Miller v. Martinez

Filing 25

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus, filed by Christopher J. Miller. Signed by Judge James Donato on 6/6806. (lrcS, COURT STAFF) (Filed on 6/21/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER J. MILLER,

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Petitioner,

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

v.

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JOEL MARTINEZ,

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Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-06806-JD

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Christopher Miller, a pro se state prisoner, has brought a habeas petition pursuant to 28

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U.S.C. § 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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Miller filed a traverse. The petition is denied.
BACKGROUND

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A jury found Miller guilty of molesting a child under the age of fourteen, possession of

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child pornography and failure to register as a sex offender. People v. Miller, No. A139503, 2015

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WL 5560192, at *1 (Cal. Ct. App. Sept. 21, 2015). It was found true that Miller had two prior

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prison term enhancements, and he was sentenced to sixty-nine years and four months in prison.

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Clerk’s Transcript (“CT”) at 695-97. On September 21, 2015, the California Court of Appeal

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affirmed the judgment in a reasoned opinion. Miller, 2015 WL 5560192 at *1. The California

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Supreme Court denied review on December 9, 2015. Answer, Ex. 10. Miller filed a habeas

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petition in Contra Costa County Superior Court that was denied in a reasoned opinion on June 26,

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2016. Ex. 11 at 432-35.1 Habeas petitions to the California Court of Appeal and the California

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In citing to the superior court opinion the Court identifies to the page numbers on the Court’s
electronic docket.

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Supreme Court were summarily denied. Id., Exs. 11-12.
The California Court of Appeal summarized the facts of the crime as follows:
Defendant was charged by amended information with 29 counts of
lewd and lascivious conduct with Doe 1, a child under the age of 14
(Pen.Code, § 288, subd. (a)); (counts 1 though 29), possession of
pornography with a prior conviction (§ 311.11, subd. (b); count 30),
failure to register as a sex offender upon release from incarceration
(§ 290.015, subd. (a); count 31), failure to register as a sex offender
at each residence (§ 290.010; count 32), failure to complete annual
sex offender registration (§ 290.012, subd. (a); count 33), and failure
to register as a sex offender within five days of change of address (§
290, subd. (b); count 34). The information alleged in connection
with counts 1 through 29 that defendant had substantial sexual
contact with the minor (§ 1203.066, subd. (a)). The information also
alleged defendant served two separate prior prison terms (§ 667.5,
subd. (b)).
The following evidence was presented at trial:
Defendant admitted that he was a pedophile and that he had been
sexually and romantically attracted to young boys all his life. He
was first convicted of possession of child pornography in 1997 and,
as a result, was required to register as a sexual offender. Defendant
went to prison in 2007 after being convicted of additional child
pornography charges. Defendant did not register within five days of
his release from prison in December 2008, despite being notified of
his obligation to do so.
In early 2009, Vickie lived with her two sons Doe 1, age 12, and
Doe 2, age eight. The boys were friends with nine–year–old Doe 3
who lived in the neighborhood. In February 2009, defendant moved
into an apartment with Doe 3 and Doe 3’s father. Vickie and
defendant became friends through the children and in late May or
early June 2009, defendant moved into Vickie’s apartment with her
two sons.
Defendant had his own bedroom and Doe 1 and Doe 2 shared a
separate bedroom. Soon after defendant moved in, Doe 1 started to
spend the nights in defendant’s bedroom. At first he slept on the
couch in defendant’s bedroom, but he later moved to the top bunk.
Eventually, he moved down to the bottom bunk, and he and
defendant slept in the same bed.
On December 1, 2009, defendant was arrested for failing to register
as a sex offender.
The next day, on December 2, Doe 1 gave a statement to a forensic
interviewer. A recording of Doe 1’s statement was played for the
jury. Doe 1 told the interviewer that when he spent the night at Doe
3’s apartment, defendant would sleep in the same bed with Doe 1,
and defendant asked him to take off his clothes. Defendant would
“give [Doe 1] oral sex.” Defendant asked Doe 1 to kiss him on his
face. Defendant touched the youth all over his body. He told Doe 1
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not to talk to anybody about what they were doing. When defendant
moved into Doe 1’s apartment, Doe 1 began to sleep in defendant’s
bed. The same sexual activity continued two or three times a week,
including oral sex.
At trial, Doe 1 confirmed that he and defendant began sleeping in
the same bed when defendant was living at Doe 3’s apartment.
From the first night, defendant began touching the boy's genitals
under his clothing. At first, defendant remained clothed, but he soon
started to sleep naked. Defendant put his mouth on Doe 1’s genitals.
Doe 1 testified, “After the first time it just became like that every
night.” Once or twice, defendant warned Doe 1 not to tell his
mother about what was happening.
When defendant moved into Doe 1’s residence, Doe 1 began to
spend the night in defendant’s room. Initially it was a rare occasion,
but it “became a habit to where I would just sleep there every night
without question.” Doe 1 explained that he “usually” slept in his
clothing “until it came to the touching and stuff.” Defendant
touched Doe 1’s body “hand to genital [and] mouth to genital.” The
same type of sexual activity occurred three to four times a week. On
one occasion, defendant put his finger inside Doe 1’s anus and
moved it in and out. Doe 1 explained that he would ask defendant to
rub his feet, and defendant “would start massaging my feet and then
work his way up my legs to my genitals.”
Defendant “would constantly” say that he loved Doe 1, and Doe 1
believed him. Although Doe 1 thought the relationship was strange
at first, it “kind of became normal” to hear that defendant loved him.
Doe 1 was upset when defendant was arrested. He explained, “[A]t
the time I didn’t have a strong relationship with my mom, so I
thought the only person who actually cared had left.”
On cross-examination, Doe 1 was questioned about a letter he wrote
following defendant’s arrest in which he said that defendant never
hurt or molested him. He explained that his mother asked him to
write the letter saying that defendant had not molested him because
“it was by my own will.” At the time he wrote the letter, he
misunderstood what “molestation” meant. Later, he explained that
at the time he wrote the letter he thought that molestation was
touching someone without their approval, “So because I approved or
let him, I thought that it wasn’t molestation.” He meant that
defendant did not do anything forcibly.
Defendant claimed that he never touched Doe 1 in a sexual manner.
He acknowledged that he allowed Doe 1 to sleep next to him in his
bed, but under a separate blanket. He denied touching Doe 1 during
the night with his hands but admitted their bodies bumped up against
each other. When asked if he “received lustful gratification” from
sleeping next to Doe 1, defendant responded, “I received a warm,
wonderful, pleasurable feeling sleeping next to a boy that I was
attracted to. [¶] Lustful gratification to me means having a orgasm
or doing sexual activity. I hate to split hairs with this, but it was
pleasurable to sleep next to him.” Defendant admitted that there
was “definitely a romantic gratification” which contained “an
element of lustful gratification as well.”
Defendant also
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acknowledged that Doe 1 would sleep naked, “[I]t was not entirely
uncommon for him [Doe 1] to take his boxer shorts off. . . . [H]e
would pull off his boxer shorts and giggle and throw them across the
room and sleep naked. And I didn’t ask him to do it, but, again, I
didn’t stop him. . . . [¶] . . . I definitely found it sexually pleasurable
that he was next to me naked.”
Following defendant’s arrest in December 2009, law enforcement
officers located a laptop computer in defendant’s bedroom. On the
computer, officers found evidence that defendant engaged in
numerous online chat sessions while living with Doe 1. During the
chats, defendant said that he lived with a 12–year–old “young
friend” and that they had sex around five times per week. Defendant
claimed that he often boasted over the Internet, but that his boasts
were merely “inventions” which he made up because the imagery
excited him.
Officers also found in defendant’s computer pornographic videos
and photos of an individual referred to as Doe 5. Doe 5’s father
testified that defendant met Doe 5 in March 2006 when Doe 5 was
nearly 12 years old. Defendant’s friendship with Doe 5 lasted only
three months. The friendship ended when Doe 5's father did an
Internet search and found that defendant had a criminal record. The
video found on defendant’s computer showed Doe 5 masturbating.
Defendant claimed to have received the video from a third party, but
admitted that he put Doe 5’s name and age on the videos and
distributed them to other pedophiles on the Internet. Defendant
acknowledged that this was “a terrible thing” to do, but explained
that he was very angry with Doe 5 at the time. He claimed that his
anger stemmed from “bizarre” sexual abuse allegations that Doe 5
had made against him. Defendant admitted that he was attracted to
Doe 5 and that he had slept in the same bed with him.
Finally, defendant was cross-examined about his relationship with
Doe 4. Defendant acknowledged that when he was 21 years old and
serving as a youth worker at a church, he formed a close relationship
with 13–year–old Doe 4. He became close to Doe 4’s mother and
spent nights at their home. He kept a journal about his activities
with the boy. Defendant explained, “There is no mention [in the
journals] of literal sex. I was really kind of in denial at the time, but
there’s a lot of talking about loving being near him and touching
him and massaging him and that kind of thing.” Defendant denied
having lustful feelings for Doe 4, but acknowledged he was
“definitely feeling the swirl of really inten[se] emotions that [he]
didn’t know what to do with.” Defendant acknowledged touching
the boy, but claimed he did not get sexual pleasure from doing so.
The jury convicted defendant of all counts and found the substantial
sexual contact allegations true. The court subsequently found true
the two prior prison term enhancements. Defendant was sentenced
to a prison term of 69 years four months, consisting of the eight-year
upper term on count 1, 28 consecutive two–year terms on counts 2
through 29, a consecutive term of one year four months on count 30,
consecutive eight–month terms on counts 31, 32, and 34, and two
consecutive one-year terms for the prior prison term enhancements.
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Miller, 2015 WL 5560192, at *1-3 (footnotes omitted).
STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on the

