Patlan v. Ducart

Filing 12

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 03/16/2016. (Attachments: # 1 Certificate/Proof of Service)(tmiS, COURT STAFF) (Filed on 3/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JERRY EDDIE PATLAN,

Case No.

15-cv-2372-TEH

Petitioner,
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v.

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

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C.E. DUCART,

United States District Court
Northern District of California

Respondent.
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Jerry Eddie Patlan, a state prisoner, has filed this pro se

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petition seeking a writ of habeas corpus under 28 U.S.C. § 2254.

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Respondent was ordered to show cause why the petition should not

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be granted.

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forth below, the petition is DENIED.

Respondent has filed an answer.

For the reasons set

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I

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Petitioner was charged with possession of methamphetamine

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for sale and transportation of methamphetamine.

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Transcript (“CT”) at 80-81.

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possession of methamphetamine for sale and sale of PCP, two prior

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serious felony convictions, and a prior prison term.

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83.

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was declared.

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both charges at a second trial.

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to a term of 25 years to life in prison.

Clerk’s

Petitioner had prior convictions for

Id. at 82-

At the first trial the jury was deadlocked and a mistrial
Id. at 173-74.

Petitioner was found guilty of
Id. at 372-73.

He was sentenced

Id. at 502-04.

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The California Court of Appeal affirmed the conviction.

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People v. Patlan, No. H038200, 2014 WL 772608 (Cal. Ct. App. Feb.

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26, 2014).

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Ex. 8.

The California Supreme Court denied review.

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II

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The following factual background is taken from the order of
the California Court of Appeal:1

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On the afternoon of June 28, 2010, San Jose
Police Officer Jenni Byrd was on patrol in a
marked police car when she saw a black truck
(later identified as a Toyota 4Runner) fail
to stop completely at a stop sign.
Officer
Byrd followed the vehicle around a corner and
activated her emergency lights to effect a
traffic stop as the 4Runner turned into a
driveway.
After stopping her patrol car and
partially blocking the driveway, Officer Byrd
began to exit her patrol car and noticed the
driver (later identified as defendant) of the
4Runner crouch down with his head and right
shoulder
in
a
movement
consistent
with
reaching for something with his right arm.
Almost simultaneously, the passenger, Robert
Contreras, exited the 4Runner with a backpack
in one hand and began walking away from the
vehicle.
As Contreras exited the vehicle,
Officer Byrd noticed a small blue object fall
from the open passenger door onto the
driveway.
Officer Byrd ordered Contreras
back into the vehicle and Contreras complied.

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Northern District of California

Answer,

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When Officer Byrd went to the driver's side
window, she noticed defendant had a workbag
on his lap that contained multiple pairs of
blue latex gloves.
There was also a single
blue latex glove in the center console.
Officer Byrd placed both men in handcuffs and
then moved defendant to another officer's
patrol car and Contreras to the curb.

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Officer Byrd then investigated the blue
object, which had fallen “within the swing”
of the passenger door. The object turned out
to be a blue latex glove, similar to those

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This summary is presumed correct. Hernandez v. Small, 282 F.3d
1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1).
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found in the workbag and on the center
console.
It was missing the middle finger
and contained eight baggies and one bindle.
The containers held an off-white crystalline
substance that was later identified as over
15 grams of methamphetamine.
Officer
Byrd
interviewed
both
occupants
separately shortly after the traffic stop and
provided Miranda warnings to each of them.
Though she had not actually seen whether
either occupant discarded the blue object,
she informed both of them that she saw
Contreras discard the drugs.
Officer Byrd
testified at trial that this lie was part of
an investigative technique to attempt to gain
an admission from defendant that he was
responsible for the methamphetamine.
After
learning that defendant and Contreras were
cousins, she theorized that defendant would
accept responsibility for the drugs rather
than seeing his cousin get in trouble.
Neither defendant nor Contreras accepted
responsibility.
During the traffic stop and interviews,
Officer
Byrd
determined
that
defendant
appeared to be under the influence of
methamphetamine but that Contreras did not.
Defendant also admitted to another officer
that he had “done a line earlier” that day,
which Officer Byrd understood as meaning he
had
used
methamphetamine.
Based
on
defendant's appearance, his admission of drug
use, and the presence of blue gloves in
defendant's workbag that matched the glove
containing the methamphetamine, Officer Byrd
arrested defendant.
He was later charged
with possession for sale of methamphetamine
(Health
&
Saf.Code,
§
11378)
and
transportation of methamphetamine (Health &
Saf.Code, § 11379, subd. (a)).
Defendant's
first
trial
resulted
in
a
mistrial.
At defendant's second trial, the
People presented DNA evidence obtained from
samples taken from the baggies and bindle
that
determined
defendant
was
a
likely
contributor to the DNA on the baggies. This
evidence had not been presented at the first
trial.
At both trials, defendant's theory
was that the methamphetamine in the vehicle
belonged to Contreras, not defendant.
At the close of evidence in the second trial,
defendant
requested
a
pinpoint
jury
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instruction regarding the legal definition of
“control” for purposes of possession for sale
of a controlled substance.
After a hearing
on the issue, the court found CALCRIM No.
2302 adequately defined the term “control.”
The second jury convicted defendant of both
possession for sale and transportation of
methamphetamine.
After
the
jury
was
discharged,
the
bifurcated
issue
of
defendant's prior convictions was tried to
the court, which found the existence of two
prior strikes.
The court denied defendant's
Romero motion, and sentenced defendant to 25
years to life in prison.
Defendant timely
appealed.
Patlan, 2014 WL 772608, at *1-2.
III

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United States District Court
Northern District of California

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The Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”) amended § 2254 to impose new restrictions on federal

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habeas review.

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claim that was adjudicated on the merits in state court unless

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the state court’s adjudication of the claim: “(1) resulted in a

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decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a

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decision that was based on an unreasonable determination of the

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facts in light of the evidence presented in the State court

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proceeding.”

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is warranted only if the constitutional error at issue had a

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“substantial and injurious effect or influence in determining the

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jury’s verdict.”

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(internal quotation marks omitted).

