Smith v. Chappell

Filing 43

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (Illston, Susan) (Filed on 7/17/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TROY SMITH,

Case No. 11-cv-01791-SI

Petitioner,
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v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

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KEVIN CHAPPELL, Warden,
Respondent.

United States District Court
Northern District of California

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Troy Smith, a prisoner at San Quentin State Prison, filed this petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, challenging his 2006 conviction in San Francisco Superior

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Court. This matter is now before the Court for consideration of the merits of the petition. For the

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reasons discussed below, the petition is DENIED.

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BACKGROUND

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On October 20, 2006, petitioner was convicted of four counts of robbery in the second

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degree in violation of California Penal Code § 212.5(c), each with an excessive taking of funds

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allegation pursuant to Penal Code § 12022.6(a)(4); four counts of false imprisonment in violation

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of Penal Code § 236; two counts of burglary in the second degree in violation of Penal Code

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§ 459; and one count of conspiracy in violation of section § 182(a)(1). Second Amended Petition

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at 3. All counts included an enhancement under Penal Code § 12022(a)(1) for possession of a

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firearm during the offenses. Id. Petitioner is currently serving a sentence of twenty-six years in

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the San Quentin State Prison; the warden of San Quentin State Prison is respondent Kevin

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Chappell. On April 12, 2011, petitioner filed this petition for writ of habeas corpus. Petitioner

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contends that he is entitled to the writ for two reasons: (1) violation of his Fifth and Fourteenth

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Amendment rights to due process under Brady v. Maryland, 373 U.S. 83 (1963); and (2) violation

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of his Fourteenth Amendment right to due process under Jackson v. Virginia, 443 U.S. 307

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(1979).

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STATEMENT OF FACTS

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The following factual background is taken from the order of the California Court of

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Appeal:
Lang Antiques, which we will refer to as the jewelry store or the store, occupies a
portion of the ground floor of a building in the Union Square area of downtown
San Francisco. As of April 2003, the remaining portion of the building's ground
floor (the restaurant space) was vacant. It had formerly housed a restaurant named
Rumpus, which had gone out of business. The main entrance to the restaurant
space was on Tillman Alley, with another entrance on Campton Place.
The jewelry store had a showroom in the front; a back room (the safe room)
separated from the showroom by a curtain; a bathroom adjoining the safe room;
and offices upstairs. The safe room held three safes in which the store's inventory
of jewelry was secured when the store was closed. The back wall of the safe
room, against which the safes normally stood, was an interior wall of the overall
building, and separated the safe room from a room in the vacant restaurant
premises.
The jewelry store's security system included door alarms, panic buttons, and a
motion detector in the safe room, all monitored by a private alarm company, plus
a video surveillance camera in the safe room. In addition, the front entrance was
protected by roll-down metal grating.
The jewelry store was open Monday through Saturday. On Saturday, April 5,
2003, at 5:30 p.m., salesperson Richard Frey closed the jewelry store and turned
on the alarm system. Before leaving, he put a new tape into the video surveillance
system. The tapes could only record for 24 hours, however, so even with a new
tape inserted at closing time on Saturday, the surveillance system would stop
recording at about 5:30 p.m. on Sunday.
At the time Frey closed the store on April 5, 2003, the safe room was in the
process of being remodeled under the supervision of the store's owner, Mark
Zimmelman, and its manager, Suzanne Martinez. Because of the remodeling, the
room was in some disarray; two of the safes had been moved from the back wall
of the safe room to a side wall, and a third safe had been replaced with a different,
larger safe from another location. In addition, a ladder had been left there.
At 11:16 p.m. on Sunday, April 6—after the video surveillance camera had
stopped recording—a motion detector at the jewelry store, probably the one in the
safe room, triggered an alarm. The alarm company alerted the police and then
called Zimmelman. Zimmelman asked to be notified if the police found a
problem, but did not take any further action. A police officer checked the exterior
of the store and saw no problem; the exterior grate was down, no windows were
broken, no alarm bells were ringing, and he did not observe anything amiss in the
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showroom when he looked through the windows with his flashlight. After about
five minutes passed and no additional movement was detected, the alarm ceased.
The police officer reported the premises secure, and no further action was taken.
The following morning, Monday, April 7, 2003, Frey returned to the jewelry store
at about 9:15 or 9:30 a.m. to open up. Standard security procedures required that
there be two people present to open the store, so Frey met another store employee
there, Erin Beeghly, a student who worked part-time as a gemologist and sales
assistant. Frey opened the store, went into the safe room to disable the alarm
system, and then went upstairs to the office. Beeghly headed through the safe
room and into the bathroom, intending to change her clothes.
When Beeghly opened the bathroom door, two tall African–American men with
guns jumped out. They ordered her to the floor, and told her not to look at them.
Frey heard Beeghly scream, and started down the stairs, only to encounter a man
waiting at the bottom of the stairs with a gun pointed at him. The man was not
wearing a mask, so Frey got a good look at his face. Frey described the man as
African–American, about six feet tall, with a medium or light complexion, and a
nose resembling that of football player Jerry Rice. Later, Frey was able to identify
the man as Dino Smith, appellant's brother. When shown a photographic lineup,
Frey picked appellant's photograph, as well as Dino Smith's, as depicting possible
suspects.
The man put the gun to Frey's back and directed him to enter the safe room, where
Frey saw another man holding a gun pointed at Beeghly. The robbers told Frey
not to look at them, and one of them directed him to open the safes. Frey had
difficulty doing so, because he was very nervous. After Frey managed to get one
of the safes open, the doorbell rang. Frey told the robbers that it could be Miranda
Gonsalves, the bookkeeper, and the robbers directed him to go and let her in, and
bring her to the safe room. Beeghly was kept in the safe room with the robbers as
a hostage.
When Frey opened the door for Gonsalves, he told her quietly that they were
being robbed, but she did not really grasp what he was saying, and started to head
upstairs to work on the accounts. As Gonsalves neared the top of the stairs, Frey
called to her, and a light-skinned African–American man emerged from the safe
room, ran upstairs after her, pointed a gun at her, and ordered her into the safe
room. There, a second man, who was darker skinned and seemed older, then
directed her to face the back wall. The first man seemed to be wearing a mask, but
he pushed it up onto his forehead, so Gonsalves could see his face. Two years
later, after seeing a news story about the robbery, Gonsalves identified the first
man as George Turner. Shortly after the robbery, Gonsalves also picked
appellant's photograph, as well as Dino Smith's, as depicting possible suspects
from a photographic lineup, but she was not sure of these identifications.
Frey then resumed trying to open the safes. He was able to open the second one,
but not the third, which was the one that had recently been moved into the jewelry
store from a different location. As Frey was working on getting the third safe
open, the doorbell rang again. It was Martinez, the store manager. Martinez had a
key, but because she could not see any other store employees in the front room,
she complied with the store's standard security procedures by ringing the doorbell
rather than unlocking the front door herself.
Frey let Martinez in, quietly told her that a robbery was in progress and that
Beeghly was being held hostage, and went back into the safe room with her. Frey
tried again to open the third safe, but failed, so he asked Martinez to try, and she
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succeeded.
The intruders emptied the contents of the safes into large plastic bags. At the
request of Frey and Martinez, they left behind some of the items in the safes that
were not part of the store's inventory, but had been left by customers for repair or
on consignment. Because the store kept very complete inventory records, it was
possible to determine precisely what had been taken. The final tally was 1,297
pieces of jewelry, with a value of almost $4.5 million.
Before leaving, the intruders bound the employees with plastic handcuffs and duct
tape, and left them lying or sitting on the floor. While this was happening, Frey
noticed for the first time that there was a large hole in the wall of the safe room,
which had not been there when he left the store on Saturday. Gonsalves also
noticed the hole at some point during the crime, though she could not recall
exactly when. Frey and Gonsalves both looked through the hole and could see a
figure moving around in the room on the other side of the wall. They could not
see the person's face or even determine gender, however, because of their angle of
view. Around this time, Gonsalves, Martinez, and Beeghly all heard a female
voice that seemed to be coming from a walkie-talkie in the room on the other side
of the hole. The voice sounded very professional, like a dispatcher, and seemed to
be counting down time.
Finally, one of the intruders said, “Time's up, let's go,” and they left through the
hole in the wall. Martinez, who was the only one of the store employees who had
been bound only with duct tape and not with handcuffs, was able to free her hands
shortly thereafter, and then got scissors and freed the others. None of the
employees were physically harmed, but all of them had been frightened while the
crime was occurring. After freeing her coworkers, Martinez called another
employee who was at the store's central office location and told that employee to
call the police.
When the police arrived and investigated, they found that, as already indicated,
the hole in the safe room wall led into the vacant restaurant premises. They also
discovered that the hole had been drilled at a spot that constituted the weakest
place in the wall dividing the store from the restaurant, because that part of the
wall had formerly been occupied by a door with a glass panel in it. Two people
who had been in the restaurant space within a few days before the robbery—a
prospective tenant and an electrician—confirmed that the hole had not been there
when they last saw the wall.
The police investigation also revealed that the latch of the exterior door from
Tillman Place into the restaurant space had been rigged with a wire so that it
could be opened from the outside. The building owner had not seen this wire
mechanism prior to the police investigation.

