Noble v. Adams

Filing 105

ORDER Denying Petitioner's Petition for Writ of Habeas Corpus by Judge Edward M. Chen. (emcsec, COURT STAFF) (Filed on 7/15/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WILBERT NOBLE,
Petitioner,

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ORDER DENYING PETITIONER’S
PETITION FOR WRIT OF HABEAS
CORPUS

v.

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DARREL G. ADAMS, et al.,

Docket No. 1

Respondents.

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United States District Court
Northern District of California

Case No. 06-cv-07114-EMC

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I.

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INTRODUCTION

Petitioner Wilbert Noble is a state prisoner serving 130 years to life in state prison. He

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filed a petition for a writ of habeas corpus under 28 U.S.C. section 2254. Docket No. 1 (“Pet.”).

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Following a remand from the Ninth Circuit, and with the leave from this Court, Mr. Noble

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supplemented his petition with additional claims. Docket No. 66 (“Supp. Pet.”). Mr. Noble

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thereafter filed motions requesting the following: (1) oral argument; (2) conditional discovery; (3)

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an evidentiary hearing; and/or (4) record expansion. See Docket Nos. 94, 95. Respondent Warden

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Stuart Sherman1 has responded to all Mr. Noble’s requests on the merits.

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For the reasons discussed below, this Court rules as follows:

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Mr. Noble’s request for oral argument is DENIED;

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Mr. Noble’s request for conditional discovery is DENIED;

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Mr. Noble’s request for an evidentiary hearing is DENIED;

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Mr. Noble’s request for record expansion is DENIED; and

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Mr. Sherman substituted in place of Darrel G. Adams as his successor. See Docket No. 82.

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Mr. Noble’s petition for writ of habeas corpus is DENIED.
II.

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A.

BACKGROUND

Procedural Background
On June 28, 2005, Mr. Noble filed his state court pro se petition for a writ of habeas corpus

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in Santa Clara superior court. Docket No. 16-3, Ex. 3. On July 21, 2005, the superior court

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denied relief. Docket No. 16-5 (superior court order). The Court of Appeal and the California

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Supreme Court both summarily denied his habeas appeal. Docket No. 16-11; Docket No. 16-14
Thereafter, on November 16, 2006, Mr. Noble sought collateral review in federal court.

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See Pet. The pro se petition raises the following claims for relief: (1) ineffective assistance of

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appellate counsel; (2) prosecution knowingly used false testimony; (3) newly-raised evidence

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United States District Court
Northern District of California

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demonstrates his innocence; (4) insufficient evidence to support conviction; (5) violation of

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Confrontation Clause; (6) expert testimony on Childhood Sexual Abuse Accommodation

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Syndrome (“CSAAS”) was improper; (7) Brady violation; (8) admission of Mr. Noble’s prior

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convictions violated due process and equal protection; (9) ineffective assistance of trial counsel;

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and (10) cumulative error.

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On December 18, 2007, Respondent moved to dismiss the petition as untimely. Docket

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No. 16. The district judge previously assigned to this petition granted that motion and dismissed

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the action as untimely on August 12, 2008. Docket No. 18. On April 20, 2012, the Ninth Circuit

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reversed and remanded to the district court to determine whether, under California law, Mr.

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Noble’s delay in filing his habeas petition was reasonable. Docket No. 31. Mr. Noble

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subsequently was appointed habeas counsel and filed his brief addressing the timeliness question

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on April 10, 2015. Docket No. 36. However, on June 15, 2015, Respondent filed an answer to the

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petition on the merits and waived the issue of timeliness. Docket No. 40.

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On December 4, 2015, Mr. Noble moved to stay the federal proceedings in order to

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exhaust further claims in state court. Docket No. 51. The district court granted the motion to stay

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on March 23, 2016. Docket No. 57. Thereafter, on April 22, 2016, Mr. Noble filed with the

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California Court of Appeal a motion to recall the remittitur2 or, in the alternative, petition for writ

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of habeas corpus to exhaust two claims that the newly-appointed habeas counsel identified during

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review of the record. Docket No. 65-3, Ex. A. The Court of Appeal denied the request, as did the

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California Supreme Court, thereby exhausting state remedies on Mr. Noble’s two additional

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claims.

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On April 27, 2018, after exhausting his supplemental claims in state court, Mr. Noble

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moved to lift the stay in order to file a supplemental habeas petition containing his additional

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claims. Docket No. 77. Following a reassignment of the matter, this Court lifted the stay and

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permitted Mr. Noble to amend his petition. Docket No. 80. Mr. Noble’s supplemental habeas
petition (which was concurrently filed with his motion to lift the stay on April 27, 2018) alleges a

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due process violation based on an amendment to the charging document before trial and

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ineffective assistance of appellate counsel. Docket No. 66. Respondent thereafter filed its

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supplemental answer to the new claims on February 27, 2019. Docket No. 85.
On July 8, 2019, Mr. Noble filed his traverse, which voluntarily dismissed claims one

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through four and claim eight from the original pro se petition. Docket No. 92. This left the

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following claims for habeas relief pending before this Court: (1) violation of Confrontation

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Clause; (2) improper expert testimony on CSAAS; (3) Brady violation; (4) ineffective assistance

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of trial counsel; (5) cumulative error; (6) due process violation regarding variance; and (7)

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ineffective assistance of appellate counsel. On July 22, 2019, Mr. Noble filed two motions

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requesting oral argument, conditional discovery, an evidentiary hearing, and/or record expansion.

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Docket Nos. 94, 95. Respondent objected to these requests and responded to new arguments

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raised in Mr. Noble’s traverse. Docket No. 99.

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B.

On June 28, 2005, Mr. Noble mailed his pro se petition for a writ of habeas corpus in state

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State Court Exhaustion

court. Docket No. 16-3, Ex. 3. On July 21, 2005, the superior court concluded that Mr. Noble’s

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California Rules of Court rule 8.272(c)(2) allows, for good cause, an appellate court to recall the
remittitur on its own or at a party’s motion, thereby reinvesting jurisdiction over the case in the
appellate court.
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petition failed to state a prima facie case for habeas relief and denied relief because the petition

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was only supported by self-serving declarations. Docket No. 16-5 (superior court order). The

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court emphasized that “[f]or an issue to be properly presented in the [] petitions[,] there is the

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requirement that a full prima facie case for relief exist.” Id. It then found that Mr. Noble had “not

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provided any evidence aside from his own opinion to support his allegations of misconduct or

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ineffective assistance.” Id. The Court of Appeal and the California Supreme Court both denied

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his habeas appeal in a single sentence. Docket No. 16-11 (“The petition for writ of habeas corpus

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is denied.”); Docket No. 16-14 (“Petition for writ of habeas corpus is DENIED.”). Thus, the

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superior court’s denial of Mr. Noble’s habeas petition is the “last reasoned decision” of the state

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court. Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991)
As to Mr. Noble’s two supplemental claims that he sought to recall the remittitur or habeas

United States District Court
Northern District of California

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relief alternatively, they were also summarily denied by the California appellate courts in one

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sentence. Docket No. 65-3, Exs. C, H.