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A petition may not be granted with respect to any

28 U.S.C. § 2254(d).

Additionally, habeas relief

Penry v. Johnson, 532 U.S. 782, 795 (2001)

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

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grant the writ if the state court arrives at a conclusion

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opposite to that reached by [the Supreme] Court on a question of
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law or if the state court decides a case differently than [the]

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Court has on a set of materially indistinguishable facts.”

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

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the ‘unreasonable application’ clause, a federal habeas court may

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grant the writ if the state court identifies the correct

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

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unreasonably applies that principle to the facts of the

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prisoner’s case.”

“Under

Id. at 413.

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

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because that court concludes in its independent judgment that the

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Northern District of California

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relevant state-court decision applied clearly established federal

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law erroneously or incorrectly.

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also be unreasonable.”

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making the “unreasonable application” inquiry should ask whether

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the state court’s application of clearly established federal law

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was “objectively unreasonable.”

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conducting its analysis, the federal court must presume the

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correctness of the state court’s factual findings, and the

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petitioner bears the burden of rebutting that presumption by

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clear and convincing evidence.

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Court explained: “[o]n federal habeas review, AEDPA ‘imposes a

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highly deferential standard for evaluating state-court rulings’

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and ‘demands that state-court decisions be given the benefit of

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the doubt.’”

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Rather, that application must

Id. at 411.

A federal habeas court

Id. at 409.

Moreover, in

28 U.S.C. § 2254(e)(1).

As the

Felkner v. Jackson, 562 U.S. 594, 598 (2011).

Section 2254(d)(1) restricts the source of clearly

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established law to the Supreme Court’s jurisprudence.

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established Federal law, as determined by the Supreme Court of

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the United States” refers to “the holdings, as opposed to the
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“[C]learly

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dicta, of [the Supreme] Court’s decisions as of the time of the

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relevant state-court decision.”

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federal court may not overrule a state court for simply holding a

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view different from its own, when the precedent from [the Supreme

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Court] is, at best, ambiguous.”

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12, 17 (2003).

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Williams, 529 U.S. at 412.

“A

Mitchell v. Esparza, 540 U.S.

When applying these standards, the federal court should

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review the “last reasoned decision” by the state courts.

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Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Barker v. Fleming,

See

423 F.3d 1085, 1091-92 (9th Cir. 2005).

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reasoned opinion from the state’s highest court, the court “looks

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through” to the last reasoned opinion.

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804.

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When there is no

See Ylst, 501 U.S. at

With these principles in mind regarding the standard and

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scope of review on federal habeas, the Court addresses

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Petitioner’s claims.

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for denying his request to instruct the jury with his proposed

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instructions on the terms "possession" and "control"; (2)

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prosecutorial misconduct during the closing argument when the

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prosecutor (a) disparaged defense counsel (b) inappropriately

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vouched for a witness and commented on Petitioner’s right to

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remain silent; (3) ineffective assistance of counsel; (4)

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cumulative error; and (5) insufficient evidence to prove a prior

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strike conviction.

Petitioner alleges: (1) trial court error

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IV

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A

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Petitioner first contends that the trial court erred by

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refusing to issue his proposed jury instruction with respect to

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the meaning of “possession” and “control.”

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by denying his proposed instruction the trial court prevented him

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from presenting his defense theory of the case.

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Northern District of California

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He also argues that

The California Court of Appeal set forth the relevant
background and denied this claim:
Defendant claims that by refusing to give his
requested pinpoint instruction, the trial
court
failed
to
define
an
element
of
possession of a controlled substance for sale
and failed to instruct the jury on a defense
theory. The trial court included CALCRIM No.
2302 in the instructions read to the jury.
This instruction lays out the following
elements
for
possession
for
sale
of
methamphetamine:
(1)
possession
of
a
controlled
substance
by
defendant;
(2)
defendant's knowledge of the presence of a
controlled
substance;
(3)
defendant's
knowledge that the substance was in fact a
controlled substance; (4) defendant's intent
to sell the substance; (5) the controlled
substance was methamphetamine; and (6) the
controlled substance was in a usable amount.
(CALCRIM No. 2302.) Regarding possession and
control,
the
court
included
bracketed
language from the form instruction, stating:
“A person does not have to actually hold or
touch something to possess it. It is enough
if the person has control over it or the
right to control it, either personally or
through another person.”
In
addition
to
this
form
instruction,
defendant requested that the court provide a
pinpoint instruction paraphrased from the
language of People v. Redrick (1961) 55 Cal.
2d 282, 285.
The proposed instruction
stated, in relevant part, “the defendant
cannot be convicted of unlawful possession
merely because he had an opportunity to
access a place where controlled substances
were found.” Defendant's counsel claimed the
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pinpoint
instruction
was
necessary
to
differentiate between mere access to the
methamphetamine in a car driven by defendant
and the control necessary to constitute a
violation of Health and Safety Code section
11378.
The trial court denied defendant's
request, finding CALCRIM No. 2302 adequately
and
accurately
described
the
crime
of
possession of methamphetamine for sale.
. . .
1. The Instructions Adequately Defined All
Elements of Possession of Methamphetamine For
Sale
Defendant claims the version of CALCRIM No.
2302 provided to the jury was inadequate
because
a
juror
could
have
incorrectly
concluded defendant could be convicted based
on his mere proximity and access to the
methamphetamine in the vehicle. An identical
claim was considered and rejected in People
v. Montero (2007) 155 Cal. App. 4th 1170
(Montero).
In Montero, after finding a
baggie containing methamphetamine during a
parole search of the defendant, officers
searched the garage where Montero had been
standing and discovered three additional
baggies
containing
methamphetamine
that
matched the first baggie recovered from the
defendant.
(Id. at pp. 1173–1174.)
On
appeal from his conviction for possession for
sale, the defendant claimed that CALCRIM No.
2302 erroneously omitted the elements of
“‘dominion and control’” from the definition
of possession for sale.
(Montero, supra, at
p. 1174.)
In rejecting the defendant's claim, the court
noted that the instruction “requires the
defendant
to
have
control
over
the
substance.”
(Montero, supra, 155 Cal. App.
4th at p. 1180.) Because of this control
requirement, the court concluded “the jury
could not find defendant guilty simply due to
his proximity to the substance” and that
“[n]o reasonable juror would have believed
that
proximity
alone
equaled
control.”
(Ibid.)
We agree with Montero's reasoning and find
defendant's
argument
unpersuasive.
The
relevant language of CALCRIM No. 2302 states
that a defendant possesses a controlled
substance if he or she “has control over it
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or the right to control it....” (CALCRIM No.
2302.)
From this, a reasonable juror would
understand that possession involves control
over the substance and would not encompass
merely having control over the vehicle in
which the substance was located.
To hold
otherwise would assume jurors are incapable
of understanding instructions provided in
plain English, which is something we cannot
do. (See Ramos, supra, 163 Cal. App. 4th at
p.
1088.)
If
anything,
the
requested
instruction would have been duplicative of
CALCRIM No. 2302. Courts may refuse to give
instructions that are duplicative of other
instructions.
(People v. Dieguez (2001) 89
Cal.App.4th 266, 277.)
2. The Instructions Informed the Jury of the
Defense Theory
We also find defendant's “theory of the case”
claim to be without merit.
Defendant's
theory was that Contreras, not defendant,
possessed the methamphetamine.
Defendant's
proposed
instruction
sought
to
further
clarify the elements of Health and Safety
Code section 11378 by informing the jury that
mere access to a controlled substance does
not prove possession for sale.
However, as
discussed in greater detail above, CALCRIM
No. 2302 explains that possession requires
more than mere proximity by stating the
defendant must have “control over it or the
right to control it....”
(CALCRIM No. 2302;
see Montero, supra, 155 Cal. App. 4th at p.
1180.)
While a specific additional instruction might
have been warranted if defendant had raised a
complex theory regarding his innocence, his
theory—essentially, “the other guy did it”—is
a
commonly
encountered
defense.
The
definition of possession in CALCRIM No. 2302,
coupled
with
defense
counsel's
closing
argument,
which
focused
on
evidence
supporting defendant's theory that Contreras
possessed
the
methamphetamine,
provided
adequate information to the jury regarding
defendant's theory of the case.
Patlan, 2014 WL 772608, at *2-4 (footnotes omitted).

