McFarlane v. Freitas

Filing 24

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Alan Bruce McFarlane, III, ***Civil Case Terminated.. Signed by Judge James Donato on 1/16/18. (lrcS, COURT STAFF) (Filed on 1/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALAN BRUCE MCFARLANE,

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Petitioner,

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v.

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STEPHEN FREITAS,1

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

Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-06401-JD

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Alan MacFarlane, a pro se probationer, has brought a habeas petition pursuant to 28 U.S.C.

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§ 2254. The Court ordered respondent to show cause why the writ should not be granted.

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Respondent filed an answer and a memorandum of points and authorities in support of it, and

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lodged exhibits with the Court. MacFarlane filed a reply. The petition is denied.
BACKGROUND

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A jury found MacFarlane guilty of one count of unlawful possession of an assault rifle,

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former Cal. Penal Code section 12280(b). People v. MacFarlane, No. A141326, 2016 WL

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3634286, at *1 (Cal. Ct. App. June 29, 2016). At sentencing on February 27, 2014, the trial court

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suspended imposition of sentence and placed MacFarlane on formal probation, with the

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opportunity to have his conviction reduced to a misdemeanor after one year. Clerk’s Transcript

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(“CT”) at 226-27, Reporter’s Transcript (“RT”) at 811-15. On June 29, 2016, the California Court

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of Appeal affirmed the judgment. MacFarlane, 2016 WL 3634286, at *2. The California

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Supreme Court denied MacFarlane’s petition for review. Answer, Exs. I, J.

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Respondent notes that the proper respondent is David Koch, the Chief Probation Officer for
Sonoma County. That respondent will be substituted on the docket.

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United States District Court
Northern District of California

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The California Court of Appeal summarized the facts as follows:
INTRODUCTION
Alan Bruce MacFarlane (“defendant”), a Vietnam veteran with
limited mobility in one arm, purchased a rifle at a California gun
shop legally and then modified it to accommodate his disability.
Unbeknownst to him, he asserted, his modifications rendered the
firearm an illegal assault weapon under California law. A few days
after he altered the weapon, MacFarlane voluntarily allowed a
deputy sheriff into his home to investigate an unrelated matter, who
then discovered the weapon in MacFarlane’s kitchen in plain view
and seized it. A jury convicted MacFarlane of violating former
Penal Code section 12280, subdivision (b),which makes it unlawful
to possess an assault weapon.
It is undisputed the weapon meets the definition of an illegal assault
weapon under California law.
That definition includes a
“semiautomatic, centerfire rifle that has the capacity to accept a
detachable magazine and any one of the following: [¶] (A) A pistol
grip that protrudes conspicuously beneath the action of the weapon. .
. . [¶] (C) A folding or telescoping stock . . . . [¶] . . . [¶] [or] (F) A
forward pistol grip.” (former Pen.Code, § 12276.1, added by Stats.
1999, ch. 129, § 7, p. 1805, amended by Stats. 2000, ch. 967, § 3, p.
7076; Stats. 2002, ch. 911, § 3, p. 5743, and repealed and recodified
by Stats. 2010, ch. 711, §§ 4, 6 at Pen.Code § 30515.) The gun here
possessed all of those features. MacFarlane’s sole defense was that
he didn’t know the firearm, as modified, was illegal.
. . . He also argues the trial court improperly quashed a defense
subpoena directed to another deputy sheriff with firearms expertise
who examined the rifle back at the sheriff’s office and, MacFarlane
contends, could not tell whether the rifle was an illegal assault
weapon. Since MacFarlane’s criminal intent was the sole issue at
trial, MacFarlane argues the exclusion of this witness violated his
constitutional right to present a defense.
We reject both contentions and affirm his conviction.
BACKGROUND
On November 17, 2011, Sonoma County Sheriff’s Deputy Sean
Jones visited defendant’s house to investigate a neighbor’s
complaint that defendant was displaying a defaced Mexican flag that
was disturbing neighborhood children. Defendant allowed Jones
and another officer inside, after Jones inquired about smelling
marijuana and defendant told him he smoked it for medical purposes
and had his doctor’s paperwork inside.
While investigating defendant’s marijuana supply, Jones noticed a
black rifle sitting in plain view on the kitchen counter. Jones wrote
in his police report that “[t]he rifle was a centerfire rifle, had a pistol
grip stock, fore end grip, detachable 10 round magazines and a
collapsible stock.” Defendant told Jones he bought the rifle locally,
in California, and that it was legal. Defendant also volunteered that
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he had modified the rifle, by adding the collapsible stock and foreend grip. Defendant then showed Jones the original stock and
magazine. Jones wrote in his police report that he believed the rifle
was an assault weapon but was unsure, so he contacted Deputy
Sheriff Erick Gelhaus who was the sheriff department's armorer and
firearms instructor. Deputy Gelhaus advised him to seize the rifle so
that Deputy Gelhaus could inspect it at the station, and Jones did so.
Thereafter, Deputy Gelhaus requested that the rifle be sent to the
Department of Justice in order to determine whether or not it was an
assault weapon. A forensic arms expert from the California
Department of Justice then examined the rifle and concluded it met
the definition of an assault weapon under California law.

