Allen v. Martel

Filing 18

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. ***Civil Case Terminated.*** Signed by Judge Claudia Wilken on 9/26/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 9/26/2014)

Download PDF
1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 No. C 10-4516 CW (PR) WILLIAM M. ALLEN, Petitioner, v. JOE LIZARRAGA, Acting Warden, 9 ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Respondent.1 United States District Court For the Northern District of California 10 11 Petitioner William M. Allen, a state prisoner proceeding pro 12 se, filed this petition for a writ of habeas corpus pursuant to 13 28 U.S.C. § 2254, challenging his state criminal conviction, in 14 which he asserts the following claims: (1) due process violation 15 based on the trial court's refusal to suppress his confession to a 16 minister; (2) insufficient evidence to support his assault 17 conviction; (3) ex post facto clause violation based on the 18 court's failure to strike two of his prior convictions; 19 (4) erroneous denial of his state habeas petition based on 20 substantial delay; (5) due process violation based on the court 21 ordering him to wear a leg brace during trial; (6) ineffective 22 assistance of trial counsel; and (7) ineffective assistance of 23 appellate counsel. 24 DENIES the petition and a certificate of appealability. For the reasons discussed below, the Court 25 26 27 28 1In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court is directed to substitute Acting Warden Joe Lizarraga as Respondent because he is Petitioner's current custodian. BACKGROUND 1 2 3 I. Procedural History In 2005, a Santa Cruz County jury found Petitioner guilty of 4 multiple sex crimes. 3 Clerk’s Transcript (CT) at 703. 5 November 7, 2005, the trial court sentenced Petitioner to 260 6 years to life in prison. 7 Petitioner appealed his conviction, asserting the following 8 federal claims: (1) First Amendment and due process violations 9 based on the admission of his confession to Reverend Vining; 6 CT 1406. On On August 18, 2006, United States District Court For the Northern District of California 10 (2) ineffective assistance of counsel because counsel allowed the 11 prosecutor to have access to Petitioner's psychological 12 evaluation; and (3) ex post facto clause violation based on the 13 trial court's failure to strike his prior sex-crime convictions. 14 On January 25, 2008, the California Court of Appeal affirmed the 15 judgment. 16 25, 2008) (unpublished). 17 Supreme Court summarily denied review. 18 Exh. 9; People v. Allen, 2008 WL 214856, (Cal. App. Jan On April 30, 2008, the California Exh. 11. On August 3, 2009, Petitioner filed a petition for a writ of 19 habeas corpus in the Santa Cruz County Superior Court. 20 2, 2009, the Superior Court denied the petition because it was 21 filed late without justification for the significant delay or an 22 explanation of why many of the claims were not addressed on direct 23 appeal. 24 California Court of Appeal and California Supreme Court were 25 summarily denied. 26 Pet.'s Exh. M; Resp's Exhs. 12-13. On October His petitions to the Exhs. 14, 16, 17. On October 6, 2010, Petitioner filed this federal petition 27 for a writ of habeas corpus. On November 17, 2010, the case was 28 dismissed without prejudice because Petitioner had failed to file 2 1 a complete application for leave to proceed in forma pauperis. 2 June 26, 2012, the Court granted Petitioner's motion to reopen his 3 action, vacated the order of dismissal, granted leave to proceed 4 in forma pauperis and directed Respondent to show cause why the 5 petition should not be granted. 6 and ready for the Court's review on the merits. 7 II. Statement of Facts 8 9 United States District Court For the Northern District of California The petition now is fully briefed The California Court of Appeal summarized the facts of this case as follows: 14 On October 6, 2002, defendant, who had a history of committing violent sex crimes, committed a series of forcible sexual assaults on J.N. after forcing her to a secluded location in Santa Cruz County. He intended to murder her after ending his series of assaults but changed his mind because he did not want her three-yearold son, who had stayed in her car during the ordeal, to grow up motherless. J.N. survived and testified against defendant. 15 I. Prosecution Case 16 J.N. was parked by the side of a remote private road to relax. She opened her eyes when she heard the rattle of a dilapidated automobile. She recognized the rattle as the same distinct sound of a poorly maintained automobile that she had heard several times at the home of her partner R.F. Defendant emerged from the automobile, asked J.N. if she was all right, and drove away. Minutes later he returned, strangled her by the neck through the driver’s window so that she almost lost consciousness, and told her not to scream or he would kill her. Defendant’s eyes betrayed his rage. He forced her to go with him into or through a secluded copse of redwood trees that shielded them from being viewed from the road. Thereafter he proceeded to force her to orally copulate him. He told her that she was “good at this.” During that crime defendant mentioned J.N.’s “girlfriend,” and J.N. realized defendant’s automobile had been used to prowl around R.F.’s house. 