting Taylor v. Kentucky,
436 U.S. 478, 485 (1978)).
Peeler contends in Ground 2 that his right to a fair trial was violated when the trial court
informed the jury that he was in custody. The Clerk’s Transcript of the Record on Appeal
indicates that the trial court intended to inform the jury during voir dire that Peeler was in
11
custody, however, the voir dire examination is not part of the trial transcript included in the
record, despite Peeler’s ability to have it included. See Cal. R. Ct. 8.320(c)(3) (oral proceedings
of voir dire examination not typically included in the Reporter’s Transcript in normal Record of
Appeal), 8.324(b)(2)(A) (a defendant may nonetheless apply for the superior court to include the
voir dire examination in the record). The record is thus devoid of any of the court’s statements
to the jury about Peeler’s custodial status. This lack of evidentiary support is fatal to his claim.
Woodford v. Visciotti, 537 U.S. 19, 15 (2002) (per curiam) (holding that state habeas petitioner
carries the burden of proof).
In any event, even assuming that the trial court informed the jury during voir dire
examination that Peeler was in custody, Peeler can point to no clearly-established authority of
the U.S. Supreme Court holding that due process is violated by a trial court’s informing the jury
of a defendant’s custodial status. This case is unlike those in which the Supreme Court
recognized a “constant reminder” of a defendant’s custodial status, Estelle v. Williams, 425 U.S.
501, 504-05 (1976) (prison clothing), or the possibility of an adverse affect on the jury’s feelings
about a defendant and his dangerousness, Illinois v. Allen, 397 U.S. 337, 344 (1970) (shackles
and gags). Neither of these cases or their progeny clearly establish a right within the meaning of
AEDPA to have the jury remain ignorant of Peeler’s custodial status. In the absence of clearly
established Supreme Court law supporting his claim, Peeler cannot obtain federal habeas relief.
See Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (“it is not an unreasonable application of
clearly established Federal law for a state court to decline to apply a specific legal rule that has
not been squarely established by this Court”) (citations and internal quotations omitted); Wright
v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear answer to the
12
question presented, . . . it cannot be said that the state court unreasonably applied clearly
established Federal law”) (citation, internal brackets and quotations omitted).
Similarly, Peeler complains in Ground 21 that the trial court violated his right to a fair
trial and denied him of the presumption of innocence when it informed the jury of his prior
conviction. But the fact of Peeler having suffered a prior felony conviction was an element of
the charge that he unlawfully possessed a weapon in violation of CAL. PENAL CODE §
12021(a)(1) (felon in possession of a weapon), and, as such, was properly admitted. See Spencer
v. Texas, 385 U.S. 554, 558-69 (1967) (finding no due process violation when evidence of a prior
felony conviction was admitted to prove a necessary element of a crime and the jury received a
limiting instruction “that it should not consider the prior conviction as any evidence of the
defendant's guilt on the charge on which he was being tried”). In fact, Peeler stipulated that he
had suffered a prior felony conviction. Consequently, the jury was entitled to hear evidence
regarding Peeler’s prior felony conviction for the limited purpose of determining his guilt on this
charge.
Additionally, consistent with California law, the jury did not hear evidence regarding the
nature of Peeler’s prior offense. See People v. Cunningham, 25 P.3d 519 (Cal. 2001) (finding
that “although the jury is not entitled to learn the nature of the prior conviction, it must be
advised that defendant is an ex-felon where that is an element of a current charge” (citations and
internal quotation marks omitted)). The parties’ stipulation to this fact obviated the need for the
jury to evaluate evidence to determine if Peeler had suffered a felony conviction for purposes of
deciding his guilt or innocence as to that count. Thus, to the extent there was any risk of
prejudice to Peeler that the jury would misapply or misconstrue his status as a felon, that risk
13
was minimized. Given these circumstances, and in light of the express limitation in CALJIC No.
2.09 regarding the jury’s consideration of the evidence of Peeler’s prior conviction, the Court
concludes that Peeler’s rights to due process and a fair trial were not infringed by the information
regarding his felony conviction. See, e.g., Spencer, 385 U.S. at 558–69.
In Ground 6, Peeler next avers, without evidentiary support, that a peace officer was
sworn as a juror and another peace officer served as an alternate. The Sixth Amendment
guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. CONST.
AMEND. VI;
see Irvin v. Dowd, 366 U.S. 717, 722 (1961); Green v. White, 232 F.3d 671, 676 (9th
Cir. 2000). Due process requires that the defendant be tried by “a jury capable and willing to
decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982);
see also United States v. Plache, 913 F.2d 1375, 1377-78 (9th Cir. 1990). An impartial jury
consists of jurors who will conscientiously apply the law and find the facts. Lockhart v. McCree,
476 U.S. 162, 178 (1986).
Here, however, Peeler’s bare and conclusory allegation that the jury who convicted him
was not impartial is manifestly insufficient to warrant habeas corpus relief. Jones v. Gomez, 66
F.3d 199, 204–05 & n. 1 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). There is
simply no evidence in the record to support Peeler’s claim, and as noted above, Peeler did not
move to have the voir dire examination included in the record on appeal. Again, the lack of
evidentiary support is fatal to his claim. Woodford, 537 U.S. at 15.
Finally, Peeler claims in Ground 19 that the trial judge was biased against him. The
Supreme Court has recognized that “the right to an impartial judge [is] among those
‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless
14
error.’” Greenway v. Schriro, 653 F.3d 790, 805 (9th Cir. 2011) (quoting Chapman v.