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C.

The factual background pertaining to this petition was succinctly stated in the decision

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from the California Court of Appeal:

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In 2002, 13-year-old John Doe3 alternated living with his paternal
grandmother and mother during his sixth-grade school year.
Defendant was married to John's grandmother. John had known him
since he was seven years old. John began playing football in July
2002. The football season continued into the school year. All of the
acts of molestation occurred at the grandmother's apartment on
Camden Ave in San Jose.

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One day after football practice, John walked towards the kitchen of
his grandmother's house. Defendant was sitting in a chair near the
entrance to the kitchen. As John walked by the chair, defendant
pinched John's “butt.” Defendant asked John, “where are you going
to be when you go back out?” John felt uncomfortable and
embarrassed and thought he “would get in trouble” if he told
anyone.

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On another occasion, John came into the house after riding his bike.
As John walked through the living room to go to his bedroom,
defendant pinched John's “butt.” John went to his room, grabbed his
helmet because he was going to play football, and went outside.

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Factual Background

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To preserve the victim's anonymity we will refer to him as John Doe or John.
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John felt uncomfortable and scared. John did not tell anyone about
the incident since he thought he “was going to get in trouble because
[he] was supposed to tell somebody a long time ago before it
happened.”

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One weekend day, John was sitting on the couch watching the
movie “Good Burger.” He was wearing shorts and a T-shirt.
Defendant came out of his room and walked towards John.
Defendant bent down and grabbed John's penis over his clothes for a
“[c]ouple [of] seconds.” John felt uncomfortable and scared that
defendant might do it again. John went to his room, grabbed his
clothes, and went outside.

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On a different weekend day, John got out of the shower. He had
forgotten his towel in his bedroom. He picked up his clothes and
pulled the cord to his radio from the wall. When John opened the
bathroom door, he saw defendant bent over with his “butt” exposed.
Defendant grabbed John's arms at the wrist and pulled John towards
him. John tried to pull away, but was unable so to do because
defendant was too strong. As defendant pulled John toward him the
“top” of John's penis went into “the hole” in defendant's “butt” for
about 20 seconds. John thought that defendant was trying to have
sex with him. John kicked defendant in the leg and hit him on the
back. Defendant released John.

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On a weekday during football season, John was in his bedroom
getting ready for football practice. Defendant entered John's room
and pushed John onto the bed. John fell over backward onto the bed
and hit his head against the wall. Defendant pushed both of John's
hands above John's head. Defendant put his mouth on John's penis
for “some seconds.” John tried to push up with his hands, but
defendant was too strong. Defendant got up and left the room
without saying anything.

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On another occasion when John was getting ready for football
practice, defendant came into the room and pushed John onto the
bed. John fell and his face hit the bed. Defendant got on John's
back while he was holding John's bicep area. John tried to get up by
doing “a push-up but [he] couldn't” because defendant “weighed too
much.” John's grandmother came into the room, told defendant to
get off John, hit defendant a few times, and told him to pack his
things and get out. John's grandmother was upset and told John not
to tell anyone about what had happened.

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On January 14, 2002, a social worker interviewed John. John told
her that nothing had happened.4 Both John's mother and his
grandmother accompanied John to the interview.5 Defendant waited
in the car.

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Subsequently, John told his mother that defendant had touched him.

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At trial, John claimed that he had done so because his grandmother had told him before the
interview not to say anything.
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John was interviewed alone.
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She called the police. Detective Heather Randol interviewed John at
the Children's Interview Center. Randol arranged for John and his
mother to make a pretext phone call to defendant.

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The pretext phone call was taped. The transcript of the tape was
entered into evidence at trial and the tape was played for the jury.
During the call, defendant stated that he was “sorry about what had
happened, the way it happened.” John's mother asked defendant
why John's grandmother had “to punch [him] that day when [he
was] laying on [John's] butt.” Defendant replied, “We were playing
(inaudible), okay.” John's mother asked defendant if he did
“anything else besides put [his] mouth on [John's] penis.”
Defendant responded, “No, uh-huh. Absolutely not.” John spoke to
defendant. Defendant said to him, “You know, I'm sorry for
(inaudible).”

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Before trial, the defense filed a motion in limine seeking exclusion
of CSAAS evidence. Defense counsel contended that CSAAS
evidence should be excluded on Evidence Code section 352 grounds
and because it does not meet the requirements of the KellyFrye/Daubert test.6 Counsel argued that the proposed evidence was
unnecessary in this case since the expert was only being called
“basically to say that there can be inconsistencies and that
sometimes children don't report [molestation] right away.” The
court ruled that CSAAS was beyond the normal experience of the
jury and that it would allow the evidence.

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Following John's testimony at trial, the prosecution introduced into
evidence, over defense objection, the abstract of judgment from two
cases.7 In one case defendant was convicted of lewd and lascivious
acts on a niece, who was 10 years old at the time. In the other case,
defendant was convicted of oral copulation by force on an 18-yearold male, who was in defendant's care.8 The jury was instructed
with CALJIC No. 2.50.1 as follows: “Evidence has been introduced
for the purpose of showing that the defendant engaged in a sexual
offense on one or more occasions other than that charged in this
case. If you find that the defendant committed a prior sexual offense
you may, but you are not required to infer that the defendant had a
disposition to commit sexual offenses. If you find that the defendant
had this disposition you may but you are not required to infer that he
was likely to commit and did commit the crimes of which he is
accused. However, if you find by a preponderance of the evidence
that the defendant committed a prior sexual offense that is not
sufficient by itself to prove beyond a reasonable doubt that he
committed the charged crimes. The weight and significance of the