10 11 12 13 17 18 19 20 21 22 23 24 25 26 27 28 On Thereafter defendant proceeded to sodomize J.N. three times and rape her three times, causing her great pain. He also hit her in the ribs twice, bit her on the shoulder, and threatened to whip her with his belt. Defendant told her “I was in prison for 20 years. Believe me it’s nothing to kill you.” 3 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 Defendant bound and gagged J.N. and told her that he was faced with a dilemma: he felt that he had to kill her so that she could not identify him, but also felt that he could not leave her son without a mother. He explained that his mother was killed or died from other causes when defendant was 15 or 16 years old. Remorseful, he released her, but not before stealing $105 from her purse. J.N. drove to R.F.’s house and appeared in emotional distress, disheveled, bruised, and scraped. She insisted that R.F. not call law enforcement, telling her that her assailant had threatened to kill them if she did. Defendant had told her words to the effect of "'I am going to let you go, but if you call the cops, . . . I didn’t survive prison for 20 years without friends. Someone will be at your house and kill you and everyone there.'" R.F. called law enforcement anyway. A responding sheriff’s deputy found J.N. “very distraught” and “kind of frantic,” cut, bruised, disheveled, and with twigs and other foreign matter in her hair. 11 12 13 14 15 16 17 18 19 20 21 R.F.’s house was near the edge of the Forest of Nisene Marks, a wildland park, and was along a remote private dead-end road with little traffic. For a month or two before the attack on J.N., R.F. had heard a loudly running automobile near her property. Ordinarily there was no nighttime traffic, but she had heard the distinctive sound as late as 1:00 a.m. After the attack on J.N., R.F. never heard that automobile again. When sheriff’s deputies arrested defendant he was driving what one deputy described in testimony as an “abnormally loud” automobile. Defendant acknowledged to the deputies that he had been in prison for 20 years and that his mother had died when he was 15 years old. The testifying deputy noticed scratches on defendant’s arms and that defendant had an injured knee. J.N. identified defendant in a photographic lineup and also was able to identify his automobile, an Opel. Deoxyribonucleic acid (DNA) evidence taken from the bite on J.N.’s shoulder matched defendant’s DNA. 22 23 J.N. testified that she had never met defendant or even seen him before the spree of sex crimes he committed against her. 24 25 As will be described in detail post, page 11, defendant confessed to a local pastor, Ronald Roy Vining, that he had sexually assaulted J.N. 26 27 28 There was evidence that defendant had committed similar crimes. Sheila B. testified that in 1977 defendant accosted her on the beach in Pacifica (San Mateo County) and forced her to orally copulate him. He complained 4 1 2 3 that she “wasn’t very good at this.” During the attack he hit her in the ribs. Sandra H. testified that in 1980 she and defendant visited the beach at Pacifica. On the way home defendant stopped the car, put her in a headlock, and thereafter forcibly sodomized and raped her several times, also forcing her to orally copulate him. 4 II. Defense Case 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant testified on his own behalf. He did not dispute engaging in sexual activity with J.N. at the location she identified, but contended that it was consensual and that he roughed her up as part of a plot in which the two were conniving. He and J.N. had met in 1979 on the Santa Cruz boardwalk. Defendant was at a coffee house in Aptos on September 15, 2002, when J.N. and her son walked in, and they recognized each other from their 1979 encounter. Defendant told J.N. that he had been in prison for sex crimes and was now living in a trailer near a church. J.N. asked defendant if the two could meet in the following week. They met at a parking lot and J.N. told defendant she wanted to get full custody of her son, live with R.F., and continue to receive child support from her son’s father. "She wanted to stage a rape so that she could go to him with all the characteristics of a rape and break away from him." She told defendant, "I know you had experience with this. So I am wondering if you can help me stage this without causing unnecessary pain." After telling J.N. "My schedule’s pretty full" defendant decided to proceed and realized he would need to create evidence, discoverable on her body, that she had been accosted, restrained, and sexually assaulted. J.N. agreed but again asked to be hurt as little as possible. She agreed not to report anything to the police. J.N. and defendant met in the remote location to carry out the plot. She was waiting for defendant with her son in the back seat when he arrived. J.N. led defendant to a secluded area in which they engaged in consensual vaginal and anal intercourse. Defendant physically assaulted J.N. with her consent, including punching and biting her, to make the feigned sexual assault look more real. J.N. paid defendant for staging the assault. After defendant’s arrest, Vining visited him in jail and pressed him to confess. Vining asked, "'Did you do it? Just say you did.'" Defendant replied, "'Not the way they’re saying it.'" He never told Vining that he had raped J.N. On cross-examination, defendant stated that when questioned by the sheriff’s deputies he lied about his whereabouts on the day of the crimes, but did so because 5 2 J.N. and he had agreed that the police would not be allowed to connect him with the staged assaults. Defendant denied monitoring the house at which J.N. and R.F. were living. 