California, 386 U.S. 18, 23 (1967)). Where judicial bias is claimed, habeas relief is limited to
circumstances in which the state trial judge’s behavior rendered the trial so fundamentally unfair
as to violate due process. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). To succeed
on a judicial bias claim, a habeas petitioner must “overcome a presumption of honesty and
integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975); Larson v.
Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008).
Peeler’s conclusory statements are insufficient, however, to demonstrate that the trial
judge was personally biased against him, engaged in misconduct, or otherwise deprived him of a
fundamentally fair proceeding. Peeler’s claims are largely based on the claimed errors raised in
Grounds 2, 4, 21, 24, and 32. The Ninth Circuit, however, has repeatedly recognized that
adverse rulings alone are insufficient to demonstrate judicial bias. Larson v. Palmateer, 515
F.3d 1057, 1067 (9th Cir. 1995); Taylor v. Regents of the Univ. of Cal., 993 F.2d 710, 712-13
(9th Cir. 1993); Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980). Accordingly, Peeler is
not entitled to relief on any argument advanced in support of these grounds.
2.
Prosecutorial Misconduct (Grounds 3, 12/13/14, 29)
Peeler next avers that the prosecutor committed misconduct in a variety of ways. First,
he alleges in Ground 3 that he was subject to vindictive prosecution. According to Peeler, the
prosecutor vindictively amended the information to add an additional count after Peeler filed a
complaint against the arresting agency. The superior court denied the claim on state habeas
review, concluding that Peeler “has not shown that the charges were made in apparent response
to Petitioner’s action. Instead, it appears that during the preliminary hearing, additional facts
15
were disclosed supporting the proposed amendment, which was filed shortly after the
preliminary hearing.”
Peeler fares no better on federal habeas review because, as the superior court reasonably
concluded, he has failed to demonstrate that the prosecutor’s decision to amend the information
with an additional count was motivated by actual vindictiveness. Peeler provides nothing but
speculation that the prosecutor amended the information solely to punish him for exercising his
right to file a complaint against the arresting agency.
Peeler has also failed to make a showing sufficient to raise a presumption of
vindictiveness or to overcome the presumption of prosecutorial regularity. First, the prosecutor’s
amendment was not a post-conviction action but rather a pretrial decision, which is
presumptively lawful. Cf. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“In our system, so
long as the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his discretion.”). Likewise, the circumstances
surrounding the amendment do not establish a likelihood of vindictiveness. Rather, the addition
of those charges appears to have been a proper exercise of prosecutorial discretion. See United
States v. Preciado-Gomez, 529 F.2d 935, 941 (9th Cir. 1976) (addition of new counts in a
superceding indictment referring to conduct occurring prior to first indictment which was
previously unknown or unproved by competent evidence is not vindictive prosecution).
Accordingly, Peeler’s claim of vindictive prosecution is unsupported in the record and does not
warrant habeas relief.
16
For the same reasons, Peeler fails to show that the prosecutor presented false testimony
by allowing three law enforcement witnesses to testify inconsistently with the reports each
witness had written (Grounds 12/13/14). “[T]he [Supreme] Court has consistently held that a
conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must
be set aside if there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes omitted). The
essential elements of such successful claim are that (1) the testimony is false or perjured, (2) the
prosecutor knew that the testimony was false or perjured, and (3) the false testimony was
material. Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc); see Napue v. Illinois,
360 U.S. 264, 269 (1959); Murtishaw v. Woodford, 255 F.3d 926, 959 (9th Cir. 2001).
Although the prosecutor has a duty to refrain from knowingly presenting perjured
testimony, United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002), the record does not
support Peeler’s contention that the prosecution knowingly introduced perjured testimony.
Indeed, Peeler has failed to show by way of admissible, competent evidence that any prosecution
witness perjured himself or herself at trial. As the superior court reasonably concluded on
habeas review:
Petitioner claims that Deputies Machado, Barnhart, and Reali testified falsely.
The only “evidence” to support his claims consists of copies of police reports that
apparently conflict with their trial testimony. However, their trial testimony is not
attached. Therefore, Petitioner has not shown that the testimony even conflicted with
their reports. Moreover, the reports were not made under oath. Consequently, while they
may have been inconsistent with the deputies’ trial testimony, the reports do not show
that any false testimony was introduced at trial.
As the Ninth Circuit has held, mere inconsistencies in the evidence do not establish the
knowing use of false testimony by the prosecutor. See United States v. Geston, 299 F.3d 1130,
17
1135 (9th Cir. 2002) (rejecting contention that the testimony of two prosecution witnesses
regarding officer’s use of a wooden, rather than metal, baton was false, even though some
physical evidence supported finding that a metal baton was used, because “at most, two
conflicting versions of the incident were presented to the jury”); United States v. Zuno-Arce, 44
F.3d 1420, 1423 (9th Cir. 1995) (fact that witnesses told stories that conflicted in various
respects did not establish that the prosecutor knew that the testimony of any of the witnesses was
false; and observing that “[l]awyers in criminal cases, for prosecution and defense, sometimes
swim in a sea of lies, and must necessarily trust the jury to determine what is true, or whether
reasonable doubt remains about what is true”). The assertedly-conflicting evidence on which
Peeler’s prosecutorial misconduct claim is predicated is insufficient to establish a Napue
violation, and Peeler’s claim must fail.