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Defendant was subsequently charged with one count of felony
possession of an assault weapon, under former section 12280(b).

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United States District Court
Northern District of California

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Defendant also subpoenaed Deputy Gelhaus for trial, contending his
testimony was relevant to the issue of criminal intent since Gelhaus
could not determine whether the rifle was illegal either. Deputy
Gelhaus, who by then was on administrative leave, had recently
come under criminal investigation, and become the subject of
intense media intention, due to a highly publicized incident in which
he fatally shot a teenager after mistaking the teenager’s pellet gun
for an assault weapon. FN 4. The Sonoma County Sheriff’s Office,
appearing through Sonoma County Counsel, moved to quash the
subpoena and the trial court granted its motion. The court ruled
Deputy Gelhaus’ testimony was irrelevant and also granted the
motion under Evidence Code section 352, concluding that any
minimal relevance would be substantially outweighed by a
substantial risk of undue consumption of time, confusion of the
issues, and misleading the jury.
FN 4. Repeated references below to the shooting incident by
defense counsel, the court and counsel for Deputy Gelhaus
demonstrate that all concerned were aware of the incident,
and the publicity it generated.
We therefore grant
defendant’s unopposed request to take judicial notice of the
October 22, 2013 shooting incident, as well as the fact that
no charges were filed against Deputy Gelhaus who returned
to full duty. (See Evid.Code, §§ 459, 452 subds. (g), (h).)
A two-day trial ensued, at which Deputy Jones, John Yount, the
forensic firearms expert from the California Department of Justice,
and defendant testified. A jury convicted defendant as charged.
Defendant then timely appealed.
MacFarlane, 2016 WL 3634286, at *1-3 (footnotes omitted).
STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on the
basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication
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of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United

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States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first

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prong applies both to questions of law and to mixed questions of law and fact, Williams v. Taylor,

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529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual

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determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority only if “the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially

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indistinguishable facts.” Williams, 529 U.S. at 412-13. A state court decision is an “unreasonable

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application of” Supreme Court authority if it correctly identifies the governing legal principle from

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the Supreme Court's decisions but “unreasonably applies that principle to the facts of the

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prisoner’s case.” Id. at 413. The federal court on habeas review may not issue the writ “simply

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

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applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the

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application must be “objectively unreasonable” to support granting the writ. Id. at 409.

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Under Section 2254(d)(2), a state court decision “based on a factual determination will not

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be overturned on factual grounds unless objectively unreasonable in light of the evidence

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presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v.

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Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). In conducting its analysis, the federal court must

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presume the correctness of the state court’s factual findings, and the petitioner bears the burden of

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rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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The state court decision to which § 2254(d) applies is the “last reasoned decision” of the

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state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d

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1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to

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consider the petitioner’s claims, the Court looks to the last reasoned opinion. See Nunnemaker at

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801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). In this case the Court
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looks to the opinion of the California Court of Appeal for the sole claim in the petition.
MacFarlane’s sole ground for federal habeas relief is that the trial court violated his due
process rights and right to present a defense by quashing a defense subpoena.
RIGHT TO PRESENT A DEFENSE

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MacFarlane argues his rights were violated when the trial court quashed a subpoena for
Deputy Gelhaus to testify.

