Taylor v. Barnes

Filing 24

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Kenneth Taylor. Signed by Judge Charles R. Breyer on 4/19/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 4/22/2013)

1
2
3
4
5
6
7
8
9
10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12
13

KENNETH TAYLOR, AB7038,
Petitioner,

14
15
16
17

vs.
R.E. BARNES, WARDEN,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. C 12-0376 CRB (PR)
ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS
(Docket # 23)

18
19

Petitioner, a state prisoner at the California Medical Facility (CMF), seeks

20

a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction and

21

sentence from Alameda County Superior Court. He also seeks appointment of

22

counsel and discovery. For the reasons set forth below, Petitioner’s requests for

23

discovery, appointment of counsel and a writ of habeas corpus are denied.

24
25

STATEMENT OF THE CASE
Petitioner was convicted by a jury of two counts of second degree robbery.

26

In a bifurcated proceeding, the court found true allegations that Petitioner had

27

suffered nine prior convictions, including a prior felony strike conviction. On

28

December 4, 2009, Petitioner was sentenced to 15 years in state prison.

1

Petitioner unsuccessfully appealed his conviction to, and unsuccessfully

2

sought habeas relief from, the California Court of Appeal. The Supreme Court of

3

California denied review and, on November 16, 2011, denied his final petitions

4

for state habeas relief.

5

On January 24, 2012, Petitioner filed a petition for a writ of habeas corpus

6

under 28 U.S.C. § 2254 in this Court. Per order filed on June 5, 2012, the Court

7

found that the petition stated cognizable claims under § 2254, when liberally

8

construed, and ordered Respondent to show cause why a writ of habeas corpus

9

should not be granted. After receiving several extensions of time, Respondent

10

filed an answer to the petition on November 1, 2012. On December 17, 2012,

11

Petitioner filed a traverse to Respondent’s answer.

12

On May 8, 2012, Petitioner filed a motion for appointment of counsel. Per

13

order filed on June 5, 2012, the Court denied the motion without prejudice.

14

Petitioner renewed the motion for appointment of counsel on January 31, 2013.

15

On June 29, 2012, Petitioner filed a request for discovery, which the Court

16

denied without prejudice on July 11, 2012. Petitioner renewed his request for

17

discovery on November 19, 2012 and, per order filed on November 21, 2012, the

18

Court requested Respondent file a response to the request. On January 17, 2013,

19

Respondent filed an opposition to the request for discovery.

20

STATEMENT OF THE FACTS

21

The California Court of Appeal summarized the facts of the case as

22
23
24
25
26

follows:
On February 19, 2009, the Circuit City store in Emeryville was
holding a liquidation sale. At approximately 6:14 p.m., Edgar
Bermeo was on duty as the sales manager and Michael Miller as the
loss prevention officer. Bermeo heard an alarm go off in the
camera department, which indicated that someone had touched a
merchandise display in a manner that disconnected a cable that
links the merchandise to an alarm box. Initially Bermeo was not
concerned by the alarm because alarms frequently sounded when

27
28

2

1
2
3
4
5
6
7
8

customers would innocently pick up a piece of displayed
merchandise. As a manager, it was Bermeo’s duty to deactivate the
alarm.
Just after Bermeo had walked the approximately 50 feet from
where he was standing to the camera department and turned off the
alarm, a female customer told Bermeo that [Petitioner] had just
taken a camera lens. Bermeo also noticed that a camera lens was
missing from the display. When the customer pointed out
[Petitioner], Bermeo saw that he was about 50 feet away and was
“walking pretty calm” towards the exit of the store. [Petitioner]
walked past the two open cash registers without stopping. At this
point, Miller was standing about five feet from [Petitioner] as
[Petitioner] made his way to the exit. Bermeo yelled to Miller,
telling him to stop [Petitioner] because “he just took a lens.”
Before Miller could react, [Petitioner] ran out the door.