Peeler further argues in Ground 29 that the prosecutor violated Brady by failing to
disclose evidence that documents found in his vehicle were not his. Brady v. Maryland, 373
U.S. 83 (1962), and its progeny require the prosecution to disclose material information that is
“favorable to the accused, either because it is exculpatory, or because it is impeaching,” Strickler
v. Greene, 527 U.S. 263, 281-82 (1999). Peeler, however, fails to demonstrate that the
prosecution was in possession of and failed to disclose materially favorable information. The
record indicates that Peeler was aware that the radio frequency documents were found in his car,
and as the superior court correctly noted, the prosecution was not under any obligation to
investigate for Peeler whether the handwriting on the documents could have belonged to
someone else. Likewise, the superior court reasonably concluded that Peeler could not show that
the purported evidence was material under Brady: “even if the writings were made by someone
18
else, Petitioner could have had knowledge of the contents of the writing.” Peeler is thus not
entitled to relief on any of his prosecutorial misconduct claims.
3.
Evidentiary Errors (Grounds 4, 9, 17)
Peeler additionally avers that the trial court made a number of evidentiary errors. The
Supreme Court has made clear that federal habeas power does not allow granting relief on the
basis of a belief that the state trial court incorrectly interpreted the state evidence code in ruling
on the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). In this context, the Supreme Court has defined the
category of infractions that violate fundamental fairness very narrowly, limiting them to specific
guarantees enumerated in the bill of rights. Estelle, 502 U.S. at 73 (citing Dowling v. United
States, 493 U.S. 342, 352 (1990)). Indeed, the Supreme Court has acknowledged its “traditional
reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial
courts.” Crane v. Kentucky, 476 U.S. 683, 689 (1986). In criminal actions, “[t]he States are free
to provide such procedures as they choose, including rules of evidence, provided that none of
them infringes a guarantee in the Federal Constitution.” Burgett v. Texas, 389 U.S. 109, 113-14
(1967).
“The admission of evidence does not provide a basis for habeas relief unless it rendered
the trial fundamentally unfair in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930
(9th Cir. 1995) (citing Estelle, 502 U.S. at 67). Where a due process violation is alleged
stemming from an evidentiary challenge, federal courts review such alleged due process
violations for whether admission of certain evidence “so infected the entire trial that the resulting
19
conviction violates due process.” Estelle, 502 U.S. at 72. A habeas petitioner “bears a heavy
burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown,
404 F.3d 1159, 1172 (9th Cir.), as amended on reh’g, 421 F.3d 1154 (9th Cir. 2005). The
“[a]dmission of evidence violates due process only if there are no permissible inferences the jury
may draw from it.” Boyde, 404 F.3d at 1172 (quoting Jammal v. Van de Kamp, 926 F.2d 918,
919 (9th Cir. 1991)) (internal quotation marks omitted; emphasis in original); see also Holley v.
Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (noting that the Supreme Court has not made a
clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process
violation sufficient to warrant issuance of a writ of habeas corpus).
Peeler first complains that the admission of testimony of several law enforcement
witnesses that they had received information that Peeler was armed prior to contacting him
constituted hearsay that violated his constitutional rights to confrontation and a fair trial. 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). “‘Testimony,’ in turn, is typically a solemn
declaration or affirmation made for the purpose of establishing or proving some fact.”
20
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
ongoing emergency presumably lack the testimonial purpose that would subject them to
the requirement of confrontation.
21
131 S. Ct. at 1162.
In this case, Peeler cannot show that the testimony complained of by Peeler was admitted
for a hearsay purpose. Rather, the testimony that law enforcement had heard there was a warrant
for Peeler’s arrest and that he was armed and dangerous was offered as an explanation for the
conduct of law enforcement. Moreover, the evidence was provided to law enforcement for the
primary purpose of addressing an ongoing emergency. The trial court specifically instructed the
jury that the evidence was not to be considered for the truth of the matters asserted, and that it
was to be considered for the limited purpose of explaining the officers’ conduct. Thus, Peeler
cannot show that the Confrontation Clause was implicated by the admission of the testimony.
Peeler similarly argues that the admission into evidence of the binder of law enforcement
radio frequencies found in Peeler’s vehicle violated the Confrontation Clause (Ground 37). The
radio frequency documents, however, were not testimonial. There is simply no indication that
they were created under circumstances where the primary purpose was to establish or prove past
events potentially relevant to later criminal prosecution. Rather, the jury apparently agreed with
the prosecution that the binders were created (either by Peeler or an associate) for the purpose of
evading law enforcement. Peeler thus fails to show that their admission violated his right to
confrontation.
Nor can Peeler prevail on his challenge to the admission of a photograph showing him
handcuffed and lying on the ground (Ground 9), which the prosecution introduced to argue that
the person ultimately arrested by Sergeant Machado was the same person who had committed
the charged crimes, i.e., Peeler. “The Supreme Court has made very few rulings regarding the
admission of evidence as a violation of due process.” Holley, 568 F.3d at 1101 (9th Cir. 2009).
22
“Although the Court has been clear that a writ should be issued when constitutional errors have
rendered the trial fundamentally unfair, it has not yet made a clear ruling that admission of
irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant
issuance of the writ.” Id. (citing Williams, 529 U.S. at 375). Absent such “clearly established
Federal law,” it cannot be concluded that the appellate court’s ruling was an “unreasonable
application.” Carey, 549 U.S. at 77 (noting that, where the Supreme Court has not adequately
addressed a claim, a federal court cannot find a state court ruling unreasonable). Peeler is
therefore not entitled to relief on this claim either.