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Background

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The California Court of Appeal set forth the background and relevant state law with

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respect to the Assault Weapons Control Act (“AWCA”).
To put this appeal in context, we begin first with the assault
weapons possession statute. For, as noted, defendant’s only
contention at trial was that he lacked the requisite criminal intent for
the charged offense. And all of his appellate arguments rest on his
claimed ignorance of the law.
In Jorge M., supra, 23 Cal. 4th 866, the California Supreme Court
rejected an interpretation of the AWCA that would require actual
knowledge that a firearm is illegal to possess (id. at p. 886), and
instead construed former section 12280(b) to require “knowledge of,
or negligence in regard to, the facts making possession criminal.”
(Id. at p. 887, italics added.) That is to say, the prosecution must
prove only that “the defendant knew or reasonably should have
known the firearm possessed the characteristics” bringing it within
a type of firearm prohibited by the AWCA. (Ibid., italics added,
original italics omitted.)
The court explained that this standard left room on the margins for
cases of innocent possession, “where the information reasonably
available to a gun possessor is too scant to prove he or she should
have known the firearm had the characteristics making it a defined
assault weapon.” (Jorge M., supra, 23 Cal.4th at p. 886.) Yet
requiring proof that a defendant actually knew the law would set too
strict a standard and impede effective enforcement, as “[n]othing in
the language . . . of the AWCA suggests the Legislature intended to
create, in section 12280, an exception to the fundamental principle
that all persons are obligated to learn of and comply with applicable
laws.” (Jorge M., at p. 886.) Thus, as construed by the court, the
scienter element of former section 12280(b) relates solely to a
firearm’s characteristics, not its illegality. (See Jorge M., at pp.
885–886.)
The court touched upon the kind of evidence that would suffice.
With respect to proving actual knowledge of a firearms’
characteristics, it explained that “knowledge may be proven
circumstantially,” and that while “in many instances a defendant’s
direct testimony or prior statement that he or she was actually
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ignorant of the weapon’s salient characteristics will be sufficient to
create reasonable doubt,” the prosecution “could rebut a claim of
actual ignorance by evidence of the defendant’s long and close
acquaintance with the particular weapon or familiarity with firearms
in general. . . .” (Jorge M., supra, 23 Cal. 4th at pp. 884–885.)
With regard to proving the defendant should have known a firearm’s
characteristics, the court noted that in most instances the fact that a
firearm is of a make and model defined by statute as a prohibited
weapon “can be expected to be sufficiently plain on examination of
the weapon so that evidence of the markings, together with evidence
the accused possessor had sufficient opportunity to examine the
firearm, will satisfy a knew-or-should-have-known requirement.”
(Id. at p. 885.) And, most notable for purposes here, it observed that
this conclusion “would not be altered by consideration of the generic
definition of ‘assault weapon’ ” at issue in this case, because “[t]hat
section defines the class of restricted weapons by their possession of
specified and readily discernible physical characteristics.” (Id. at p.
885, fn. 9, italics added.)
The court went on to explain that, “because of the general principle
that all persons are obligated to learn of and comply with the law, in
many circumstances a trier of fact properly could find that a person
who knowingly possesses a semiautomatic firearm reasonably
should have investigated and determined the gun's characteristics.”
(Jorge M., supra, 23 Cal. 4th at p. 885.) Only “exceptional cases”
would involve instances of “largely innocent possession” not
punishable as a felony offense, such as where “the salient
characteristics of the firearm are extraordinarily obscure, or the
defendant’s possession of the gun was so fleeting or attenuated as
not to afford an opportunity for examination.” FN 6. (Ibid.)
FN 6. Defendant does not argue on appeal that he falls
within either of these “exceptional” situations, nor does he
appear to have made any such argument below.
The court concluded: “The question of the defendant’s knowledge or
negligence is, of course, for the trier of fact to determine, and
depends heavily on the individual facts establishing possession in
each case. Nevertheless, we may say that in this context the
Legislature presumably did not intend the possessor of an assault
weapon to be exempt from the AWCA’s strictures merely because
the possessor did not trouble to acquaint himself or herself with the
gun’s salient characteristics. Generally speaking, a person who has
had substantial and unhindered possession of a semiautomatic
firearm reasonably would be expected to know whether or not it is
of a make or model listed in section 12276 or has the clearly
discernable features described in section 12276.1. At the same time,
any duty of reasonable inquiry must be measured by the
circumstances of possession; one who was in possession for only a
short time, or whose possession was merely constructive, and only
secondary to that of other joint possessors, may have a viable
argument for reasonable doubt as to whether he or she either knew
or reasonably should have known the firearm’s characteristics.”
(Jorge M., supra, 23 Cal. 4th at pp. 887–888.)

