Andrade v. Borders
Filing
27
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Vince Chhabria on 8/1/2019. The deputy clerk hereby certifies that on 8/1/2019 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (knm, COURT STAFF) (Filed on 8/1/2019)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
GLEISTON PORCINODE ANDRADE,
Case No. 17-cv-04331-VC (PR)
Petitioner,
v.
DEAN BORDERS,
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY
Respondent.
Gleiston Porcinode Andrade filed a pro se petition for a writ of habeas corpus
challenging the validity of his state criminal conviction. The petition and a certificate of
appealability are denied.
PROCEDURAL BACKGROUND
On February 6, 2012, a jury found Andrade guilty of six counts of forcible oral
copulation and seven counts of forcible rape. 2 Clerk’s Transcript (“CT”) 514-21; 523-27; ECF
No. 21-3 at 524-31; 533-37. The jury found true the allegation that Andrade committed the
offenses against multiple victims. Id. The trial court sentenced Andrade to 15 years to life with
the possibility of parole for each count, for a total of 195 years to life with the possibility of
parole. Id. at 608, 610.
Andrade appealed and, on July 24, 2015, the California Court of Appeal, in a published
opinion, ordered a correction of a clerical error in the abstract of judgment but otherwise
affirmed the judgment. People v. Andrade, 238 Cal. App. 4th 1274, 1311 (2015). On October
14, 2015, the California Supreme Court denied a petition for review. Ex. 10.
BACKGROUND
The California Court of Appeal summarized the evidence presented at trial as follows:
A. Rape of Jane Doe I
On April 17, 2009, 20-year-old Jane Doe I had been visiting with
her sister at a friend’s house in Oakland. When it was time for
Jane Doe I’s sister to go back home to Sacramento, she dropped
Jane Doe I off near the Fruitvale Bay Area Rapid Transit (BART)
station. Jane Doe I admitted that she had done some prostituting,
but testified that she was not working that night. As Jane Doe I
was walking to the station, she saw a black two-door Mercedes
drive by in the opposite direction. The car parked, and a man, later
identified as appellant, got out and began walking behind her.
Appellant soon caught up with her, grabbed her arm, and put a gun
in her back. He told Jane Doe I not to say anything, pulled her
back to the Mercedes, and put her in the passenger seat. Once in
the car, appellant pointed the gun at Jane Doe I’s leg. Then he
started to drive, stopping at two places, but moving on again,
apparently uncomfortable with the amount of lighting in those
areas. At some point, Jane Doe I asked appellant why he was
doing this, and appellant struck her in the face. Eventually, after
crossing High Street, he turned onto Tidewater Street and stopped
in an industrial area. He demanded that Jane Doe I perform oral
sex on him. He used a condom. Eventually, he said that was
enough, climbed over to the passenger side, pulled off Jane Doe I’s
shorts and underwear, and began having vaginal intercourse with
her. At one point, he said he could not feel anything, so he took
off the condom, and then put his penis back in Jane Doe I’s vagina.
Appellant ejaculated into a napkin, which he threw out the
window, along with the condom.
Appellant then drove the car to an alley. Appellant told Jane Doe I
that he used to work for the Oakland Police Department, and that
he would find her if she told anyone. He told her to get out of the
car. Jane Doe I began walking towards the BART station in a daze.
Some passersby came to her aid and drove her to Highland
Hospital, where she was examined.
Lauri Paolinetti, a physician’s assistant at Highland Hospital,
testified as an expert in sexual assault examinations. She
performed a sexual assault exam on Jane Doe I around 2:25 a.m.
on April 18. Jane Doe I complained of mouth pain, and she had
bruising and tenderness on her arms. There was also an abrasion
to her right upper lip and bruising on her neck. Paolinetti noticed
an injury to Jane Doe I’s posterior fourchette, which she explained
was the most commonly injured area in sexual assault cases.1
Paolinetti collected oral, vaginal, and rectal swabs from Jane Doe
I, as well as the clothing she was wearing.
1
The vulva is the outer part of the female reproductive system; the fourchette is at the bottom of
the inner folds of the vulva. Health Encyclopedia, University of Rochester Medical Center,
Anatomy of the Vulva
https://www.urmc.rochester.edu/encyclopedia/content.aspx?contenttypeid=34&contentid=19522
-1 (last visited March 26, 2019).
2
Oakland Police Department Officer Michael Stolzman took Jane
Doe I’s statement at the hospital. Afterwards, he used her
description to find the location he believed was the scene of her
rape, which was a “very industrial street with just commercial
buildings; no retail shops.” However, he was unable to locate any
evidence there.
Investigators showed Jane Doe I photo lineups on three occasions.
In the first two lineups, which occurred April 29 and 30, Jane Doe
I did not recognize any suspects. In the third lineup, which Jane
Doe I saw on October 28, she identified appellant as the man who
raped her.
B. Rape of Jane Doe II
On the evening of April 19, 2009, 16-year old Jane Doe II was
working as a prostitute near 46th Avenue and International
Boulevard in Oakland. She saw a “bluish . . . Toyota or [ ]
Chevrolet” truck pull up. Jane Doe II got in and noticed that the
interior was leather, with bench-style seating in the front. She
asked the driver, later identified as appellant, whether he was an
undercover officer, and appellant responded that he was not. Jane
Doe II did not have a condom with her and asked to get one.
Appellant drove her to a liquor store, where Jane Doe II purchased
a condom.
Appellant then drove Jane Doe II down High Street, saying he
knew of a “little place” where they could park that was
“comfortable.” He drove through a place with “nothing but a
bunch of trucks and then just trees and dirt,” eventually stopping in
an isolated area Jane Doe II asked for the money. Appellant
reached underneath his seat and pulled out a black gun, then
pointed it at Jane Doe II’s head. Jane Doe II panicked but could
not open her door. Appellant told her to take her clothes off. He
demanded that Jane Doe II perform oral sex on him, and Jane Doe
II complied. Appellant was wearing a condom. Appellant then got
on top of her and had vaginal intercourse with her. Eventually, he
took the condom off and told her he had not finished. He placed
his penis in Jane Doe II’s mouth, then her vagina, then her mouth
again, where he ejaculated. He threw the condom out the window.