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A challenge to a jury instruction solely as an error under
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state law is not cognizable in federal habeas corpus proceedings.
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See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).

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court's refusal to give an instruction does not alone raise a

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ground cognizable in a federal habeas corpus proceeding.

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Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988).

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error must so infect the trial that the defendant was deprived of

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the fair trial guaranteed by the Fourteenth Amendment.

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A state trial

See
The

See id.

Due process requires that “‘criminal defendants be afforded

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a meaningful opportunity to present a complete defense.’”

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v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting California

Clark

v. Trombetta, 467 U.S. 479, 485 (1984)).

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Northern District of California

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defendant is entitled to adequate instructions on the defense

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theory of the case.

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Cir. 2000).

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Therefore, a criminal

See Conde v. Henry, 198 F.3d 734, 739 (9th

Due process does not require that an instruction be given

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unless the evidence supports it.

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

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Cir. 2005).

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instructions raised in his or her precise terms where the given

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instructions adequately embody the defense theory.

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

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constitutional violation has occurred will depend upon the

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evidence in the case and the overall instructions given to the

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jury.

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See Hopper v. Evans, 456 U.S.

The defendant is not entitled to have jury

United States

Whether a

See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995).
The omission of an instruction is less likely to be

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prejudicial than a misstatement of the law.

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Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson v.

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Kibbe, 431 U.S. 145, 155 (1977)).

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whose claim involves a failure to give a particular instruction
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See Walker v.

Thus, a habeas petitioner

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bears an "'especially heavy burden.'"

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111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at

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155).

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Villafuerte v. Stewart,

Petitioner has failed to show that the state court’s denial

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of this claim was an unreasonable application of Supreme Court

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authority.

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standard instruction provided by the trial court properly and

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adequately addressed the issue of control of the drugs as opposed

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to mere proximity.

The California Court of Appeal found that the

The instruction noted that “[a] person does

not have to actually hold or touch something to possess it.

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Northern District of California

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is enough if the person has control over it or the right to

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control it, either personally or through another person.”

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Patlan, 2014 WL 772608, at *2.

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previous case law and found that no reasonable juror would

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believe that mere proximity would equal control.

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Petitioner shown that the instruction given deleted an element of

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the offense.

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unreasonable and Petitioner has not shown evidence to support his

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claim that the trial court erred in not issuing his requested

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instruction.

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Brecht v. Abrahamson, 507 U.S. 619 (1993), based on the evidence

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presented at trial that showed more than mere proximity between

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Petitioner and the drugs.

It

The state court agreed with

Nor has

The state court’s determination was not objectively

Even if there was an error, it was harmless under

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The California Court of Appeal also held that denying

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Petitioner’s requested instruction did not deny him the ability

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to present the defense theory of the case.

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that Petitioner’s theory was that the drugs belonged to the other

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individual in the car and that this is a common defense.
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The state court noted

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Therefore, no additional instruction was required.

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instruction provided to the jury adequately discussed possession

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and control, and trial counsel still presented many strong

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arguments to forward its theory that the drugs belonged to the

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other individual.

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unreasonable application of Supreme Court authority, this claim

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is denied.

The

Because Petitioner has not shown an

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B
Petitioner next argues that the prosecutor committed

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misconduct in closing argument by disparaging defense counsel,

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Northern District of California

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vouching for a witness, and improperly commenting on Petitioner’s

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right to remain silent.