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People v. Kelly, 17 Cal. 3d 24 (1976); Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923);
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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Before trial, pursuant to Evidence Code section 1108, the prosecution sought to introduce
evidence of two sexual offenses committed by defendant. Defendant objected to the admission.
The trial court ruled that the prior convictions were admissible, but decided that the evidence
should be presented through the admission of the abstract of judgment for the prior convictions.
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The first incident occurred in July 1987. The second incident occurred in November 1992.
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evidence, if any, are for you to decide.”
Subsequently, the People called investigator Carl Lewis to testify.
Before he testified, the court admonished the jury with CALJIC No.
10.64 as follows: “Mr. Lewis will testify about Child Sexual Abuse
Accommodation Syndrome. This evidence is not received and must
not be considered by you as proof of the alleged victim's
molestation-excuse me-this evidence is not received and must not be
considered by you as proof that the alleged victim's molestation
claim is true.
“Child Sexual Abuse Accommodation research is based upon an
approach that is completely different from that which you must take
to this case. The syndrome research begins with the assumption that
a molestation has occurred and seeks to describe and explain
common reactions of children to that experience as distinguished
from that research approach. You are to assume that the defendant
is innocent.
“The People have the burden of proving guilt beyond a reasonable
doubt. You should consider the evidence concerning the syndrome
and its effect only for the limited purpose of showing if it does that
the alleged victim's reactions as demonstrated by the evidence are
not inconsistent with him having been molested.”
Lewis stated that he was a criminal investigator employed by the
Santa Clara County District Attorney's office. Primarily, he was
assigned to follow up child abuse case investigations. Beginning in
1984, he worked for the Alameda County Sheriff's Department and
for the police departments in Redwood City, Los Gatos and Half
Moon Bay.
In 1984, Lewis received 24 hours of training in investigating crimes
against children, “primarily sexual abuse against children for first
responders.” In 1992, he attended a 40-hour training course for
newly assigned investigators of sexual assault. From that point on,
he has built upon his training and experience and now has “probably
500 or more hours of classroom and seminar training primarily in
child sexual abuse investigation and aspects of child sexual abuse.”
Lewis testified that he had personally investigated 300 to 400 cases
of child sexual abuse. In addition to belonging to several
professional organizations relating to prosecution of child sexual
abuse, he was the acting coordinator of the Children's Interview
Center in Santa Clara County. In 1995, he began teaching classes
on child interviewing techniques to experienced police officers,
psychologists, deputy district attorneys, and mental health workers.
In addition to possessing an Associate in Science degree in the
administration of justice, Lewis testified that he was enrolled as a
senior at San Jose State University. Lewis testified that he had
qualified as an expert in CSAAS about 85 times in the “former
Municipal and Superior Courts of Santa Clara County, Superior
Court of Solano County, Superior Court of Monterey County, and in
the United States Federal District Court in San Jose.”
Lewis stated that he had not conducted any investigations in this
case. Nor had he interviewed witnesses or read any reports or
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transcripts. On voir dire, defense counsel established that Lewis
was not a medical doctor and did not have a doctoral degree,
master's degree or bachelor's degree in any field. He was not a
therapist, nor had he treated or counseled anyone for a psychological
syndrome.
Over defense objection, the trial court accepted Lewis as an expert
witness in CSAAS and the common reactions and traits of sexually
abused children.
Lewis described CSAAS as “a concept” that seeks to “put a
common language or terminology into some of [the] behaviors or
conditions that come up commonly in cases of child sexual abuse
and to offer an alternative explanation for them.”
Lewis explained that CSAAS came from the work of Dr. Roland
Summit, who operated a number of child sexual abuse treatment
centers in Southern California. CSAAS consists of five categories
of behaviors. The five categories are: (1) secrecy; (2) helplessness;
(3) entrapment and accommodation; (4) delayed, conflicted, and
unconvincing disclosure; and (5) retraction. Not all five categories
of behavior are present in every case of child sexual abuse.
Lewis detailed the five categories of CSAAS. “Secrecy describes
the fact that the sexual abuse of the child almost invariably occurs
when the offender is alone with the child, alone or isolated.” “The
fact that it's done in those circumstances, that is only when the
offender is alone with the child, can convey to the child's sense that
this is a secret, bad taboo in some way. And then the offender can
do things subtly and not so subtly to reinforce with the child that
that's a secret not to share with anyone.”
Helplessness refers to the fact that “[n]o child is ever able to resist
the sexual advances of an adult particularly a known or trusted
adult.” Furthermore, “[u]nlike an adult crime victim who we might
expect to immediately call 911 and give a full and complete
description to the police of the attacker and fully cooperate with the
prosecution, a child might let out information over time and not be
able to make a full and complete description. Part of the reasons for
that can be threats, promises, the child's own internal struggles,
maybe the child has a perception of the offender's relationship with a
non-offending caretaker, may not want to upset the child, may not
tell right away because he or she may feel they might get in trouble
and children aren't too likely to tell on themselves.”
The entrapment and accommodation category describes how
“[w]hen the child is enduring ongoing sexual abuse or even the
burden of carrying the secret from a one time incident . . . he or she
is trapped. And being trapped in that situation they have to find a
way to get by from day to day; that is, they have to accommodate.
They have to allow it to go on. [¶] Accommodate can also describe
how a child can accommodate, put up with or allow the sexual abuse
to continue.” “Depending on what the circumstances are, whether
it's a family or a classroom or a scout troop or a church, whatever
the community that the child is in happens to be-the child often
doesn't want to upset that. And they may have a sense that if he or
she says something or tries to stop the abuse then it may have
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greater impact than just whatever is that he or she is going to say.”
The fourth category—delayed, conflicted, and unconvincing
disclosure—“has three parts.” With regard to delay, “most sexual
abuse is never disclosed during childhood.” When it is disclosed in
childhood, “[i]t's not uncommon at all for there to be a delay.
Sometimes a significant delay between the last incident or the
beginning of the abuse until the time that it's reported.” A child's
statements about abuse may be conflicting: “[A] child might say
something at one point and at a later point in the investigation
process might say something that is not exactly the same as what he
or she said the first time.” Disclosure is often the result of a
triggering mechanism such as an argument or discipline. “[A] child
might come back with, well, the reason I came home drunk or the
reason I came home late or something like that is because he's been
molesting me. And when the child says that under the circumstances
it's usually seen as an attempt to shift blame for the child. The child
is trying to get out of the hot seat. He's trying to blame somebody
else for something.”
Lastly, with respect to retraction, disclosure of sexual abuse can set
off a series of events including the child's removal from the
household and family pressure. The child may believe that “the way
to fix that can be to say, well, I just made it up.”

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In addition, Lewis testified that “the research shows that a child is
more than three times as likely to be molested by someone he or she
has a relationship with.” Further, the term “grooming” refers to
actions taken by molesters to lower a child victim's inhibitions over
time. Such acts might include paying particular attention to the child
by taking him or her on special trips, doing special things for them
or giving them gifts or rewards.

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The Defense Case

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The defense offered two stipulations. First, that John spoke to social
worker Rebecca Menusah on January 14, 2002. Second, defendant
and his wife vacated the Camden Avenue apartment on March 10,
2002.

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The jury retired to deliberate on the afternoon of January 31, 2003.
Deliberations resumed on Monday February 3, 2003. By 4 p.m. on
that day the jury had reached a verdict.
People v. Noble, 2004 WL 248984, at *1–6 (Cal. Ct. App. Feb. 11, 2004) (footnotes in original).
The jury found Mr. Noble guilty of one count of aggravated sexual assault (forcible oral

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copulation) of a child under fourteen; three counts of lewd act on a child under fourteen; and false

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imprisonment. Id. at 1. Mr. Noble was acquitted of aggravated sexual assault (sodomy) on a child

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under fourteen. Id. On March 26, 2003, the trial court sentenced Mr. Noble to an indeterminate

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term of 120 years to life in state prison consecutive to ten years. Id.
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III.