As appellant began to drive Jane Doe II back to where he had
picked her up, he said, “I do this to a lot of the girls. . . . I take
them back there.” When Jane Doe II got out of the truck, appellant
told her, “No matter who you run to or tell, I don’t exist.” Jane
Doe II went to a gas station, where a lady let her use her phone and
drove Jane Doe II home. Later, Jane Doe II went to the hospital.
Denae Reed, a physician’s assistant at Highland Hospital,
performed a sexual assault exam on Jane Doe II. Reed testified as
an expert on such exams. Using a special dye, Reed opined that
Jane Doe II had sustained a minor injury to her posterior
fourchette. Reed collected swabs and Jane Doe II’s clothing.
Oakland Police Department Officer David Mathison took Jane Doe
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II’s statement. He went to the location that Jane Doe II had
described, which was the 4300 block of Tidewater Street. He was
unable to locate a condom. Later, Jane Doe II was shown four
photo lineups. She did not identify anyone in the first two. In the
third, she identified an individual who looked similar to her rapist,
but she said that it was not him. In the fourth lineup on October
30, 2009, she identified a picture of appellant as her rapist. She
cried and shook as she made the identification.
C. Rape of Jane Doe III
On July 6, 2009, 25-year-old Jane Doe III was in Oakland hanging
out with her friends. Later that evening, while she was alone and
waiting for a ride on a side street near International Boulevard, she
saw a small, light-colored, two-door car, possibly a Honda or
Toyota pull up nearby. The driver and sole occupant of the car,
later identified as appellant, asked if Jane Doe III “ha[d] anything.”
Jane Doe III believed he was asking for drugs. Jane Doe III was
carrying about $10 worth of crack cocaine. As she and appellant
were talking, they saw some police officers pass nearby. Appellant
told her to get in the car, and Jane Doe III complied.
Once Jane Doe III was inside the car, she agreed to sell appellant
crack cocaine, and she asked to see the money. Appellant reached
towards the driver’s side door and drew a black gun, which he
pointed at Jane Doe III’s stomach. Scared, Jane Doe III threw the
drugs on his lap. Appellant told her to look forward and he began
driving. During the drive, he told Jane Doe III he was a police
officer. At one point, he spoke into a walkie-talkie. He showed
Jane Doe III a silver badge. Jane Doe III noticed a FasTrak device
in the middle of the front windshield.
Appellant parked the car in an industrial area near High Street. He
told Jane Doe III to pull her pants down, and he threatened to kill
her if she did not cooperate. Jane Doe III complied, and appellant
pulled his own pants down. Appellant was wearing a condom and
demanded that she perform oral sex on him. Jane Doe III was
crying so hard that she was unable to do as she was commanded.
Appellant then told Jane Doe III to get on her hands and knees; he
got behind her in the passenger seat, and began having vaginal
intercourse with her. When appellant was finished, he told Jane
Doe III to put her clothes on and he threw the condom out the
door.
Appellant drove Jane Doe III a short distance, then made a U-turn
and stopped the car. He told her to get out and run the opposite
direction that the car was facing. He had taken Jane Doe III’s
phone from her at some point, and returned it after wiping off his
fingerprints with his shirt. Jane Doe III ran to a nearby
McDonalds, where someone let her use their phone to call her
friend, as Jane Doe III’s cell phone battery had gone dead. Jane
Doe III did not call 911 because she believed appellant was a
police officer. Jane Doe III’s friend picked her up and drove her to
a family member’s house in Richmond. Later that night, she went
4
to the hospital.
Martin Moran, a physician’s assistant at Highland Hospital,
testified as an expert in sexual assault examinations. He performed
a sexual assault exam on Jane Doe III on July 7, around 3:45 a.m.
Jane Doe III complained of vaginal pain, and Moran noticed an
injury to her posterior fourchette, which he said was the most
commonly injured area in sexual assault cases.
Oakland Police Department Officer Dometrius Fowler took Jane
Doe III’s statement at the hospital. Afterwards, he used Jane Doe
III’s description to find a location that he believed was the scene of
her rape. However, he was unable to locate any evidence at that
location.
Jane Doe III was shown two photo lineups. In the first, she did not
recognize anyone. In the second, she became visibly upset, started
crying, and identified appellant as the man who had raped her.
D. Rape of Jane Doe IV[ FN2]
[FN2] Jane Doe IV’s preliminary hearing testimony was read to
the jury
On September 11, 2009, 15-year-old Jane Doe IV was working as
a prostitute near 19th Avenue and International Boulevard, when
she saw a “tannish” Toyota Corolla pull up. Jane Doe IV had met
the driver, later identified as appellant, a year earlier, when he
claimed to be an undercover officer and did not pay her. Jane Doe
IV and appellant agreed on a deal for “[a] blow job and sex.”
Jane Doe IV got into the car and appellant drove to an alley off of
“East 23rd.” There, he pulled out a gun, pointed it at Jane Doe
IV’s chest, and told her to pull her pants down. He told her that as
long as she did what he wanted, he would not hurt her. Jane Doe
IV put a condom on appellant and performed oral sex while crying.
Eventually, appellant climbed on top of Jane Doe IV and began
having vaginal intercourse with her. When he was finished, he sat
back in the driver’s seat and took the condom off. Appellant said
he was an undercover police officer. He told Jane Doe IV that he
would drive her back, but if he caught her again, he would take her
to jail. Jane Doe IV got out and went home. About a month later,
she reported the rape and gave a statement to the police.
Some time after making her report, Jane Doe IV saw appellant
again. He was driving a blue Chevrolet pickup truck near 17th
Avenue and International Boulevard. Jane Doe IV called the
officer who had taken her statement and told him about the
sighting. Later, she identified appellant out of a photo lineup as
“the guy that raped me, and pretended to be a police officer.”