9
10
11
12
13
14
15
16
17
18

Bermeo and Miller immediately gave chase. Miller called 911 as
he and Bermeo ran out of the store, and Miller stayed on the phone
with the 911 operator as they chased [Petitioner]. Pursuing
[Petitioner], Bermeo and Miller turned left when they exited the
store and ran toward Powell Street. [Petitioner] ran around the
corner of the building, then ran across Powell Street towards a
Denny’s restaurant. It was dark, and Powell Street was heavily
trafficked. [Petitioner] was running at a quick pace and did not use
the crosswalk as he ran across Powell Street. Bermeo and Miller
were delayed 20 to 25 seconds in crossing Powell Street due to the
traffic. [Petitioner] ran by the Denny’s restaurant and behind a
Well[s] Fargo building, in a very dark area, and Bermeo and Miller
lost sight of him. Bermeo “figured I lost him since I lost view of
him, so I stopped running and just started walking,” still “looking
for him.” After an interval which Bermeo testified was “less than a
minute” and Miller thought was “about maybe a good ... minute
and a half to two minutes,” they spotted [Petitioner] walking along
Christy Avenue “very normally, like a person just walking across
the parking lot.”

19
20
21
22
23
24
25
26

Bermeo and Miller then resumed the chase and [Petitioner], seeing
them, resumed running from them. [Petitioner] sprinted across
Christy Avenue, then across Powell Street, up an overpass on
Powell Street, running on a narrow sidewalk on the side of the road.
Bermeo and Miller gained ground on [Petitioner] as they pursued
him up the overpass on Powell Street, getting to within about five
yards of him. As they were about halfway up the incline portion of
the overpass [Petitioner] began walking in a sidestep, turning his
body to face Bermeo. With his right hand in his jacket pocket,
[Petitioner] said to Bermeo, “I’ll shoot you. I’ll shoot you.” Miller
heard [Petitioner] say, “Stop chasing me, or I will shoot you.”
Bermeo “stopped in [his] tracks.” He was “scared.”
Bermeo and Miller then reduced their pace and allowed the
distance between them and [Petitioner] to increase. When they

27
28

3

1
2
3
4
5
6
7
8
9
10
11

reached the apex of the overpass, approximately 20 to 25 yards
behind [Petitioner], Bermeo saw a police car appear. Emeryville
Police Officer Spencer Giddings, who was driving the car, passed
[Petitioner], then made a U-turn in the middle of the overpass and
returned to apprehend [Petitioner]. Just before the officer arrived,
both Bermeo and Miller saw [Petitioner] throw an object over the
side of the overpass. Before detaining [Petitioner], Giddings also
saw him take some objects from his pocket and throw them over
the edge of the overpass. The three later searched the area
underneath that portion of the overpass and found the camera lens
as well as a computer mouse, a USB cable and two packages of
batteries. Giddings’ search of [Petitioner] upon his arrest produced
a carpenter’s knife, a USB cable, a memory card and a package of batteries.
The testimony at trial also included a description of events recorded
on the store’s surveillance camera, including [Petitioner] picking up
a lens on display, using a “knife-like object” from his pocket in a
cutting motion, apparently cutting the security cable, returning the
lens to the display but in approximately 30 seconds returning to the
display, picking up the lens and placing it in his coat pocket and
walking towards the exit. The video also showed [Petitioner]
running out the front door, pursued by Bermeo and Miller.

12

17

In an amended information, [Petitioner] was charged with two
counts of second degree robbery (Pen.Code, § 211). The
information also alleged 11 prior convictions, including one prior
strike conviction (Pen.Code, §§ 667, subd. (e), 1170.12, subd. (c))
and five prison priors (Pen.Code, § 667.5, subd. (b)). A jury found
[Petitioner] guilty of both robbery counts, and in a bifurcated
proceeding the court found nine prior convictions true, including
the prior strike conviction, which the court refused to dismiss
pursuant to Penal Code section 1385. [Petitioner] was sentenced to
15 years in prison, and timely appealed.

18

People v. Taylor, No. A127175, 2011 WL 1553877, at *1-2 (Cal. Ct. App. April

19

6, 2011).

13
14
15
16

20
21

STANDARD OF REVIEW
This court may entertain a petition for a writ of habeas corpus “in behalf

22

of a person in custody pursuant to the judgment of a state court only on the

23

ground that he is in custody in violation of the Constitution or laws or treaties of

24

the United States.” 28 U.S.C. § 2254(a).

25
26

The writ may not be granted with respect to any claim that was
adjudicated on the merits in state court unless the state court’s adjudication of the

27
28

4

1

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

2

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

3

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

4

on an unreasonable determination of the facts in light of the evidence presented

5

in the State court proceeding.” Id. § 2254(d).

