Juarez v. Allison

Filing 45

ORDER Denying Petition for Writ of Habeas Corpus. Signed by Judge Edward M. Chen on 2/4/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 2/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TONY JUAREZ,

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Petitioner,
v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

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For the Northern District of California

United States District Court

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No. C-09-4290 EMC (PR)

KATHY ALLISON, Warden,

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Respondent.
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I.

INTRODUCTION

Petitioner seeks federal habeas relief from his state convictions. For the reasons stated
herein, the petition for such relief is DENIED.
II.

BACKGROUND

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In 2006, a Monterey County Superior Court jury convicted Petitioner of second degree

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murder, consequent to which he was sentenced to 15 years-to-life in state prison. The state appellate

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court, which issued the last reasoned decision, affirmed his conviction on direct review. The state

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supreme court summarily denied his petition for direct review. The state superior, appellate, and

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supreme courts denied his petitions for collateral review. This federal habeas petition followed.

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Evidence presented at trial demonstrated that in 1988 Petitioner threw his two year-old son

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Anthony against a crib, causing injuries resulting in his death. The state appellate court, in its direct

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review of Petitioner’s convictions, summarized the background facts as follows:

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In 1988, [Petitioner]’s wife, Stephanie Rodriguez, returned home from
work and discovered the couple’s two-year-old son, Anthony, limp, in
distress and [Petitioner] asleep, smelling of alcohol. She gathered

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Anthony, awoke [Petitioner], and told [Petitioner] to drive to the
hospital. On the way, Rodriguez asked what had happened and
[Petitioner] replied that Anthony had fallen but was fine before going
to sleep. Anthony died during surgery from a fractured skull.
Monterey County Sheriff Investigators, Detectives Norman Snyder
and Dave Ealy, and Monterey County Coroner Investigators, Deputy
Sheriffs John DiCarlo and David English, responded to the hospital.
The next day, Detective Snyder interviewed [Petitioner] at
[Petitioner]’s home. [Petitioner] told Detective Snyder that Anthony
was standing on a patio railing and fell, hitting his head on concrete.
Detective Snyder determined that the incident had occurred in Salinas,
which was outside county jurisdiction. He then informed Salinas
Police Detectives Lukenbill and Lambert, who indicated that the
Salinas Police Department would undertake the investigation. At
some point, Deputy DiCarlo received a Salinas Police Department
report No. 88-102243 for the case. Ultimately, Salinas Police
Detective Joe Gunter communicated to Deputy DiCarlo that
Anthony’s death was accidental. Deputy DiCarlo wrote a coroner’s
report that referenced the police department report number. FN1[.]
FN1. The report itself was not evidential. As to cause of death,
coroner’s pathologist Dr. Hugh Wilson performed the autopsy and
testified. In addition to “trauma at the back of the head,” Dr. Wilson
saw oval-shaped bruises to the eyes that were consistent with grip
marks and an elbow bruise, all having occurred within 24 hours of
death. He also saw an older bruise on Anthony’s right arm and a
healing rib fracture.
In 1989, [Petitioner] and Rodriguez became born again Christians and
joined the Lighthouse Church. About three years later, [Petitioner]
told Pastor Alfred Florez that he had killed Anthony. He thereafter
told the same to Rodriguez and detailed that he had slammed Anthony
against the wall.
In 1995, [Petitioner] and Rodriguez separated. [Petitioner] then
moved to Arkansas.

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In 2002, Rodriguez told the Salinas Police Department what she knew
about Anthony’s death. Police recorded telephone calls and an
Arkansas motel-room conversation between [Petitioner] and
Rodriguez.
(Ans., Ex. C at 1–2.)
As grounds for federal habeas relief, Petitioner claims that (1) the prosecutor and the police

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department violated his right to due process by failing to preserve a police investigative report; (2)

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the prosecutor failed to disclose the police report to the defense; (3) the trial court failed to properly

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instruct the jury; and (4) defense and (5) appellate counsel rendered ineffective assistance.

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III.

STANDARD OF REVIEW

This 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). The

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petition may not be granted with respect to any claim that was adjudicated on the merits in state

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court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established Federal law, as determined by the

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

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determination of the facts in light of the evidence presented in the State court proceeding.” 28

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U.S.C. § 2254(d).
“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 the

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

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facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). “Under the ‘unreasonable

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application’ clause, a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the

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facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court may not issue the writ simply

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because that court concludes in its independent judgment that the relevant state-court decision

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applied clearly established federal law erroneously or incorrectly. Rather, that application must also

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be unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry

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should ask whether the state court’s application of clearly established federal law was “objectively

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unreasonable.” Id. at 409.