E .Rape of Jane Doe V
In the early morning of September 12, 2009, 22-year-old Jane Doe
5
V was working as a prostitute near 21st Avenue and International
Boulevard, when she saw a small, light-colored car, possibly a
Honda approach. Jane Doe V recognized the driver, later
identified as appellant, as a man she had unsuccessfully negotiated
with on a prior occasion. Jane Doe V got in the car and agreed to
perform sexual acts for money. They drove off to find a suitable
location, eventually stopping near a garage.
Appellant then reached over and locked Jane Doe V’s door. He
pulled a gun from the driver’s side door and pointed it at Jane Doe
V’s head. Jane Doe V was frightened and crying, but appellant
told her that he would not do anything to her if she cooperated.
Jane Doe V put a condom on appellant and performed oral sex on
him. Eventually, appellant stopped her, climbed into her seat, and
began having vaginal intercourse with her. After approximately 10
minutes, appellant got off of Jane Doe V. He threw the condom
out the window. He told Jane Doe V to get out and walk away; he
backed the car away.
Jane Doe V called 911 and reported her rape. She then stayed at
the scene until police arrived, and she directed them to the condom
on the ground. Jane Doe V then went to Highland Hospital, where
she submitted to a sexual assault exam. Saloni Patel, a physician
assistant at Highland Hospital, testified as an expert in sexual
assault exams. Although she did not observe any injuries, she
explained that this was “very common.”
When shown a photo lineup, Jane Doe V immediately pointed to
appellant’s picture and identified him as her rapist.
F. Police Investigation
Around 8:50 p.m. on October 26, 2009, Emeryville Police
Department Officer Edward Mayorga responded to 6701
Shellmound Street in Emeryville. There, he saw another officer’s
car parked behind a blue Chevy pickup truck. Officer Mayorga
ordered the driver out of the car and placed him in his patrol car.
The driver was identified as appellant. Underneath the driver’s
seat of the truck, Officer Mayorga saw what looked like a semiautomatic, black and silver pistol. The weapon was actually a BB
gun.
Oakland Police Department Officer Carlos Gonzalez had been
investigating Jane Doe III’s, Jane Doe IV’s, and Jane Doe V’s
cases, and assisting with the other similar cases. When he learned
of the circumstances of appellant’s arrest, he instructed other
officers to distribute a new photo lineup, including appellant’s
picture, to the victims.
On October 27, Officer Gonzalez supervised the execution of a
search warrant at appellant’s home. There, officers found a small
Toyota Corolla parked in front of the home, with a FasTrak device
on the front windshield. Inside the car was a Mercedes Benz
vehicle manual and a service receipt listing a Mercedes license
plate.
6
On October 29, Officer Gonzalez went to the Santa Rita Jail and
obtained an oral swab from appellant.
Chani Sentiwany, a criminalist with the Oakland Police
Department, testified as an expert “in the examination of biological
evidence, DNA typing and DNA analysis.” She examined the
sexual assault exam kits obtained from Jane Doe III, Jane Doe I,
Jane Doe V, and Jane Doe II. She was unable to identify sperm on
any of the samples from Jane Doe III’s kit. She was able to find
sperm in Jane Doe I’s kit, but the DNA profile she extracted
matched Jane Doe I’s consensual sexual partner. She also found
sperm on Jane Doe V’s underwear, but was unable to extract a
DNA profile from the minimal sample. Sentiwany also found
sperm on Jane Doe II’s oral swabs, and appellant’s DNA was a
one-in-89-billion match. Finally, Sentiwany examined the condom
recovered from Jane Doe V’s rape, and appellant’s DNA was a
one-in-96-sextillion match.
Mona Madaio was an investigator with the Department of Motor
Vehicles (DMV). Oakland Police Department Officer Bryant
Ocampo had asked the DMV to investigate the Mercedes
information recovered from appellant’s Corolla. Madaio testified
that appellant had legal possession of a 2003 Mercedes sport coupe
from June 20, 2007, until June 1, 2009.
Andrade, 238 Cal. App. 4th at 1281-87.
LEGAL STANDARD
A federal court may entertain a habeas petition from a state prisoner “only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
district court may not grant habeas relief unless the state court’s adjudication of the claim:
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 412 (2000). This is a highly deferential standard for evaluating state court rulings:
“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
7
any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
AEDPA requires a district court to presume correct any determination of a factual issue made by
a state court unless the petitioner rebuts the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Additionally, habeas relief is warranted only if the
constitutional error at issue “‘had substantial and injurious effect or influence in determining the
jury’s verdict.’” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)).
When there is no reasoned opinion from the highest state court to consider the
petitioner’s claims, the court looks to the last reasoned opinion of the highest court to analyze
whether the state judgment was erroneous under the standard of § 2254(d). Ylst v. Nunnemaker,
501 U.S. 797, 801-06 (1991). In this case, the California Court of Appeal is the highest court to
issue a reasoned decision on Andrade’s claims.
DISCUSSION
I. Exclusion of Evidence of Unsolved Cases
A. Background
Andrade argues the trial court violated his right to present a defense by excluding
evidence of similar unsolved rape cases and by limiting cross-examination of witnesses on this
topic. The Court of Appeal summarized the facts relevant to this claim as follows:
Prior to trial, the prosecution moved to exclude evidence of third
party culpability absent an offer of proof. The trial court granted
the motion. During trial, the prosecution elicited information from
police witnesses about other suspects who were ultimately
excluded after further investigation. The defense was permitted to
cross-examine these witnesses regarding those eliminated suspects.
The defense, however, was not permitted to cross-examine the
witnesses about the possibility of other “police poser rape cases.”
During the prosecution’s case, the defense requested permission to
cross-examine Officer Gonzalez “with reference to some other
police reports . . . in an effort to establish third party culpability.”
Defense counsel had the reports, but had not yet reviewed them to
determine if she would raise the issue on cross-examination.
Without ruling on the issue, the court noted that “there must be
some direct or circumstantial evidence connecting a third person to
8
the actual perpetration of the crime . . . [Case law] suggests that
that must be a known person. In other words, you can’t for
instance, show that other people might have had the same motive.”
After the close of evidence, the defense placed on the record that
the court had ruled in chambers that the defense could not crossexamine police witnesses about two particular police reports. The
court responded with its reasoning for the ruling, explaining that
“since there was no evidence that there was a known suspect [in
those cases], . . . cross-examination on the matter would not be
relevant.”