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1
The California Court of Appeal set forth the relevant
background and denied this claim:
During her closing argument, the prosecutor
made the following statements: “It is my job
as a district attorney to prove to you the
case beyond a reasonable doubt. It is my job
to present to you facts, facts that lead you
to an abiding conviction to [sic] the truth
of the charge. [¶]
The defense's role is
very different. The defense's role is to
cause you to doubt the truth.”
Defense
counsel objected to the foregoing statement
as
improper
argument,
which
the
court
sustained.
The court did not immediately
provide the jury admonition requested by
defense counsel.
When the prosecutor continued the same line
of argument by stating “they have built the
case around . . . what the defense believes
that the evidence actually is,” defense
counsel objected again and the court, after
holding a sidebar, provided the following
admonition to the jury: “Ladies and gentlemen
of the jury, I want to remind you that it is
your role as jurors to serve as independent
judges of the facts, all right. That is, you
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are to determine from the evidence presented
in this court and the evidence alone what
facts
have
been
proven,
and
you
will
ultimately,
from
those
facts,
determine
whether or not the People have met their
burden of proving the defendant's guilt
beyond a reasonable doubt. [¶]
You are not
to be sidetracked, confused or in any way to
deviate from that role by your attempts to or
in any attempt to evaluate how you feel
either party may have done their job as an
attorney in this trial, all right. Your only
job is to deal with evidence and what it does
or does not prove.”
On appeal, defendant claims the prosecutor's
remarks
constitute
misconduct
requiring
reversal of defendant's conviction because
they improperly disparaged defense counsel.
“Personal
attacks
on
the
integrity
of
opposing
counsel
constitute
prosecutorial
misconduct.”
(Herring, supra, 20 Cal. App.
4th at p. 1076.)
Defendant claims the
prosecutor's conduct in this case is “almost
identical” to the prosecutor's conduct in
Herring and encourages us to follow that
opinion and reverse defendant's conviction.
We disagree.
In Herring, the prosecutor stated during the
closing argument: “‘My people are victims.
His people are rapists, murderers, robbers,
child molesters. . . . He does not want you
to hear the truth.’”
(Herring, supra, 20
Cal. App. 4th at p. 1073.)
Based on these
statements, as well as others targeting the
defendant
using
racially
insensitive
language, the Herring court reversed the
defendant's conviction, holding that “[i]t is
improper for the prosecutor to imply that
defense counsel has fabricated evidence or to
otherwise
malign
defense
counsel's
character.” (Id. at p. 1075.)
Unlike
the
prosecutor's
statements
in
Herring, here the prosecutor's main improper
statement was that the role of defense
counsel “is to cause you to doubt the truth.”
Her statement, while incorrect and improper,
is far from “identical” to those made in
Herring and did not make the trial so
fundamentally unfair as to require reversal.
Further, the trial court here mitigated any
damage by admonishing the jury soon after the
prosecutor's
statement
to
“serve
as
independent judges of the facts” and not
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“attempt to evaluate how you feel either
party may have done their job as an attorney.
. . .”
For these reasons, we find the
prosecutor's improper statement did not rise
to
the
level
of
misconduct
requiring
reversal.

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Patlan, 2014 WL 772608, at *4-5.
Prosecutorial misconduct is cognizable in federal habeas
corpus.

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due process and not the broad exercise of supervisory power.

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Darden v. Wainwright, 477 U.S. 168, 181 (1986).

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due process rights are violated when a prosecutor's misconduct

10

renders a trial "fundamentally unfair." Id.; Smith v. Phillips,

11
United States District Court
Northern District of California

6

455 U.S. 209, 219 (1982) ("the touchstone of due process analysis

12

in cases of alleged prosecutorial misconduct is the fairness of

13

the trial, not the culpability of the prosecutor").

14

Darden, the first issue is whether the prosecutor’s remarks were

15

improper; if so, the next question is whether such conduct

16

infected the trial with unfairness.

17

1101, 1112 (9th Cir. 2005).

18

decided “‘on the merits, examining the entire proceedings to

19

determine whether the prosecutor's remarks so infected the trial

20

with unfairness as to make the resulting conviction a denial of

21

due process.’”

22

1995).

23

The appropriate standard of review is the narrow one of

A defendant's

Under

Tan v. Runnels, 413 F.3d

A prosecutorial misconduct claim is

Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.

A prosecutor may not gratuitously attack a defendant's

24

choice of counsel or defense counsel's integrity and veracity.

25

See Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983)

26

(prosecutor's comments equating defendant's hiring of counsel

27

with guilt and comments attacking integrity of defense counsel

28

without evidence are improper and are errors of constitutional
14

1

dimension).

2

legitimate trial tactics.

3

F.3d 1370, 1379-80 (9th Cir. 1996) (prosecutor's back-handed

4

compliment to defense lawyer for confusing witness, which

5

appeared to imply that his methods were somewhat underhanded and

6

designed to prevent truth from coming out, was improper but not

7

alone reversible error).

8

error unless the comments were prejudicial to the point of

9

denying the defendant a fair trial.

Nor may the prosecutor attack defense counsel's
See United States v. Frederick, 78

However, there is no constitutional

Compare United States v.

Rodrigues, 159 F.3d 439, 449-51 (9th Cir. 1998) (combination of

11
United States District Court
Northern District of California

10

prosecutor's misstatement of the law with slander of defense

12

counsel was prejudicial where there was no rebuke of false

13

accusations by the court, no response by the vilified lawyer

14

allowed and no curative instruction given), amended, 170 F.3d 881

15

(9th Cir. 1999) with United States v. Foster, 711 F.2d 871, 883

16

(9th Cir. 1983) (implication that defense counsel was part of

17

conspiracy to distribute heroin was neutralized by prosecutor's

18

corrective statement in response to objection by defense

19

counsel).

20

show that the error had a substantial and injurious effect or

21

influence in determining the jury's verdict.

22

Borg, 139 F.3d 737, 745 (9th Cir. 1998).

23

In addition, Brecht requires that a state prisoner

See Williams v.

The California Court of Appeal found that the prosecutor’s

24

two statements were incorrect and improper.

25

that the statements did not render the trial fundamentally unfair

26

to require reversal.

27

unreasonable.

28

immediately after the statements, the trial court admonished the

Yet, the court held

This conclusion was not objectively

The California Court of Appeal noted that nearly

15

1

jury that they were the independent judges of the facts and were

2

not to be confused by the attorneys or by the attorneys’

3

performance of their duties.

4

incidents and Petitioner has failed to show that the state

5

court’s finding that he received a fair trial despite these two

6

isolated incidents was unreasonable.

7

failed to meet his high burden, this claim is denied.