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IV.

DISCUSSION

Most claims relate to a police report allegedly written in 1988 by Salinas Valley police

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regarding the investigation into Anthony’s death. The state appellate court summarized the facts as

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follows:

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Before trial, [Petitioner] filed a motion “for an evidentiary hearing as
to whether a ‘Brady’ violation has occurred.” The motion informed
that [Petitioner] had sought Salinas Police Department report No.

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88-102243 but had been told that no such report existed. It wished “to
determine whether such report ever existed and whether it still exists,
and if once existed, and now non existent, the appropriate sanctions to
be applied to the prosecution herein.”

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At the hearing, the following occurred: Detective Gunter did not
recall investigating Anthony’s death or discussing the matter with
Deputy DiCarlo; he opined that, had he made an investigation, a report
would have been generated. Deputy DiCarlo recalled conversing with
Detective Gunter about Anthony’s death, being given the report No.
88-102243 by someone, and learning from Detective Gunter that the
investigation into Anthony’s death “did not indicate [that] any crime
[was] involved”; he related that there was no police report in the
coroner’s file though he usually requested a copy. Salinas Police
Department records manager Rachel Soratos affirmed that No.
88-102243 was consistent with the department’s numbering system,
no report corresponded to that number, no report corresponded to
other case-identifying information, and an accidental-death report
could have been routinely purged but the department is required to
retain all child abuse reports.

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From this, [Petitioner] concluded that “certain sanctions are
appropriate” short of dismissal and asked for leave to prepare a jury
instruction. When the trial court asked [Petitioner] to explain the legal
basis for sanctions, [Petitioner] replied “due process of law wherein
there was actions taken by an agency and nothing was preserved.”
The prosecutor assisted by offering that [Petitioner]’s point appeared
to be “a Hitch/Trombetta/Youngblood motion, which involves
destruction of evidence and that involves due process — the origin of
the rule is due process — then there has to be some kind of malicious
destruction.” He then explained that no such malicious destruction
was shown because no police officer testified to having conducted an
investigation and no witness testified to having been interrogated by
the police about the case. He concluded that there was no evidence
that “anyone ever wrote a report.” [Petitioner] then offered: “I
characterize this mainly as a Brady motion mainly because a police
agency has a duty to write reports.” He urged that Deputy DiCarlo’s
testimony showed that Detective Gunter made an investigation and
determination. The trial court found that there was no evidence “that
someone went in and found the report and then with some evil motive,
destroyed it.” It then mused whether the authorities “that must be
applied to the setting require, allow the Court to provide any kind of
an instruction specific to that.” [Petitioner] offered that the point was
“going to require some thought,” and the trial court agreed to address
the matter further during the trial.
At trial, Detective Gunter’s hearing testimony was read to the jury and
Deputy DiCarlo testified consistently with his hearing testimony.
Soratos testified and opined that police report No. 88-102243 never
existed because it was not in the police computer system. She
explained that, since her hearing testimony, she had performed
research and determined that all police reports would be in the
computer system, though hard copies might be purged. She added that
it was common for a police report number to be generated without
resulting in a written report. She gave an example where a police

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officer in the field “pulls a report number” while investigating a case
but later “It turns out the case is nothing.” Salinas Police Detective
Sheldon Bryan testified that a case number is oftentimes not used
again after a police officer pulls a case number but does not write a
report. He added that he had searched the police records after
Rodriguez had first contacted him and discovered that police report
No. 88-102243 “actually came back to something completely
unrelated to [Petitioner]’s family.” He continued that, after this
discovery, he had searched 100 case numbers before and after No.
88-102243, encompassing dates well before and after Anthony’s
death, and found no police report relating to Anthony’s death.
[Petitioner] argued that “a public record was apparently destroyed.”
He also assumed the police had an official duty to prepare a police
report and relied on Evidence Code section 664 (“It is presumed that
official duty has been regularly performed”). He requested that the
trial court give the jury the following special instruction: “You may
consider the fact that no report was maintained of the initial
investigation as evidence that the initial investigation in this matter
determined the death of the child victim as accidental.” The
prosecutor replied that there was never a report, ergo there was no bad
faith destruction to trigger any remedy.