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LEGAL STANDARD

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The Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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The Antiterrorism And Effective Death Penalty Act of 1996 (“AEDPA”) amended Section
2254 to impose new restrictions on federal habeas review. A petition may not be granted with

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respect to any claim that was adjudicated on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme Court

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of the United States; or (2) resulted in a decision that was based on an unreasonable determination

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of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

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2254(d)(1)–(2).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court

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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if

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the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if

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the state court identifies the correct governing legal principle from [the Supreme] Court’s

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decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because that court concludes in its

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

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erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A

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federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state

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court’s application of clearly established federal law was ‘objectively unreasonable.’” Id. at 409.

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The state-court decision to which Section 2254(d) applies is the “last reasoned decision” of

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the state court. See Ylst, 501 U.S. at 803–04. “When there has been one reasoned state judgment

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rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same

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claim rest upon the same ground.” Id. at 803.
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IV.

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A.

DISCUSSION

Request for Oral Argument, Leave to Propound Discovery, And An Evidentiary Hearing

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Or, Alternatively, for Record Expansion

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Mr. Noble requests oral argument pursuant to Habeas Local Rule 2254-8(a). Specifically,

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Mr. Noble seeks to address the following at oral argument: (1) Sixth Amendment claim; (2)

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ineffective assistance of appellate counsel claim; (3) Confrontation Clause claim; (4) cumulative

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prejudice claim; and (5) any other substantive or procedural issues this Court deems useful. Under

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Habeas Local Rule 2254-8(b), this Court has discretion to set oral argument “[w]ithin 30 days

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after an evidentiary hearing or within 30 days after the Court has denied a request for an
evidentiary hearing . . . .” Habeas L.R. 2254-8(b). Respondent does not expressly object to Mr.

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Noble’s request for oral argument.

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Mr. Noble also seeks conditional discovery for his Brady claim and his ineffective

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assistance of counsel claim. These two claims are based on Mr. Noble’s argument that the

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prosecution played an edited—and, thus, incomplete—version of a telephone call between the

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victim’s mother and Mr. Noble at trial. According to Mr. Noble, the full, unedited version

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contained exculpatory evidence. Specifically, Mr. Noble requests this Court to “order respondent

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(including the relevant prosecutors and law enforcement agencies) to produce the original pretext

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call recording, so that Noble may submit it for examination by an expert.” Docket No. 94

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(emphasis in original). Mr. Noble, however, presents no evidence that a full version of the call

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exists, much less contains exculpatory evidence other than his own uncorroborated declaration.

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Mr. Noble also requests an evidentiary hearing for his Brady claim, his ineffective

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assistance of counsel claim, and his claim for improper admission of CSAAS testimony.

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Alternatively, he requests an opportunity to expand the record on these claims. Respondent argues

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that Mr. Noble’s Confrontation Clause claim related to the pretext phone call is procedurally

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defaulted because it was raised for the first time in the state habeas petition—i.e., Mr. Noble failed

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to raise this argument on direct appeal. Docket No. 99.

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As explained in greater detail below, because there is no merit to the claims for which Mr.
Noble seeks an evidentiary hearing, discovery, or record expansion, the Court DENIES these
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requests. While Respondent does not oppose Mr. Noble’s request for oral argument, this Court

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finds that oral argument is not warranted because Mr. Noble has not demonstrated a prima facie

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case for habeas relief.

4

B.

Request for Writ of Habeas Corpus
Mr. Noble’s pro se petition and supplemental petition seek numerous grounds for habeas

5
6

relief. As indicated above, Mr. Noble voluntarily dismissed claims one through four and claim

7

eight from his pro se petition. The Court addresses each remaining claim below.

8

1.

Violation of Confrontation Clause (Claim Five)

9

At trial, the prosecution played a recorded telephone call between Mr. Noble and the
victim’s mother, Allison Richard. Docket No. 41-2 (“RT”) at 208–09. Mr. Noble’s trial counsel

11

United States District Court
Northern District of California

10

did not object to the prosecution playing the recording to the jury. Id. at 208. But because Ms.

12

Richard did not testify at trial, Mr. Noble now claims that the prosecution’s presentation of the

13

recorded call violated his right to confront the witness. Pet. at 56. Mr. Noble contends that the

14

recording occurred “at the police station for the production of testimony with sights set for trial.”

15

Id.

16

Respondent argues that Ms. Richard’s statements on the call were not testimonial under

17

Crawford v. Washington, 541 U.S. 36 (2004). Docket No. 40-1 (“Answer”) at 18. Specifically,

18

Respondent contends Ms. Richard’s statements were not testimonial because she did not make the

19

statements to law enforcement, and her statements were not offered for their truth, i.e., they were

20

made to give context to Mr. Noble’s statements. Id. Even if the statements were testimonial,

21

Respondent argues that the constitutional error was not prejudicial. Id. at 19. Lastly, in its

22

supplemental answer, Respondent argues that this claim was procedurally defaulted in state court,

23

which thereby precludes federal habeas review. Respondent did not raise this procedural-default

24

argument until after it filed its initial answer; Ninth Circuit precedent did not recognize the

25

procedural bar from federal habeas review at the time the initial answer was filed.

26

Respondent’s procedural-default argument has merit. Mr. Noble did not raise his

27

Confrontation Clause argument on direct appeal. Instead, the argument appeared for the first time

28

in Mr. Noble’s habeas petition in superior court. The state trial court denied the petition as
12

1

procedurally defaulted because it “could have been brought on direct appeal.” Docket No. 16-5

2

(superior court order) (citing In re Dixon, 41 Cal. 2d 56 (1953); In re Harris, 5 Cal. 4th 813

3

(1993)). The Supreme Court recently upheld California’s Dixon procedural bar to be an adequate

4

ground on which to preclude federal habeas review. Johnson v. Lee, 136 S. Ct. 1802, 1804

5

(2016). The Supreme Court upheld the procedural bar because it is regularly followed in

6

California and similar rules continue to be applied by other state courts across the country: “[t]he

7

general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is

8

barred from raising the claim on collateral review.” Id. at 1805 (quoting Sanchez–Llamas v.

9

Oregon, 548 U.S. 331, 350–51 (2006)).
In Mr. Noble’s traverse, he underscores that Respondent’s answer to his pro se habeas

11

United States District Court
Northern District of California

10

petition herein abstained from arguing that Claim 5 is procedurally barred. But Respondent’s

12

failure to raise the procedural-bar argument in its initial answer is excusable because at the time of

13

Respondent’s initial answer in 2015, the law in the Ninth Circuit was that the Dixon bar did not

14

preclude federal habeas review. See Lee v. Jacquez, 788 F.3d 1124 (9th Cir. 2015), rev'd sub nom.

15

Johnson v. Lee, 136 S. Ct. 1802 (2016). Accordingly, Respondent’s argument is therefore

16

properly before this Court.