8

The statements were two isolated

Because Petitioner has

2
The California Court of Appeal also denied Petitioner’s

10

claim that vouching for a police witness and making improper

11
United States District Court
Northern District of California

9

comments about Petitioner’s right to remain silent constituted

12

prosecutorial misconduct:

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defendant's closing argument attacked Officer
Byrd's
testimony
by
highlighting
her
inconsistent testimony regarding who threw
the blue object as well as her demeanor
throughout her testimony.
Specifically, the
defense focused on Officer Byrd's testimony
at
trial
regarding
the
interview
with
defendant immediately after the traffic stop,
where she told defendant she had seen
Contreras, not defendant, throw the blue
object. This testimony reflected only what
Officer Byrd stated during the interview and
did not address defendant's responses to
Officer Byrd's questions.
During the People's rebuttal to defendant's
closing argument, the prosecutor stated: “And
perhaps Officer Byrd was a little naive to
think
that
she
could
appeal
to
the
defendant's sense of family when she took the
strategy, the interrogation strategy that she
did.
It clearly did not work.
But that's
what she was trying to do. She was trying to
say to [Petitioner], your cousin's going to
go down for this. She knew Mr. Contreras did
not possess those drugs.
She was hoping,
naively, that he would step up and not let
his cousin take the fall.”
The trial court
overruled defendant's objection that the
prosecutor was commenting on defendant's
post-Miranda silence in violation of the
16

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

United States Supreme
Griffin and Doyle.

Court

opinions

of

Focusing on the prosecutor's statement that
Officer Byrd's tactic of attempting to elicit
a confession from defendant by claiming she
saw Contreras throw the methamphetamine “did
not work,” defendant argues the prosecution
impermissibly relied on defendant's postMiranda silence and the trial court erred in
overruling his objection. Assuming defendant
actually invoked his right to remain silent,
his argument is without merit because, if
anything, his silence raised an inference of
innocence rather than guilt.
Implicit in the Fifth Amendment's right
against self-incrimination as well as the
rationale behind Miranda warnings is an
understanding “that exercise of the right of
silence will not be penalized.”
(People v.
Eshelman (1990) 225 Cal. App. 3d 1513, 1520.)
Eshelman illustrates this concept.
There,
during
both
cross
examination
of
the
defendant
and
the
prosecutor's
closing
argument, the prosecutor focused on the
defendant's refusal to answer questions the
murder victim's mother had previously asked
the defendant. (Id. at p. 1519.) During the
closing argument, the prosecutor went so far
as to ask the jury “What was [the defendant]
trying to hide?”
(Ibid.)
The appellate
court reversed the defendant's conviction,
holding
“the
improper
purpose
of
the
prosecutor's
questions
was
to
utilize
appellant's silence to impeach his defense
and thereby to solemnize the silence into
evidence of guilt.” (Id. at p. 1521.)
Unlike
the
prosecutor's
statements
in
Eshelman,
which
focused
on
defendant's
conduct,
here
the
prosecutor
discussed
Officer Byrd's interview strategy in order to
rehabilitate the officer. The prosecutor's
rebuttal came in response to attacks on
Officer
Byrd's
credibility
during
the
defense's closing argument.
Moreover, as
stated above, to the extent the prosecutor's
statements discussed defendant's post-Miranda
silence, that silence creates no inference of
guilt. Officer Byrd's statements implicated
Contreras, not defendant, as the person
responsible for the methamphetamine. Because
the prosecutor did not rely on post-Miranda
silence to defendant's detriment, we find no
prosecutorial misconduct.
17

1
Patlan, 2014 WL 772608, at *5-6 (footnote omitted).
2
Post-arrest silence after Miranda warnings cannot be
3
commented upon or used by the prosecution.

See Doyle v. Ohio,

4
426 U.S. 610, 611 (1976).

However, a prosecutor may comment on

5
post-Miranda silence in response to defense argument.

See United

6
States v. Robinson, 485 U.S. 25, 32 (1988); see also United
7
States v. Norwood, 603 F.3d 1063, 1070 (9th Cir. 2010) (reversal
8
not warranted where prosecutor's comments merely responded to
9
defense counsel's implication of investigative misconduct, the
10
comment was an isolated incident that did not stress an inference
11
United States District Court
Northern District of California

of guilt from silence, and was followed by a curative
12
instruction).
13
Furthermore, as a general rule, “a prosecutor may not
14
express his personal opinion of the defendant’s guilt or his
15
belief in the credibility of [government] witnesses.”

United

States v. McKoy, 771 F.2d 1207, 1211 (9th Cir. 1985).

Improper

16
17
vouching for the credibility of a witness occurs when the
18
prosecutor places the prestige of the government behind the
19
witness or suggests that information not presented to the jury
20
supports the witness's testimony.

United States v. Young, 470

21
U.S. 1, 7 n.3, 11-12 (1985).

To warrant habeas relief,

22
prosecutorial vouching must so infect the trial with unfairness
23
as to make the resulting conviction a denial of due process.
24
Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004).
25
During closing argument, Petitioner’s trial counsel argued
26
that the police officer’s testimony was inconsistent.

In a

27
rebuttal argument, the prosecutor noted that the police officer,
28
18

1

when questioning Petitioner, had been deliberately using a

2

strategy in hopes that Petitioner would make an admission

3

regarding the drugs.

4

officer, “was hoping, naively, that [Petitioner] would step up

5

and not let his cousin [the other person in the car] take the

6

fall.”

7

that this statement by the prosecutor was not an improper

8

statement regarding Petitioner’s post-Miranda silence.

9

Petitioner has not shown that this was an unreasonable

10

United States District Court
Northern District of California

11

The prosecutor stated that the police

Patlan, 2014 WL 772608, at *5.

The state court found

determination.
The state court noted that it was not clear if Petitioner

12

even invoked his right to remain silent and if he did, the

13

silence was an inference of innocence, not guilt.

14

prosecutor’s comment was in her rebuttal argument and was a

15

specific response to statements made by trial counsel in closing

16

argument.

17

post-Miranda silence, it was a reasonable response to trial

18

counsel’s argument and was not improper.