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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,
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

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arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if

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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 Contra Costa County Superior Court for the first claim and to the

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California Court of Appeal for the remaining claims in the petition.

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As grounds for federal habeas relief, Miller contends that: (1) the trial court erred in
excluding evidence, preventing him from presenting a defense, and trial counsel was ineffective
for failing to more thoroughly challenge the ruling; (2) the prosecutor committed misconduct

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during cross-examination by suggesting Miller had committed prior offenses, and to the extent this

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claim is forfeited, trial counsel was ineffective; (3) trial counsel was ineffective by allowing the

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prosecutor to question Miller about past events after the trial court had already excluded evidence

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of the past events; (4) trial counsel was ineffective by allowing the prosecutor to misstate the law

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regarding Penal Code section 288; and (5) the trial court erred in issuing an excessive restitution

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fine in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
EXCLUSION OF DEFENSE EVIDENCE

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Miller argues that the trial court’s decision denying his motion to cross-examine Doe 1

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about watching pornography and engaging in prior sexual encounters with another individual

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violated his rights to due process and to present a defense. He also argues that trial counsel was

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ineffective for failing to file a motion for reconsideration after the original motion was denied.

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Legal Standard

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A person in custody pursuant to the judgment of a state court can obtain a federal writ of

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habeas corpus only on the ground that he is in custody in violation of the Constitution or laws or

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treaties of the United States. 28 U.S.C. § 2254(a). A state court’s evidentiary ruling therefore is

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not subject to federal habeas review unless the ruling violates federal law, either by infringing

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upon a specific federal constitutional or statutory provision or by depriving the defendant of the

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fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984);
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Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d

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1083, 1085 (9th Cir. 1985).