4.
Fourth Amendment Claim (Ground 15)
Peeler additionally contends that his convictions were obtained as a result of an illegal
wiretap in violation of the Fourth Amendment4 and California’s wiretap laws. His claim,
however, is not cognizable on federal habeas review because his arguments are precluded by the
Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 (1976). Under Stone, “where the
State has provided an opportunity for full and fair litigation of a Fourth Amendment claim,”
federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal
search or seizure was introduced at trial. The Stone v. Powell doctrine applies to all Fourth
Amendment claims, including claims of illegal stops, arrests, searches, or seizures based on less
4
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
23
than probable cause, and it applies regardless of the nature of the evidence sought to be
suppressed. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam).
The Ninth Circuit has made clear that all Stone requires is that the State provide a
petitioner the opportunity to litigate his Fourth Amendment claim. See Moormann v. Schiro, 426
F.3d 1044, 1053 (9th Cir. 2005). “The relevant inquiry is whether petitioner had the opportunity
to litigate his claim, not whether he did in fact do so or even whether the claim was correctly
decided.” Oritz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). California provides such
an opportunity, see CAL. PENAL CODE § 1538.5; Gordan v. Duran, 895 F.2d 610, 613-14 (9th
Cir. 1990), and thus Peeler’s Fourth Amendment claim is not cognizable here.
5.
Insufficiency of the Evidence (Grounds 18, 25)
Peeler next argues that there was insufficient evidence that his firearm was operable to
support his assault on a peace officer with a semiautomatic firearm conviction and the true
finding on the firearm enhancement. As articulated by the Supreme Court in Jackson, the federal
constitutional standard for sufficiency of the evidence is whether, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010)
(reaffirming this standard). This Court must therefore determine whether the California court
unreasonably applied Jackson. In making this determination, this Court may not usurp the role
of the finder of fact by considering how it would have resolved any conflicts in the evidence,
made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather,
when “faced with a record of historical facts that supports conflicting inferences,” this Court
24
“must presume–even if it does not affirmatively appear in the record–that the trier of fact
resolved any such conflicts in favor of the prosecution, and defer to that resolution.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).
Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system
is “that a state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the
state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be
accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith
v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).
Under Jackson, this Court’s role is simply to determine whether there is any evidence, if
accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513
U.S. 298, 330 (1995). The United States Supreme Court has recently even further limited a
federal court’s scope of review under Jackson, holding that “a reviewing court may set aside the
jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have
agreed with the jury.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Jackson “makes
clear that it is the responsibility of the jury—not the court—to decide what conclusions should
25
be drawn from evidence admitted at trial.” Cavazos, 132 S. Ct. at 3-4. Under Cavazos, “a
federal court may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court. The federal court
instead may do so only if the state court decision was ‘objectively unreasonable.’” Id. at 4
(quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
The Court of Appeal considered and rejected Peeler’s insufficiency of the evidence claim
on direct appeal as follows:
[Peeler] contends there was no evidence the pistol was operable, therefore no
substantial evidence supports his assault conviction because he lacked the “present
ability” to inflict injury. Although there was no direct evidence the gun was operable, the
pistol’s operability was shown by circumstantial evidence.
The trial court granted the People’s request for what was described as a
“pinpoint” instruction on assault with a firearm, as follows:
“Assault with a firearm does not require that the defendant actually shoot the
firearm or try to shoot the firearm. The test is whether the defendant
demonstrated the present ability to complete the attack. The present ability
element . . . is satisfied when a defendant has attained the means and location to
strike immediately, meaning that the defendant must have the ability to inflict
injury on the present occasion although the defendant need not have the ability to
inflict injury instantaneously.”
This instruction was based on People v. Chance (2008) 44 Cal.4th 1164. It
emphasizes the “present ability” element, which—as [Peeler] maintains—includes the
fact that a gun must be operable.
The prosecutor in this case argued: “This gun was ready to go. Rack a round in
and you're good.” During closing argument, defense counsel conceded the gun was a “a
semiautomatic handgun,” but argued no fingerprints or DNA were found on it or the
magazine, and suggested the officers were mistaken or lying about the gun, because of
testimonial discrepancies.
Based on the circumstances, namely, [Peeler’s] flight with the gun, his act of
pointing it at peace officers, the fact the magazine was loaded, and the fact that he
discarded it while fleeing, the evidence supports the jury’s implicit finding that he had
the “present ability” to cause harm by firing the gun. This is in accord with the many
cases holding that it may be inferred a gun is real and is loaded from a defendant’s
conduct with that gun. (See, e.g., People v. Rodriguez (1999) 20 Cal. 4th 1, 10–13, see
id. at p. 12 [“California courts have often held that a defendant's statements and behavior
26
while making an armed threat against a victim may warrant a jury's finding the weapon
was loaded”]; People v. Monjares (2008) 164 Cal. App. 4th 1432, 1435–1438
[reasonable to infer gun displayed during robbery was not a toy]; People v. Miceli (2002)
104 Cal. App. 4th 256, 268–269.)
As we observed 40 years ago: “[P]ointing an unloaded gun at another person with
no effort or threat to use it as a bludgeon, is not an assault with a deadly weapon.”