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The police also learned that a cardboard box had been taped over the motion
detector in the safe room, and the jewelry store's phones had been disconnected.
The motion detector was mounted high up in the safe room, but the intruders had
apparently been able to reach it using the ladder that had been left in the room due
to the remodeling. The police found a piece of posterboard lying on the floor of
the safe room that had a sticky spot on it; when the sticky spot was matched up
with a rolled piece of duct tape that was stuck to the wall right above the hole, it
appeared that the posterboard had been used to cover up the hole. Later, both
appellant's fingerprints and Turner's were found on that piece of posterboard.

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Appellant's fingerprint was also found on the sports section of a newspaper in the

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kitchen area of the restaurant space. Turner's fingerprints were on the front page
of the same newspaper. The evidence at trial showed that the particular newspaper
edition in question was available only from news racks in San Francisco starting
sometime after 2:47 a.m. on Monday morning.
Although the jewelry store's security camera had stopped recording by the time
the intruders entered the store, the police were able to obtain a video surveillance
tape from an exterior camera belonging to a nearby department store, which
happened to cover the Campton Place door to the restaurant space. The tape
showed three people entering that door at about 8:55 a.m. Monday morning, one
of whom carried a newspaper, and four people leaving through the same door at
9:48 a.m. The tape was not clear enough to show the people's race or gender.
On April 25, 2003, about two weeks after the crime, two police officers went to
appellant's apartment in Oakland with an arrest warrant. The building manager let
the officers into the apartment, but it had been cleaned out and vacated. The only
things left in the apartment were some cleaning supplies, a bag of puppy food, and
a bathtub full of water that was still warm. As the officers were leaving, a security
guard told them that someone was in the building's parking garage packing up
some things. The officers went to the garage, where they found a man named Je
Kim standing next to a car that had clothes packed into the trunk, and bags of
personal belongings and cleaning supplies, as well as a small puppy, in the
passenger compartment. Kim said the puppy was his. The items in the trunk of the
car included a box of papers containing mail addressed to appellant.
When asked for his identification, Kim told the officers to look for it in the car's
glove compartment. In the glove compartment, the officers found a pair of
diamond earrings on a display stand, with a price tag attached. Kim told the
officers that he had obtained the earrings in the apartment of Debbie Warner, who
was the girlfriend of appellant's brother, Dino Smith. Martinez, the jewelry store
manager, later identified the earrings as part of the merchandise stolen during the
crime.
Five days later, police searched Warner's apartment. In it they found the box of
papers, including appellant's mail, that had been in the trunk of Kim's car. They
also found appellant's wallet and driver's license. They did not, however, find any
of the stolen jewelry.
The police arrested George Turner in June 2003, and later traced Dino Smith to
New York, where he was arrested about a year after the crime. Appellant
remained at large until March 2006, when he surrendered to the police in the
company of his attorney.