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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).

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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 v. South Carolina, 547 U.S. 319, 324 (2006) (internal citation and quotation marks
omitted); Michigan v. Lucas, 500 U.S. 145, 151 (1991). This is true even if the rule under which it

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is excluded is “respected[,] . . . frequently applied,” and otherwise constitutional. Chambers v.

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Mississippi, 410 U.S. 284, 302 (1973). If the “mechanical” application of such a rule would

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

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the Supreme Court held that the right to present a complete defense was violated by the exclusion

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of defense evidence under a state rule of evidence. Nevada v. Jackson, 133 S. Ct. 1990, 1992

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(2013) (citing Holmes, 547 U.S. at 331) (rule did not rationally serve any discernable purpose);

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Rock v. Arkansas, 483 U.S. 44, 61 (1987) (rule arbitrary); Chambers, 410 U.S. at 302-03 (state did

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not even attempt to explain the reason for its rule).
A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth
Amendment right to counsel, which guarantees not only assistance, but effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must
establish two things. First, he must establish that counsel’s performance was deficient, i.e., that it
fell below an “objective standard of reasonableness” under prevailing professional norms.
Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel’s
deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Background

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The Contra Costa Superior Court described a portion of the background for his claim:
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Petitioner’s first claim that he was denied his right to present a
certain defense, namely the alleged culpability of one Jonathan
Enoch Young, and not petitioner, for sexual acts Young allegedly
was involved in with John Doe I, is based on a complicated legal
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and factual argument implicating his defense counsel’s
determination not to file a certain motion (Ex. A to Pet.). The
motion raised questions concerning victim John Doe I’s prior sexual
contact with Young pursuant to Evidence Code 782. Apparently the
motion was denied and counsel had drafted a Motion to Reconsider
the [trial] court’s prior ruling on the subject (Ex. A). That motion
was never filed. Petitioner now contends his counsel did not pursue
this “defense” and was ineffective for not doing so . . .
Petitioner’s counsel filed a declaration in support of the 782 motion.
Counsel wrote:
3. I have been informed and believe that John Doe I has been
exposed to pornography by Mr. Young and spent time with Mr.
Young and John Doe III during the time John Doe I stated he had
been sexually molested by Mr. Miller [the defendant].
4. I have been informed and believe that John Doe III was sexually
molested by Mr. Young and that Mr. Young is sexually attracted to
boys John Doe I’s age.
5. I have been informed and believe that John Doe I spent the night
at the Young house three or four days prior to the CIC interview
based on the testimony of Vickie Finley. The Young house was
located in Concord and Mr. Miller did not live in the Young house.
6. The video titled “Long” was provided by the prosecution as part
of Mr. Young’s criminal file and show Mr. Young looking at the
camera and film his own son and another child naked in the bath.
The video shows Mr. Young’s lewd and lascivious intent and acts
toward both children.
Answer, Ex. 11 at 433-34.
The trial court denied Miller’s motion to the extent he sought to question Doe 1 regarding
the viewing of pornography and prior sexual activity. Reporter’s Transcript (“RT”) at 353. The

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trial court stated:
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Under [evidence code] 782, you need to have more than simply a
reliance by, for example, the sworn testimony of Vickie Finley, who
simply testified that her children slept over at the Young house and
that (John doe III) slept over at her house. There’s nothing in this
record that indicates any child pornography was shown to John Doe
I at the Young house, that Mr. Young filmed John Doe, (Doe III),
that he touch John Doe, (Doe III). There is nothing. And I cannot
grant this motion on just this basis.

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RT at 353. The trial court did rule that although the section 782 motion was denied, Miller would

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be allowed to show the jury the entire video filmed by Young where Doe 3 and another boy

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appeared, as evidence that Miller did not film the video. RT at 353-56.2

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Discussion

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The superior court denied this claim without prejudice. The superior court specifically

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stated:
On this record the court cannot determine if counsel’s decision not
to religitate the EC 782 motion was ineffective. However, applying
the usual presumption, as noted above, the court is loath to second
guess counsel’s decision not pursue the EC 782 motion after it had
already been denied. The court would note, further, that the motion,
as lodged with the petition, raised relevancy questions about John
Doe III and Mr. Young that it cannot resolve (or even fully
understand) on the record provided by petition.

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Answer, Ex. 11 at 435.
It appears that the superior court denial provided Miller an opportunity to refile the case

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United States District Court
Northern District of California

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with more information and supporting documents. It is not clear if the petitions to the California

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Court of Appeal and California Supreme Court for this claim contained the additional information

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that was required. Those higher courts denied the petitions without comment or citation. It is

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possible that the California Supreme Court denied the petition on the merits and, if so, then this

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Court can review the claim. It is also possible that the California Supreme Court’s silent denial

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means that the high court agreed with and adopted the reason of the lower court, i.e., that Miller’s

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claim could not be adjudicated because he failed to provide enough information. See

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Nunnemaker, 501 U.S. at 802-06. If that was the case then this claim is unexhausted. However, a

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federal court may deny an unexhausted claim on the merits only when it is perfectly clear that the

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petitioner does not raise even a colorable federal claim. Cassett v. Stewart, 406 F.3d 614, 623-24

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(9th Cir. 2005). Miller’s allegations do not raise even a colorable federal claim and is denied if it

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was exhausted or unexhausted.
Under California law, defendants generally cannot question sexual assault victims about

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their prior sexual history. Cal. Evid. Code § 1103(c)(1). A limited exception exists if the victims’

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prior sexual history is relevant to their credibility. Cal. Evid. Code § 1103(c)(5). The defendant

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must make an offer of proof of the relevance of the sexual conduct, and if the trial court finds that

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Miller’s trial counsel had argued that if the jury was only shown a portion of the video they
would be left with the impression that Miller had molested Doe 3. RT at 344-56.
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the evidence is relevant to credibility, it balances its probative value against other considerations

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under Evidence Code Section 352. Cal. Evid. Code § 782; People v. Daggett, 225 Cal. App. 3d

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751, 757 (1990).