6

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

7

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

8

Court on a question of law or if the state court decides a case differently than

9

[the] Court has on a set of materially indistinguishable facts.” Williams v.

10

Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘reasonable application clause,’

11

a federal habeas court may grant the writ if the state court identifies the correct

12

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

13

that principle to the facts of the prisoner’s case.” Id. at 413.

14

“[A] federal habeas court may not issue the writ simply because the court

15

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

16

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

17

application must also be unreasonable.” Id. at 411. A federal habeas court

18

making the “unreasonable application” inquiry should ask whether the state

19

court's application of clearly established federal law was “objectively

20

unreasonable.” Id. at 409.

21

The only definitive source of clearly established federal law under 28

22

U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

23

Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

24

F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive

25

authority” for purposes of determining whether a state court decision is an

26

unreasonable application of Supreme Court precedent, only the Supreme Court’s

27
28

5

1

holdings are binding on the state courts and only those holdings need be

2

“reasonably” applied. Id.
CLAIMS & ANALYSIS

3
4

Petitioner raises four claims for relief under § 2254: (1) suppression of

5

evidence, (2) failure to exclude evidence, (3) instructional error and (4)

6

ineffective assistance of appellate counsel. The claims are without merit.

7

1.

8

Petitioner claims that he was denied due process because the prosecution

9

Suppression of Evidence

suppressed material evidence, namely the CCTV surveillance video from Circuit

10

City and the testimony of two witnesses, Ms. Rheem (operations manager of

11

Circuit City) and Kitty Nguyen (Circuit City employee). Pet., Ex. A at 1-4, 8.

12

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that

13

“the suppression by the prosecution of evidence favorable to an accused upon

14

request violates due process where the evidence is material either to guilt or to

15

punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at

16

87. The Supreme Court since has made clear that the duty to disclose such

17

evidence applies even when there has been no request by the accused, United

18

States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses

19

impeachment evidence as well as exculpatory evidence, United States v. Bagley,

20

473 U.S. 667, 676 (1985). Evidence is material if “there is a reasonable

21

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

22

proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70

23

(2009). “A reasonable probability does not mean that the defendant ‘would more

24

likely than not have received a different verdict with the evidence,’ only that the

25

likelihood of a different result is great enough to ‘undermine confidence in the

26

outcome of the trial.’” Smith v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Kyles

27
28

6

1

v. Whitley, 514 U.S. 419, 434 (1995)). But the mere possibility that undisclosed

2

information might have been helpful to the defense, or might have affected the

3

outcome of the trial, is not enough for relief under Brady. United States v. Olsen,

4

Nos. 10-36063 & 10-36064; slip op. at 21-22 (9th Cir. Jan. 8, 2013).

5

In sum, for a Brady claim to succeed, (1) the evidence at issue must be

6

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

7

evidence must have been suppressed by the prosecution, either willfully or

8

inadvertently; and (3) prejudice1 must have ensued. Banks v. Dretke, 540 U.S.

9

668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

10

Petitioner is not entitled to federal habeas relief on his Brady claims.

11

Petitioner’s claim regarding the video fails because he does not show that the

12

video was exculpatory or otherwise favorable to him. And even if the video was

13

favorable, Petitioner does not show that he was prejudiced. Petitioner’s claim

14

regarding Ms. Rheem’s and Kitty Nguyen’s testimony also fails because he does

15

not show that their testimony would have been exculpatory or otherwise

16

favorable to him.

17

With regards to the surveillance video, Bermeo, Miller and Officer

18

Giddings each viewed the video and testified that the video showed Petitioner

19

cutting the security cable using a knife-like object, picking up the lens, taking it

20

and walking towards the exit. 1RT 107-08; 3RT 295, 436-37. Petitioner

21

speculates that the video “may well have also captured [Petitioner] behaving in a

22

manner consistent with someone who suffers from ‘paranoid schizophrenia.’”

23

Pet., Ex. A at 4. But there is no evidence in the record that the video actually

24

showed any alleged schizophrenic behaviors or, put differently, that the contents

25
26
27
28

1

For the purpose of Brady, the terms “material” and “prejudicial” have the same
meaning. United States v. Kohring, 637 F.3d 895, 902 n.1 (9th Cir. 2011).

7

1

of the video were in any way favorable to Petitioner. Petitioner’s mere

2

speculation as to what the video may have shown is not enough to establish

3

materiality under Brady. See United States v. Olsen, slip op. at 21-22.