3 II. Prosecution Rebuttal Case 4 The father of J.N.’s son testified that he knew about her relationship with R.F. and there was no tension between the three of them generally or between him and J.N. regarding the upbringing of their son. J.N. provided similar testimony and reiterated that she had never seen defendant before he assaulted her. 1 5 6 7 People v Allen, 2008 WL 214856, at *1-3. 8 LEGAL STANDARD 9 A federal court may entertain a habeas petition from a state 10 United States District Court For the Northern District of California prisoner “only on the ground that he is in custody in violation of 11 the Constitution or laws or treaties of the United States.” 12 13 14 U.S.C. § 2254(a). 28 Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, a district court may not grant habeas relief unless the state court’s adjudication of the claim: 15 “(1) resulted in a decision that was contrary to, or involved an 16 unreasonable application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States; or 18 (2) resulted in a decision that was based on an unreasonable 19 determination of the facts in light of the evidence presented in 20 the State court proceeding.” 21 Taylor, 529 U.S. 362, 412 (2000). 28 U.S.C. § 2254(d); Williams v. A state court decision is “contrary to” Supreme Court 22 23 authority, that is, falls under the first clause of § 2254(d)(1), 24 only if “the state court arrives at a conclusion opposite to that 25 reached by [the Supreme] Court on a question of law or if the 26 27 28 state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 13. Id. at 412- A state court decision is an “unreasonable application of” 6 1 Supreme Court authority, under the second clause of § 2254(d)(1), 2 if it correctly identifies the governing legal principle from the 3 Supreme Court’s decisions but “unreasonably applies that principle 4 to the facts of the prisoner’s case.” 5 court on habeas review may not issue the writ “simply because that 6 7 8 Id. at 413. The federal court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ. 9 Id. at 409. Under AEDPA, the writ may be granted only “where United States District Court For the Northern District of California 10 there is no possibility fairminded jurists could disagree that the 11 state court’s decision conflicts with this Court’s precedents.” 12 Harrington v. Richter, 131 S. Ct. 770, 786 (2011). 13 If constitutional error is found, habeas relief is warranted 14 only if the error had a “‘substantial and injurious effect or 15 16 17 18 influence in determining the jury’s verdict.’” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). When there is no reasoned opinion from the highest state 19 court to consider the petitioner’s claims, the court looks to the 20 last reasoned opinion of the highest court to analyze whether the 21 state judgment was erroneous under the standard of § 2254(d). 22 Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). 23 case, the highest court to issue a reasoned decision on three of 24 Petitioner’s claims is the California Court of Appeal. 25 In the present If no state court has adjudicated a federal claim on the 26 merits, the federal court must review the claim de novo. 27 Bell, 556 U.S. 449, 472 (2009); see also Pirtle v. Morgan, 313 28 F.3d 1160, 1167-68 (9th Cir. 2002) (holding that de novo standard 7 Cone v. 1 of review rather than the deferential standard of § 2254(d) 2 applies where state courts never reached merits of habeas claim). 3 As discussed below, there is no reasoned state court decision for 4 the claims Petitioner presented in his state habeas petitions and 5 the Court reviews those claims de novo. DISCUSSION 6 7 8 I. Claims Presented on Appeal The Court first reviews the claims Petitioner presented on direct appeal. 9 A. Admission of Petitioner's Statements to Reverend Vining United States District Court For the Northern District of California 10 Petitioner contends that the trial court denied his right to 11 due process by refusing to suppress his statements to Reverend 12 Vining. The Court of Appeal held that Petitioner forfeited this 13 constitutional claim because he did not make this argument to the 14 trial court and he did not assert it until his reply on appeal. 15 Although the Court of Appeal did not address the merits of 16 Petitioner's constitutional claim, it addressed the merits of his 17 related state law claim, that his confession to Reverend Vining 18 violated California Evidence Code sections 1030-1033, which 19 prohibit the admission of a communication made in confidence in 20 the course of the clergy-penitent relationship. Although a 21 federal habeas court may not review a state court's ruling 22 regarding a state law claim, see Swarthout v. Cooke, 131 S. Ct. 23 859, 861 (2011), this ruling is presented below because it 24 pertains to other constitutional claims Petitioner asserts. 