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Here, the trial court found that Miller failed to meet his burden in showing that Doe 1 had
actually viewed pornography in Young’s home or that Young had molested him. The trial court

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noted that Miller was speculating that because Doe 1 spent the night at Young’s house, Doe 1

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must have viewed pornography and been molested because Young was a convicted sex offender

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and had taken videos of Doe 3. The trial court also noted that Doe 1 had not accused Young of

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molesting him. To the extent Miller challenges the state evidentiary ruling under state law, he is

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not entitled to habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that

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“it is not the province of a federal habeas court to reexamine state-court determinations on state-

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law questions”).

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Nor does Miller show that his right to present a defense was violated. The right to present

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a defense is only implicated when the evidence the defendant seeks to admit is “relevant and

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material, and . . . vital to the defense.” Washington, 388 U.S. at 16. The evidence Miller sought to

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cross-examine Doe 1 with was mere speculation, and a due process violation occurs only where

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the excluded evidence has “persuasive assurances of trustworthiness” and was “critical” to the

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defense. Chambers, 410 U.S. at 302. Moreover, the Supreme Court has held that state rape-shield

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statutes represent a “valid legislative determination that rape victims deserve heightened

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protection against surprise, harassment, and unnecessary invasions of privacy.” Lucas, 500 U.S. at

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149-50. Miller’s mere speculation is insufficient to warrant habeas relief.
A violation of the right to present a defense merits habeas relief only if the error was likely
to have had a substantial and injurious effect on the verdict. See Lunbery v. Hornbeak, 605 F.3d
754, 762 (9th Cir. 2010) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). In this
case, even if there was an error, Miller cannot show that it had a substantial and injurious effect on
the verdict. There was overwhelming evidence implicating Miller. Doe 1’s pretrial statements
and trial testimony described how Miller engaged in repeated and extensive sexual conduct with
him. CT at 718-22; RT at 749-56. Doe 1’s descriptions were corroborated by Miller’s online
depictions of his sexual activity. RT at 382-87, 549-54. There was also a partial DNA profile
from a sample taken from Doe 1’s penis that partially matched Miller. RT at 810-11, 945, 951-73.
As noted above, Miller admitted he was a pedophile and that he routinely slept in the same bed as
Doe 1, who was often naked, and that Miller found this to be sexually pleasurable. Any error in
excluding certain cross-examination questions for the victim did not have a substantial and
injurious effect on the verdict.

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Nor can Miller show that he received ineffective assistance of counsel due to counsel’s
failure to seek reconsideration of the trial court’s ruling. Miller has not shown that counsel was
deficient in failing to seek reconsideration or that the trial court would have changed its ruling.
See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can
never be deficient performance”). Even if counsel was deficient, Miller cannot demonstrate
prejudice for the reasons set forth above. This claim is denied.

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PROSECUTORIAL MISCONDUCT

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Miller argues that the prosecutor committed misconduct during cross-examination by

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asking argumentative questions and suggesting that Miller was a pedophile with an extensive

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history of inappropriate conduct.

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Legal Standard
Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard
of review is the narrow one of due process and not the broad exercise of supervisory power.
Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant’s due process rights are violated
when a prosecutor’s misconduct renders a trial “fundamentally unfair.” Id.; Smith v. Phillips, 455
U.S. 209, 219 (1982) (“the touchstone of due process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability of the prosecutor”). Under Darden, the
first issue is whether the prosecutor’s remarks were improper; if so, the next question is whether
such conduct infected the trial with unfairness. Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.
2005); see also Deck v. Jenkins, 814 F.3d 954, 978 (9th Cir. 2016) (recognizing that Darden is the
clearly established federal law regarding a prosecutor's improper comments for AEDPA review
purposes). A prosecutorial misconduct claim is decided “‘on the merits, examining the entire
proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as
to make the resulting conviction a denial of due process.’” Johnson v. Sublett, 63 F.3d 926, 929
(9th Cir. 1995); see Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish
society for the misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received
a fair trial.”).

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United States District Court
Northern District of California

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Background

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The California Court of Appeal discussed the relevant background for this claim:

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Defendant contends the prosecutor committed misconduct by
repeatedly asking argumentative questions to him on crossexamination that suggested defendant “is a pedophile with a long
history of lewd and lascivious touchings of young boys.” . . .
Here, on the second day of defendant’s cross-examination, the
prosecutor asked defendant if he gave Doe 4 back rubs and foot
massages to “satisf[y] [his] lustful intent?” Defendant replied that,
at the time, he had repressed his sexual feelings and did not act
“with the intent to satisfy any lustful sexual desires.” Before he
could finish his answer, the prosecutor interjected, “Mr. Miller,
that’s not how you answered last Thursday; isn’t that true?” Then,
she asked defendant about whether he “had the opportunity to speak
with your lawyer over the break.” The trial court sustained defense
counsel’s objection. The prosecutor thereafter continued this same
line of inquiry, asking, “[I]sn’t it true that last Thursday when we
talked about you giving back rubs to [Doe 4], you indicated that
although you didn’t get aroused, it satisfied your lustful intent for
[Doe 4]?” Defendant again said that he was not thinking about
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“sexual lustful feelings at that time.” The prosecutor followed up
with at least a dozen similar questions, each met with similar
answers. In response to defendant’s denial that he had previously
testified that he “had touched and been in love with four children
that [he] got lustful desires off of,” the prosecutor stated, “Well, on a
break I’m going to ask Madam Reporter to read back what you said
on Thursday, so do you want to correct your testimony now?”
Defense counsel interrupted with an objection that the question was
argumentative and the court sustained the objection. The prosecutor
then immediately asked almost the identical question. This time, the
court twice overruled defense counsel’s objections. Defendant
reiterated that the prosecutor was misstating his testimony, and that
he had not touched any children to fulfill his lustful desires. The
prosecutor replied, “Okay. That’s the testimony you’d like to stay
with?” The court sustained defense counsel’s objection that the
question was argumentative. Later, the prosecutor asked, over
objection, “Who’s victim number 3, the person that you say that you
had lustful feelings over and that you touched?” Defendant took
issue with the word victim, but said that the only other boy he could
think of was Doe 3. The prosecutor immediately followed up: “And
that was [Doe 3] when you discussed that on Thursday he would
come up and he would touch you and you would have lustful
feelings for him, correct?” In response to defendant’s statement that
he didn’t recall that, the prosecutor asked, “We talked about the fact
that he would come up and he would be wearing his underwear or he
would be half clothed and he would hug you, correct?” Again,
defendant responded that he did not recall that testimony and the
prosecutor responded, “Do you remember any of your testimony
from Thursday?” Again, the court sustained defense counsel’s
objection that the question was argumentative. Finally, when the
prosecutor asked if defendant had singled out the four boys he
discussed at trial “because those are four children that you’ve
touched and had lustful feelings for?” the trial court sustained
defense counsel’s objection finding that the question was
argumentative and “asked and answered.”
Miller, 2015 WL 5560192, at *5-6.

19
Discussion
20
The California Court of Appeal denied this claim, finding that any error admitting the
21
statements was harmless. The court stated:
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The prosecutor was entitled to cross-examine defendant on his claim
that despite being an admitted pedophile, he had never engaged in
sexual activity with any boys. Asking him whether he touched the
boys to satisfy his sexual pleasure was therefore a proper subject for
cross-examination. Contrary to defendant’s argument, the questions
were not asked solely “to advance a ‘prior offense’ inference that
was not otherwise present in the evidence.” The questions were
asked to challenge his assertion that he had never engaged in sexual
activity with the boys. The prosecutor was also entitled to question
defendant regarding any inconsistencies in his testimony. To the
extent that some of the prosecutor’s questions were argumentative,
the court sustained defense counsel’s objections, negating the
12

likelihood of prejudice. (People v. Mayfield, supra, 14 Cal. 4th at p.
755, citing People v. Pinholster (1992) 1 Cal. 4th 865, 943
[generally a party is not prejudiced by a question to which an
objection has been sustained].)

1
2
3

Miller, 2015 WL 5560192, at *6.

4

Miller has not shown that the state court opinion denying this claim was objectively

5

unreasonable. The state court found that the prosecutor was entitled to cross-examine Miller about

6

these subjects in light of Miller’s direct testimony and the prosecutor was permitted to explore

7

inconsistencies in the testimony. A review of the record supports the state court’s finding.
Miller testified on direct examination that he had been sexually and romantically attracted

8
9

to young boys his entire life. RT at 1108. He also admitted sending and receiving videos of
young boys and engaging in pornographic internet chats with other pedophiles. Id. at 1114-16,

11
United States District Court
Northern District of California

10

1121-22. He denied receiving “sexual erotic pleasure” from touching the boys, but did say that he

12

received a “romantic feeling” when doing so. Id. at 1218-19. It was permissible for the

13

prosecutor to cross-examine Miller regarding these statements and his inconsistent answers.
Miller also argues that despite trial counsel objecting and the trial court sustaining many of

14
15

the objections, the prosecutor continued to be argumentative and ask such questions. Yet, a

16

review of the transcripts indicates that of the nearly 90 pages of cross-examination, there was not

17

an excessive amount of instances where the prosecutor was argumentative or asking inappropriate

18

questions. RT at 1130, 1142, 1175, 1185, 1218-21, 1232-34.

19

Even assuming that the prosecutor committed misconduct, Miller has failed to show that

20

the conduct infected the trial with unfairness. The trial court sustained several of the objections

21

and also instructed the jury that the attorneys’ questions were not evidence. There was also

22

overwhelming evidence of Miller’s guilt. The state court opinion denying this claim was not

23

objectively unreasonable.3
INEFFECTIVE ASSISTANCE OF COUNSEL: EXCLUDED EVIDENCE

24

Miller contends that trial counsel was ineffective by allowing the prosecutor to question

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28

3

Miller also argues that trial counsel was ineffective if this claim was forfeited, yet the state court
and this Court looked to the merits of the claim. Regardless, Miller did not receive ineffective
assistance of counsel as he cannot show that counsel was deficient or that he was prejudiced.
13

1

him about his relationship with Doe 4 even though the trial court had excluded the evidence.

2

Background

3

The California Court of Appeal discussed the relevant background for this claim:

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United States District Court
Northern District of California