The defense reasserted the issue in its motion for a new trial. In its
motion, the defense identified four police reports describing rapes
under circumstances similar to those of the victims in appellant’s
case. Each case involved an African–American female prostitute
picked up on or near International Boulevard, threatened with a
firearm, and raped. In some cases, the assailant would claim
involvement with law enforcement, force the victim to orally
copulate him, or take the victim to an area near High Street and
Tidewater Street. In each case, the description of the assailant and
his vehicle was similar to that of appellant and one of his vehicles.
In each case, the victim did not identify appellant as the attacker.
In one case, recovered DNA evidence did not match appellant.
The trial court denied the new trial motion, explaining that the
challenged cross-examination would have been hearsay to the
extent the defense would have tried to introduce evidence that
those victims had not identified appellant, or that DNA evidence
cleared him in one of the cases. The court also noted “there is no
link to a known suspect.” Finally, the trial court explained that
allowing the cross-examination may have opened the door to the
prosecution presenting additional evidence on those cases, taking
“substantial additional time.”
Andrade, 238 Cal. App. 4th at 1287-88.
The Court of Appeal denied this claim, concluding that the excluded evidence did not
“establish a link between a third person and the crimes charged against appellant,” as required by
state law. It denied Andrade’s constitutional claim on the ground that “application of the
ordinary rules of evidence under state law does not violate a criminal defendant’s federal
constitutional right to present a defense, because trial courts retain the intrinsic power under state
law to exercise discretion to control the admission of evidence at trial.” Id. at 1289-90.
B. Federal Authority
Whether grounded in the Sixth Amendment’s guarantee of compulsory process or in the
more general Fifth or Fourteenth Amendment guarantee of due process, “The Constitution
9
guarantees criminal defendants a meaningful opportunity to present a complete defense.” Holmes
v. South Carolina, 547 U.S. 319, 324 (2006). The right to present a complete defense necessarily
includes a right to present evidence in support of one’s defense, but this right is not absolute.
Taylor v. Illinois, 484 U.S. 400, 410 (1988). “State and federal rulemakers have broad latitude
under the Constitution to establish rules excluding evidence from criminal trials.” United States
v. Scheffer, 523 U.S. 303, 308 (1998); see also Montana v. Egelhoff, 518 U.S. 37, 53 (1996)
(“The introduction of relevant evidence can be limited by the State for a valid reason.”).
The constitutional right to present a complete defense is implicated only when the
evidence the defendant seeks to admit is “relevant and material, and . . . vital to the defense.”
Washington v. Texas, 338 U.S. 14, 16 (1967); Holmes, 547 U.S. at 324 (violation of right to
present a defense does not occur any time evidence is excluded, but rather only when its
exclusion is “arbitrary or disproportionate to the purposes [the exclusionary rule applied is]
designed to serve.”).
The Supreme Court has addressed challenges to state evidentiary rules that impinge upon
the right to present a defense; however, the Court has not addressed a challenge to the trial
court’s exercise of discretion to exclude certain testimony. Moses v. Payne, 555 F.3d 742, 758
(9th Cir. 2009) (because Supreme Court has not clearly established a “controlling legal standard”
for evaluating discretionary decisions to exclude [the kind of evidence at issue], state court’s
denial of claim was not contrary to or an unreasonable application of clearly established Supreme
Court precedent).
“Only rarely” has the Supreme Court held that the right to present a complete defense
was violated by the exclusion of defense evidence under a state rule of evidence. Nevada v.
Jackson, 569 U.S. 505, 509 (2013) (citing Holmes, 547 U.S. at 331). 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. Lunbery v. Hornbeak, 605 F.3d 754, 762 (9th Cir. 2010).
These principles apply to third-party culpability evidence. Holmes, 547 U.S. at 327
(noting the wide acceptance of rule that third-party culpability evidence “may be excluded where
10
it does not sufficiently connect the other person to the crime, as, for example, where the evidence
is speculative or remote, or does not tend to prove or disprove a material fact in issue at the
defendant’s trial.”)
C. Analysis
To the extent that Andrade’s claim is based on a violation of state law, it is denied
because habeas relief is only available for violations of the Constitution, laws, or treaties of the
United States. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). To the extent that Andrade is
challenging the California rule of evidence that allows the admission of third-party culpability
evidence only if it links the third person either directly or circumstantially to the perpetration of
the crime, it is denied because this evidentiary rule is widely accepted. See Holmes, 547 U.S. at
327.
Because the United States Supreme Court has never held that a trial court’s exercise of its
discretion to exclude evidence, under a constitutionally sound evidentiary rule, violated a
defendants’ constitutional right to present evidence, the state court’s decision cannot be contrary
to or an unreasonable application of established Supreme Court authority. See Moses, 555 F.3d
at 758-59; see also Mendez v. Biter, 2013 WL 843554, *15 (N.D. Cal. Mar. 6, 2013) (because
Supreme Court has not squarely addressed whether trial court’s exercise of discretion to exclude
evidence violated right to present a defense, habeas relief unavailable). Based on this authority,
this claim is not entitled to habeas relief.
Even when considering the merits of this claim, it cannot be said that the state court’s
decision was contrary to or an unreasonable application of established Supreme Court authority.
The prosecution gave the defense police reports from 11 open rape cases. Reporter’s Transcript
(“RT”) 1103, 1157-58; ECF No. 21-5 at 520, 574-75. In its motion for a new trial based upon
third-party exculpatory evidence, the defense discussed four of these cases. 2 Court Transcript
(“CT”) 600; ECF No. 21-3 at 610 (describing several open cases where circumstances of the
attack, description of the suspect and the vehicle driven were similar to Andrade’s charged
offenses). However, even Andrade’s trial and appellate counsel acknowledged that the modus
11
operandi described in the open cases was not unique in that picking up prostitutes on the street in
Oakland known for prostitution, raping them and claiming a connection to law enforcement is so
common in Oakland that the Oakland Police Department has a nine-page document entitled
“Rapists Posing as Law Enforcement.” See ECF No. 21-3 at 610 (new trial motion); Ex. 5 at 25;
ECF No. 21-6 at 184 (appeal brief). Defense and appellate counsel argued that the similarities
between all the cases meant they would raise a reasonable doubt in the mind of the jury in that a
third party could have been responsible for all the rapes. On the other hand, the similarities do
not show a particular third person committed all the rapes, including those charged to Andrade,
because the circumstances were common to many rape cases.