17

To avoid the procedural bar, Mr. Noble argues that the state court’s denial of his petition

18

was ambiguous as to whether it applied to the Confrontation Clause claim. Docket No. 92

19

(“Traverse”) at 31. While it is true that the denial was short (i.e., two pages), the decision clearly

20

laid out which claims were before the court, and it concluded that “several of petitioner’s claims

21

were or could have been brought on direct appeal. Therefore, they are not properly raised in the

22

present petition.” Docket No. 16-5. Mr. Noble contends that the state court’s use of the word

23

“several” was ambiguous because it does not list the claims that the court deemed to be

24

procedurally barred. But the context of the superior court’s decision is clear. The court had the

25

benefit of a record before it, which included the Court of Appeal decision resulting from Mr.

26

Noble’s direct appeal in which he only raised two issues—e.g., admission of CSAAS evidence and

27

admission of prior sex offenses as improper character evidence. Noble, 2004 WL 248984, at *1.

28

The most reasonable reading, thus, is that the superior court concluded any newly-raised, record13

1

based claim other than the two claims brought on direct appeal were procedurally barred. Other

2

than Mr. Noble’s Confrontation Clause and insufficiency of the evidence arguments, the

3

remaining claims were rejected on the merits by the state court. Docket No. 16-4 (“As for

4

petitioner’s remaining claims, petition has failed to raise a prima facie case for relief.”).
The Ninth Circuit case on which Mr. Noble relies, Calderon v. U.S. Dist. Court for E. Dist.

5
6

of California, 96 F.3d 1126, 1131 (9th Cir. 1996), is of no help. In Calderon, the court found that

7

the California Supreme Court’s denial of thirty-nine claims that were procedurally barred because

8

“they were or could have been but were not raised on appeal or were waived by failure to preserve

9

them at trial” was ambiguous. Id. at 1128. However, the ambiguity did not stem from the fact that
the state court failed to itemize which claims it denied; instead, the confusion was whether the

11

United States District Court
Northern District of California

10

state court denied it under the Dixon rule or under the Waltreus rule9 because both were at issue.

12

Id. at 1131 (“We need not resolve the[Dixon] issue here, however, since the California Supreme

13

Court's order provides no basis upon which to apply the Dixon rule, if adequate, to Bean's claims.

14

The order, which we agree with the district court is ambiguous, does not specify which of Bean's

15

thirty-nine claims the court rejected under Waltreus, and which it rejected under Harris /Dixon.”).
Here, there is no competing procedural-bar theory on which the state court relied—it was

16
17

only the Dixon rule. Cf. Valerio v. Crawford, 306 F.3d 742, 774 (9th Cir. 2002) (en banc) (finding

18

the lack of distinguishing between Dixon and Waltreus when barring habeas relief rendered the

19

denial ambiguous). Accordingly, this Court will not consider Mr. Noble’s Confrontation Clause

20

claim because it is procedurally barred from federal habeas review under Dixon.10

21

2.

Expert Testimony on CSAAS (Claim Six)

22

At trial, the judge overruled Mr. Noble’s motion in limine and permitted the prosecution to

23
24
25
26
27
28

“California's Waltreus rule provides that ‘any issue that was actually raised and rejected on
appeal cannot be renewed in a petition for a writ of habeas corpus.’” Calderon, 96 F.3d at 1131
(quoting In re Waltreus, 62 Cal.2d 218, cert. denied, 382 U.S. 853 (1965)).
9

10

Even if it did, the Court has grave doubts about the merits of this claim given the statements by
Ms. Richard on the call appear to have been admitted for context and were not testimonial under
the Sixth Amendment. See Crawford, 541 U.S. at 59, n. 9 (citing Tennessee v. Street, 471 U.S.
409, 414 (1985) (“The [Confrontation] Clause [] does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.”).
14

1

introduce testimony from an expert witness, Carl Lewis, on CSAAS. Prior to Mr. Lewis’s

2

testimony, the trial judge instructed the jury that the testimony from Mr. Lewis could only be used

3

for assessing the victim’s credibility and not to prove whether or not Mr. Noble committed the

4

charges against him. Mr. Noble maintains that the trial court erred by (1) permitting the CSAAS

5

evidence because the expert was not qualified and (2) failing to require the prosecution to limit

6

Mr. Lewis’s testimony to the theories of CSAAS. Pet. at 65.

7

On direct appeal, the Court of Appeal expressly rejected both of Mr. Noble’s arguments. It

8

found that “[t]he necessity for this type of evidence arises when the victim's credibility is attacked

9

by a defendant's suggestion that the victim's conduct after the incident, e.g., a delay in reporting, is
inconsistent with his or her testimony claiming molestation” and that “the [California] Supreme

11

United States District Court
Northern District of California

10

Court has acknowledged that this type of evidence is admissible for this purpose.” Noble, 2004

12

WL 248984, at *6 (citing People v. Gilbert, 5 Cal. App. 4th 1372, 1383 (1992); People v.

13

Humphrey, 13 Cal. 4th 1073, 1088 (1996)). At trial, the victim testified that he did not

14

immediately report the sexual abuse because he was “ashamed and afraid,” which resulted in him

15

initially denying the molestation by Mr. Noble in an interview. Id. at 7. Because of this, Mr.

16

Noble challenged the victim’s credibility on cross-examination. Id. Such credibility challenge

17

opened the door to the use of CSAAS evidence, which Mr. Noble conceded. Id. (“[Mr. Noble]

18

concedes that CSAAS evidence ‘may have been admissible’ for the limited purpose of explaining

19

[the victim’s] “delayed disclosure of the molestations.”). The trial court instructed the jury

20

regarding the permissible use of CSAAS testimony. Id.

21

The Court of Appeal rejected the argument that the trial court’s failure to tailor the CSAAS

22

evidence to exclude certain allegedly inflammatory information—e.g., grooming, retraction, and

23

that there is a greater likelihood that a minor would be molested by someone with whom he or she

24

had a relationship—because it was harmless error. Id. Regarding Mr. Noble’s argument as to Mr.

25

Lewis’s qualifications, the Court of Appeal held there were no misrepresentations about his

26

qualifications, and that any argument about credentials goes towards the weight of the testimony,

27

rather than its admissibility. Id. at 9. Thus, the Court of Appeal concluded that the trial court did

28

not abuse its discretion on both arguments. Id.
15

1

Mr. Noble reasserts these two claims before this Court in his current habeas petition.

2

Respondent contends that habeas review precludes a determination on whether the trial judge

3

abused his or her discretion under state law. Answer at 22–23. Moreover, Respondent argues that

4

Brodit v. Cambra, 350 F.3d 985 (9th Cir. 2003) forecloses Mr. Noble’s argument that admission

5

of CSAAS evidence violates due process. Id. at 23. Lastly, Respondent submits that any error

6

was not prejudicial.