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Defendant contends his attorney provided ineffective assistance by
failing to object to the prosecutor’s questions and argument about
evidence that the court had ruled inadmissible. “A prosecutor who
improperly cross-examines a defendant in order to place
inadmissible prejudicial evidence before the jury is guilty of
misconduct. [Citations.] Improper questions that violate a previous
ruling by the trial court are particularly inexcusable.” (People v.
Johnson (1978) 77 Cal. App. 3d 866, 873–874.) Again, however,
we find no misconduct and thus, no support for defendant's
ineffective assistance claim.
The prosecutor moved in limine to admit evidence about events
surrounding defendant's conviction in 1995 for possession of child
pornography. The prosecution sought to admit evidence that
defendant was arrested in 1994 after he sent pornographic images of
Doe 4 in the mail. On the backs of the photos, he had written
sexually explicit messages about acts he had performed on the boy,
but when questioned by police, defendant “adamantly denied” that
he touched Doe 4 inappropriately. Defendant opposed admission of
this evidence.
The trial court found that the events involving Doe 4 were remote
and that they would lead “the jury to the conclusion, regardless of
whether a live victim comes forward to testify to it, that the
defendant molested the child.” The court excluded the evidence
under Evidence Code section 352, but indicated that its ruling was
subject to reconsideration if defendant testified.
The court
explained, “[I]f he were to testify, then as I said, you’d have a
different ball of wax. And I’m not asking you to tell me, [defense
counsel], whether or not he’s intending to testify. But there also
may be part of the defense which lends itself through other
witnesses to say that he has not molested children. Then that
evidence again becomes relevant because you have admissions on
the back of the photo that there are certain activities in which he
engaged, if you believe those notes. And that would be perfectly
appropriate for purposes of impeachment.”
After defendant took the stand, the prosecutor asked the court to
revisit the issue. Despite some discussion, and for reasons that are
not clear in the record, the prosecutor subsequently withdrew her
request to introduce evidence of the facts surrounding the 1995
incident with Doe 4.
As defendant notes, however, the prosecutor did cross-examine
defendant about his relationship with 13–year–old Doe 4. The
prosecutor elicited testimony from defendant that he became close to
Doe 4’s mother, started to spend nights at the mother’s home, and
eventually slept in the same room with Doe 4. He stroked the boy’s
hair and legs and gave him foot massages. He took photographs of
14

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the boy. After the boy’s mother divorced her husband, defendant
continued his relationship with her son and eventually married the
boy’s mother. As discussed above, when asked if he touched Doe 4
to fulfill his “lustful desires,” defendant acknowledged he touched
the boy but claimed he did not get sexual pleasure from doing so.
In her closing argument, the prosecutor characterized the Doe 1 and
Doe 4 events as “almost twin like” in that defendant had employed
the same modus operandi in both instances. The prosecutor argued,
“This is the exact reason for that instruction on propensity evidence.
It’s a mirror image. And the defendant took advantage of both of
them, taking images of them sleeping so that he could gratify
himself and his lustful desires.” The prosecutor pointed the jurors to
the instruction on uncharged sex offenses and argued that they could
use defendant’s uncharged offenses as evidence of the present one.
Miller, 2015 WL 5560192, at *6-7.

9
Discussion
10
The California Court of Appeal denied this claim.

United States District Court
Northern District of California

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Contrary to defendant’s argument, the prosecution’s questions and
argument did not rely on the evidence excluded prior to trial.
Although the prosecutor asked defendant if he took pictures of Doe
4, neither the content of the pictures nor defendant’s sexually
explicit statements were referenced. The prosecutor did not
question defendant about the details surrounding his prior
conviction. Rather, the prosecutor’s questions were focused on
exposing defendant’s modus operandi and the similarity between his
approach with Doe 4 and Doe 1. This evidence was not
encompassed in the in limine ruling. Because the prosecutor did not
violate the court’s order, no objection was warranted.
Miller, 2015 WL 5560192, at *7.

18
19

Miller has failed to demonstrate that the California Court of Appeal’s decision was
unreasonable. A “doubly” deferential judicial review is appropriate in analyzing ineffective

20
assistance of counsel claims under § 2254. See Cullen v. Pinholster, 563 U.S. 170, 202 (2011);
21
Harrington v. Richter, 562 U.S. 86, 105 (2011) (same). The general rule of Strickland, i.e., to
22
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review a defense counsel’s effectiveness with great deference, gives the state courts greater leeway
in reasonably applying that rule, which in turn “translates to a narrower range of decisions that are
objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir.

25
2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
26
While the trial court initially excluded the evidence regarding Doe 4, the issue resurfaced
27

after Miller’s testimony. The trial court and attorneys discussed what evidence would be

28
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1

admissible in light of Miller’s direct testimony. RT at 1153-68. The evidence involving Doe 4

2

was discussed at length. RT at 1158-68. The trial court found that in light of Miller’s testimony,

3

information regarding the prior incident, such as the police report, could be admitted. RT at 1165.

4

The prosecutor chose not to admit evidence regarding the prior incident, RT at 1168, but she did

5

cross-examine Miller regarding the incident.

6

As noted by the California Court of Appeal, the prosecutor did not rely on the evidence

7

that had initially been excluded and the details of the conviction. Rather, her questions involved

8

Miller’s modus operandi and the similarity between his approach with Doe 4 and Doe 1. This

9

evidence was not encompassed in the in limine ruling. The state court’s finding was not
objectively unreasonable. Trial counsel was not deficient for failing to object to the questions that

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United States District Court
Northern District of California

10

were not at issue with respect to the original in limine ruling. Even if trial counsel was deficient,

12

Miller cannot demonstrate prejudice. The prosecutor’s questions regarding Doe 4 and the

13

prosecutor’s closing argument about Doe 4 were isolated with respect to all of the other evidence

14

implicating Miller. Due to the extensive evidence against Miller, he cannot show that there was a

15

reasonable probability that had counsel objected to the prosecutor’s questions the result of the

16

proceeding would have been different. This claim is denied.

17

INEFFECTIVE ASSISTANCE OF COUNSEL: MISSTATEMENT OF LAW

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Miller argues that trial counsel was ineffective by failing to object when the prosecutor

19

misstated the law regarding California Penal Code section 288 during cross-examination and

20

closing argument.