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The trial court assumed that the police had an official duty to prepare a
report. It then focused on Soratos’s testimony that there was no report
and concluded that “the evidence that was presented refutes [the
Evidence Code presumption] at least to some degree.” It refused to
give [Petitioner]’s proposed instruction but observed that [Petitioner]
was free to argue that the police generated a report, which concluded
that Anthony’s death was accidental.

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(Ans., Ex. C at 3–5.) The state appellate court rejected Petitioner’s claims:

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[Petitioner] contends that the loss of the police report violated his state
and federal rights to due process. He urges that the report should have
been “provided under the due process requirement that all exculpatory
evidence be provided to the defense.” He relies on Brady v. Maryland
(1963) 373 U.S. 83 (Brady), California v. Trombetta (1984) 467 U.S.
479 (Trombetta), and Arizona v. Youngblood (1988) 488 U.S. 51, 58
(Youngblood). There is no merit to this claim.

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First, [Petitioner] confuses his mix of authorities.

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Brady held that a prosecutor’s failure to disclose favorable evidence to
an accused “violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” (Brady, supra, 373 U.S. at p. 87.) To establish
that the government’s failure to turn over evidence violates Brady, the
[Petitioner] must demonstrate (1) the undisclosed evidence was
favorable, either because it was exculpatory or impeaching; (2) the
evidence was suppressed by the State, either willfully or inadvertently;
and (3) the evidence was material to the defense. (See Strickler v.
Greene (1999) 527 U.S. 263, 280–281; In re Brown (1998) 17 Cal.4th
873, 879.)

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Here, [Petitioner] does not demonstrate the second element of a Brady
claim. No evidence supports that the prosecution or anyone on the
prosecution team had possession of the police report at issue and
thereafter suppressed it. Even if one accepts that a police report for
this case existed at one time, it is undisputed that (1) the report did not
exist in 2002 when Detective Bryan began his investigation of this
1988 offense, and (2) there is no explanation for the report’s
nonexistence. From this, one can reasonably infer that (1) the report
was lost, or (2) Detective Gunter pulled the number but did not write a
report. But one cannot reasonably infer that a report was suppressed.
[Petitioner] is simply speculating that the prosecution willfully or
inadvertently suppressed the report. Such speculation cannot establish
a Brady violation. (Cf. United States v. Spagnuolo (9th Cir.1977) 549
F.2d 705, 713 [no undisclosed evidence existed]; U.S. v. Mitchell (7th
Cir.1999) 178 F.3d 904 [speculation not enough to show Brady
violation]; United States v. Navarro (7th Cir.1984) 737 F.2d 625, 631
[same]; U.S. v. Pou (8th Cir.1992) 953 F.2d 363, 366-367 [same].)

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Here, as below, [Petitioner] attempts to show Brady error when the
facts reveal that the sought after evidence had been, at best (from
[Petitioner]’s perspective), lost. Consequently the analysis falls
squarely under Trombetta and Youngblood.
The failure to preserve, or the destruction of evidence by the
prosecution, was specifically addressed in Trombetta and Youngblood.
In Trombetta, the court held that the government has a duty under the
United States Constitution to preserve evidence “that might be
expected to play a significant role in the [[Petitioner]’s] defense.” To
meet this standard, the evidence must “both possess an exculpatory
value that was apparent before the evidence was destroyed, and be of
such a nature that the [Petitioner] would be unable to obtain
comparable evidence by other reasonably available means.”
(Trombetta, supra, 467 U.S. at 488–489.) In Youngblood, the court
added that, to show a denial of federal constitutional due process from
the destruction of such evidence, the [Petitioner] must also show that
the police acted in bad faith. (Youngblood, supra, 488 U.S. at p. 58.)
Our Supreme Court has expressly adopted the holdings of Trombetta
and Youngblood. (People v. Frye (1998) 18 Cal.4th 894, 942–943;
People v. Zapien (1993) 4 Cal.4th 929, 964; People v. Cooper (1991)
53 Cal.3d 771, 810–811.)
“[A] trial court’s inquiry whether evidence was destroyed in good
faith or bad faith is essentially factual: therefore, the proper standard
of review is substantial evidence.” (People v. Memro (1995) 11
Cal.4th 786, 831.) Under this standard, “we must determine whether,
viewing the evidence in the light most favorable to the superior court’s
finding, there was substantial evidence to support its ruling.” (People
v. Roybal (1998) 19 Cal.4th 481, 510.) The testimony of a single
witness, even if he is a party to the case, may be sufficient. (Evid.
Code, § 411.) We do not decide the credibility of witnesses, as that is
the function of the trier of fact. (People v. French (1978) 77
Cal.App.3d 511, 523.)