25 1. Superior Court Opinion 26 The Court of Appeal denied Petitioner's state law claim as 27 follows: 28 8 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 [I]n the middle of trial, the trial court conducted a hearing at which Vining testified outside the jury’s presence and hearing . . . . Vining testified that the Free Methodist Church (USA) has no practice of confessing to a pastor; rather, the parishioner confesses directly to God. Vining agreed with counsel that "that was the whole point of the protestant revolution." Vining would not agree to keep confidences, and was trained by the church that if someone asked him to promise not to repeat what the person was about to say, Vining was to "automatically" refuse the request. Nothing in the Pastor’s Handbook contravened this practice. The handbook did, however, give Vining discretion to keep confidential a parishioner’s statement about a past event "if it wasn’t illegal, if it wasn’t something that was going to harm somebody." Vining’s practice, if people came to him saying they wanted to broach a subject confidentially, was to tell them, "'Absolutely not,' unless it is something that isn’t illegal or something that is going to go against our bible and our beliefs." 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vining further testified that he met defendant at a coffee shop in Capitola and that defendant told Vining he had recently been released from prison and was about to be evicted from a trailer park. Defendant asked Vining for help. Vining moved defendant’s trailer onto church property and provided him with free electrical service. In exchange, defendant served as the property’s caretaker. The church was not yet operational; Vining had been sent there to revive its congregation and facilities. The two developed a “very deep” friendship. Vining considered himself to be defendant’s landlord and employer as well as defendant’s friend. In addition, the two would talk about God together. Vining was "devastated" when he learned of the charges against defendant because he had "just poured ten months of my life into keeping him away from doing what I had heard had happened." He went to see defendant to find out if he had committed the crimes and if so, what could have prompted him after the opportunities Vining had extended to him to succeed in life. Vining insisted that he did not visit defendant to take defendant’s confession, and had no ecclesiastical writ to do so. "I went as a friend wondering why he had done what he did to me as a friend." When Vining entered the attorney-client conference room, defendant asked him "'What are you doing here?'" Vining replied, "'Billy, I am here because I am your friend and probably your only friend right now.'" Defendant also asked Vining, "'Are you here to take my confession?'" Vining replied that "our church does not have the belief of confession." Defendant did not ask Vining to keep 9 1 private any conversation that the two might have. Vining did not perceive that defendant was making a confidential communication to him. 2 3 After receiving defendant’s statement that he raped J.N., Vining later informed a jailer, Sergeant McAulay, and other people about it. 4 5 6 7 8 On cross-examination, Vining testified that everything he did in life was part of his ministry. He agreed with counsel that everything he did he "consider[ed] as part of God’s world." He would discuss scripture with defendant and acknowledged that he was defendant’s minister. During their meeting in jail, Vining discussed scripture with defendant. Vining did not tell defendant that he would not keep confidential anything defendant said. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cross-examination also revealed that when defendant originally asked Vining if Vining was there to take his confession defendant had a smirk on his face. When defendant made his remark, Vining explained to him that unlike the Roman Catholic Church, the Free Methodist Church (USA) does not believe in the intermediation of a priesthood and that the penitent should confess directly to God. On redirect examination, Vining explained that he interpreted defendant’s smirk as an attempt "to lighten the atmosphere in the room." The trial court ruled as follows: "The pastor did not believe the conversation was to be held in confidence. The pastor solicited the conversation, the contact. The pastor believed he was acting as a friend, not in a pastor capacity. He told the defendant he was acting as a friend, not take his confession. Pastor went there to find out whether or not the accusations were true and find out why Mr. Allen violated his friendship. Defendant was not a member of the church. Pastor did not believe he had an obligation to keep this communication confidential . . . . I don’t find the defendant had a reasonable expectation that the statement be kept confidential." The court denied defendant’s motion to exclude the evidence, implicitly ruling but without so stating that the state had overcome the presumption that the penitent privilege applied. Thereafter Vining testified before the jury that he met with defendant in the Santa Cruz County jail and defendant told him he was guilty of one of the sexual assaults charged against him. Defendant described seeing the victim’s car parked by the side of the road, noted that it appeared to be occupied by a lone woman, and that "he dragged her out of the car and then he 10 4 raped her." Defendant denied beating the victim. Defendant told Vining, "I realized what I did was wrong and that I was going to get caught." Defendant also told Vining "that he understood that what he did was wrong, not only illegal, but it was a sin against God. He told me that . . . he was pleading guilty and that he wanted a very short and quick trial. So that there would be no mess." 5 . . . 