19

at 1070.

20

Moreover, the

Even if the prosecutor was commenting on Petitioner’s

See Norwood, 603 F.3d

Nor has Petitioner shown that the prosecutor’s statement,

21

made on rebuttal regarding the police officer’s interrogation

22

strategy, improperly bolstered the police officer’s testimony.

23

The statement did not place the prestige of the government behind

24

the witness, and the prosecutor was specifically responding to

25

trial counsel’s closing argument.

26

repeating the police officer’s explanation of her strategy in

27

attempting to obtain an admission from Petitioner.

28

has failed to show that the state court opinion denying this
19

The prosecutor was merely

Petitioner

1

claim and finding no prejudice from the prosecutor’s response was

2

unreasonable.

3

response to defense counsel’s argument must be viewed in the

4

context of the entire trial and the probable effect on the jury’s

5

ability to judge the evidence fairly).

See Young, 470 U.S. at 11-12 (prosecutor’s

6

C

7

Petitioner next argues that trial counsel was ineffective

8

for failing to object to the prosecutor’s closing argument on the

9

ground that it assumed facts not in evidence.

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The California Court of Appeal denied this claim:
Defendant argues the prosecutor's statement
that the defense's role was to make the jury
“doubt the truth” assumed facts not in
evidence
because
it
suggested
that
the
prosecutor knew what “the truth” was.
Even
assuming
counsel
was
deficient
for
not
objecting on that basis, defendant can show
no prejudice because, as discussed above, the
trial court sustained counsel's objection as
it was presented and admonished the jury to
be “independent judges of the facts. . . .”
In essence, the court's admonition, which it
related
to
the
jurors
soon
after
the
objectionable statement, reminded them that
they were responsible for determining “the
truth.”
As such, defendant suffered no
prejudice from this omission.
(People v.
Pigage (2003) 112 Cal. App. 4th 1359, 1375
[“a
timely
admonition
from
the
court
generally cures any harm”].)
Defendant also claims defense counsel was
deficient for failing to object to the
prosecutor's
reference
to
facts
not
in
evidence
to
bolster
Officer
Byrd's
credibility.
Defense counsel spent the
majority of his closing argument assailing
Officer Byrd's credibility by pointing out
inconsistencies in her statements at various
points during the investigation and the two
trials.
In particular, defendant argued
Officer Byrd's testimony could not be trusted
because she initially told both defendant and
Contreras that she saw Contreras throw the
methamphetamine-filled
glove
out
of
the
20

vehicle but later testified that she did not
actually see who discarded the glove.

1
2

The prosecutor's rebuttal argument attempted
to rehabilitate the officer's credibility.
The prosecutor referred to Officer Byrd's
testimony that the inconsistent statements
were part of a tactical lie designed to
elicit a confession from defendant.
Had the
prosecutor
developed
this
explanation
herself,
argument
on
that
point
would
constitute
improper
vouching.
However,
because the prosecutor was merely relating an
explanation offered by Officer Byrd in her
testimony, the prosecution's conduct involved
permissible “argument from facts in the
record
directed
to
the
credibility
of
witnesses. . . .” (People v. Sully (1991) 53
Cal. 3d 1195, 1235–1236 [rejecting claim of
improper vouching when prosecutor relied on
facts in the record to bolster witness
credibility].) A prosecutor may not refer to
evidence outside the record to vouch for the
credibility of witnesses or bolster the
veracity of witnesses' testimony. (People v.
Cook (2006) 39 Cal. 4th 566, 593.) But this
prohibition is not implicated where, as here,
the prosecutor relies on evidence in the
record.

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15

Patlan, 2014 WL 772608, at *6-7.
16
A claim of ineffective assistance of counsel is cognizable
17
as a claim of denial of the Sixth Amendment right to counsel,
18
which guarantees not only assistance, but effective assistance of
19
counsel.

Strickland v. Washington, 466 U.S. 668, 686 (1984).

20
The benchmark for judging any claim of ineffectiveness must be
21
whether counsel’s conduct so undermined the proper functioning of
22
the adversarial process that the trial cannot be relied upon as
23
having produced a just result.

Id.

24
In order to prevail on a Sixth Amendment ineffectiveness of
25
counsel claim, petitioner must establish two things.

First, he

26
must establish that counsel’s performance was deficient, i.e.,
27
that it fell below an “objective standard of reasonableness”
28
21

1

under prevailing professional norms.

2

687-88.

3

counsel’s deficient performance, i.e., that “there is a

4

reasonable probability that, but for counsel’s unprofessional

5

errors, the result of the proceeding would have been different.”

6

Id. at 694.

7

sufficient to undermine confidence in the outcome.”

8
9

Strickland, 466 U.S. at

Second, he must establish that he was prejudiced by

“A reasonable probability is a probability
Id.

Petitioner has not shown that the state court’s denial of
this claim was an unreasonable application of Supreme Court
authority.

11
United States District Court
Northern District of California

10

counsel was deficient, he cannot demonstrate prejudice.

12

counsel did object to the prosecutor’s statement regarding

13

defense counsel’s role being to make the jury doubt the truth.

14

While it was for different grounds, the trial court sustained the

15

objection and admonished the jury.

16

the outcome of the trial would have been different had trial

17

counsel objected on different grounds.

18

Even assuming that Petitioner could show that trial
Trial

Petitioner has not shown that

Similarly, trial counsel also objected to the prosecutor’s

19

statement, made in an attempt to explain the police officer’s

20

testimony, that may have alluded to Petitioner’s post-Miranda

21

silence.

22

Petitioner has not shown that trial counsel was deficient.

23

Petitioner argues that trial counsel should have objected on

24

additional grounds; namely, that the statement contained facts

25

outside of the record.

26

noted that the prosecutor’s statement reflected testimony from

27

the police officer.

28

evidence presented to the jury, any objection regarding facts

While the trial court overruled the objection,

The California Court of Appeal correctly

Because the prosecutor was describing

22

1

outside of the record would have also been overruled.

2

cannot show that trial counsel was deficient or that he suffered

3

prejudice, therefore this claim is denied.