7

With regard to the admissibility of Mr. Lewis’s testimony, in Estelle v. McGuire, the

8

Supreme Court held that a federal court's habeas review of a state conviction generally does not

9

inquire into the admission of evidence under state evidentiary law. Estelle v. McGuire, 502 U.S.
62, 67 (1991). Specifically, the Court “reemphasize[d] that it is not the province of a federal

11

United States District Court
Northern District of California

10

habeas court to reexamine state-court determinations on state-law questions. In conducting habeas

12

review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,

13

or treaties of the United States.” Id. at 68. Accordingly, this Court finds that it is precluded from

14

reviewing the proper or improper admission of CSAAS evidence under California law. The only

15

review this Court can conduct is whether such admission was unconstitutional.

16

In 2003, the Ninth Circuit expressly held that there was no clearly-established Supreme

17

Court precedent that spoke to the constitutionality of CSAAS evidence. Brodit, 350 F.3d at 991.

18

Following Brodit, Mr. Noble has not cited, and this Court has not found, any Supreme Court

19

authority concluding that admitting such evidence violates due process. Mr. Noble attempts to

20

distinguish Brodit by arguing that its holding was simply a rejection of a broad categorical

21

challenge to the admissibility of CSAAS testimony, which, according to him, does not foreclose

22

his narrowly-tailored arguments about Mr. Lewis’s lack of qualifications and the scope of such

23

testimony. Traverse at 38. But Brodit noted the heightened standard for relief that generally

24

governs the circumstances presented here—where there is no clearly established federal law or

25

Supreme Court precedent that speaks to the unconstitutionality of CSAAS evidence—even when

26

the scope of that evidence is arguably unnecessarily expansive or where the qualifications of the

27

expert is in question. See Brodit, 350 F.3d at 991. Indeed, the Supreme Court has made “very few

28

rulings regarding the admission of evidence as a violation of due process.” Holley v. Yarborough,
16

1

568 F.3d 1091, 1101 (9th Cir. 2009) (citing Williams v. Taylor, 529 U.S. 362, 375 (2000)). “[I]t

2

has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence

3

constitutes a due process violation sufficient to warrant issuance of the writ.” Id.

4

The state court’s denial of this claim—i.e., that the admission CSAAS testimony violated

5

Mr. Noble’s federal constitutional right—was not objectively unreasonably in light of clearly

6

established federal law or Supreme Court precedent.

7

3.

8

As discussed above, Mr. Noble’s Brady claim alleges that the prosecution failed to produce

9

Brady Violation (Claim Seven)

the original, unedited copy of the recorded telephone call between Mr. Noble and Ms. Richard.
He maintains that the full recording contained exculpatory evidence. Pet. at 72. In response,

11

United States District Court
Northern District of California

10

Respondent contends that Mr. Noble is speculating that there was a suppressed recording. Answer

12

at 25. This claim relies exclusively on two exhibits submitted in support of Mr. Noble’s habeas

13

petition. First, Mr. Noble relies on a post-conviction letter from his trial counsel, in which she

14

states that “I do not think I ever had the original pre-text call tape. I did however have an expert

15

(Gene Phillips) enhance the tape so we could hear as much as possible from it. The District

16

Attorney agreed to our version of the tape and the transcript that was provided to the jury reflected

17

our version.” Pet., Ex. H. The second is Mr. Noble’s declaration wherein he avers that the call

18

should have been a three-way conversation between him, his wife, and Ms. Richard, and he

19

“believe[s] that [his] statement of, ‘I don’t know what you are talking about,” among others were

20

edited to be inaudible or deleted.” Id., Ex. D.

21

There are three elements for demonstrating a Brady violation: (1) the evidence at issue

22

must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2)

23

that evidence must have been suppressed by the State, either willfully or inadvertently; (3) and

24

prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). If accepted as

25

true, Mr. Noble’s claim that he denied knowing about the molestation during the pretext call

26

would satisfy the first prong because it is exculpatory evidence. However, Mr. Noble’s self-

27

serving statement is corroborated by nothing else. Although his attorney may not have obtained a

28

tape marked as “original,” his own expert enhanced it so they could listen to it. Nothing suggests
17

1

he or his attorney suspected anything was omitted or altered. As to the second prong, the superior

2

court refused to accept Mr. Noble’s self-serving declaration that the evidence was suppressed

3

because it was not corroborated by anything else in the record. Docket No. 16-5 (superior court

4

order) at 2. Again, there is no substantial evidence that demonstrates—expressly or impliedly—

5

that the telephonic recording played to the jury was edited in a nefarious way to remove

6

exculpatory evidence. “[T]o state a Brady claim, [a petitioner] is required to do more than ‘merely

7

speculate’ about what [non-testifying declarant] told prosecutors.” See Runningeagle v. Ryan, 686

8

F.3d 758, 769 (9th Cir. 2012). The state court did not clearly err under AEDPA.

9

Nor will this Court hold an evidentiary hearing on this proffer alone. See Phillips v.
Woodford, 267 F.3d 966, 987 (9th Cir. 2001) (because there was “absolutely no evidence”

11

United States District Court
Northern District of California

10

demonstrating that a report contained exculpatory evidence, “[t]he district court did not err in

12

characterizing [the petitioner’s] Brady claims as ‘mere suppositions,’ and [petitioner] is not

13

entitled to a hearing to pursue them further.”).

14

4.

Ineffective Assistance of Trial Counsel (Claim Nine)

15

Mr. Noble contends that his attorney, Mary Steel, rendered ineffective assistance at trial for

16

numerous reasons: (1) failure to investigate and impeach Ms. Richard; (2) failure to investigate

17

the pretext phone call; (3) failure to obtain the victim’s school records to impeach his credibility;

18

(4) failure to obtain Mr. Noble’s telephone records, which demonstrated that the victim had lunch

19

with him after the molestation; (5) failure to cross-examine the victim regarding alleged

20

inconsistent statements; (6) failure to call a rebuttal expert witness to the CSAAS expert; (7)

21

failure to move for mistrial regarding the victim’s alleged perjury; (8) failure to investigate and

22

present evidence regarding the alleged physical impossibility of the molestation; (9) failure to file

23

a motion on police misconduct; and (10) failure to file a motion to dismiss the charges based on

24

the prosecution’s use of alleged perjured testimony.

25

Under Strickland v. Washington, 466 U.S. 668 (1984), there is ineffective assistance of

26

counsel where (1) counsel’s performance was deficient and (2) that deficient performance

27

prejudiced the defense. “To establish deficient performance, a person challenging a conviction

28

must show that ‘counsel’s representation fell below an objective standard of reasonableness.’”
18

1

Harrington v. Richter, 562 U.S. 86, 104 (2011). “With respect to prejudice, a challenger must

2

demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the

3

proceeding would have been different. A reasonable probability is a probability sufficient to

4

undermine confidence in the outcome.’” Id. “Counsel’s errors must be ‘so serious as to deprive

5

the defendant of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at

6

687).

7

On habeas review, however, a court does not conduct a direct Strickland inquiry; rather, it

8

is limited to the question of whether the state court’s application of the Strickland standard was

9

unreasonable. See Richter, 562 U.S. at 101. As the Supreme Court has underscored, because
[t]he standards created by Strickland and § 2254(d) are both “highly
deferential,” . . . when the two apply in tandem, review is “doubly”
so. The Strickland standard is a general one, so the range of
reasonable applications is substantial. Federal habeas courts must
guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.