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On May 22, 2006, appellant was charged by information with four counts of
second degree robbery (Pen.Code, § 212.5, subd. (c)4), each with an excessive
taking allegation (§ 12022.6, subd. (a)(4)). Appellant was also charged with four
counts of false imprisonment (§ 236), with an enhancement under section
12022.1, subdivision (a)(1); two counts of second degree burglary (§ 459); and
one count of conspiracy to commit robbery (§ 182, subd. (a)(1)). All of the
charges except the conspiracy count included an allegation that a principal in the
crime was armed with a firearm. (§ 12022.1, subd. (a)(1).) The information
alleged that appellant had prior serious felony convictions, including three
“strikes” (§ 667, subds. (a), (d), (e); § 1170.12, subds. (b), (c)), and that he had
served a prior prison term (§ 667.5, subd. (b)).

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The jury at appellant's trial found him guilty on all counts, and found the gun use

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and excessive taking enhancement allegations true. Appellant waived jury trial as
to the prior conviction allegations, and the court found them true.
On May 8, 2007, the trial court struck two of appellant's three “strike” priors, and
sentenced appellant to 26 years in prison, which included upper term sentences on
some of the counts.

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PROCEDURAL HISTORY

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Petitioner appealed his conviction to the First Appellate District Court of Appeal and on

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September 29, 2009, the Court of Appeal affirmed the convictions and sentence. On January 13,

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2010, the California Supreme Court denied petitioner’s petition for review. The appeal and

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petition for review only addressed petitioner’s claim that his Fifth and Fourteenth Amendment

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rights were denied because one of the elements of robbery was not met under the prosecution’s

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theory (plaintiff’s claim was raised pursuant to Jackson v. Virginia, 443 U.S. 307 (1979), which

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requires that every element of the offense of conviction be proven beyond a reasonable doubt).

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On April 12, 2011, petitioner filed this petition for writ of habeas corpus; it raised only the

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“Jackson claim” regarding the allegedly lacking element of the robbery charge. Docket No. 1. On

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June 23, 2011, petitioner inquired whether the San Francisco Police Department had materials in

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its files relating to former San Francisco Police Department Inspector Daniel Gardner, the lead

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investigator and a prosecution witness in petitioner’s case. Docket No. 32, Ex. C. On August 18,

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2011, the San Francisco County District Attorney responded to petitioner’s inquiry and stated that

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the San Francisco Police Department advised them that material in Gardner’s personnel file may

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be subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963). Id., Ex. D. The District

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Attorney filed a motion for discovery in the Superior Court for Gardner’s personnel records on

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September 21, 2011. Docket No. 35, Ex. 1. The motion requested the court to conduct an in

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camera review of Gardner’s personnel file to disclose to the District Attorney and petitioner any

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Brady material located within the file, and to issue a protective order for the file, which the

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Superior Court subsequently executed. Id. Petitioner then filed a motion in this Court to hold in

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abeyance his habeas claim pending exhaustion of his state court remedies on his Brady claim.

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Docket No. 14.

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On March 7, 2012, petitioner filed a petition for writ of habeas corpus in the Superior
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Court for the County of San Francisco, requesting the court order the District Attorney’s office to

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produce all additional Brady material relating to Gardner, order an evidentiary hearing to

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determine the full scope of the Gardner Brady material, and vacate the judgment of his conviction.

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Docket No. 32, Ex. E. In its order, the Superior Court considered and discussed the Gardner

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Brady evidence but ultimately denied petitioner’s writ. Second Amended Petition, Docket No. 25,

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Ex. 33. Petitioner’s subsequent petition for writ of habeas corpus and petition for review were

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denied by the First Appellate District Court of Appeal and the California Supreme Court,

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respectively. Docket No. 32, Exs. F, G, H, I.
Petitioner then returned to this Court and filed motions to lift the stay and re-open the case,

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and for leave to file an amended petition. Docket No. 19. The second amended petition was filed,

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containing both petitioner’s Jackson and Brady claims.

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answered the second amended petition. Docket No. 31.

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discovery of documents, which the Court denied, finding that petitioner could not show good

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cause for his request and that the discovery sought was largely duplicative of the request he made

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in state court. Docket No. 37. Petitioner subsequently filed a traverse. Docket No. 41.

Docket No. 25.

The government

Petitioner then filed a motion for

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JURISDICTION AND VENUE

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This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C.

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§ 2254. 28 U.S.C. § 1331. Venue is proper because the challenged conviction occurred in San

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Francisco County, California, within this judicial district. 28 U.S.C. §§ 84, 2241(d).

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EXHAUSTION

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Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings

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either the fact or length of their confinement must exhaust their state court remedies by presenting

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the highest state court available with a fair opportunity to rule on the merits of each and every

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claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute

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that petitioner has exhausted his state court remedies for the claims asserted in the petition.