(People v. Orr (1974) 43 Cal. App. 3d 666, 672.) However, as we held long before that,
whether a gun is operable may be inferred from all of the circumstances, and need not be
shown by direct evidence. (See People v. Simpson (1933) 134 Cal. App. 646, 651–652.)
In Simpson, the trial court granted a new trial, believing that the fact a cartridge had not
been chambered in a repeating rifle with a loaded magazine meant there was no “present
ability” to cause harm, a proposition with which we pointedly disagreed: “It is
unreasonable to hold that a rifle is unloaded and that it is not susceptible of immediate
discharge under such circumstances. One may just as reasonably assert that a pistol with
an automatic revolving cylinder filled with loaded cartridges does not constitute a deadly
weapon, although the mere pressure of a finger upon the trigger releases a safety-pin and
adjusts a cartridge in position to be discharged. It is equally unreasonable to assert that
an assailant has not the present ability to commit a violent injury upon the person of
another by means of a sword or dagger because it is necessary to first withdraw the
weapon from a scabbard which hangs by his side.” (Simpson, at pp. 651–652.)
The testimony was that a pull of the slide would have loaded a round from the
magazine into the chamber. Direct evidence of operability was not required, nor did
[Peeler] attempt to produce any evidence the gun was inoperable, leaving the jury with
the unrebutted circumstantial evidence outlined above, specifically, [Peeler’s] bold
conduct with the gun, from which the jury could rationally infer the gun was operable.
Peeler, 2015 WL 1254623, at *2-3.
The appellate court’s holding is both reasonable and fully supported by the record. The
determination is also compliant with federal law, under which circumstantial evidence and
inferences drawn from the record may suffice to sustain a conviction. Walters v. Maass, 45 F.3d
1355, 1358 (9th Cir. 1995). Based on the record, this Court cannot conclude that the California
Court of Appeal’s rejection of Peeler’s insufficiency claim with respect to the handgun’s
operability was an objectively unreasonable application of Jackson. When the evidence is
viewed in the light most favorable to the prosecution, a rational trier of fact could have found
beyond a reasonable doubt the elements of assault with a firearm and the firearm enhancement.
27
See Juan H. v. Allen, 408 F.3d 1262, 1278 n.14 (9th Cir. 2005). Accordingly, the state court’s
rejection of Peeler’s claim was neither contrary to nor an unreasonable application of clearly
established federal law, and Peeler is therefore not entitled to habeas relief.
6.
Sentencing Errors (Grounds 20, 24, 32)
Peeler also contends that the trial court made a number of errors with respect to
sentencing. First, he claims that the imposition of a prior prison term was improper under
Proposition 47, which redesignated some serious, non-violent crimes as misdemeanors instead of
felonies and permitted resentencing for prisoners currently serving a sentence for any of the
offenses that the initiative reduced to misdemeanors. See Turner v. Richardson, No. 13-cv-454,
2016 WL 47445, at *1 (E.D. Cal. Jan. 5, 2016); CAL. PENAL CODE § 1170.18 (codifying
Proposition 47). Here, although Peeler labels his claims as federal “due process” and “equal
protection” claims, he has effectively asked this Court to find that a California state court erred
in interpreting and applying California state law. Such a claim is not cognizable in federal
habeas corpus. See, e.g., Myles v. Rackley, No. 16-cv-0278, 2016 WL 6298408, at *2 (E.D. Cal.
Oct. 27, 2016), Report and Recommendation adopted at 2016 WL 7212801 (E.D. Cal. Dec. 12,
2016) (rejecting Proposition 47 claims on ground that “[f]ederal habeas corpus relief is
unavailable for alleged errors in the interpretation or application of state sentencing laws by a
state court”); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“[A petitioner] may
not . . . transform a state-law issue into a federal one merely by asserting a violation of due
process.”). Peeler’s Proposition 47 claim therefore must fail.
His claim that the trial court erred in imposing restitution without considering his ability
to pay it (Ground 24) is likewise not cognizable here. A petition for a writ of habeas corpus can
28
be entertained only on the ground that the petitioner is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Ninth Circuit has
held that Ҥ 2254(a) does not confer jurisdiction over a habeas corpus petition raising an
in-custody challenge to a restitution order.” Bailey v. Hill, 599 F.3d 976, 984 (9th Cir. 2010)
(footnote omitted). “[T]he remedy that [Petitioner] seeks, the elimination or alteration of a
money judgment, does not directly impact—and is not directed at the source of the restraint
on—his liberty.” Id. at 981. A federal court, then, lacks jurisdiction to hear claims that
challenge the money portion of a state judgment, such as a restitution order, which does not
affect the duration of custody. Id.
In Ground 32, Peeler avers that his sentence violates due process and double jeopardy
principles because the terms imposed for enhancements exceed the base terms. The
constitutional guarantee of due process is fully applicable at sentencing. See Gardner v. Florida,
430 U.S. 349, 358 (1977). Likewise, the Double Jeopardy Clause of the Fifth Amendment states
that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. CONST. amend. V. The superior court rejected Peeler’s due process claim because he “d[id]
not explain how such a sentence is unconstitutional.” Peeler similarly does not provide such
explanation or support here. Moreover, the United States Supreme Court has ruled that the
Double Jeopardy Clause does not apply to sentencing enhancements, nor does it “extend[] to
noncapital sentencing proceedings” whatsoever. Monge v. California, 524 U.S. 721, 724 (1998);
United States v. Watts, 519 U.S. 148, 154 (1997) (per curiam); Witte v. United States, 515 U.S.