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In short, Jorge M. makes clear that ignorance of the law is no
defense to a charge of felony assault weapon possession. Only
ignorance of a weapon’s actual characteristics is exonerating, under
circumstances in which the defendant could not reasonably be
expected to have known of those characteristics. (See Jorge M.,
supra, 23 Cal. 4th at p. 888 [evidence of defendant’s knowledge or
constructive knowledge of assault weapon’s salient characteristics
held sufficient]; People v. Nguyen (2013) 212 Cal. App. 4th 1311,
1323–1325 [same]; In re Daniel G. (2004) 120 Cal. App. 4th 824,
831–832 [same].)

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The trial court in this case instructed the jury in accordance with
Jorge M., and defendant does not challenge the instruction.

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MacFarlane, 2016 WL 3634286, at *3-4 (footnotes omitted).
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MacFarlane’s trial counsel subpoenaed Deputy Gelhaus for trial to testify regarding
petitioner’s intent because according to the defense argument, Gelhaus had been not able to
determine if the rifle was illegal. Id. at 2. After a hearing and reviewing the various parties’

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briefings, the trial court issued a four-page written ruling quashing the subpoena. Id. at 9. The
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trial court found that Gelhaus’ testimony was irrelevant, and pursuant to Evidence Code section

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352, any minimal relevance was outweighed by the risk of undue consumption of time, confusion
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of the issues and misleading the jury. Id. at 2. The trial court noted:
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Insofar as defendant wants to call Deputy Gelhaus as an expert
witness on firearms, there’s no indication that Deputy Gelhaus could
offer any expert opinion favorable to defendant. In fact, all evidence
points towards Deputy Gelhaus having an opinion that this rifle was
a prohibited assault rifle. Therefore, any proposed expert testimony
from Deputy Gelhaus would be irrelevant to the defense.

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Insofar as defendant wants to call Deputy Gelhaus to testify about
his “inability or reluctance to identify the rifle as an assault
weapon,” defendant’s argument is both factually and legally flawed.
Factually, defendants’ allegation that Gelhaus was unable or
reluctant to identify the rifle as an assault rifle lacks evidentiary
support. In fact, the evidence indicates Deputy Gelhaus believed it
was an assault rifle and directed Deputy Jones to send the rifle to the
DOJ lab for confirmation pursuant to routine procedures. Deputy
Gelhaus was never asked to offer any expert opinion for prosecution
purposes. Moreover, from a legal perspective, whether Deputy
Gelhaus, or anyone else who inspected the rifle, was or was not able
to immediately identify the rifle as a prohibited assault rifle is not
relevant to the issue of whether or not defendant knew or reasonable
should have known that it had characteristics that made it an assault
weapon.

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CT at 187.

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Legal Standard

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Whether grounded in the Sixth Amendment’s guarantee of compulsory process or in the

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more general Fifth or Fourteenth Amendment guarantee of due process, “the Constitution

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guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Holmes

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v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683 690

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(1986)); see California v. Trombetta, 467 U.S. 479, 485 (1984) (due process); Chambers v.

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Mississippi, 410 U.S. 284, 294 (1973) (compulsory process).

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The constitutional right to present a complete defense includes the right to present

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evidence, including the testimony of witnesses. See Washington v. Texas, 388 U.S. 14, 19 (1967).
But the right is only implicated when the evidence the defendant seeks to admit is “relevant and

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material, and . . . vital to the defense.” Id. at 16. Additionally, a violation of the right to present a

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defense does not occur any time such evidence is excluded, but rather only when its exclusion is

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“arbitrary or disproportionate to the purposes [the exclusionary rule applied is] designed to serve.”

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Holmes, 547 U.S. at 324 (internal quotation marks omitted). This is true even if the rule under

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which it is excluded is “respected[,] . . . frequently applied,” and otherwise constitutional.

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Chambers, 410 U.S. at 302. If the “mechanistic” application of such a rule would “defeat the ends

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of justice,” then the rule must yield to those ends. Id. Still, “[o]nly rarely” has the Supreme Court

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held that the right to present a complete defense was violated by the exclusion of defense evidence

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under a state rule of evidence. Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (citing Holmes,

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547 U.S. at 331) (rule did not rationally serve any discernable purpose); Rock v. Arkansas, 483

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U.S. 44, 61 (1987) (rule arbitrary); Chambers, 410 U.S. at 302-03 (state did not even attempt to

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explain the reason for its rule); Washington, 388 U.S. at 22 (rule could not be rationally

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defended)).