4

Even if the video showed some sort of schizophrenic behavior on the part

5

of Petitioner, there is no indication of how such evidence could reasonably be

6

taken to put the whole case in such a different light as to undermine confidence in

7

the verdict. See Kyles v. Whitley, 514 U.S. 419, 435 (1995). Petitioner’s claim

8

is without merit because it is well established that whether a “reasonable

9

probability” exists may not be based on mere speculation without adequate

10

support. See Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995).

11

Petitioner’s speculative claim regarding Ms. Rheem’s and Kitty Nguyen’s

12

testimony fails for essentially the same reasons as his speculative claim regarding

13

the video – there is no evidence that either Ms. Rheen or Ms. Nguyen would have

14

provided exculpatory or otherwise favorable testimony to Petitioner. Ms. Rheem

15

was identified as an operations manager at Circuit City who may have been able

16

to get a copy of the surveillance video. 2RT 232. But there is no indication that

17

(1) Ms. Rheem actually got the video, (2) that she watched the video, or (3) that

18

she saw something in the video that would be beneficial to Petitioner. Kitty

19

Nyguen was identified as a Circuit City employee present during Petitioner’s

20

offense who subsequently positively identified him. 1 RT 99. The testimony at

21

trial regarding Kitty Nyguen’s identification was stricken from the record, but

22

shows that her testimony would not have been favorable to the defense. Id.

23

Petitioner sets forth no evidence to the contrary.

24

Petitioner is not entitled to federal habeas relief on either of his Brady

25

claims. Under the circumstances, it simply cannot be said that the state courts’

26

summary rejection of the Brady claims was objectively unreasonable. See

27
28

8

1

Plascencia v. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006) (applying 28

2

U.S.C. § 2254(d)).

3

2.

Failure to Exclude Evidence

4

Petitioner claims that the trial court failed to exclude a statement given to

5

Bermeo by an “unknown Asian” woman in violation of his Sixth Amendment

6

right to confront and cross-examine witnesses against him. Pet., Ex. A at 6.

7

The testimony at issue was given to Bermeo the night of the robbery,

8

when the unknown Asian woman said, “that guy . . . just stole the lens that was

9

alarming,” pointing to Petitioner. 1RT 22-25 (Sept. 9, 2009). Petitioner moved

10

to exclude this testimony before trial, claiming that it constituted hearsay and

11

violated the Confrontation Clause. Id. But the trial court allowed the prosecution

12

to introduce the statement for “the effect on the listener” and gave the following

13

limiting instruction to the jury:

14
15
16
17
18

During the trial, certain evidence was admitted for a limited
purpose. You may consider that evidence only for that purpose
and for no other. Edgar Bermeo testified that an unknown
female pointed in the direction of the defendant and stated that
he had just taken a camera lens or words to that effect. This
evidence was admitted only to explain why Edgar Bermeo ran
out of the store chasing the defendant and not for any other
reason. You may not use the statement of the unknown female
as evidence that the defendant did, in fact, steal the camera lens.

19
4RT 635.
20
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
21
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
22
the witnesses against him.” U.S. Const. Amend. VI. This right applies to all
23
"testimonial" statements, whether sworn or unsworn, and to both in-court
24
testimony and out-of-court statements introduced at trial. Crawford v.
25
Washington, 541 U.S. 36, 51-52 (2004). But, “[t]he Clause does not bar the use
26
of testimonial statements for purposes other than establishing the truth of the
27
28

9

1

matter asserted.” Id. at 59 n.9. In Crawford, the Supreme Court held that

2

testimonial statements are not admissible unless the declarant is unavailable and

3

the defendant had a prior opportunity for cross-examination. Id. at 68.

4

Petitioner’s Confrontation Clause claim fails because the Asian woman’s

5

statement was not offered for the truth of the matter asserted; rather, it was

6

offered to explain the basis of Bermeo’s chasing Petitioner out of the store. See

7

Moses v. Payne, 555 F.3d 742, 755-56 (9th Cir. 2008) (no Confrontation Clause

8

issue where social worker reported spousal abuse under mandatory reporting law

9

and statements were introduced for non-hearsay purpose of explaining why she

10

contacted authorities). And in view of the limiting instruction given, as well as

11

the substantial evidence of Petitioner’s guilt, it cannot be said that the admission

12

of the Asian woman’s statement had a substantial and injurious effect on the

13

jury’s verdict. See Brecht, 507 U.S. at 637; see also Richardson v. Marsh, 481

14

U.S. 200, 211 (1987) (“juries are presumed to follow their instructions”).