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STANDARD OF REVIEW
A federal court may entertain a petition for writ of habeas corpus “on 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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Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose

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new restrictions on federal habeas review. A petition may not be granted with respect to any claim

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that was adjudicated on the merits in state court unless the state court's adjudication of the claim:

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

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established Federal law, as determined by the Supreme Court of the United States; or (2) resulted

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

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presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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“The ‘contrary to’ and ‘unreasonable application of’ clauses in § 2254(d)(1) are distinct

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and have separate meanings.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2009) (citations

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omitted); see also Bell v. Cone, 535 U.S. 685, 694 (2002) (“§ 2254(d)(1)'s ‘contrary to’ and

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‘unreasonable application’ clauses have independent meaning.”).

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contrary to . . . clearly established [federal law] if it applies a rule that contradicts the governing

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law set forth in [Supreme Court] cases, or if it confronts a set of facts that is materially

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indistinguishable from a decision of [the Supreme Court] but reaches a different result.” Brown v.

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Payton, 544 U.S. 133, 141 (2005) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000); Early v.

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Packer, 537 U.S. 3, 8 (2002)). However, the state court need not cite the controlling Supreme

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Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts

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them.” Early, 537 U.S. at 8. “Under the ‘contrary to’ clause, a federal habeas court may grant the

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writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

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question of law or if the state court decides a case differently than [the] Court has on a set of

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

“A state-court decision is

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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] Court’s decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal
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habeas court may not issue the writ simply because that court concludes in its independent

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

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

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court making the “unreasonable application” inquiry should ask whether the state court’s

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application of clearly established federal law was “objectively unreasonable.” Id. at 409.

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DISCUSSION

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Petitioner presents the Court with two arguments: the first as to his Brady claim, and the

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second as to his Jackson claim.

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I.

Brady Claim

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Petitioner’s Brady claim is premised upon the failure to produce evidence involving

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Inspector Gardner, a key inspector in the robbery case. Docket No. 25-3, Ex. 33. Petitioner filed a

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petition for writ of habeas corpus in the Superior Court for the County of San Francisco. Id. The

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Superior Court analyzed petitioner’s claim, found that the Gardner evidence was not material, and

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therefore no Brady violation occurred. Id. The state court petition for writ of habeas corpus was

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denied.

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A. The Gardner Evidence

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The facts relevant to petitioner’s Brady claim are as follows:

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The key inspectors on the case were Daniel Gardner and Daniel Leydon. Leydon
eventually was promoted to lieutenant in the sex crimes detail, but Gardner
remained on the case full-time.

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CSI inspector Suyehiro collected all the items at the scene that he thought might
have latent prints on them. He did not collect the poster board or newspaper that
eventually revealed latent prints; rather, Inspector Gardner found the poster board
on the day of the robbery and gave it to Suyehiro when they were in the robbery
detail office.
Gardner went back to the scene on the 8th and 9th. On the 9th he found a
newspaper (the San Francisco Chronicle) and pointed it out to Inspector Gregory
of the Crime II Scene Investigation Unit, who photographed and seized it.
Gregory checked the newspaper for fingerprints and the prints that were found
matched Petitioner and George Turner. (RT 1115:3-21.) Turner was arrested in
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June, wearing an antique watch from the Lang robbery. (RT 1316:22-1317:13.)
He had more of the stolen jewelry in a bag in his hotel room, with a value of
$650,000. Turner eventually entered a guilty plea to the charges against him.
Dino Smith was found guilty after jury trial.
Inspector Leydon' s notes from the 9th list an address that was later confirmed as
Petitioner's. A second address is also written in those same notes. In a
chronological report for April 9th, it is indicated that the officers went to Oakland
on that day to speak with Erin Beeghly.
At the beginning of the trial the prosecutor introduced Inspector Daniel Gardner
as the investigating officer and explained that Gardner would be "sitting in during
the trial." Gardner testified to his extensive experience, telling the jury he had
been an officer for 29 years, an inspector for 16 years, and had been in the
robbery detail for 8 years.
One store employee, Richard Frey, was asked to look at a photo line-up. He
showed interest in both Dino and Troy Smith, but only positively identified Dino
Smith as one of the robbers. According to Gardner, none of the victims of the
robbery positively identified petitioner.
During the robbery the third robber remained behind the wall with the hole in it.
Two victims saw the figure through the hole, but could not identify the figure.
As stated previously, Inspector Gardner retrieved a piece of poster board at the
scene and gave it to CSI Suyehiro. There were fingerprints on that poster board,
belonging to George Turner, Inspector Gardner, and Troy Smith.
Two days after the robbery the inspector went back to the scene and went in a
room he had not entered before. There he saw two newspapers, which were
photographed and taken by CSI Gregory. There were fingerprints on one of the
newspapers belonging to George Turner, and one belonging to Troy Smith. The
newspaper was an edition that was printed between 2:00 AM and 2:45 AM in the
San Francisco city plant. The batch was distributed mainly to news racks in the
city….
 * * *
Sometime after trial petitioner was made aware of some potential "Brady"
information about Inspector Gardner. That evidence related to an incident in
which Gardner was found to have lied to other officers during an internal
investigation.
In 1997 several officers asked Inspector Gardner to help them prepare for an
Assistant Inspector exam. He met with an officer the day before the exam. That
officer revealed to Gardner that he had the answers to the exam, and knew what
scenarios would be presented on the exam. Gardner provided this information to
the unit administering the test. The test was canceled, and an investigation into the
matter was started.
There was conflicting evidence as to some of the details of Gardner's conduct, but
Gardner admitted he lied during the investigation to protect himself.