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[Petitioner]’s Trombetta/Youngblood claim fails at the threshold
because the evidence most favorable to the trial court’s ruling is that
the police report never existed. This follows because (1) Soratos
explained that assigned police report numbers do not necessarily mean
that a police report was generated at all, and (2) Detective Bryan
affirmed that the police report number thought to refer to a police
report about this case referred instead to a report about another case
and no other police reports near the time of the crime at issue
corresponded to this case. Thus, the prosecution did not fail to
preserve or destroy evidence. We recognize that the trial court did not
explicitly find that the police report never existed. It found that
Soratos’s testimony refuted the Evidence Code presumption that the
police prepared a report “at least to some degree.” But, even if one
accepts that the police prepared a report for this case, the
uncontradicted evidence supports only that the report was lost. No
evidence supports that the loss could be considered in bad faith.
(People v. Ochoa (1998) 19 Cal.4th 353, 417 [negligent failure to
preserve evidence does not violate due process].)

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(Id. at 5–8.)

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A.

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Failure to Preserve
Petitioner claims that the prosecutor and the police violated his right to due process by

failing to preserve the report.
As the state Court of Appeal identified in its opinion, the government has a duty under due

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process to preserve material evidence, i.e., evidence whose exculpatory value was apparent before it

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was destroyed and that is of such a nature that the defendant cannot obtain comparable evidence by

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other reasonably available means. See California v. Trombetta, 467 U.S. 479, 489 (1984); Grisby v.

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Blodgett, 130 F.3d 365, 371 (9th Cir. 1997). The exculpatory value of the evidence must be

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“apparent”; the mere possibility that evidence could have exculpated a defendant if preserved is

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insufficient to satisfy the standard of constitutional materiality in Trombetta. Arizona v.

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Youngblood, 488 U.S. 51, 56 n.* (1988). In addition, a petitioner must show bad faith on the part of

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the police in destroying the evidence. “Unless a criminal defendant can show bad faith on the part

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of the police, failure to preserve potentially useful evidence does not constitute a denial of due

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process of law.” Id. at 58. “The presence or absence of bad faith by the police for purposes of the

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Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the

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evidence at the time it was lost or destroyed.” Id. at 56 n.* (citations removed).

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The state Court of Appeal reasonably determined that Petitioner’s due process rights were

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not violated. First, he has not shown that the report, even if it existed, had exculpatory value

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apparent before it was destroyed. As there is no evidence about the contents of the report (if the

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report existed), it is unclear whether it had (or to what degree it had) apparent exculpatory value

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before it was destroyed. Second, Petitioner has not made any showing that the police or the

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prosecutor acted in bad faith, i.e., that they knew of the exculpatory value of the evidence and

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destroyed it all the same. In fact, the state appellate court determined that “[n]o evidence supports

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that the loss [of the report] could be considered in bath faith.” (Ans., Ex. C at 7–8.) Because the

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record contains ample evidence that no constitutional violation occurred, the state appellate court’s
decision was reasonable, and therefore is entitled to AEDPA deference. The Court notes that not

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only is the hearing testimony regarding the report uncontroverted, this Court must defer to the trial

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court’s determination that the hearing testimony was credible. Payne v. Borg, 982 F.2d 335, 338

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(9th Cir. 1992).

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There is also no showing of prejudice, as there was strong evidence of Petitioner’s guilt.

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First, Petitioner admitted at his first trial that he had “tossed” Anthony against the crib with

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sufficient force to render him unconscious. Second, Stephanie Rodriguez testified that Petitioner

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confessed both to her and their pastor, Alfred Florez, that Anthony had been injured by Petitioner’s

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intentional acts, rather than that he had fallen accidentally. Third, Florez told police investigators in

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an interview, a recording of which was played to the jury, that Petitioner had confessed that he had

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caused his son’s death out of a fit of anger because the child would not stop crying. (Ans., Ex. A,

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Vol. 2 at 719–20.) Third, the physician who autopsied Anthony testified that there was evidence

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that the child’s death was not accidental, that “there was some human agent involved.” (Id., Ex. B,

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Vol. 3 at 659.) In fact, the physical evidence was not consistent with Petitioner’s explanation of an

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accidental fall. (Id. at 660.) Furthermore, Anthony’s body showed signs of many unusual past

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injuries, indicating that in the years before his death, the child had sustained “substantial trauma.”