15

Petitioner is not entitled to federal habeas relief on his Confrontation

16

Clause claim. It simply cannot be said that the state courts’ summary rejection of

17

the claim was objectively unreasonable. See Plascencia, 467 F.3d at 1197-98

18

(applying 28 U.S.C. § 2254(d)).

19

3.

20

Petitioner claims that the trial court’s failure to instruct the jury sua sponte

Instructional Error

21

regarding the asportation element of the offense of robbery violated his due

22

process rights. Pet., Ex. A at 12. According to Petitioner, the trial court should

23

have instructed the jury that Petitioner was not guilty of robbery if he had reached

24

a place of temporary safety prior to threatening Bermeo and Miller. See id.

25
26

To obtain federal habeas relief for error in the jury charge, petitioner must
show that the error “so infected the entire trial that the resulting conviction

27
28

10

1

violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991). The error

2

may not be judged in artificial isolation, but must be considered in the context of

3

the instructions as a whole and the trial record. Id. Petitioner also must show

4

actual prejudice from the error, i.e., that the error had a substantial and injurious

5

effect or influence in determining the jury’s verdict, before the court may grant

6

federal habeas relief. Calderon v. Coleman, 525 U.S. 141, 146 (1998) (citing

7

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

8
9

A state trial court’s failure to give an instruction does not alone raise a
ground cognizable in federal habeas corpus proceedings. Dunckhurst v. Deeds,

10

859 F.2d 110, 114 (9th Cir. 1988). Due process does not require that an

11

instruction be given unless the evidence supports it. See Hopper v. Evans, 456

12

U.S. 605, 611 (1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir.

13

2005). The defendant is not entitled to have jury instructions raised in his or her

14

precise terms where the given instructions adequately embody the defense theory.

15

United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); United States v.

16

Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979). Furthermore, the omission of

17

an instruction is less likely to be prejudicial than a misstatement of the law.

18

Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987). A habeas petitioner

19

whose claim involves a failure to give a particular instruction, as opposed to a

20

claim that involves a misstatement of the law in an instruction, bears an

21

“especially heavy burden.” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir.

22

1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).

23

The California Court of Appeal rejected Petitioner’s instructional error

24

claim. First, the court found that the trial court’s instructions were accurate.

25

People v. Taylor, 2011 WL 1553877, at *3. The court explained that the trial

26

court’s instructions were taken in large part from CALCRIM No. 1600, correctly

27
28

11

1

defining the elements of robbery, and that the trial court added, “the force or fear

2

may occur at the time of the taking of the property or while the defendant is

3

attempting to retain or escape with the property, even if the defendant peacefully

4

acquired the property.” Id. (internal quotations omitted) (emphasis in original).

5

The trial court also instructed on the lesser offense of larceny, and the appeal

6

court noted that “if the jury did not find that defendant’s threat was made while

7

attempting to retain or escape with the property, under the instructions there was

8

no basis on which it could have found him guilty of robbery.” Id.

9

Second, the California Court of Appeal found that there was insufficient

10

evidence to support a pinpoint instruction on the asportation element of robbery.

11

Id. at *4. The court explained:

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

Whether a defendant has reached a place of temporary safety
may be a question of fact for the jury, but the determination
is based on objective criteria. (People v. Johnson (1992) 5
Cal.App.4th 552, 559–560.) Like all other matters, there
must be some evidence to justify its submission to the jury.
(5 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000)
Criminal Trial, § 607, pp. 866–867.) There is no doubt that
from the time Bermeo shouted to stop defendant before he
ran out of the store until he was apprehended on the
overpass a short time later, Bermeo and Miller were in hot
pursuit. While they lost sight of defendant for a short
period, not more than two minutes, defendant never got
beyond the neighborhood of the store, never got more than a
block or so from the pursuing store employees, never gave
up possession of the stolen merchandise, and never eluded
his pursuers. At trial, defendant did not suggest that he had
reached a place of safety or that asportation of the stolen
equipment had terminated before he reached the overpass;
his argument to the jury was that he never made any threats
to Bermeo or Miller. There is no case that suggests that
momentarily losing sight of a fleeing suspect in the course of
a chase means that the suspect has reached a place of
temporary safety sufficient to bring the commission of a
robbery to an end. (See e.g., People v. Salas (1972) 7 Cal.3d
812, 820–824; People v. Flynn, supra, 77 Cal.App .4th at p.
772; People v. Guzman (1996) 45 Cal.App.4th 1023, 1026,
1028; People v. Young (1992) 11 Cal.App.4th 1299,
1306–1307; People v. Johnson, supra, 5 Cal.App.4th at pp.
561–562.) “[T]o maintain that [defendant] had reached a
place of safety, severing [his] subsequent conduct from the