21

Background

22

The California Court of Appeal discussed the relevant background for this claim:

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Defendant contends the prosecutor committed misconduct by
incorrectly defining section 288 before the jury. It is misconduct for
the prosecutor to misstate the law during argument (People v.
Huggins (2006) 38 Cal. 4th 175, 253, fn. 21; People v. Otero (2012)
210 Cal.App. 4th 865, 870), especially when the misstatement of
law attempts “to absolve the prosecution from its prima facie
obligation to overcome reasonable doubt on all elements” (People v.
Marshall (1996) 13 Cal. 4th 799, 831). “‘When a claim of
misconduct is based on the prosecutor’s comments before the jury,
“‘the question is whether there is a reasonable likelihood that the
jury construed or applied any of the complained–of remarks in an
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objectionable fashion.’”’” (People v. Gonzales (2012) 54 Cal. 4th
1234, 1275.)
Section 288, subdivision (a), provides that “any person who
willfully and lewdly commits any lewd or lascivious act . . . upon or
with the body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing, appealing to,
or gratifying the lust, passions, or sexual desires of that person or the
child, is guilty of a felony. . . .” It is settled that the touching itself
need not take any particular form provided that it is done with
sexual intent. (People v. Shockley (2013) 58 Cal. 4th 400, 404.)
“‘Any touching of a child under the age of 14 violates this section,
even if the touching is outwardly innocuous and inoffensive, if it is
accompanied by the intent to arouse or gratify the sexual desires of
either the perpetrator or the victim.’” (People v. Lopez (1998) 19
Cal. 4th 282, 289.) Defendant contends the following questions and
argument by the prosecutor improperly excluded the element of
sexual intent from the definition of section 288.
On cross-examination defendant was asked whether he had ever
touched a minor in a manner which he found sexually arousing and
defendant indicated that he refrained from conduct which was
overtly sexual. He explained, “I have done everything in my
lifetime to come very close to not going over the border. I’ve done
everything in my ability to not have a sexual experience with a
child, oral sex, masturbation, touching of the penis, anything like
that. I have never done that in my lifetime.” Then the prosecutor
asked, “I’m going to take you back to the beginning of your
testimony. You said that when you touched children at [the home of
Doe 3’s father], whether it be their arms, their legs or anywhere
else, you would have lustful feelings. That is a violation of Penal
Code Section 288a. [¶] So I’m going to ask you again, how many
children have you touched anywhere on their body that you did to
gain gratification, lustfully or to be aroused or in some way gain
some sort of sexual pleasure? You do not have to get an erection,
you do not have to ejaculate, but just to gratify yourself lustfully.”
Defendant responded, “It’s an impossible question to give you a
straight number to, but I will say this: I have had a close friendship
with four different boys in my adult lifetime.”
Miller, 2015 WL 5560192, at *4.

21
Discussion
22
The California Court of Appeal denied this claim.
23
24
25
26
27
28

Contrary to defendant’s argument, the prosecutor’s crossexamination quoted above, including the italicized portion
emphasized by defendant, did not suggest that merely touching a
minor without sexual intent constituted lewd and lascivious conduct.
Rather, the prosecutor’s questions were intended to elicit
acknowledgement that defendant had touched minors in a manner
that he may not have considered overtly “sexual” but nonetheless
were for the purpose of his own sexual gratification. There was no
fault in the prosecutor’s questions.
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Likewise, there was no misconduct in the prosecutor's closing
argument. The prosecutor began her closing argument by telling the
jury, “Here are the elements I actually have to prove: I have to prove
that the defendant willfully touched any part of a child’s body either
on the bare skin or through the clothing. . . . [¶] . . . [¶] . . . And I
have to prove to you that the defendant committed the act with the
intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of himself or the child.” The prosecutor continued,
“Take a look at element two: With the intent of arousing, appealing
to, or gratifying the lust. . . . Touching does not need to cause the
defendant to be physically aroused in any way. Touching does not
have to cause the victim to be physically aroused in any way. If you
gratify the lust of yourself or the child, it’s enough.” The prosecutor
argued, “Even the defendant’s own testimony is that he was
touching this child and he continued to touch the child in the middle
of the night and he received sexual gratification. The defendant’s
own testimony is [a] violation[ ] of Penal Code section 288(a).” The
prosecutor summarized, “Very quickly. ‘I look but I don’t touch.’ . .
. The problem is that I’ve read to you his own testimony . . . that he
does in fact touch and he does have the intent required for 288(a).
[¶] There it is again. Gratifying the lust, passions, and sexual
desires. . . . [I]t’s really the mental intent of gratifying the lust that
we’re looking at.”
In her closing argument, defense counsel characterized defendant’s
touching of the boys as innocent hugging and kissing. Counsel
stated, “[W]hat is amazing is the prosecution is now arguing that
every time he touched [Doe I] that it was in a sexual way, that that
itself is a 288(a). How is that possible? [¶] Ask yourself this: If
you’re attracted to a female and you hug that female, does that mean
you committed a lewd act on the female? [¶] Now think about this:
—What if someone asked you later—you’re attracted to women—
‘Did you enjoy that hug?’ ‘Sure.’ You might even say, ‘Yes.’ [¶]
But when you’re hugging that person, that innocent act, even though
you might be attracted to that person, does not rise to the level of a
288(a).”
In rebuttal, the prosecutor responded, “Defendant tells you that I’m
trying to stand here and say that every act of which he touches a
particular individual, particular child, every time he touches [Doe I],
it’s for a lewd or lascivious behavior. [¶] Well, I've got news for
you. I disagree with the defense attorney. When I’m together with
somebody that I love, the person who is special in my life, whoever
that is, whoever I care for in that moment, and I walk up to them and
I hug them, there’s lustful gratification that comes from that. And I
have no problem admitting that. That’s not unusual. That’s how we
live our day-to-day lives with whoever we choose to spend it with.
[¶] The problem is the defendant had a criminal lustful desire.”
Contrary to defendant’s argument, the prosecutor did not omit the
element of intent from her argument. Whether or not there was any
overstatement in the prosecutor’s assertion that every touching of a
person special in one’s life is lustful, the thrust of her argument
correctly explained that seemingly innocent touching, such as a hug,
violates section 288 if done with criminal intent. Defendant
admitted “romantic” intent and incidental sexual gratification from
18

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touching. The prosecutor asked the jury to make the reasonable
inference that defendant touched and hugged Doe 1 to obtain that
sexual gratification.
Miller, 2015 WL 5560192, at *4-5.