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(Id. at 654.) This record of corroborated confessions and physical evidence clearly show that

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Petitioner suffered no prejudice. Accordingly, this claim is DENIED.

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B.

Failure to Disclose

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Petitioner claims that the prosecutor violated his constitutional rights under Brady v.

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Maryland, 373 U.S. 83 (1963), by failing to disclose the police report. Under Brady, the prosecution

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must disclose material evidence “favorable to an accused,” id. at 87, even if the accused has made no

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request for the evidence in question. United States v. Agurs, 427 U.S. 97, 110–11 (1976). In order

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to establish a Brady violation, a petitioner must show that: (1) the evidence at issue was favorable to

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the accused, either because it was exculpatory or impeaching; (2) the evidence had been suppressed

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by the prosecution, either willfully or inadvertently; and (3) prejudice ensued. Banks v. Dretke, 540

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U.S. 668, 691 (2004).
This claim is without merit. First, Petitioner has failed to show that the evidence was

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favorable. The record does not establish that a report existed; if it did, there is no evidence as to

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what the report contained. Second, even if an inference could be drawn that it was favorable,

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Petitioner has not shown that the prosecution suppressed the report. The undisputed record contains

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no evidence that the report existed, that the prosecution had the report, or if it did, the prosecution

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suppressed it as opposed to losing it inadvertently. Third, Petitioner has not shown prejudice, as

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shown above. As the record shows no constitutional violation, the state court’s decision was

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reasonable. This claim is DENIED.

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C.

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Instructing the Jury
Petitioner claims that the trial court violated his right to due process by refusing to instruct

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the jury as follows: “You may consider the fact that no report was maintained of the initial

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investigation as evidence that the initial investigation in this matter determined the death of the child

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as accidental.” (Pet. at 6; Ans., Ex. A, Vol. 3 at 474.) The state appellate court mentioned, but did

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not directly address this claim. However, because it rejected Petitioner’s central claim that the

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report had exculpatory value, one can infer that it implicitly rejected the jury instruction claim.

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As the state appellate court implicitly found, this claim is without merit. While a defendant

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is entitled to jury instructions that embody his defense theory, due process does not require that an

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instruction be given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611

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(1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). Here, there was no evidence to

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support Petitioner’s requested instruction, that is, there is no evidence as to what the report (if it

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existed) contained. The state court’s decision was, therefore, reasonable. Accordingly, this claim is

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DENIED.

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D.

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Assistance of Trial Counsel
Petitioner claims that trial counsel rendered ineffective assistance by failing to (A) discover

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the missing report; (B) impeach or cross-examine the records officer regarding how such reports are

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kept; (C) call Petitioner’s brother and sister-in-law to testify as character witnesses; and (D) move to

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strike two jurors. The state Supreme Court summarily denied these claims.

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In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a habeas
Petitioner must establish two things. First, he must establish that counsel’s performance was

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deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing

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professional norms. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Second, he must

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establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

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been different.” Id. at 694. A reasonable probability is a probability sufficient to undermine

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confidence in the outcome. Id. “The likelihood of a different result must be substantial, not just

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conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (citing Strickland, 466 U.S. at 693).

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1.

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Petitioner claims that defense counsel rendered ineffective assistance by failing to discover

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the report. The record does not support Petitioner’s claim. Counsel did move for discovery of the

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document, and asked for an evidentiary hearing when the report was not disclosed. (Ans., Ex. A,

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Vol. 3 at 432–35.) On this record, Petitioner has not shown that counsel’s performance was

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deficient. Also, Petitioner has not shown prejudice. There is no record evidence that the report

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would have been available had counsel asked for it earlier – an assumption flatly contradicted by the

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undisputed record. Furthermore, the report’s contents, if it existed, are unknown, and therefore its

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effect on the trial is unknowable. Moreover, evidence of guilt was overwhelming as discussed

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above. Thus, there it cannot be shown there is a reasonable probability that but for counsel’s

Discovering the Report

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(alleged) error, the outcome of the proceeding would have been different. Accordingly, this claim is

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DENIED.

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2.

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Petitioner claims that counsel failed to impeach or sufficiently cross-examine the records

Cross-Examination

Soratos with the inconsistencies between her pretrial hearing and her trial testimony. This claim

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lacks merit. First, the differences would not have impeached Soratos. She admitted that her

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testimony changed because she had researched how records were kept around 1988. (Ans., Ex. B,

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Vol. 3 at 732–33.) Second, because the jury knew that her testimony had changed based on newly-

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discovered information, and therefore was not indicative of her credibility, counsel’s alleged failure

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officer, Rachel Soratos. More specifically, Petitioner contends that counsel should have impeached

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to impeach cannot have resulted in prejudice. This claim is DENIED.