Furthermore, there was overwhelming evidence of Andrade’s guilt. Most incriminating
were the five victims’ independent identifications of Andrade as the person who raped them. All
of the victims interacted with Andrade in a close, confined space for a substantial period of time,
so all of them had a good, extended look at his face. Two of the victims recognized Andrade
from previous interactions they had with him. All of Andrade’s cars matched the victims’
descriptions of the cars driven by their rapists. In one of Andrade’s cars, the police found a BB
gun under the seat that looked like a semi-automatic pistol that the victims said the rapist pointed
at them. Finally, Andrade’s DNA was found in one of the victim’s oral swab and in a condom
he used to rape another victim. Given the prosecutor’s case against Andrade, the exclusion of
the evidence of unsolved rapes did not have a substantial and injurious effect or influence on the
jury’s verdict.
II. Victim’s Preliminary Hearing Testimony Read to Jury
A. Background
Andrade argues the admission of Jane Doe IV’s preliminary hearing testimony violated
his rights to due process and to confront witnesses. The Court of Appeal summarized the facts
relevant to this claim as follows:
Jane Doe IV was not available at the time of trial, although she had
testified at appellant’s preliminary hearing on February 23, 2010.
The trial court conducted a hearing on the prosecution’s efforts to
12
procure Jane Doe IV’s appearance at trial. The prosecution
presented the testimony of two witnesses detailing the efforts to
locate Jane Doe IV.
Inspector Stephanie England testified that prior to the preliminary
hearing, she had spoken with Jane Doe IV by calling the phone
number provided on the police report. In December 2009, she met
with Jane Doe IV in Oakland at Jane Doe IV’s boyfriend’s sister’s
house. England had the phone numbers for Jane Doe IV, Jane Doe
IV’s boyfriend, and Jane Doe IV’s grandmother’s boyfriend. Jane
Doe IV testified at appellant’s preliminary hearing without issue.
However, after the preliminary hearing, Jane Doe IV’s phone
number was no longer in service. Jane Doe IV, a juvenile at the
time, had no reliable, known address. England ran Jane Doe IV’s
criminal history, checked for a California driver’s license or
identification card, and called all of the phone numbers she had, all
to no avail. England was unable to find addresses for Jane Doe
IV’s parents, grandparents, or boyfriend. In August 2011, she
handed the case off to another investigator, Inspector Lux, who had
requested police reports from the El Cerrito Police Department
related to Jane Doe IV’s grandmother and the grandmother’s
boyfriend.
In November 2011, Inspector Harry Hu took over for Inspector
Lux. Hu left a message at the phone number given for Jane Doe
IV’s grandmother’s boyfriend in the El Cerrito police reports, but
received no response. Hu checked local, state, and federal law
enforcement databases for Jane Doe IV, but found nothing. He
also looked for information on Jane Doe IV’s family in those
databases, but again found nothing. He tried calling all of the
phone numbers related to Jane Doe IV, but they were either
disconnected or not receiving calls. He sent messages to Jane Doe
IV on the Facebook and Myspace Web sites, but did not receive an
answer. On Jane Doe IV’s Facebook account, she listed “Ray
[H.]” as her husband. Hu tracked down an address for two men
named “Ray [H.]” (father and son) in Richmond. He went there
and spoke to them, but they did not know Jane Doe IV. He
checked whether Jane Doe IV had received a driver’s license or
identification card, owned a car, or had an adult criminal history,
all without result. He ran her name through a “people-search
database” without result. When he ran her family’s names through
the database, he obtained phone numbers, but they were either
disconnected or did not answer. Hu also checked whether Jane
Doe IV was in a local hospital, but found nothing. He had run
checks on Jane Doe IV’s given name, Jane Doe IV with her
mother’s last name, and Jane Doe IV with Hale’s last name, and
found nothing. Hu had tried all of the contact information again on
the day of hearing.
Hu acknowledged that he had an address for Jane Doe IV’s
grandmother but had not gone there. He also had Jane Doe IV’s
mother’s last known address in San Francisco, but had not gone
there either.
13
Defense counsel argued that the prosecution had not shown due
diligence in attempting to bring Jane Doe IV to court. Defense
counsel also argued that counsel did not have the same opportunity
or motive to cross-examine Jane Doe IV at the preliminary
hearing, since the purpose of the preliminary hearing was simply to
show probable cause, and the defense attorney at that hearing had
not previously met with appellant. The trial court disagreed and
found that the prosecution had exercised due diligence and that the
defense had a sufficiently similar motive and opportunity to crossexamine Jane Doe IV at the preliminary hearing.
Andrade, 238 Cal. App. 4th at 1291-92.
The Court of Appeal held Andrade’s rights were not violated when Jane Doe IV’s
preliminary hearing testimony was read to the jury because the prosecution had exercised
reasonable diligence in attempting to find her and defense counsel had an opportunity to crossexamine her at the preliminary hearing. Id. at 1294-95.
B. Analysis
The Confrontation Clause applies to all out-of-court testimonial statements offered for
the truth of the matter asserted, i.e., “testimonial hearsay.” Crawford v. Washington, 541 U.S.
36, 51 (2004). Out-of-court statements by witnesses that are testimonial hearsay are barred
under the Confrontation Clause unless (1) the witnesses are unavailable, and (2) the defendants
had a prior opportunity to cross-examine the witnesses. Id. at 59. The ultimate goal of the
Confrontation Clause is to ensure reliability of evidence, but it is a procedural rather than a
substantive guarantee. Id. at 61. It commands, not that evidence be reliable, but that reliability
be assessed in a particular manner: by testing in the crucible of cross-examination. Id.