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In re Smith, Superior Court of California County of San Francisco, January 14, 2013 (“The

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Superior Court Order”), at 2-3, 6.
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B. Brady Standards

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“Supreme Court holdings at the time of the state court’s last reasoned decision are the

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source of clearly established Federal Law for the purposes of AEDPA.” Barker v. Fleming, 423

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F.3d 1085 (9th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000); Clark v. Murphy,

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331 F.3d 1062, 1069 (9th Cir. 2003)). Here, when the Superior Court issued its decision denying

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petitioner’s habeas petition, the elements of a Brady claim were clearly established under Supreme

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Court law. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In order to establish a Brady

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claim a defendant must show: (1) the prosecution suppressed evidence; (2) the suppressed

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evidence was favorable to the defendant; and (3) the suppressed evidence was material. Id.
“Evidence is favorable if it is exculpatory or impeaches a prosecution witness, and

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Northern District of California

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suppression occurs when favorable evidence known to police or the prosecution is not disclosed,

12

either willfully or inadvertently.” United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009).

13

“Even if evidence favorable to the defendant has been suppressed or not disclosed by the

14

prosecution, there is no true Brady violation unless that information is material.” United States v.

15

Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013) (citing Strickler, 527 U.S. at 289-90). “Evidence is

16

material if there is a reasonable probability that, had the evidence been disclosed to the defense,

17

the result of the proceeding would have been different.” Maxwell v. Roe, 628 F.3d 486, 509 (9th

18

Cir. 2010). “A reasonable probability is one that is sufficient to undermine confidence in the

19

outcome of the trial.” Id. “Reversal of a conviction or sentence is required only upon a ‘showing

20

that the favorable evidence could reasonably be taken to put the whole case in such a different

21

light as to undermine confidence in the verdict.” Olsen, 704 F.3d at 1183 (quoting Williams v.

22

Ryan, 623 F.3d 1258, 1274 (9th Cir. 2010).

23
24

C. Review of the Superior Court’s Decision

25

The Superior Court found that no Brady violation occurred because the new evidence was

26

not material. Under AEDPA, the Court must defer to that finding unless the decision of the

27

Superior Court is “contrary to, or involved an unreasonable application of, clearly established

28

Federal law, as determined by the Supreme Court of the United States”; or “resulted in a decision
11

1

that was based on an unreasonable determination of the facts in light of the evidence presented in

2

the State court proceeding.” 28 U.S.C. § 2254(d).

3

Petitioner asserts that the Superior Court’s decision was “contrary to” Supreme Court

4

precedent, arguing the court undertook the wrong materiality analysis under Brady by failing to

5

consider the cumulative impact that the Gardner evidence would have had on the trial as a whole.

6

SAP 51. Additionally, petitioner argues that the Superior Court’s decision was based on an

7

unreasonable determination of the facts. Id.

8
1. Contrary To Clearly Established Federal Law

9

The Supreme Court has held that suppressed evidence is material “if there is a reasonable

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Northern District of California

10

probability that, had the evidence been disclosed to the defense, the result of the proceeding would

12

have been different.”

13

materiality the court must analyze the withheld evidence “in the context of the entire record.”

14

Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir. 2002) (citing United States v. Agurs, 427 U.S. 97,

15

112 (1976)). Specifically, when analyzing withheld evidence for materiality, the Supreme Court

16

has held that courts should engage in a two-step analysis. Kyles v. Whitley, 514 U.S. 419, 436,

17

n.10 (1995).

18

item by item.” Id. Second, courts should evaluate the “cumulative effect [of the withheld

19

evidence] separately and at the end of the discussion [.]”. Id. The Ninth Circuit has held that a

20

failure to complete both parts of the materiality “equation” will result in a decision that is

21

“contrary to clearly established Federal law.” See Barker v. Fleming, 423 F.3d 1085, 1094 (9th

22

Cir. 2005).

United States v. Bagley, 473 U.S. 667, 682 (1985).

In determining

First, courts should evaluate “the tendency and force of the undisclosed evidence

23

The Superior Court did not render a decision “contrary to clearly established Federal law”

24

by failing to complete the two-step materiality analysis. In its order, the Superior Court identified

25

the correct legal standard under Brady and Strickler and discussed the relevant Supreme Court

26

precedent. Superior Court Order at 6-9. The Superior Court completed step-one of the materiality

27

analysis when it evaluated the withheld evidence and determined that its tendency and force was

28

such that it could only “be used to attack [Inspector Gardner’s] credibility in a general sense
12

1

[because] it is not related to the Petitioner’s case.” Superior Court Order at 11. Further, the

2

Superior Court’s order shows that the court completed step-two by considering what effect a

3

successful attack on Inspector Gardner’s general credibility would have had on this case, in light

4

of the other evidence presented against petitioner at trial. For example, the court explained the

5

following:

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Northern District of California