389, 398-99 (1995). Thus, Peeler’s enhancement claim does not state a claim upon which relief
could be granted.
29
7.
Instructional Error (Ground 31)
Peeler next argues that the trial court erred in failing to instruct the jury on the lesser
related offenses of drawing or exhibiting a firearm with the intent to resist or prevent arrest or
detention by a police officer. Because jury instructions in state trial are typically matters of state
law, federal courts are bound by a state appellate court’s determination that a jury instruction
was not warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that
the Supreme Court has repeatedly held that “a state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds a federal court sitting in
habeas corpus.”); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An
instructional error, therefore, “does not alone raise a ground cognizable in a federal habeas
proceeding.” Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).
A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990). The question is whether the instruction, when read in the context of the jury charges as a
whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471
U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary
that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the
law that jurors follow their instructions”); see Francis, 471 U.S. at 323-24 & n.9 (discussing the
subject in depth).
30
It is well-established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at
72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is
whether there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violates the constitution and that the category of infractions that violate “fundamental
fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.” Id. Where the defect is the
failure to give an instruction, the burden is even heavier because an omitted or incomplete
instruction is less likely to be prejudicial than an instruction that misstates the law. See
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
The United States Supreme Court has held that the failure to instruct on a lesser included
offense in a capital case is constitutional error if there was evidence to support the instruction.
Beck v. Alabama, 447 U.S. 625, 638 (1980). The Supreme Court, however, has not decided
whether to extend this rationale to non-capital cases. The Ninth Circuit, like several other
federal circuits, has declined to extend Beck to find constitutional error arising from the failure to
instruct on a lesser included offense in a non-capital case. See Solis v. Garcia, 219 F.3d 922,
929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (“[T]he failure of
a state trial court to instruct on lesser included offenses in a non-capital case does not present a
federal constitutional question.”); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (“Failure of
a state court to instruct on a lesser offense fails to present a federal constitutional question and
will not be considered in a federal habeas corpus proceeding.”). Accordingly, the decision of the
31
California courts denying Peeler relief as to this claim was not contrary to United States
Supreme Court authority as set forth in Beck.
Nevertheless, the Ninth Circuit has stated, without deciding, that “the refusal by a court
to instruct a jury on lesser included offenses, when those offenses are consistent with defendant’s
theory of the case, may constitute a cognizable habeas claim” under clearly established United
States Supreme Court precedent. Solis, 219 F.3d at 929.5 Here, however, Peeler’s defense was
that he did not possess a firearm of any kind. Thus, the now-requested lesser-included offense
instructions are inconsistent with his defense, and he is not entitled to relief on this claim either.
8.
Ineffective Assistance of Counsel (Grounds 1, 5, 7-8, 10, 11, 15-17, 22, 23, 26,
27, 30, 31, 33-38)
Peeler further alleges that trial counsel was ineffective in a variety of ways. To
demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must
show both that appellate 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.
5
A number of district courts in the Ninth Circuit, including this one, have
questioned whether the Ninth Circuit’s statement in Solis is required by the holdings of clearlyestablished Supreme Court authority. See, e.g., Garcia v. Sherman, No. 14-cv-00980, 2018 WL
347866, at *15 n.1 (E.D. Cal. Jan. 10, 2018) (explaining that subsequent Ninth Circuit cases
have cited Solis “for the absolute proposition that there is no clearly established federal
constitutional right to instructions on lesser-included offenses in non-capital cases); Chaidez v.
Knowles, 258 F. Supp. 2d 1069, 1096 n.15 (N.D. Cal. 2003) (suggesting that there is no clearly
established Supreme Court authority for the Solis proposition). As discussed above, however,
Peeler does not benefit from the Solis proposition in any event.
32
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. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin
v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective
assistance of counsel claims in a federal habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
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, Peeler must show that either his trial or appellate 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).
33
Peeler first raises a number of claims alleging that counsel was ineffective for failing to
object or remedy alleged errors identified above. But, as discussed supra, Peeler fails to
demonstrate any errors to which counsel should have objected or remedied. Accordingly,
Peeler’s accompanying ineffective assistance claims also must fail (Grounds 5, 7-8, 10, 15, 23,
27, 31, 34-35, 37). See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) (defense counsel’s
failure to raise a meritless argument or to take a futile action does not constitute ineffective
assistance of counsel).
Nor can Peeler prevail on his freestanding ineffective assistance claims. On direct
appeal, Peeler asserted (as he does in Ground 26 of the instant Petition) that counsel was
ineffective for conceding the evasion charge. The Court of Appeal considered and rejected this
claim as follows:
Before trial, defense counsel conceded to the trial court that she did not plan to
contest the evading charge, but would focus the defense on the firearm charges. During
opening statements, she argued the evidence would show [Peeler] was not guilty of
assaulting anybody. During an instructional conference, she declined any lesser offense
instructions as to the evading charge, conceding [Peeler] must have known the persons
chasing him were peace officers, and the trial court agreed “it is hard to imagine how any
reasonable juror could conclude . . . that [Peeler] would not have known at least that there
were officers behind him when you consider several minutes of lights and sirens” plus a
“caravan” or “surveillance which [was] more like Keystone Cops in some ways,” plus the
fact [Peeler] had lists of radio frequencies in his car. Defense counsel conceded the
point.