The prosecutor must make a good faith effort to obtain the witness’s presence at a trial
for cross-examination. Barber v. Page, 390 U.S. 719, 724-25 (1968); see, e.g., Hardy v. Cross,
565 U.S. 65, 70-72, rehearing denied, 565 U.S. 1230 (2012) (state court reasonably concluded
that prosecution had made reasonable effort to procure attendance of witness when repeated
visits were made to her last known address, relatives were questioned, and records were
consulted). There may be additional steps the prosecutor could have taken to find a witness, but,
in hindsight, one may always think of other things and the constitution does not require the
14
prosecution to exhaust every avenue of inquiry. Id. at 70, 72. On habeas review, a federal court
must to defer to a state court’s decision on the question of unavailability. Id. at 72.
Jane Doe IV was a juvenile with no known address and a cell phone that was no longer in
service. The prosecutor assigned various investigators to find her. In the months leading up to
the trial, the investigators called all her known phone numbers and those of her family members
and close friends; they checked various databases, reached out on social media, checked at a
local hospital and visited a man she listed as her husband on social media. Given the
prosecutor’s effort to find Jane Doe IV, the Court of Appeal’s rejection of this claim was not
contrary to or an unreasonable application of Supreme Court authority.
Furthermore, the state court was not unreasonable in rejecting Andrade’s argument that
his counsel did not have an adequate opportunity to cross-examine Jane Doe IV at the
preliminary hearing. See Crawford, 541 U.S. at 57-58 (preliminary hearing testimony at which
witness had been cross-examined was admissible); Delaware v. Fensterer, 474 U.S. 15, 20
(1985) (per curiam) (Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish). A defendant meets his burden of showing a Confrontation Clause violation
by showing that the jury might have had a significantly different impression of a witness’
credibility had counsel had the opportunity for cross-examination. Delaware v. Van Arsdall, 475
U.S. 673, 680 (1986); Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009). The focus of this
inquiry “must be on the particular witness, not on the outcome of the entire trial.” Van Arsdall,
475 U.S. at 680.
Andrade claims the preliminary hearing cross-examination was insufficient because Jane
Doe IV’s testimony “was significant to support prosecution theories of a distinctive MO,” see
petition at 5-3, and because “the issues at that hearing were sufficiently distinct from those at
trial,” see traverse at 7. However, while the issues at preliminary hearings are usually different
from the issues at the trial, the Supreme Court has ruled admissible preliminary hearing
testimony where the witness was cross-examined. See Crawford, 541 U.S. at 57-58.
15
Furthermore, Andrade’s arguments do not show that the jury might have had a different view of
the witness’s credibility had counsel been able to cross-examine her at trial.
III. Support Person for Jane Doe III
Andrade argues his right to confrontation was violated because Jane Doe III was allowed
to have a support person accompany her to the witness stand without a hearing to determine if
such a person was necessary. The Court of Appeal summarized the relevant facts as follows:
Prior to trial, the prosecutor, citing section 868.5, subdivision (a),
[FN4] moved to allow each victim to be accompanied to the
witness stand by a support person. Defense counsel stipulated to
the use of such support persons. Accordingly, the trial court
granted the motion to allow each of the victims to be accompanied
to the witness stand by a support person. It appears, however, that
only Jane Doe III was accompanied by a victim witness advocate.
Appellant now contends that, despite his lack of objection, his
Sixth Amendment right to confront witnesses was violated by the
presence of the victim witness advocate during Jane Doe III’s
testimony because no constitutionally required inquiry on the
necessity of support persons occurred. His argument is based
primarily on People v. Adams, 19 Cal. App. 4th 412, 443–444,
(1993), which rejected a constitutional challenge to the support
person statute, but held that there must be a case-by-case showing
of necessity for a support person presented at an evidentiary
hearing.
[FN4] As pertinent here, section 868.5, subdivision (a) provides:
(a) “Notwithstanding any other law, a prosecuting witness in a case
involving a violation or attempted violation of Section . . . 288a, . .
. shall be entitled, for support, to the attendance of up to two
persons of his or her own choosing, one of whom may be a
witness, at the . . . trial, . . . during the testimony of the prosecuting
witness. Only one of those support persons may accompany the
witness to the witness stand, although the other may remain in the
courtroom during the witness’ testimony.”
Andrade, 238 Cal. App. 4th at 1296.
The California Court of Appeal held the claim was procedurally defaulted because
defense counsel had agreed and not objected to the support person for the witness. On the
merits, the court denied the claim, holding that the support person had not interfered with
defense counsel’s ability to cross-examine the witness. Id. at 1297-98.
Even if not defaulted, this claim fails because no Supreme Court authority holds there
must in all circumstances be a hearing to determine if a witness needs a support person. Andrade
16
argues Maryland v. Craig, 497 U.S. 836, 855-56 (1990) and Coy v. Iowa, 487 U.S. 1012, 1021
(1988) require an inquiry into the necessity of a support person. Craig addressed a statute to
protect child witnesses from the trauma of testifying in child abuse cases by allowing them to
testify outside of the courtroom, when the court determines that such a procedure is necessary.
Craig, 497 U.S. at 855. In Coy, two 13-year old victims who alleged the defendant had sexually
assaulted them were allowed to testify behind a screen which blocked the defendant from their
sight. Coy, 487 U.S. at 1014. The Court held the denial of a face-to-face encounter with the
defendant’s accusers violated his confrontation rights. Id. at 1021.
These cases are not relevant to the facts in Andrade’s case. Jane Doe III testified in open
court, allowing Andrade a face-to-face confrontation with her. Andrade argues his confrontation
rights were violated because the support person bolstered Jane Doe III’s credibility or demeanor.
However, he cites no Supreme Court case that supports such a theory. Therefore, the state
court’s denial of this claim was not contrary to or an unreasonable application of Supreme Court
authority.
IV. Instructional Errors
Andrade claims the trial court erred in failing to sua sponte give instructions about his
out-of-court statements and the defense of consent. He also argues the reasonable doubt
instruction was wrong.