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Discussion

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The California Court of Appeal set forth the relevant federal and state law and denied

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MacFarlane’s claim that the quashing of the subpoena violated his rights:
Defendant also did not argue below that quashing the Deputy
Gelhaus subpoena would violate his constitutional right to compel
the attendance of witnesses. However, “[t]he right of an accused to
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compel witnesses to come into court and give evidence in the
accused’s defense is a fundamental one.” (People v. Jacinto (2010)
49 Cal. 4th 263, 268). In addition, defendant’s argument at most
amounts only to “a new constitutional ‘gloss’” on a claim he did
preserve below, namely that his subpoena should not be quashed
because Deputy Gelhaus was a relevant and material witness. (See
People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 364
(Bryant).) We therefore proceed to the merits of this issue.

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Evidence that a third party, including even a firearms expert, had
trouble recognizing this firearm as an illegal assault weapon could
be potentially relevant only if the prosecution could not prove
beyond reasonable doubt defendant actually knew his firearm
possessed the prohibited attributes. For only if defendant lacked
actual knowledge of those attributes would it be necessary for the
prosecution to prove he reasonably should have known of them.
(See Jorge M., supra, 23 Cal.4th at p. 887.) In opposing the motion
to quash the Gelhaus subpoena, though, defendant didn’t argue he
would claim actual ignorance of the gun’s salient attributes such that
the critical issue at trial would be the “should have known” standard.
Thus, he failed below to demonstrate how Gelhaus’ testimony might
be relevant. (See In re Finn, supra, 54 Cal. 2d at p. 813.)

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The evidence at trial, moreover, revealed that Deputy Gelhaus
would not have been a relevant witness, much less a vital one,
unlike in Washington v. Texas (1967) 388 U.S. 14, the sole authority
defendant cites. (See id. at p. 16.) There was ample undisputed
evidence, both circumstantial and direct, that defendant actually
knew his gun possessed the proscribed attributes, and defendant
never contended otherwise. (See Jorge M., supra, 23 Cal. 4th at p.
884 [“knowledge may be proven circumstantially”].) He admitted
facts demonstrating his “familiarity with firearms in general” (see
id. at p. 885): he had military firearms training twice a year for four
years some 40 years ago while serving in the Air Force, including
training with an M–16 rifle, and presently he owned a shotgun. He
also admitted facts demonstrating his “long and close acquaintance”
with this rifle’s physical features (see ibid.): he admitted “shopping
around” and researching the purchase of this rifle ahead of time,
through “[v]arious stores, gun magazines, catalogs” and online, and
he then spent five hours disassembling and modifying the weapon.
And, he admitted actual knowledge of the rifle’s prohibited features
too: he admitted he bought the pistol grip, telescoping stock and
fore-end grip and put them on the gun, he admitted the rifle is
semiautomatic and has a detachable magazine, and he also admitted
it's a centerfire weapon, testifying “I think so. That’s—that took me
a while to figure it out, but, yes, it is.”
Defendant admitted that he knew the gun had these features, and
there was no evidence to the contrary that could have created
reasonable doubt. (See Jorge M., supra, 23 Cal.4th at pp. 884–885.)
He merely claimed ignorance of the law. As he now puts it in his
appellate brief, his “sole defense would be that he did not know or
reasonably could not have known that the rifle he purchased and
wanted modified to accommodate his physical disabilities was
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illegal.” (Italics added.) Yet this entire theory of defense was
legally unsound. For as explained, ante, the Assault Weapons
Control Act confers no exemption on the owners of firearms from
“the fundamental principle that all persons are obligated to learn of
and comply with applicable laws.” (Jorge M., supra, 23 Cal. 4th at
p. 886; see also People v. King (2006) 38 Cal. 4th 617, 627 [to
prove knowledge of illegal firearm possession, prosecution “need
not prove that the defendant knew there was a law against
possessing the item, nor that the defendant intended to break or
violate the law”].) And, the undisputed evidence at trial that
defendant actually did know the gun had the attributes of an assault
weapon rendered irrelevant the question whether he reasonably
should have discovered those features. FN 12 It thus was irrelevant
whether anyone else had difficulty discerning them, firearms expert
or no.
FN 12 Nor has defendant ever claimed this is an exceptional
case, where “the salient characteristics of the firearm are
extraordinarily obscure, or the defendant's possession of the
gun was so fleeting or attenuated as not to afford an
opportunity for examination. . . .” (Jorge M.,supra, 23
Cal.4th at p. 885.)
Finally, we also are satisfied there was nothing fundamentally unfair
about this trial. (See Bryant, supra, 60 Cal. 4th at p. 368.) Even if
Deputy Gelhaus might have offered relevant testimony on this point,
it would not have been vital to the defense. (Compare Washington
v. Texas, supra, 388 U.S. at p. 16 with, e.g., People v. Cornwell
(2005) 37 Cal. 4th 50, 82, disapproved on another ground, People v.
Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.) Deputy Jones testified
on cross-examination that he consulted Deputy Gelhaus for a second
opinion, Gelhaus was a firearms expert, Gelhaus asked to see the
rifle, and ultimately Gelhaus sent it to the Department of Justice
because “[h]e didn’t want to offer an opinion on it. He said he
stopped doing that. . . .” So the jury already knew that Deputy
Gelhaus would not opine definitively if this was an assault weapon.
And defense counsel argued that theory to the jury. Putting Deputy
Gelhaus on the stand to confirm these events was not essential. (See
Cornwell, at p. 82.) Trial courts do not violate the Constitution by
excluding evidence that is repetitive or “‘“only marginally
relevant.”’” (Holmes v. South Carolina (2006) 547 U.S. 319, 326.)
MacFarlane, 2016 WL 3634286, at *12-14 (footnote omitted).