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The petitioner argues that here the main evidence against him was the fingerprint
on the newspaper. Since the newspaper could be dated to the time of the robbery
it was arguably more important than the fingerprint on the poster board. Since no
one could identify the third robber as petitioner, he claims the fingerprint
evidence was the only real evidence against him. He implies that Inspector
Gardner planted this evidence and if Gardner could have been impeached with the
new evidence of his misconduct, the outcome of the trial would have been
different.
Evidence against the petitioner included fingerprints on both the poster board and
the newspaper that were found at the scene. Along with petitioner's fingerprints,
each item had George Turner's fingerprint on it. The fact that petitioner’s
fingerprint and the fingerprint of a convicted participant in the crime were on the
same items strengthens the fingerprint evidence. Still photos taken from a video
recording from nearby Saks Fifth Avenue shows people entering the abandoned
restaurant shortly before the robbery, and the prosecutor pointed out that one
person appeared to be carrying a newspaper.
Petitioner abandoned his apartment after the robbery. He never paid rent again
once the robbery occurred. The apartment was cleaned out when officers arrived,
except for a few items, one of which was a dog food bowl on the floor. The
officers confronted a man in the apartment garage, who had cleaning supplies,
clothing, correspondence (later tied to petitioner), a puppy and earrings from the
robbery in his car. The man said Debbie Warner gave him the earrings.
Debbie Warner was the girlfriend of petitioner’s brother. In a subsequent search
of her apartment the police found the same box of correspondence (from the car in
the apartment garage) containing letters and bills addressed to petitioner. They
also found petitioner’s wallet at Debbie Warner’s, and a witness placed petitioner
at the building where Warner lived in the days after the robbery. Sammy, a man
who sold some of the jewelry, said he gave the money for the jewelry to Debbie
Warner. . . .
 * * *
The evidence presented against Petitioner at trial is stronger than Petitioner
characterizes in his petition. While the new Brady evidence involving Inspector
Gardner could be used to attack his credibility in a general sense, it is not related
to the Petitioner’s case . . . . After reviewing the evidence presented against
Petitioner, and the Brady evidence discovered after trial, this court finds the new
evidence is not material, and so no Brady violation occurred.
Superior Court Order at 10-11.

27
The Superior Court evaluated the inculpatory evidence presented at trial and concluded
28
13

1

that the withheld evidence was not “material” because: (1) the withheld evidence was not directly

2

related to petitioner’s case, and (2) the prosecution presented additional inculpatory evidence that

3

was not dependent on Inspector Gardner’s credibility. Id. In other words, the Superior Court

4

determined that the “tendency and force” of the withheld evidence went to attacking Inspector

5

Gardner’s credibility in a general sense and then considered what effect such an attack would have

6

had on the trial in light of the entirety of the evidence presented at trial. This is what is required

7

under Kyles and Barker. See Kyles, 514 U.S. at 474; Barker, 423 F.3d 1085. Accordingly,

8

because the Superior Court completed both steps of the Supreme Court's materiality analysis, it

9

did not apply the wrong materiality rule as petitioner suggests.
Next, petitioner argues that the Superior Court engaged in an improper “sufficiency of the

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Northern District of California

10

evidence analysis” and therefore its decision is “contrary to clearly established federal law.”

12

SAP at 62. In support of his argument, petitioner notes that “the materiality inquiry is not just a

13

matter of determining whether, after discounting the inculpatory evidence in light of the

14

undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusion.” SAP

15

at 63 (citing Strickler, 527 U.S. at 290). Petitioner then argues that the Superior Court’s statement

16

that “[t]he evidence presented against Petitioner at trial is stronger than Petitioner characterizes in

17

his petition” establishes that the Superior Court engaged in this kind of improper materiality

18

analysis. SAP at 63; Superior Court Order at 10-11.

19

The Superior Court did not engage in the type of forbidden materiality analysis petitioner

20

alleges. Instead, the Superior Court’s Order shows that it reasonably determined that the withheld

21

evidence could have been used to attack Inspector Gardner’s credibility in a general sense, but was

22

not related to petitioner’s case and therefore would not have had a meaningful “discounting” effect

23

on the inculpatory evidence presented at trial. Superior Court Order at 11. The Superior Court

24

reasoned that the undisclosed evidence could not have changed the outcome of petitioner’s case

25

because it would not have created a reasonably probability that a jury would have believed the

26

defense theory that Gardner planted the fingerprint evidence and it did not cast doubt on any of the

27

inculpatory evidence in this case. This conclusion was not objectively unreasonable. Moreover,

28

whether the Superior Court was correct in determining that the withheld evidence was unrelated to
14

1

petitioner’s case is not the proper inquiry under AEDPA’s “contrary to” prong. See, e.g., Brown,

2

544 U.S. at 141. Accordingly, the Court finds that the Superior Court did not engage in an

3

improper “sufficiency of the evidence analysis” and did not apply the wrong materiality rule.

4
5

2. Unreasonable Determination of the Facts
Petitioner also contends that the Superior Court’s Brady-materiality decision was based on

7

an unreasonable determination of the facts. SAP at 66. Specifically, petitioner contends that the

8

Superior Court unreasonably determined that: (1) petitioner over-emphasized the importance of

9

the newspaper; (2) the video tape showed someone entering the abandoned restaurant holding a

10

newspaper; (3) the poster board fingerprint evidence would not have been undermined by the

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Northern District of California

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withheld evidence; (4) George Turner’s fingerprint strengthened the poster-board fingerprint

12

evidence; (5) petitioner’s failure to self-surrender was inculpatory evidence; and (6) the withheld

13

evidence was unrelated to petitioner’s case. Id.

14

“[A] federal court may not second-guess a state court's fact-finding process unless, after

15

review of the state-court record, it determines that the state court was not merely wrong, but

16

actually unreasonable.” Taylor, 366 F.3d at 999. Here, the record shows that the Superior Court’s

17

factual determinations were not unreasonable.

18

First, the Superior Court did not make any unreasonable determinations with respect to the

19

newspaper fingerprint evidence or the poster board fingerprint evidence.

Instead, the court

20

reasonably recognized that the withheld evidence would not have directly affected any of the

21

inclupatory evidence in this case—which includes the fingerprints on the newspaper and poster

22

board—because the withheld evidence does not show that Inspector Gardner did anything

23

inappropriate in this case. Superior Court Order at 10-11. The Superior Court did not make an

24

objectively unreasonable determination by concluding that Inspector Gardner’s improper behavior

25

in a completely unrelated case could not cast enough doubt on the newspaper and poster board

26

fingerprint evidence to place this case in a different light.