A. Federal Authority
A challenge to a jury instruction solely as an error under state law does not state a claim
cognizable in federal habeas corpus proceedings. Estelle, 502 U.S. at 71-72. To obtain federal
collateral relief for errors in the jury charge, a petitioner must show that the instruction so
infected the entire trial that the resulting conviction violates due process, keeping in mind that
the category of infractions that violate fundamental fairness is narrowly drawn. Id. at 72-73;
Cupp v. Naughten, 414 U.S. 141, 147 (1973). The instruction must be considered in the context
of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. Where the issue is the
failure to give an instruction, the burden on the claimant is heavier because an omitted or
17
incomplete instruction is less likely to be prejudicial than an instruction that misstates the law.
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
A determination that there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the Constitution establishes only that an error has
occurred. Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, the court also
must determine that the error had a substantial and injurious effect or influence in determining
the jury's verdict, see Brecht, 507 U.S. at 637, before granting relief in habeas proceedings.
Calderon, 525 U.S. at 146-47.
B. Instructions Regarding Andrade’s Statements
Andrade argues the trial court had a sua sponte duty to instruct the jury with CALCRIM
No. 358 (Evidence of Defendant’s Statement) or CALCRIM No. 359 (Corpus Delicti:
Independent Evidence of a Charged Crime). The Court of Appeal ruled that the trial court had a
sua sponte duty to give these instructions, but found the error to be harmless. Andrade, 238 Cal.
App. 4th at 1298-99.
CAL CRIM No. 359 states, in relevant part:
The defendant may not be convicted of any crimes based on his outof-court statements alone. You may rely on the defendant’s out-ofcourt statements to convict him only if you first conclude that other
evidence shows that the charged crime was committed.
That other evidence may be slight and need only be enough to
support a reasonable inference that a crime was committed.
The identity of the person who committed the crime . . . may be
proved by the defendant’s statements alone.
You may not convict the defendant unless the People have proved
his guilt beyond a reasonable doubt.
CAL CRIM No. 358 states, in relevant part:
You have heard evidence that the defendant made an oral or
written statement[s] before the trial. You must decide whether the
defendant made any of these statement[s], in whole or in part. If
you decide that the defendant made such [a] statement[s], consider
the statement[s], along with all the other evidence, in reaching your
verdict. It is up to you to decide how much importance to give to
the statement[s].
18
[Consider with caution any statement made by the defendant
tending to show his guilt unless the statement was written or
otherwise recorded.]
District courts in California have found that the state court’s failure to give these two
instructions did not violate due process because they are a matter of state law and because no
clearly established Supreme Court authority requires such instructions. See e.g., Johnson v.
Arnold, 2018 WL 1875630, at *10 (E.D. Cal. Apr. 19, 2018) (CAL CRIM No. 358 is a matter of
state law and provides no basis for habeas relief); White v. Frauenheim, 2017 WL 3069690, at
*12 (E.D. Cal. Jul. 19, 2017) (denying claim because no Supreme Court authority requires giving
CAL CRIM Nos. 358 or 359). Without Supreme Court precedent on this issue, the state court’s
ruling was not contrary to or an unreasonable application of established federal law.
Furthermore, the omission of the instructions did not have a substantial or injurious effect
or influence on the jury’s verdict. As discussed previously, the evidence of Andrade’s guilt was
strong. Each of the five victims positively identified Andrade as the rapist from a photo lineup.
A gun resembling the gun described by the victims was found underneath the driver’s seat of the
truck Andrade was driving when he was arrested. Each of Andrade’s vehicles matched the
descriptions the victims gave of the vehicles used in the rapes. Finally, Andrade’s DNA was
found in the oral swabs from Jane Doe II and in the condom used to rape Jane Doe V.
Furthermore, with the exception of Jane Doe IV, whose preliminary hearing testimony was read,
the jury was able to hear and see each victim testify and to judge their credibility.
C. Instruction on Consent
Andrade argues he was deprived of the ability to present a defense by the court’s failure
to sua sponte instruct that he was not guilty of a sex offense if he had a reasonable and good faith
belief that the complainant consented.
The Court of Appeal denied this claim under state law which, in the absence of a request
for a particular instruction, requires a trial court to instruct on a particular defense only if it
appeared the defendant is relying on such a defense and if there is substantial evidence
supportive of such a defense which is not inconsistent with the defendant’s theory of the case.
19
Andrade, 238 Cal. App. 4th at 1300 (citing People v. Mayberry, 15 Cal. 3d 143 (1975) and
People v. Dominguez, 39 Cal. 4th 1141, 1148 (2006)). The court concluded that Andrade did not
meet these requirements because the defense theory of the case was identification rather than
consent and, given the detailed evidence that Andrade threatened each victim with a gun and that
the victims were terrified during the assaults, substantial evidence did not support the theory of
consent. Id. at 1302-03.
In a case on direct appeal, the Supreme Court has held, “As a general proposition, a
defendant is entitled to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485
U.S. 58, 63 (1988). Assuming Mathews applies to this habeas case, Andrade’s right to a defense
instruction is limited to those cases where sufficient evidence exists for a reasonable jury to find
in his favor. The Court of Appeal’s finding of insufficient evidence to support an instruction on
consent is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1) unless Andrade
rebuts it by clear and convincing evidence. As discussed above, there was strong evidence that
Andrade used force when he sexually assaulted each victim, negating consent. Andrade argues
the evidence of negotiations over money for the sex act and the use of condoms shows consent.
However, in the two instances where the victims mentioned money, Andrade immediately pulled
out a gun and pointed it at them. That he used a condom is not determinative of consent because
he could have used it to protect himself or to prevent leaving his DNA evidence with the victims.
Andrade’s proffer of evidence does not meet the standard necessary to rebut the strong evidence
showing he raped his victims by intimidation.
D. Instructions on Reasonable Doubt
The relevant instructions are as follows, in pertinent part:
CALCRIM No. 220
Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. . . . In deciding whether
the People have proved their case beyond a reasonable doubt, you
must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proved
20
the defendant guilty beyond a reasonable doubt, he is entitled to an
acquittal and you must find him not guilty.
CALCRIM No. 222
You must decide what the facts are in this case. You must use
only the evidence that was presented in this courtroom. Evidence
is the sworn testimony of witnesses, the exhibits admitted into
evidence, and anything else I told you to consider as evidence.