During closing argument, she explicitly conceded that during the pursuit, “at
some point” [Peeler] “knew that those were cops” and although this was not “the most
egregious felony evasion” “I can’t in good faith tell you that this wasn’t a felony evasion.
I think there was. I think it was pretty short.”
Detective Reali wore a black vest with gold lettering, four or five inches tall,
stating “sheriff” across the front, and he had a badge displayed on his gun belt. Sergeant
Coauette’s vest had “sheriff written in two-inch letters across the front” and his radio had
a “velcroed badge” on it. Reali testified that after [Peeler] left the shopping mall parking
lot, which itself may have been a counter-surveillance maneuver, his passengers and
possibly [Peeler] looked back at the unmarked Ford, therefore “we initiated our red lights
and blue lights, forward facing, and our siren and advised that we were in pursuit.”
34
Coauette saw the passengers looking back at them two or three times. [Peeler] responded
by speeding up, passing vehicles, driving unsafely, and running stop signs. When the
officers closed the distance, the passengers turned their heads and looked back as the
Ford’s lights were flashing and sirens were sounding.
Given this evidence, trial counsel could rationally conclude there was no purpose
in disputing the evading charge, and instead focus her efforts on defeating the more
serious charges of assault with a pistol upon a peace officer. In this connection we
observe that counsel’s tactic worked in part, because the jury acquitted [Peeler] of assault
upon Reali, as charged in count two, although it convicted him of the assault against
Coauette, as charged in count one.
“[C]andor may be the most effective tool available to counsel.” (People v.
Mayfield (1993) 5 Cal.4th 142, 177.) Counsel could rationally conclude that quibbling
about the evading charge would have undermined her credibility in front of the jury.
Peeler, 2015 WL 1254623, at *3-4.
The Court of Appeal’s determination is both reasonable and fully supported by the
record. For the reasons thoughtfully and persuasively articulated by the Court of Appeal, Peeler
is not entitled to federal habeas relief on this claim either.
Peeler’s claims raised and rejected on state habeas review are likewise without merit. In
Ground 1, he faults counsel for failing to consult a handwriting expert. The Ninth Circuit
remains sensitive to the issue of retaining and consulting with defense experts. See, e.g., Weeden
v. Johnson, 854 F.3d 1063, 1070-71 (9th Cir. 2017) (holding that trial counsel was deficient in
failing to seek psychological evaluation about effect of petitioner’s youth on her mental state);
Richter v. Hickman, 578 F.3d 944, 953-54 (9th Cir. 2009) (en banc) (trial counsel’s failure to
consult an expert in blood evidence constituted ineffective assistance), rev’d by Harrington v.
Richter, 562 U.S. 86 (2011). The cases finding ineffective assistance based on defense counsel’s
failure to consult with an expert or offer expert testimony appear to involve situations where the
prospective defense expert testimony would: 1) exonerate the defendant; 2) conflict with
powerful expert testimony offered by the Government; 3) significantly weaken adverse
35
Government expert testimony; and 4) aid in preparing defense counsel’s cross-examination of
the adverse Government expert testimony. Here, however, Peeler fails to show that a
handwriting expert who could opine on the obtained radio frequency document would be
beneficial to his case; as discussed infra in Ground 29, the superior court properly concluded that
“even if the writings were made by someone else, Petitioner could have had knowledge of the
contents of the writing.”
Peeler next avers that counsel was ineffective for failing to object to the prosecutor’s
statement that wig-wag lights could not be purchased by a civilian at a car dealership because
those lights are exclusively used by law enforcement (Ground 11). As discussed above,
however, it was reasonable for counsel to concede the evasion charge to more effectively attack
the more serious charges; as such, it would have made little sense to attack the prosecutor’s
statement about the lights. The state court’s rejection of Peeler’s case was thus neither contrary
to, nor an unreasonable application of, federal law.
In Grounds 16 and 17, Peeler contends that trial counsel was ineffective for failing to
impeach law enforcement witnesses with their police reports. But as the superior court
reasonably concluded on state habeas review, Peeler fails to show that the witnesses testified
inconsistently with their police reports, and the claims fail.
Peeler also argues in Ground 22 that trial counsel should have moved to sever the felon in
possession of a firearm count from the charges of assault on a peace officer with a semiautomatic
firearm and evading a peace officer while driving recklessly. However, the record supports the
state court’s determination that informing the jury of Peeler’s prior conviction would not be
unduly prejudicial when compared to the serious nature of the assault with a firearm and reckless
36
evasion charges and in light of the evidence that Peeler was wanted on a felony warrant
suspected by law enforcement to be armed and dangerous. In the absence of prejudice, such
severance motion would have been futile. See People v. Gomez, 29 Cal. Rptr. 2d 94, 97 (Cal. Ct.
App. 1994) (explaining that California has a “strong legislative policy in favor of joinder of
charges unless there is prejudice”). Trial counsel therefore cannot be faulted for choosing to
refrain from filing one.
In Ground 30, Peeler avers that counsel was ineffective for advising him not to testify. A
tactical decision exercised by counsel deserves deference when counsel makes an informed
decision based on strategic trial considerations and the decision appears reasonable under the
circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). On the other hand,
“it cannot be permissible trial strategy, regardless of the merits or otherwise, for counsel to
override the ultimate decision of a defendant to testify contrary to his advice,” United States v.