27

Second, the Superior Court did not make an unreasonable determination with respect to the

28

videotape evidence. Instead, the Superior Court simply noted that the “prosecutor pointed out that
15

1

[in the video] one person appeared to be carrying a newspaper.” Superior Court Order at 10.

2

Contrary to petitioner’s suggestion, the Superior Court’s statement appears to be nothing more

3

than recognition that the jury could have accepted the prosecution’s characterization of the

4

videotape. This is not an objectively unreasonable statement.
Third, the Superior Court’s recognition that George Turner’s fingerprints on the newspaper

6

and the poster board strengthened the inculpatory value of that evidence was not objectively

7

unreasonable. AEDPA’s § 2254(d)'s “highly deferential standard for evaluating state-court rulings

8

. . . demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti,

9

537 U.S. 19, 24 (2002) (internal citation and quotation marks omitted). The record shows that the

10

jury was made aware that George Turner was found in possession of $650,000 worth of jewelry

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Northern District of California

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from the jewelry heist. 3RT 669-70; 4RT 1311-15; 1316-19; 6RT 1550-52,1568. Thus, that

12

Turner’s conviction was the result of his Alford plea and that the Superior Court therefore may

13

have technically erred in referencing the plea and conviction does not make its general position

14

regarding Turner’s fingerprints unreasonable when considered in light of the entire record. This

15

Court must give the Superior Court the benefit of the doubt and recognize that the record supports

16

the Superior Court’s general position that the presence of Turner’s fingerprints “strengthens the

17

fingerprint evidence.”

18

determination regarding the Turner’s fingerprints was not objectively unreasonable.

Superior Court Order at 10.

Accordingly, the Superior Court’s

19

Fourth, the Superior Court’s reference to petitioner being “‘on the run’ for almost three

20

years,” does not establish that the court made an unreasonable factual determination. Petitioner

21

does not dispute that he fled the authorities for almost three years. SAP at 69-70. The Superior

22

Court’s reference to this fact appears to be nothing more than an acknowledgement that the jury

23

was made aware of petitioner’s flight. Because the Superior Court reasonably determined that the

24

withheld evidence would not have affected the fact of petitioner’s flight, the Superior Court was

25

not unreasonable in its determination that petitioner’s flight may have been an inculpatory fact in

26

the jury’s eyes.

27

Lastly, the Superior Court’s determination that the withheld evidence was “unrelated” to

28

petitioner’s case was not unreasonable. The withheld evidence in this case showed that Inspector
16

1

Gardner lied in connection with a prior police investigation independent from petitioner’s case.

2

Accordingly, the Superior Court was not objectively unreasonable in characterizing the withheld

3

evidence as “unrelated” to petitioner’s case.

4

For the foregoing reasons, the Court cannot say that the Superior Court’s denial of

5

petitioner’s Brady claim was “contrary to” or “an unreasonable application of” Supreme Court

6

law.

7
8

II.

Jackson Claim
Petitioner also argues that the California Court of Appeal’s decision violated his right to

10

due process guaranteed by the Fourteenth Amendment. Specifically, petitioner contends that

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United States District Court
Northern District of California

9

because the prosecution’s theory of the case was that the jewelry store owner consented to the

12

taking of the jewelry, the “intent to permanently deprive the owner of his property” element of

13

robbery could not have been satisfied. SAP at 76. Petitioner asserts that the California Court of

14

Appeal’s conclusion that all of the elements of robbery were met was objectively unreasonable

15

because “[n]o rational trier of fact could conclude that a person who participated in a scheme—

16

with the owner’s consent—that provides the owner with $4.475 million acted with the intent to

17

deprive the owner of his property.” Id. at 76-77.

18

The Due Process Clause “protects the accused against conviction except upon proof

19

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

20

charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the

21

evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a

22

rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim,

23

see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas

24

relief, see id. at 324.

25

The Supreme Court has emphasized that “Jackson claims face a high bar in federal habeas

26

proceedings . . . .” Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). A federal

27

court reviewing collaterally a state court conviction does not determine whether it is satisfied that

28

the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th
17

1

Cir. 1992), cert. denied, 510 U.S. 843 (1993). The federal court “determines only whether, ‘after

2

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

3

have found the essential elements of the crime beyond a reasonable doubt.’” Payne, 982 F.2d at

4

338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of

5

guilt beyond a reasonable doubt, has there been a due process violation. Jackson, 443 U.S. at 324;

6

Payne, 982 F.2d at 338.
After AEDPA, a federal habeas court applies the standards of Jackson with an additional

8

layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Generally, a federal

9

habeas court must ask whether the operative state court decision reflected an unreasonable

10

application of Jackson to the facts of the case. Coleman, 132 S. Ct. at 2062; Juan H., 408 F.3d at

11
United States District Court
Northern District of California

7

1275 (quoting 28 U.S.C. § 2254(d)). Thus, if the state court affirms a conviction under Jackson,

12

the federal court must apply § 2254(d)(1) and decide whether the state court’s application of

13

Jackson was objectively unreasonable. See McDaniel v. Brown, 558 U.S. 120, 132 (2010). To

14

grant relief, therefore, a federal habeas court must conclude that “the state court’s determination

15

that a rational jury could have found that there was sufficient evidence of guilt, i.e., that each

16

required element was proven beyond a reasonable doubt, was objectively unreasonable.” Boyer v.

17

Belleque, 659 F.3d 957, 964-965 (9th Cir. 2011). In sum, sufficiency claims on federal habeas

18

review are subject to a “twice-deferential standard.” Parker v. Matthews, 132 S. Ct. at 2152

19

(2012) (per curiam). First, relief must be denied if, viewing the evidence in the light most

20

favorable to the prosecution, there was evidence on which “any rational trier of fact could have

21

found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443

22

U.S. at 324).