27
28

12

1

robbery, is artificially to bifurcate, in disregard of the
evidence, the conduct of [defendant].” (People v. Ketchel
(1963) 59 Cal.2d 503, 525, disapproved on other grounds in
People v. Morse (1964) 60 Cal.2d 631, 649).

2
3
Id.
4

Finally, the California Court of Appeal found that, even if it was error not
5
to give the pinpoint instruction sua sponte, the error was harmless because “there
6
is no possibility that such an instruction would have changed the outcome of the
7
trial,” because of the overwhelming evidence against Petitioner. Id. at *5.
8
The California Court of Appeal’s rejection of Petitioner’s instructional
9
error claim was not contrary to, or an unreasonable application of, clearly
10
established Supreme Court precedent, nor was based on an unreasonable
11
determination of the facts. See 28 U.S.C. § 2254(d). The state appellate court
12
reasonably determined that the evidence did not support the instruction, let alone
13
require that the trial court give it sua sponte. See Hopper, 456 U.S. at 611 (due
14
process does not require an instruction be given unless the evidence supports it).
15
The court also reasonably determined that, even if there was an instructional
16
error, it was harmless because the evidence that Petitioner was fleeing the scene
17
with stolen property when he threatened to shoot his pursuers on the overpass
18
was overwhelming. See Brecht, 507 U.S. at 637.
19
Petitioner is not entitled to federal habeas relief on his instructional error
20
claim. It simply cannot be said that the California Court of Appeal’s rejection of
21
the claim was objectively unreasonable. See Williams, 529 U.S. at 409.
22
4.

Ineffective Assistance of Appellate Counsel

23
Petitioner claims that his appellate counsel rendered ineffective assistance
24
by failing to raise on direct appeal the Brady and Crawford claims raised here.
25
Pet., Ex. A at 16.
26
Claims of ineffective assistance of appellate counsel are reviewed under
27
28

13

1

the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Miller v.

2

Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). A defendant must show that

3

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

4

is a reasonable probability that, but for counsel’s unprofessional errors, defendant

5

would have prevailed on appeal. Id. at 1434 n.9 (citing Strickland, 466 U.S. at

6

694).

7

Here, Petitioner has not shown that counsel’s performance fell below an

8

objective standard of reasonableness. Appellate counsel does not have a

9

constitutional duty to raise every nonfrivolous issue requested by defendant. See

10

Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d

11

1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434 n.10. The weeding out of

12

weaker issues is widely recognized as one of the hallmarks of effective appellate

13

advocacy. See Miller, 882 F.2d at 1434. Petitioner’s appellate counsel’s failure

14

to raise the Brady and Crawford claims raised here did not fall below an objective

15

standard of reasonableness because, as discussed earlier, those claims have no

16

merit. And for essentially the same reason, there is no reasonable probability

17

that, if counsel had raised those claims, Petitioner would have prevailed on

18

appeal. See id. (“Appellate counsel will frequently remain above an objective

19

standard of competence . . . and have caused her client no prejudice . . . because

20

she declined to raise a weak issue.”). Petitioner is not entitled to federal habeas

21

relief on his claim of ineffective assistance of appellate counsel.

22
23

REQUEST FOR DISCOVERY
Petitioner requests the contact information for former Circuit City store

24

employees Kitty Nguyen, Ms. Rheem, Michael Jackson and Todd Blank, as well

25

as any statements made to Emeryville Police officers on or about February 19 and

26

March 3 and 5, 2009. He also requests a copy of the 911 dispatch tape and all

27
28

14

1

police radio communications related to his case on or about February 9, 2009.