4
5

Petitioner

D
Petitioner asserts that the cumulative effect of the errors

6

discussed above deprived him of his right to due process and a

7

fair trial.

8

Patlan, 2014 WL 772608, at *7.

9

The California Court of Appeal denied this claim.

In some cases, although no single trial error is
sufficiently prejudicial to warrant reversal, the cumulative

11
United States District Court
Northern District of California

10

effect of several errors may still prejudice a defendant so much

12

that his conviction must be overturned.

13

334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where

14

multiple constitutional errors hindered defendant’s efforts to

15

challenge every important element of proof offered by

16

prosecution).

17

prejudicial when the government's case is weak.

18

e.g., Thomas v Hubbard, 273 F.3d 1164, 1180 (9th Cir. 2002)

19

(noting that the only substantial evidence implicating the

20

defendant was the uncorroborated testimony of a person who had

21

both a motive and an opportunity to commit the crime), overruled

22

on other grounds by Payton v. Woodford, 299 F.3d 815, 829 n.11

23

(9th Cir. 2002).

24

constitutional error existing, nothing can accumulate to the

25

level of a constitutional violation.

26

F.3d 500, 524 (9th Cir. 2011).

27

cumulative error when there has not been more than one error.

28

United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012).

See Alcala v. Woodford,

Cumulative error is more likely to be found
See id.; see,

However, where there is no single

See Hayes v. Ayers, 632

Similarly, there can be no

23

1

The state court’s denial of this claim was not unreasonable.

2

Moreover, this Court has not found any constitutional errors, let

3

alone multiple errors that cumulatively could allow for reversal.

4

Even assuming there were errors with the jury instructions or

5

with the prosecutor’s closing statement, these errors were not so

6

prejudicial as to warrant habeas relief.

This claim is denied.

7

E

8

Finally, Petitioner contends that there was insufficient

9

evidence to establish that a 1982 conviction qualified as a
strike under state sentencing law.

11
United States District Court
Northern District of California

10

Appeal set forth the relevant state law and background and denied

12

this claim:

The California Court of

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Section 667 governs sentence enhancements for
habitual criminals.
As in effect in 2012
when the trial court sentenced defendant,
section 667, subdivision (e)(2)(A) provided
for “an indefinite term of life imprisonment”
for defendants with “two or more prior felony
convictions as defined in subdivision (d)
that have been pled and proved. . . .”
(Former § 667, subd. (e)(2)(A), Stats. 1994,
ch. 12, § 1.)
Section 667, subdivision (d)
provides
that
prior
felony
convictions
included
“[a]ny
offense
defined
in
subdivision (c) of section 667.5 as a violent
felony or any offense defined in subdivision
(c) of section 1192.7 as a serious felony in
this state.” (§ 667, subd. (d)(1).)
These
prior
felony
convictions
are
commonly
referred to as “strikes.”
To prove prior strikes, “[t]he People must
prove each element of an alleged sentence
enhancement
beyond
reasonable
doubt.”
(People v. Delgado (2008) 43 Cal.4th 1059,
1065 (Delgado ).)
While this can often be
accomplished by reference to the statute upon
which the defendant's prior conviction is
based, where it is unclear from a specified
statute whether the conviction was for a
serious
or
violent
felony,
“otherwise
admissible evidence from the entire record of
24

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

the conviction may be examined to resolve the
issue.”
(Ibid.)
Such evidence can include
“certified documents from the record of the
prior court proceeding . . . including the
abstract of judgment describing the prior
offense.” (Id. at p. 1066.)
Certified documents create a presumption of
conviction that can only be overcome by
evidence
calling
into
question
“‘the
authenticity, accuracy, or sufficiency of the
prior
conviction
records.
.
.
.'
[Citation.]” (Delgado, supra, 43 Cal. 4th at
p. 1066.) “[I]f the prior conviction was for
an offense that can be committed in multiple
ways, and the record of the conviction does
not disclose how the offense was committed, a
court must presume the conviction was for the
least serious form of the offense.”
(Ibid.)
Once a trial court has found the existence of
a prior strike conviction, however, on appeal
“we examine the record in the light most
favorable
to
the
judgment
to
ascertain
whether
it
is
supported
by
substantial
evidence.” (Id. at p. 1067.)
While defendant concedes the existence of one
strike, he argues the record does not
adequately establish his 1982 conviction
under section 245, subdivision (a) was a
strike.
During the sentencing phase of
defendant's current possession for sale case,
the prosecution introduced an abstract of
judgment from 1982 (Santa Clara County Super.
Ct. Case No. 82018) (1982 Felony) indicating
defendant
pleaded
guilty
to
“PC
245(a)
Assault with a Deadly Weapon.”
The criminal
complaint from the 1982 Felony was also
entered into evidence. Count two of that
complaint charged defendant with violating
section 245, subdivision (a) by committing
“an assault upon the person . . . with a
deadly weapon or instrument, to wit: a TIRE
IRON, and by means of force likely to produce
great bodily injury.”
Defendant claims the
inconsistency
between
the
complaint
and
abstract made it impossible to determine
whether defendant's prior conviction was for
assault with a deadly weapon—a serious felony
pursuant
to
section
1192.7,
subdivision
(c)(31)—or merely assault by means of force
likely to produce great bodily injury, which
is not serious or violent for purposes of
section 667.
(See Delgado, supra, 43 Cal.
4th at p. 1065 [“assault merely by means
likely to produce [great bodily injury],
25