10

United States District Court
Northern District of California

11
12
13
14
15
16

Id. at 105.
The state court found that Mr. Noble “has not provided any evidence aside from his own

17

opinion to support his allegations of misconduct or ineffective assistance.” Id. Although the state

18

court did not go into an independent analysis as to each ground on which Mr. Noble claims

19

ineffective assistance of counsel, its rejection of Mr. Noble’s ineffective assistance claim was not

20

objectively unreasonable under AEDPA.

21

The decision to not investigate or impeach Ms. Richard was arguably not error because she

22

was not a testifying witness. Moreover, as discussed above, nothing from the record alludes to an

23

unedited pretext phone call, so Mr. Noble’s attorney had no reason to investigate something that

24

she did not think existed. In fact, his attorney hired an expert to enhance the tape, and there is no

25

indication that the expert opined or suspected that it was not the original recording. See Pet., Ex.

26

H. To the extent that Mr. Noble contends that an investigation into the victim’s school records

27

would have revealed that the victim testified to a different timeframe of the molestation, it is not

28

clear whether this would have produced meaningful inconsistent testimony or would have carried
19

1

any real impeachment value. See People v. Jones, 51 Cal. 3d 294, 316, (1990), as modified (Aug.

2

15, 1990) (“the victim must be able to describe the general time period in which these acts

3

occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he

4

came to live with us’), to assure the acts were committed within the applicable limitation period.

5

Additional details regarding the time, place or circumstance of the various assaults may assist in

6

assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a

7

conviction.); Richter, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not

8

just conceivable.”). Here, the victim described at trial the multiple incidents of sexual molestation

9

with sufficient detail and a general timeframe. See RT 91–118.

10

Nor is this Court persuaded that the additional impeachment evidence of Mr. Noble’s

United States District Court
Northern District of California

11

telephone records (which allegedly indicated he had lunch with the victim after the last incident of

12

molestation, despite the victim denying ever seeing Mr. Noble again) would have rendered a

13

different result. Mr. Noble’s attorney had ample opportunity to cross-examine the victim—and

14

she took advantage of that opportunity by underscoring other inconsistent statements. See RT

15

133–56. The added benefit of demonstrating another inconsistent statement regarding not seeing

16

Mr. Noble again after the last incident would not have created a substantial likelihood of a

17

different result. See Matylinsky v. Budge, 577 F.3d 1083, 1093 (9th Cir. 2009) (failure to obtain

18

additional impeachment “would not have changed the outcome of the trial because [the witness’s]

19

credibility was already squarely before the jury”); see also Davis v. Woodford, 384 F.3d 628, 641–

20

42 (9th Cir. 2003) (failure to impeach with a prior conviction was not prejudicial because the

21

witness’s credibility was impeached in other ways). Nor is there substantial evidence that Mr.

22

Nobel’s representation was deficient based on additional ways in which his attorney could have

23

cross-examined the victim—but did not. See Mancuso v. Olivarez, 292 F.3d 939, 955 (9th Cir.

24

2002) (“[Petitioner’s] suggestions regarding how defense counsel might have handled [the

25

witness’s] cross examination differently are insufficient to support an ineffective assistance of

26

counsel claim”); see also Brown v. Uttecht, 530 F.3d 1031, 1036 (9th Cir. 2008), citing Dows v.

27

Wood, 211 F.3d 480, 487 (9th Cir. 2000) (“We give ‘great deference’ to ‘counsel’s decisions at

28

trial, such as refraining from cross-examining a particular witness’”). In short, the state court
20

1

could reasonably have determined there was no ineffective assistance claim, or if there was, there

2

was no prejudice under Strickland.

3

To be sure, Mr. Noble cites a Second Circuit decision that found the failure to call a

4

rebuttal CSAAS witness constituted deficient representation. Gersten v. Senkowski, 426 F.3d 588,

5

611 (2d Cir. 2005). There, the court observed,

6
7
8
9
10

United States District Court
Northern District of California

11

even a minimal amount of investigation into the purported “Child
Sexual Abuse Accommodation Syndrome” would have revealed that
it lacked any scientific validity for the purpose for which the
prosecution utilized it: as a generalized explanation of children's
reactions to sexual abuse, including delayed disclosure and blurred
memory. Similarly, it would appear that had counsel investigated
the possibility of challenging the prosecution's psychological expert,
he would have discovered that exceptionally qualified experts could
be found who would challenge the scientific validity of the
prosecution expert's other theories about, for example, adolescence
prompting disclosure of sexual abuse.

12

Id. But Mr. Noble does not offer what a rebuttal expert could have testified to with regard to

13

CSAAS. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (“Wildman offered no

14

evidence that an arson expert would have testified on his behalf at trial. He merely speculates that

15

such an expert could be found.”). Mr. Noble argues that he was unable to make an expert-witness

16

proffer to the state court because he represented himself pro se throughout the state habeas

17

process. Traverse at 43. This may be so, but “Strickland does not . . . require[] for every

18

prosecution expert an equal and opposite expert from the defense . . . . [because] [i]n many

19

instances cross-examination will be sufficient to expose defects in an expert’s presentation.”

20

Richter, 562 U.S. at 111. Indeed, here, Mr. Noble’s trial attorney had more than one opportunity

21

to cross-examine Mr. Lewis. See RT 181–85, 196–200. This was not a situation like Gersten

22

where the defense attorney “was unable to mount an effective cross-examination, and missed an

23

opportunity to rebut this attempt at bolstering the alleged victim's credibility.” Gersten, 426 F.3d

24

at 611. By contrast, Mr. Noble’s attorney challenged Mr. Lewis’s qualifications at the pretrial

25

hearing, as well as at trial. In any event, the state court could reasonably have found no ineffective

26

assistance or prejudice under Strickland.

27
28

Mr. Noble alleges that his trial attorney failed to move for a mistrial when the victim
allegedly provided inconsistent statements about whether one incident of molestation occurred in
21

September. Pet at 98–100. The Court is not persuaded that this single inconsistent statement

2

would clearly have warranted a mistrial. Nor is Mr. Noble’s argument persuasive that his lawyer

3

should have moved to dismiss based on alleged perjury from the prosecution’s witnesses—e.g.,

4

there were inconsistencies between the victim’s testimony and Detective Randol’s testimony—

5

because this was a credibility determination for the jury to decide. Therefore, the failure to move

6

for a mistrial or dismissal was not deficient representation. Rupe v. Wood, 93 F.3d 1434, 1445

7

(9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”). At

8

least, the state court could reasonably have so found. Mr. Noble is also not entitled to habeas

9

relief based upon his lawyer’s failure to present a physical-impossibility defense with regard to

10

oral copulation and sodomy; this is so because the jury did not convict him on sodomy charges.