23

overturned on federal habeas unless the decision was “objectively unreasonable.” Id. (quoting

24

Cavazos v. Smith, 132 S. Ct. 2, 4 (2011)).

Second, a state court decision denying a sufficiency challenge may not be

25

Here, petitioner argues that the key element of robbery—intent to deprive the owner

26

permanently of his property— was not met because the heist was an inside job undertaken at the

27

store owner’s behest. SAP at 76. According to petitioner, the Court of Appeal failed to assess

28

“the intent to deprive the owner” element, thereby making its conclusion objectively unreasonable.
18

1

Id. at 79.
A state court’s interpretation of state law, including one announced on direct appeal of the

3

challenged conviction, binds a federal court sitting in habeas corpus. See Dixon v. Williams, 750

4

F.3d 1027, 1033 (9th Cir. 2014) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005)). A habeas

5

petitioner may not transform a state law issue into a federal one merely by asserting a due process

6

violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). The state's highest court is the

7

final authority on the law of that state. Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979).

8

However, even a determination of state law made by an intermediate appellate court must be

9

followed and may not be “‘disregarded by a federal court unless it is convinced by other

10

persuasive data that the highest court of the state would decide otherwise.’” Hicks v. Feiock, 485

11
United States District Court
Northern District of California

2

U.S. 624, 630 n.3 (1988) (citation omitted).

12

In rejecting petitioner’s claim, the California Court of Appeal thoroughly analyzed and

13

construed California law and held that the intent to permanently deprive “innocent employees” of

14

property that has been placed in their control is sufficient to satisfy the “intent to deprive” element

15

of robbery. See People v. Smith, 177 Cal. App. 4th 1478, 1491-92 (2009). Specifically, the Court

16

of Appeal held, in pertinent part, as follows:

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25
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27
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As noted, appellant's argument is, essentially, that the property owner's consent in
the “inside job” scenario negates one of the elements of robbery by rendering the
taking non-felonious. For guidance on this issue, we look to the California
Supreme Court's examination of the meaning of the term “felonious taking.”
“[B]y use of the ... term ‘felonious taking’ in section 211, the Legislature was ...
incorporating into the ... statute the affirmative requirement, derived from the
common law rule applicable to larceny and robbery, that the thief or robber has to
intend to take property belonging to someone other than himself in order to be
guilty of theft or robbery, that is to say, the common law recognition of the
defense of claim of right.” (Tufunga, supra, 21 Cal.4th at p. 946, 90 Cal.Rptr.2d
143, 987 P.2d 168, italics added.) Tufunga held, on the basis of this reasoning,
that a good faith claim of right to the ownership of specific property can negate
the element of felonious taking that is necessary to establish theft or robbery.
This holding does not, however, necessarily imply that the taking involved in an
“inside job” robbery is not felonious, and may in fact, imply the opposite because
it requires only that the property belong to someone other than the taker. The
common law understanding of the “felonious taking” element of larceny and
robbery, on which Tufunga relied, also includes the concept that “[a] person may
be a victim of larceny even though he is not the owner [of the property taken]; he
need only have a special property right, as in the case of a bailee or pledgee. It is
enough that he has possession and that it is lawful as to the defendant, or that
because of a legally recognized interest in the property he is entitled to possession
19

as against the defendant. Moreover, the person from whom the property is taken
qualifies as a victim of larceny even though he does not have the right of
possession as against the true owner.” (Wharton's Criminal Law, (15th ed.1995) §
381, pp. 454–456, fns. omitted.) . . . .

1
2

In short, “ ‘[c]onsidered as an element of larceny, “ownership” and “possession”
may be regarded as synonymous terms; for one who has the right of possession as
against the thief is, so far as the latter is concerned, the owner.’ [Citation.] It is,
after all, a matter of no concern to a thief that legal title to the stolen property is
not in the complainant. [Citation.] ... ‘Possession alone, as against the wrongdoer,
is a sufficient interest to justify an allegation and proof of ownership in a
prosecution for larceny.’ ” (People v. Price (1941) 46 Cal.App.2d 59, 61–62, 115
P.2d 225) . . . .

3
4
5
6
7

[W]hen the owner of a store consents to an “inside job” robbery that occurs while
the store is under the control of employees who are unaware of the owner's plan,
the owner's consent does not vitiate the “felonious taking” element of robbery. If
the property that is taken was in the possession of the owner's innocent
employees or agents, that is sufficient to make the taking felonious, even if the
owner himself or herself is secretly in league with the perpetrators.

8
9
10

United States District Court
Northern District of California

11

Id.

12

This Court is bound by the Court of Appeal’s interpretation of California law. Hicks, 485

13

U.S. at 630 n.3. To the extent that petitioner challenges the legal sufficiency of the Court of

14

Appeal’s conclusion, this claim is not cognizable. Furthermore, the Court of Appeal’s conclusion

15

was a reasonable determination of the facts in light of the evidence presented. Viewing the

16

evidence in the light most favorable to the prosecution, this Court finds that a rational trier of fact

17

“could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443

18

U.S. at 319; see also Payne, 982 F.2d 335 at 338. As such, this Court finds that petitioner has not

19

established a Jackson violation.
CONCLUSION

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22
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24

For the foregoing reasons and for good cause shown, and on the basis of the record before
it, the Court hereby DENIES the petition for a writ of habeas corpus.
IT IS SO ORDERED.
Dated: July 17, 2015

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________________________
SUSAN ILLSTON
United States District Judge

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