Mullins, 315 F.3d 449, 453 (9th Cir. 2002), because “a defendant in a criminal case has the right
to take the witness stand and testify in his or her own defense,” Rock v. Arkansas, 483 U.S. 44,
49 (1987). A defendant may, however, waive this right, either explicitly or implicitly. See
United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). Such a waiver may be
inferred from a defendant’s failure to testify at trial or to notify the trial court of his desire to
testify. See id. at 1094-1095. “Although the ultimate decision whether to testify rests with the
defendant, he is presumed to assent to his attorney’s tactical decision not to have him testify,”
unless he “reject[s] his attorney’s tactical decision by insisting on testifying, speaking to the
court, or discharging his lawyer.” United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993).
37
Here, Peeler has failed to demonstrate that counsel rendered prejudicially ineffective
assistance by advising him to waive his right to testify on his own behalf. The record does not
indicate that Peeler ever expressed to the trial court that he intended or desired to testify over
counsel’s objections or advice. While Peeler may now wish, with the benefit of hindsight, that
he had testified at trial, the record reflects that Peeler voluntarily waived that right. Peeler
therefore fails to demonstrate ineffective assistance of counsel with respect to that claim.
Peeler also contends that trial counsel should have filed additional Pitchess motions as to
Sergeants Barnhart and Machado (Ground 33). In Pitchess, the California Supreme Court held
that a criminal defendant is entitled to discover an officer’s personnel records if the information
contained in them is relevant to his ability to defend against the charge. Pitchess, 522 P.2d at
309. To obtain disclosure of police personnel records, a defendant must submit affidavits
establishing “good cause.” CAL. EVID. CODE § 1043(b)(3); Warrick v. Superior Court, 112 P.3d
2, 6 (Cal. 2005). Good cause exists when the defendant demonstrates (1) materiality of the
requested material to the subject matter of the pending action, and (2) a reasonable belief the
agency has the type of information sought. CAL. EVID. CODE § 1043(b)(3); Warrick, 112 P.3d at
10. If a defendant meets the requisite standard, the trial court conducts an in camera review of
the records to determine if they are relevant. See CAL. EVID. CODE § 1045. In this case, Peeler
fails to show what would have been discovered if counsel had filed a Pitchess motion. His bare
assertion that such motion would have uncovered evidence that was consistent with or relevant
to his defense is insufficient to warrant federal habeas relief. See Osumi v. Giurbino, 445 F.
Supp. 2d 1152, 1163 (C.D. Cal. 2006) (“petitioner’s mere speculation regarding evidence
possibly contained in the arresting officers’ personnel files is manifestly insufficient to
38
demonstrate petitioner was in any manner prejudiced by trial counsel not filing a Pitchess
motion”).
Peeler further faults counsel for failing to present voluntary intoxication and entrapment
defenses (Grounds 36, 38). There was, however, no evidence at trial to support either defense.
There simply was no evidence that Peeler’s conduct in attempting to avoid detection by law
enforcement was caused by drugs or intoxication. Moreover, voluntary intoxication is not a
defense to the general intent crimes of assault and felon in possession of a firearm. People v.
Williams, 29 P.3d 197, 204 (Cal. 2001); People v. Jeffers, 49 Cal. Rptr. 2d 86, 89 (Cal. Ct. App.
1996). Likewise, the evidence at trial indicated that Detective Reali and Sergeant Coauette were
wearing uniforms, flashing red and blue lights on their vehicle and sounding a siren as they
pursued Peeler; Peeler thus fails to show that entrapment was a viable defense. Peeler is thus not
entitled to relief on any of his ineffective assistance claims.
9.
Cumulative Error (Ground 28)
Finally, Peeler claims that the cumulative effect of the errors warrant reversal of his
conviction. The Ninth Circuit has stated “[t]he Supreme Court has clearly established that the
combined effect of multiple trial court errors violates due process where it renders the resulting
trial fundamentally unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing
Chambers v. Mississippi, 410 U.S. 284, 298 (1973)); see also Whelchel v. Washington, 232 F.3d
1197, 1212 (9th Cir. 2000). “Cumulative error applies where, although no single trial error
examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of
multiple errors has still prejudiced a defendant.” Jackson v. Brown, 513 F.3d 1057, 1085 (9th
Cir. 2008) (quoting Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000)). Where
39
“there are a number of errors at trial, ‘a balkanized, issue-by-issue harmless error review’ is far
less effective than analyzing the overall effect of all the errors in the context of the evidence
introduced at trial against the defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th
Cir. 1996) (quoting United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988)).
“While the combined effect of multiple errors may violate due process even when no
single error amounts to a constitutional violation or requires reversal, habeas relief is warranted
only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d 890, 896-97 (9th
Cir. 2011) (citing Chambers, 410 U.S. at 298, 302-03). Such “infection” occurs where the
combined effect of the errors had a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted). In other
words, where the combined effect of individually harmless errors renders a criminal defense “far
less persuasive than it might [otherwise] have been,” the resulting conviction violates due
process. See Chambers, 410 U.S. at 294.
As discussed throughout this opinion, Peeler does not demonstrate federal constitutional
errors that would establish prejudice in the aggregate. See, e.g., Hayes v. Ayers, 632 F.3d 500,
524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred,
no cumulative prejudice is possible.”). Peeler is therefore not entitled to relief on this claim.
V. CONCLUSION AND ORDER
Peeler 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.
40
IT IS FURTHER ORDERED THAT the Court declines to grant 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 directed to enter judgment accordingly.
Dated: July 15, 2019.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
41
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