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MacFarlane has failed to demonstrate the state court opinion was an unreasonable
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application of Supreme Court authority or an unreasonable determination of the facts. MacFarlane
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did not dispute at trial the he knew his gun possessed the proscribed features that made it illegal.
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On direct and cross-examination MacFarlane admitted that he had actual knowledge of the rifle’s

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prohibited features because he modified it by purchasing parts for it on the internet. RT at 724-25,
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729-31, 737. Because MacFarlane admitted this, the trial court and the California Court of Appeal
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noted it was not relevant what Deputy Gelhaus thought and denying this witness did not violated

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MacFarlane’s constitutional rights.

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Even assuming-had he testified-that Deputy Gelhaus’ testimony was relevant and was what

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MacFarlane expected it would be, trial counsel presented the defense theory about the testimony in

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his closing argument. Trial counsel noted that Deputy Jones had been unsure if the rifle was an

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assault weapon and called Deputy Gelhaus for a second opinion:
He’s going to call the main guy, the big guy in the sheriff’s
department because what are we going to do about this?

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Well, he tries to explain it to him over the telephone and he doesn’t
say, “Well, you got—this is definitely an assault weapon, arrest Mr.
MacFarlane.” He says, “Why don't you grab it, bring it to me, and
let me inspect it.”

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....

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What’s the big issue if it’s so easy to figure all of this out . . . .

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....

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So now he goes to . . . to the sheriff’s department. They take a look
at it. “And, well, it still sure looks like an assault weapon, but you
know what, I think that we’ve got to send it to the Department of
Justice and have them start doing some tests on here and trying to
figure out what this is.”

United States District Court
Northern District of California

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And so now we have the armorer, the training person from the
sheriff’s department. We have Deputy Jones who is the SWAT
man, and still no determination.

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RT at 770-72. There was no constitutional violation by excluding evidence that was repetitive or

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only marginally relevant. See Holmes at 326. To the extent that MacFarlane challenges the state

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law determination of what constitutes an assault rifle and the relevant intent requirement, he is not

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entitled to habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many

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times that ‘federal habeas corpus relief does not lie for errors of state law.’”) The state court

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decision was not objectively unreasonable. Therefore, the petition is denied.2

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2

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To the extent MacFarlane seeks to bring any other claims, the above claim is the only exhausted
federal claim presented in the petition.
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1
CERTIFICATE OF APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a district court

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4

that issues an order denying a habeas petition to either grant or deny therein a certificate of

5

appealability. See Rules Governing § 2254 Cases, Rule 11(a).
A judge shall grant a certificate of appealability “only if the applicant has made a

6

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the

8

certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)

10

is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district

11
United States District Court
Northern District of California

7

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

12

473, 484 (2000).

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Here, petitioner has made no showing warranting a certificate and so none is granted.

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CONCLUSION

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1. For the foregoing reasons, the petition for writ of habeas corpus is DENIED. A

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Certificate of Appealability is DENIED. See Rule 11(a) of the Rules Governing Section 2254

17

Cases.

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2. The Clerk shall substitute as respondent, David Koch, the Chief Probation Officer for
Sonoma County.
IT IS SO ORDERED.
Dated: January 16, 2018

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JAMES DONATO
United States District Judge

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1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

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4

ALAN BRUCE MCFARLANE,

Case No. 16-cv-06401-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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STEPHEN FREITAS,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on January 16, 2018, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Alan Bruce McFarlane
P.O. Box 5383
Corning, CA 96021

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Dated: January 16, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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