3

Miller has failed to demonstrate that the California Court of Appeal’s decision was

4
unreasonable in light of the high standard for ineffective assistance of counsel claims under §
5
2254. The state court found that during cross-examination, the prosecutor was not stating that
6

simply touching a child would constitute a crime. The prosecutor was responding to Miller’s

7
statements in direct and cross-examination. With respect to whether Miller was sexually aroused
8

when he slept with Doe 1, Miller responded that he “received a warm wonderful, pleasurable

9
feeling of sleeping next to a boy that I was attracted to.” RT at 1139. Miller also stated that while
10
he incidentally touched Doe 1 with his body, he never put his hands on Doe 1. RT at 1143. Based

United States District Court
Northern District of California

11

on Miller’s answers, the prosecutor did not misstate the law in asking the questions regarding

12
whether Miller had ever touched children in a way that may not be considered sexual but were for
13
his own sexual gratification. Counsel was not ineffective for failing to object.
14
Nor did the prosecutor misstate the law in her closing argument, and counsel was not
15
ineffective for failing to object. The California Court of Appeal found that the prosecutor did not
16
misstate the law when explaining that Miller could have violated section 288 if what appeared to
17
be innocent touching was done with criminal intent. Miller admitted romantic intent and sexual
18
gratification from touching. The state court held that the prosecutor asked the jury to make a
19
reasonable inference from these statements that Miller had violated section 288. When
20
21

considering the prosecutor’s closing argument in its entirety, it is clear that she described every
element of section 288. See Donnelly v. Christoforo, 416 U.S. 637, 647 (1974) (“[A] court should

22
not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging
23
meaning or that the jury, sitting through lengthy exhortation, will draw that meaning from the
24

plethora of less damaging interpretations”). The state court decision finding that the prosecutor

25
did not misstate the law was not unreasonable.
26
Even if the prosecutor did misstate the law and trial counsel was deficient for failing to
27
object, Miller cannot demonstrate prejudice. A misstatement of the law by an attorney during
28
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1

closing argument is not prejudicial when the jury is correctly instructed on the law. See Donnelly,

2

416 U.S. at 646-47 (“Isolated passages of a prosecutor’s argument, billed in advance to the jury as

3

a matter of opinion not of evidence, do not reach the same proportions [as consistent and repeated

4

misrepresentations of a dramatic exhibit]”). In this case, the jury was properly instructed on the

5

elements of section 288. CT at 368-69; RT at 1408. The jury was also instructed to follow the

6

law as explained by the court and not the attorneys’ comments on the law. RT at 1317.

7

Moreover, there was an abundance of evidence implicating Miller. The denial of this claim was

8

not objectively unreasonable in light of the high standard for ineffective assistance of counsel

9

claims.
RESTITUTION

10

United States District Court
Northern District of California

11

Miller contends that the trial court erred in issuing a restitution fine of one million dollars

12

to Doe 1 under California Penal Code section 1202.4(f)(3)(F) in that it violated Apprendi v. New

13

Jersey, 530 U.S. 466, 490 (2000).

14

Legal Standard

15

A challenge to a restitution fine does not allege that the petitioner is wrongfully “in

16

custody” and therefore does not state a cognizable habeas claim. Bailey v. Hill, 599 F.3d 976,

17

981-82 (9th Cir. 2010) (“§ 2254(a) does not confer jurisdiction over a state prisoner’s in-custody

18

challenge to a restitution order imposed as part of a criminal sentence.”); United States v. Ross,

19

801 F.3d 374, 380 (3d Cir. 2015) (“[F]ines, restitution orders, and other monetary penalties are

20

insufficient to meet the ‘in custody’ requirement [of federal habeas statutes].”) (citing cases,

21

including Bailey). The Ninth Circuit has also held that the Apprendi rule does not apply to

22

restitution for purposes of federal sentencing. United States v. Alvarez, 835 F.3d 1180, 1185 (9th

23

Cir. 2016).

24

Discussion

25

The California Court of Appeal held that pursuant to state law, there was no error in the

26

trial court’s restitution order. Miller cannot challenge in this federal habeas petition the state

27

court’s ruling on state law. See Estelle, 502 U.S. at 67-68. Miller’s challenge to the restitution

28

order as a violation of federal law fails to state a habeas claim as set forth above. This claim is
20

1

denied.
CERTIFICATE OF APPEALABILITY

2
3

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

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).

6

A judge shall grant a certificate of appealability “only if the applicant has made a
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

9

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).

13

Here, petitioner has made no showing warranting a certificate.
CONCLUSION

14
15

For the foregoing reasons, the petition for writ of habeas corpus is DENIED. Petitioner’s

16

request for an evidentiary hearing is DENIED because he has not shown he is entitled to an

17

evidentiary hearing in connection to any of the claims in the petition. See Cullen, 563 U.S. at 183

18

(when state court record precludes habeas relief under § 2254(d), district court not required to hold

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evidentiary hearing). A certificate of appealability is DENIED. See Rule 11(a) of the Rules

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Governing Section 2254 Cases.

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IT IS SO ORDERED.

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Dated: June 21, 2018

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER J. MILLER,

Case No. 16-cv-06806-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JOEL MARTINEZ,
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 June 21, 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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Christopher J. Miller
T75520
Valley State Prison
P.O. Box 96
Chowchilla, CA 93610

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Dated: June 21, 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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