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

without the additional element of personal
infliction, is not included in the list of
serious felonies”].)
In support, defendant relies on Delgado,
where the Supreme Court considered a prior
conviction for a violation of a version of
section 245 similar to that in effect in
1982.
(Delgado, supra, 43 Cal. 4th at p.
1065.)
To determine whether substantial
evidence supported the prior strike finding,
the court turned to the official abstract of
judgment for the defendant's section 245,
subdivision (a) prior felony.
That official
abstract “first identifie[d] the statute
under which the conviction occurred as ‘PC’
'245(A)(1),' then separately describe[d] the
offense as ‘Asslt w DWpn.’” (Delgado, supra,
at p. 1069.)
The court rejected the
defendant's assertion that the foregoing
description was ambiguous and concluded it
“tracks one, but only one, of the two
specific, discrete, disjunctive, and easily
encapsulated forms of aggravated assault. . .
.” (Ibid.)
Like the abstract in Delgado, the abstract
for defendant's 1982 conviction unambiguously
states the conviction was for “Assault with a
Deadly
Weapon.”
Applying
Delgado,
the
abstract provides substantial evidence to
support
the
trial
court's
finding
that
defendant's 1982 conviction was a qualifying
strike.
Defendant attempts to overcome this
result
by
pointing
to
the
alleged
inconsistency
between
the
abstract
of
judgment and the complaint, which charged
defendant with both assault with a deadly
weapon and assault by means of force likely
to produce great bodily injury.
Defendant
relies on a line of cases where ambiguities
in abstracts of judgment led courts to
overturn prior strike findings.
(See, e.g.,
People v. Rodriguez (1998) 17 Cal. 4th 253,
261–262 [overturning prior strike finding
when abstract of judgment ambiguously listed
§ 245 violation as “ASLT GBI/DLY WPN”].)
Here,
however,
because
the
abstract
is
unambiguous,
we
find
these
authorities
inapposite.
We
also
find
defendant's
more
general
inconsistency
argument
unavailing.
The
complaint and abstract arose at different
junctures in the case.
The 1982 Felony
complaint charged defendant with assault with
26

1
2
3
4
5
6
7

a deadly weapon and assault by means of force
likely to produce great bodily injury, which
may be viewed as alternative bases for the
charged offense.
But the abstract of
judgment unambiguously identified the single
type of assault for which defendant was
convicted and no evidence calls into question
its
“‘authenticity,
accuracy,
or
sufficiency.’”
(Delgado, supra, 43 Cal. 4th
at p. 1066, quoting People v. Epps (2001) 25
Cal. 4th 19, 27.)
The trial court's strike
finding is therefore supported by substantial
evidence.
Patlan, 2014 WL 772608, at *7-8 (footnote omitted).

8
The Due Process Clause "protects the accused against
9
conviction except upon proof beyond a reasonable doubt of every
10
fact necessary to constitute the crime with which he is charged."
11
United States District Court
Northern District of California

In re Winship, 397 U.S. 358, 364 (1970).

A state prisoner who

12
alleges that the evidence in support of his state conviction
13
cannot be fairly characterized as sufficient to have led a
14
rational trier of fact to find guilt beyond a reasonable doubt
15
therefore states a constitutional claim, see Jackson v. Virginia,
16
443 U.S. 307, 321 (1979), which, if proven, entitles him to
17
federal habeas relief, see id. at 324.
18
The Supreme Court has emphasized that "Jackson claims face a
19
high bar in federal habeas proceedings . . . ."

Coleman v.

20
Johnson, 132 S. Ct. 2060, 2062, 2064 (2012) (per curiam) (finding
21
that the Third Circuit "unduly impinged on the jury's role as
22
factfinder" and failed to apply the deferential standard of
23
Jackson when it engaged in "fine-grained factual parsing" to find
24
that the evidence was insufficient to support petitioner's
25
conviction).

A federal court reviewing collaterally a state

26
court conviction does not determine whether it is satisfied that
27
the evidence established guilt beyond a reasonable doubt.
28
27

Payne

1

v. Borg, 982 F.2d 335, 338 (9th Cir. 1992).

2

"determines only whether, 'after viewing the evidence in the

3

light most favorable to the prosecution, any rational trier of

4

fact could have found the essential elements of the crime beyond

5

a reasonable doubt.'"

6

443 U.S. at 319).

7

found proof of guilt beyond a reasonable doubt has there been a

8

due process violation.

9

at 338.

10

The federal court

Payne, 982 F.2d at 338 (quoting Jackson,

Only if no rational trier of fact could have

Jackson, 443 U.S. at 324; Payne, 982 F.2d

In denying this claim the California Court of Appeal found

United States District Court
Northern District of California

11

that under state law the evidence used to establish the 1982

12

conviction as a strike was sufficient.

13

abstract for this conviction clearly stated that the conviction

14

was for “Assault with a Deadly Weapon,” which was a qualifying

15

strike.

16

reference to the substantive elements of the criminal offense as

17

defined by state law.

18

court’s ruling on the state law issue is binding on this Court.

19

However, “the minimum amount of evidence that the Due

20

Process Clause requires to prove the offense is purely a matter

21

of federal law,” Coleman, 132 S. Ct. at 2064, yet, Petitioner has

22

not shown that the state court was objectively unreasonable in

23

finding sufficient evidence to support the prior conviction as a

24

strike in light of the high bar for Jackson claims.

25

demonstrated an unreasonable determination of the facts.

26

state court analyzed the documents used to make the determination

27

and found there was sufficient evidence.

28

to demonstrate this finding was unreasonable; therefore, this

The court noted that the

The Jackson standard must be applied with explicit

Jackson, 443 U.S. at 324 n.16.

28

The state

Nor has he
The

Petitioner has failed

1

claim is denied.

2
3
4
5

V
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED.
Further, a Certificate of Appealability is DENIED.

See Rule

6

11(a) of the Rules Governing Section 2254 Cases.

7

not made “a substantial showing of the denial of a constitutional

8

right.”

9

that “reasonable jurists would find the district court’s

28 U.S.C. § 2253(c)(2).

Petitioner has

Nor has Petitioner demonstrated

assessment of the constitutional claims debatable or wrong.”

11
United States District Court
Northern District of California

10

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

12

appeal the denial of a Certificate of Appealability in this Court

13

but may seek a certificate from the Court of Appeals for the

14

Ninth Circuit under Rule 22 of the Federal Rules of Appellate

15

Procedure.

16

Cases.

17

Petitioner may not

See Rule 11(a) of the Rules Governing Section 2254

The Clerk is directed to enter Judgment in favor of

18

Respondent and against Petitioner, terminate any pending motions

19

as moot and close the file.

20

IT IS SO ORDERED.

21

Dated: 03/16/2016

22

________________________
THELTON E. HENDERSON
United States District Judge

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