Andrade argues these two instructions denied him due process because: (1) they told the
jurors they had to decide the facts based on the evidence presented in court, but reasonable doubt
may be based on the absence of evidence, and (2) the “abiding conviction” language conveys an
insufficient standard of proof in that it describes the “jurors’ duration of belief in guilt, not their
degree of certainty.”
Federal cases have addressed Andrade’s arguments and rejected them. In Victor v.
Nebraska, 511 U.S. 1, 15-16 (1994), the Supreme court noted the jury was correctly instructed
that it could only consider the evidence presented at trial. See also Leavitt v. Arave, 383 F.3d
809, 818 (9th Cir. 2004) (reasonable doubt instruction correctly “stressed importance of finding
every element beyond a reasonable doubt based solely on the evidence presented at trial”); Sims
v. Small, 2012 WL 1038743, at *7 (N.D. Cal. Mar. 27, 2012) (denying identical challenge to
same jury instructions); Tafolla v. Jaquez, 2012 WL 5411716. *5-6 (N.D. Cal. Nov 6, 2012)
(same). Furthermore, the phrase in CAL CRIM No. 220, “unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to acquittal,” means the jury may find
a defendant not guilty if, through the lack of evidence, the government has failed to prove the
charges beyond a reasonable doubt. See People v. Flores, 153 Cal. App. 4th 1088, 1092-93
(2007).
Federal authority also holds the “abiding conviction” language of CAL CRIM 220
correctly instructs the jury on reasonable doubt. In Victor, 511 U.S. at 14-15, the Court stated,
“An instruction cast in terms of an abiding conviction as to guilt, without reference to a moral
certainty, correctly states the government’s burden of proof.” The Court explained the word
“abiding” means “settled and fixed, a conviction which may follow a careful examination and
21
comparison of the whole evidence.” Id.; see also Lisenbee v. Henry, 166 F.3d 997, 999-1000
(9th Cir. 1999) (explaining in depth why “abiding conviction” language correctly defines
reasonable doubt).
In summary, the Court of Appeal’s denial of all the claims based on jury instructions was
not contrary to or an unreasonable application of Supreme Court authority.
V. Sentencing Claims
Andrade argues the trial court misapplied California Penal Code sections 667.61(e)(5)
and 654 by sentencing him to more than five 15-to-life terms. However, habeas relief does not
encompass errors of state law. See Estelle, 502 U.S. at 67 (“federal habeas corpus relief does not
lie for errors of state law . . . in conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws or treaties of the United States”). Therefore,
any claim based upon the misapplication of state law is denied for lack of habeas jurisdiction.
Likewise, any federal due process claim based on the misapplication of state law is denied. See
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (petitioner may not transform state-law
issue into a federal claim by merely asserting a violation of due process).
Andrade also argues his 195-years to life sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment since he is a 42-year old man without prior
convictions and testing has shown he is in the low risk category for sexual re-offending.
The Eighth Amendment contains a “narrow” proportionality principle. Graham v.
Florida, 560 U.S. 48, 59-60 (2010). This principle “does not require strict proportionality
between crime and sentence but rather forbids only extreme sentences that are grossly
disproportionate to the crime.” Id.; see Solem v. Helm, 463 U.S. 277, 303 (1983). For the
purposes of review under 28 U.S.C. § 2254(d)(1), it is clearly established that “[a] gross
proportionality principle is applicable to sentences for terms of years.” Lockyer v. Andrade, 538
U.S. 63, 72 (2003); Gonzalez v. Duncan, 551 F.3d 875, 882 (9th Cir. 2008) (“The Supreme
Court's Eighth Amendment jurisprudence establishes that no penalty is per se constitutional, and
that successful challenges to the proportionality of particular sentences are exceedingly rare and
22
reserved only for the extraordinary case.”) (emphasis in original). Substantial deference is
granted to legislatures’ determination of the types and limits of punishments for crimes. United
States v. Gomez, 472 F.3d 671, 673-74 (9th Cir. 2006). To determine if the sentence is grossly
disproportionate, the court compares the harshness of the penalty with the gravity of the offense.
Norris w. Morgan, 622 F.3d 1276, 1291-96 (9th Cir. 2010) (the gravity of the offense requires
consideration of whether the crime involved use of force, degree of force used, whether weapons
were used, and whether the crime threatened to cause grave harm to society).
Although Andrade’s sentence was harsh, it was not cruel and unusual under established
federal authority. Although he was relatively young and had no prior record, he brutally
victimized five young women, two of whom were minors. He drove all the victims to isolated
locations where they were particularly vulnerable and used physical violence and a gun to
terrorize them and force them to succumb to his sexual demands. Several of them cried while
attempting to do as he commanded, not knowing whether they would be allowed to leave alive.
And he forced them to perform repeated sexual acts before releasing them. Given the number of
Andrade’s crimes and victims, the sexual nature of those crimes and the violence he used to
intimidate and terrorize his victims, his sentence was not grossly disproportionate to his offenses.
VI. Cumulative Error
Andrade argues the cumulative prejudice from the alleged constitutional violations
establishes that he did not receive a fair trial.
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal,
the cumulative effect of several errors may still prejudice a defendant so much that his
conviction must be overturned. Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003).
Cumulative error is more likely to be found prejudicial when the government’s case is weak.
Thomas v. Hubbard, 273 F.3d 1164, 1180 (9th Cir. 2002), overruled on other grounds by Payton
v. Woodford, 299 F.3d 815, 829 n.11 (9th Cir. 2002).
As discussed above, the prosecutor’s case against Andrade was strong. Furthermore,
because no single constitutional error occurred, no cumulative error is possible. See Hayes v.
23
Ayers, 632 F.3d 500, 524 (9th Cir. 2011).
CONCLUSION
Andrade’s petition for a writ of habeas corpus is denied. A certificate of appealability
will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Clerk shall enter judgment in favor of the respondent
and close the file.
IT IS SO ORDERED.
Dated:
August 1, 2019
______________________________________
VINCE CHHABRIA
United States District Judge
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