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3.

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This claim fails because Petitioner has not provided evidence that these witnesses would

Failure to Call Character Witnesses

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have testified, nor has he provided evidence about what testimony these character witnesses would

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have provided. Failure to provide such evidence – such as declarations from the witnesses

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themselves – precludes this claim of ineffective assistance. See Matylinksy v. Budge, 577 F.3d 1083,

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1096–97 (9th Cir. 2009); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000). This claim is DENIED.

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4.

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Petitioner claims that defense counsel rendered ineffective assistance by failing to move to

Failure to Strike Jurors

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strike two jurors. According to Petitioner, the first juror had read newspaper articles about the case

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and therefore was biased against him. The second juror, according to Petitioner, worked as a legal

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secretary in the District Attorney’s office which prosecuted this case and was therefore biased

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against Petitioner. The state Supreme Court summarily denied this claim.

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The record does not support Petitioner’s claims. As to the first juror, he admitted only that

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he barely read (“skimmed”) and vaguely remembered a single story about the case. (Ans., Ex. I at

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106.) He remembered only that it involved a two-year-old child. (Id.) He also indicated that he

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could be fair. Because there is no evidence of bias, or that the vaguely-remembered article affected

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the juror’s ability to adhere to his juror’s oath, Petitioner has not shown that counsel was ineffective.

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The record is bare of any indication that the trial court doubted this juror’s assertion that he could be

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fair and impartial. This Court must accord such credibility determinations deference. Again,

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because the record does not support Petitioner’s claim, the state court’s decision was reasonable and

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deserves AEDPA deference.

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As to the second juror, the person in question did not serve on Petitioner’s jury because

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defense counsel moved to strike her. (Ans., Ex. I at 130 and 146.) Petitioner’s claim is therefore

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facially insufficient. Because he moved to dismiss this juror, there was no deficient performance.

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Because the stricken juror did not serve on the jury, there cannot have been prejudice.

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In sum, Petitioner has not shown ineffective assistance, nor that the jury ultimately seated
was other than a panel of “impartial, indifferent jurors.” Harris v. Pulley, 885 F.2d 1354, 1361 (9th

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For the Northern District of California

United States District Court

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Cir. 1988).

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Accordingly, Petitioner’s ineffective assistance of counsel claims are DENIED. Because the

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claims are meritless, the state court’s decision was reasonable.

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E.

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Assistance of Appellate Counsel
Petitioner claims that appellate counsel rendered ineffective assistance by failing to

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(A) augment the record by adding the voir dire transcript, which would have supported his claim that

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trial counsel should have struck two jurors; (B) make a discovery motion for the police report; and

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(C) raise the claim that defense counsel failed to call character witnesses.

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Claims of ineffective assistance of appellate counsel are reviewed according to the standard

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set out in Strickland. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). A defendant therefore

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must show that counsel’s advice fell below an objective standard of reasonableness and that there is

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a reasonable probability that, but for counsel’s unprofessional errors, he would have prevailed on

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appeal. See id. at 1434 n.9 (citing Strickland, 466 U.S. at 688, 694).

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Habeas relief is not warranted here, even without AEDPA deference. The claims raised in

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the instant petition encompass the same ones for which Petitioner sought review in state court.

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Because all the claims discussed above lack merit, irrespective of AEDPA, appellate counsel cannot

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have rendered ineffective assistance by failing to raise them. As those claims are lacking, Petitioner

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cannot show a reasonable possibility that but for appellate counsel’s actions, the outcome of the

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proceeding would have been different. This claim is DENIED.

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V.

CONCLUSION

The state court’s adjudication of Petitioner’s claim did not result in a decision that was

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contrary to, or involved an unreasonable application of, clearly established federal law, nor did it

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result in a decision that was based on an unreasonable determination of the facts in light of the

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evidence presented in the state court proceeding. Accordingly, the petition is DENIED.

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A certificate of appealability will not issue. Reasonable jurists would not “find the district

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court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

11
For the Northern District of California

United States District Court

10

473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of Appeals.
The Clerk shall enter judgment in favor of Respondent, and close the file.

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IT IS SO ORDERED.

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Dated: February 4, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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