11

United States District Court
Northern District of California

1

Additionally, his lawyer did, in fact, present an impossibility defense during closing argument.

12

See RT 273–74. As such, there was no prejudice, and it would not have been unreasonable for the

13

state court to have so concluded.

14

Finally, the Court is unable to review Mr. Noble’s claim that “[t]rial counsel failed to file a

15

motion to have conviction dismissed on police misconduct.” Pet. at 102. The pro se petition does

16

not provide any further background, and Mr. Noble’s current habeas counsel does not expand on it

17

further in any subsequent filings. Such a conclusory claim cannot warrant habeas relief. James v.

18

Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a

19

statement of specific facts do not warrant habeas relief.”).
In sum, neither of Mr. Noble’s claims have demonstrated that he is entitled to habeas relief

20
21

for ineffective assistance of counsel under Strickland.

22

5.

Improper Amendment of Indictment (Claim Eleven)

23

Before trial, the judge granted, over Mr. Noble’s objection, the prosecutor’s request to

24

amend the charging document pursuant to California Penal Code section 100911 from the initial

25

time period of January 1, 2002 to May 31, 2002, to the amended time period of June 1, 2001 to

26
27
28

11

Under California Penal Code section 1009, a trial court may permit an amendment to the
information at any stage of the proceedings provided that (1) the amendment does not prejudice
the substantial rights of the defendant, and (2) it does not charge an offense not shown by the
evidence taken at the preliminary hearing. See People v. Pitts, 223 Cal. App. 3d 606, 905 (1990).
22

1

May 31, 2002. 1 RT 24–31. Prior to granting the amendment, the trial judge asked defense

2

counsel if she wanted more time to investigate the case because of the additional six-month time

3

frame. Id. at 29–30 She declined. Id. (“I would not be requesting further time to do further

4

investigation. However, my objection strongly remains.”).

5

Mr. Noble contends that the six-month expansion resulted in a materially different time

6

frame than alleged in the initial information or the preliminary hearing. Supp. Pet. at 16. He

7

argues that the amendment misled him in making his defense. Id. Specifically, he represents that

8

his defense to the original charging document was akin to an alibi or lack-of-opportunity defense.

9

Id. at 17. This is so, according to Mr. Noble, because he and his wife moved out of the Camden
Street apartment (which is where the molestations occurred) in March 2002, and the victim’s

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United States District Court
Northern District of California

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bedroom that was the site at which the molestations took place ceased being a bedroom in

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December 2001. Id. at 17.

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“No principle of procedural due process is more clearly established than that notice of the

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specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired,

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are among the constitutional rights of every accused in a criminal proceeding in all courts, state or

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federal.” Cole v. State of Ark., 333 U.S. 196, 201 (1948). “[F]or purposes of AEDPA's ‘clearly

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established Federal law’ requirement, it is ‘clearly established’ that a criminal defendant has a

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right, guaranteed by the Sixth Amendment and applied against the states through the Fourteenth

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Amendment, to be informed of any charges against him, and that a charging document, such as an

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information, is the means by which such notice is provided.” Gautt v. Lewis, 489 F.3d 993, 1004

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(9th Cir. 2007). “To satisfy this constitutional guarantee, the charging document need not contain

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a citation to the specific statute at issue; the substance of the information, however, must in some

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appreciable way apprise the defendant of the charges against him so that he may prepare a defense

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accordingly.” Id.

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Here, however, the amendment did not materially change the substance of the information

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embodied in the charged conduct. The amendment did change the time period during which the

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charged conduct occurred, but Mr. Noble had adequate notice that the time period of the charged

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conduct could have included a period before January 2002. At the preliminary hearing, Officer
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Heather McLaughlin testified about her interview with the victim. ACT 51–58. The victim also

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testified at the preliminary hearing at least seven times about the sexual molestation that occurred

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between the summer and beginning of the school year while he was playing football. ACT at 8,

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11, 18, 19, 22, 27, 42–43. The victim reported the molestations to the police in June 2002, so the

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clear and obvious inference is that the molestations happened the prior summer (i.e., June 2001).

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Furthermore, in the police report, Ms. Richard indicated the molestation occurred “[s]ometime

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between July of 2001 to May 2002,” and this report was provided to Mr. Noble during the

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preliminary hearing. Docket No. 16-4 (police report). Accordingly, Mr. Noble had adequate

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notice of allegations of misconduct beginning as early as summer 2001. The lack of surprise is
confirmed by his attorney’s decision to move forward with trial despite the trial judge’s offer for a

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United States District Court
Northern District of California

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continuance in light of the amendment. At least, the state court could reasonably have found the

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amendment, under the circumstances of the case, did not violate clearly established law.

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6.

Ineffective Assistance of Appellate Counsel (Claim Twelve)

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This claim is related to Mr. Noble’s timeframe-variance claim. He argues that his

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appellate counsel, Steven Schorr, rendered ineffective assistance because he failed to raise a

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jurisdictional and due process argument related to the indictment’s amendment. Supp. Pet. at 9.

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An ineffective assistance of appellate counsel claim is governed by the two-part test articulated in

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Strickland. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Smith v. Murray, 477 U.S.

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527, 535–36 (1986)); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).

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For the reasons stated above, this Court finds that Mr. Schorr’s election to not pursue the

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variance claim on direct appeal was not objectively unreasonable. Rhoades v. Henry, 596 F.3d

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1170, 1179 (9th Cir. 2010) (holding counsel did not render ineffective assistance in failing to

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investigate or raise an argument on appeal where “neither would have gone anywhere”); Wildman

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v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[A]ppellate counsel’s failure to raise issues on

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direct appeal does not constitute ineffective assistance when appeal would not have provided

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grounds for reversal”); Smith v Stewart, 140 F.3d 1263, 1274 n. 4 (9th Cir. 1998) (counsel has no

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obligation to file “kitchen-sink briefs” on appeal). Additionally, Mr. Noble’s trial counsel only

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objected to the amendment on jurisdictional grounds—not on due process grounds—so the failure
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1

to raise the due process argument on appeal was not unreasonable because it was waived. See Cal.

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Evid. Code, § 353.

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There is no basis under AEDPA to grant habeas relief on this claim.

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7.

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As demonstrated by the foregoing, no constitutional error occurred. Therefore, this

Cumulative Error (Claim Ten)

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cumulative-error claim must fail. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002)

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(“Because there is no single constitutional error in this case, there is nothing to accumulate to a

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level of a constitutional violation”).
V.

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CONCLUSION

Mr. Noble’s petition for writ of habeas corpus is DENIED. A certificate of appealability

United States District Court
Northern District of California

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will not issue. See 28 U.S.C. § 2253(c). This is not a case in which "jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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This order disposes of Docket Nos. 1, 66, 94, 95. The Clerk shall enter judgment and close
the file.

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IT IS SO ORDERED.

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Dated: July 15, 2020

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______________________________________
EDWARD M. CHEN
United States District Judge

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