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)

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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

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