2

Petitioner contends that the former Circuit City employees “can independently

3

‘authenticate’ that the CCTV video footage actually exist[s],” that “Petitioner

4

was seen in the video,” and that their testimony may establish “out-of-court

5

misconduct by law enforcement.” Docket #17 at 3. He further contends that

6

Kitty Nguyen “can give ‘potentially exculpatory’ testimony that Petitioner was

7

not seen in the store at the time of [the] incident.” Id.

8

Petitioner’s request for discovery is DENIED. A habeas petitioner, unlike

9

the usual civil litigant in federal court, is not entitled to discovery as a matter of

10

ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of

11

the Federal Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254,

12

provides that a “judge may, for good cause, authorize a party to conduct

13

discovery under the Federal Rules of Civil Procedure and may limit the extent of

14

discovery.” In deciding whether a petitioner is entitled to discovery under Rule

15

6(a), the court must identify the essential elements of the underlying claim and

16

determine whether petitioner has shown “good cause” for appropriate discovery

17

to prove his claim. See Bracy, 520 U.S. at 904. Good cause for discovery under

18

Rule 6(a) is shown “‘where specific allegations before the court show reason to

19

believe that the petitioner may, if the facts are fully developed, be able to

20

demonstrate that he is . . . entitled to relief.’” Id. at 908-09 (quoting Harris v.

21

Nelson, 394 U.S. 286, 299 (1969)). For example, in Bracy, the Supreme Court

22

found that the petitioner established good cause for discovery where he provided

23

specific allegations lending support to his claim that the trial judge was actually

24

biased in his case. See id. at 909; see also McDaniel v. United States District

25

Court (Jones), 127 F.3d 886, 888 (9th Cir. 1997) (good cause for discovery found

26

where petitioner's claims did not appear purely speculative or without any basis

27
28

15

1

in record, each claim included factual allegations and statement of exhaustion,

2

and materials sought through discovery were not available from petitioner's

3

appellate counsel, who had destroyed entire file).

4

Petitioner has not shown good cause for discovery under Rule 6(a)

5

because he has failed to provide specific allegations supporting his Brady claims.

6

As discussed earlier, Petitioner’s Brady claims (and now request for discovery to

7

support said claims) are purely speculative. There is no evidence or indication in

8

the record that any of the former Circuit City employees viewed the video or

9

could recover the video, or could provide exculpatory or otherwise beneficial

10

testimony for Petitioner. Rather, the evidence in the record, including the sworn

11

testimony, subject to cross-examination, of Bermeo (sales manager), Miller

12

(security guard) and Officer Giddings, suggests that the video is inculpatory. See

13

1RT 103-105; 3RT 295, 433, 436-37. The record also shows that Kitty Nguyen

14

could provide additional inculpatory testimony. 1RT 99-100 (showing testimony

15

related to Nguyen’s positive identification of Petitioner, while stricken from the

16

record, further incriminates Petitioner). And there is no showing whatsoever as

17

to why the 911 dispatch tape, which was played during his trial, is essential now.

18

MOTION FOR APPOINTMENT OF COUNSEL

19

Petitioner’s renewed motion for appointment of counsel (docket # 23) is

20

DENIED. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (unless

21

an evidentiary hearing is required, the decision to appoint counsel in habeas

22

corpus proceedings is within the discretion of the district court). Petitioner

23

adequately presented his claims for relief in the petition and adequately

24

responded to Respondent’s Answer in his traverse. Accord Bashor v. Risley, 730

25

F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no background in law,

26

denial of appointment of counsel is within discretion of district court where

27
28

16

1

petitioner clearly presented issues in petition and accompanying memorandum).

2
3
4
5

CONCLUSION
After a careful review of the record and pertinent law, the Court is
satisfied that the petition for a writ of habeas corpus must be DENIED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

6

certificate of appealability (COA) under 28 U.S.C. § 2253(c) also is DENIED

7

because petitioner has not demonstrated that “reasonable jurists would find the

8

district court’s assessment of the constitutional claims debatable or wrong.”

9

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

10

The clerk shall enter judgment in favor of Respondent, terminate all

11

pending motions as moot and close the file.

12

SO ORDERED.

13

DATED:

April 19, 2013
CHARLES R. BREYER
United States District Judge

14
15
16
17
18
19
20
21
G:\PRO-SE\CRB\HC.12\Taylor, K.12-0376.denial.rev2.wpd

22
23
24
25
26
27
28

17