6 10 [California Evidence Code] Section 917, subdivision (a), states, as relevant here: "If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the . . . clergy-penitent . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential." 11 . . . 12 . . . [S]ection 917 establishes a presumption of confidentiality, but also that if the communication was not intended to be kept in confidence, it is not privileged. 1 2 3 7 8 United States District Court For the Northern District of California 9 13 14 . . . 15 16 17 18 19 20 21 22 23 24 25 Section 1033 provides that "[s]ubject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege." A "'penitent' means a person who has made a penitential communication to a member of the clergy” (§ 1031), and a "'member of the clergy' means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization" (§ 1030). A "'penitential communication' means [1] a communication [2] made in confidence, [3] in the presence of no third person so far as the penitent is aware, [4] to a member of the clergy who, [5] in the course of the discipline or practice of the clergy member’s church, denomination, or organization, [6] is authorized or accustomed to hear those communications and, [7] under the discipline or tenets of his or her church, denomination, or organization, [8] has a duty to keep those communications secret." (§ 1032.) 26 27 28 We conclude that although Vining held the office of "a member of the clergy" (§ 1032) when he spoke with defendant, he was not acting in that capacity at the time. Hence the privilege does not apply. 11 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 Substantial evidence supports the trial court’s explicit and/or inferable factual findings that Vining alerted defendant he was acting as a friend and was not there in the capacity of "a member of the clergy" (§ 1032). When, at the beginning of their first encounter, defendant playfully or flippantly asked Vining whether he was visiting to take his confession, Vining responded that he was not and that under the tenets of the Free Methodist Church (USA) defendant could confess only to God. It is plain that "not every communication to a member of the clergy is privileged in the eyes of the law." (People v. Edwards (1988) 203 Cal. App. 3d 1358, 1362.) Rather, it is necessary to show that the statement was made in confidence and in the course of the required relationship. (See People v. Johnson (1969) 270 Cal. App. 2d 204, 207 [the defendant did not adequately show either confidentiality or a clergypenitent relationship]; cf. People v. Thompson (1982) 133 Cal. App. 3d 419, 426 [making a point similar to ours but speaking in the disjunctive].) The law provides that the privilege does not apply to statements made, even in confidence, to a person who happens to be a member of the clergy but who is receiving the statements outside "the course of the discipline or practice of the clergy member’s church, denomination, or organization" (§ 1032). Accordingly, we must consider the clergy member’s role at the time of the communication——and Vining’s role was that of defendant’s friend. (See Johnson, at pp. 206-208 [robber fleeing crime scene made self-serving statements to minister he encountered; minister was dressed in business suit, statements were not penitential and robber was not church member; held, statements not privileged].) The privilege is limited to situations in which the speaker "confess[es] to a flawed act [in order] to receive religious consolation and guidance in return." (Thompson, at p. 427.) The record does not show that Vining was prepared to provide consolation, solace, or guidance; rather, he was demanding to know by what right defendant could have betrayed him. He was a friend, albeit an indignant or perhaps a furious one. 21 22 23 24 25 We next conclude that no privilege existed because defendant did not ask Vining to keep their conversation confidential or exhibit any behavior showing an expectation of confidentiality. The lack of "a communication made in confidence" (§ 1032) also places defendant’s statements outside the scope of the penitent’s privilege. (People v. Thompson, supra, 133 Cal. App. 3d at p. 426; People v. Johnson, supra, 270 Cal. App. 2d at p. 207.) 26 27 28 Accordingly, we conclude that substantial evidence supports the court’s finding that no penitential communications defined by section 1032 took place in the jail interview room. Because Vining was acting as a 12 1 2 3 4 friend and not as an intercessor with God, and, independently, because nothing in the record shows defendant sought or relied on a promise of confidentiality, the privilege is inapplicable. (§ 917, subd. (a).) Defendant’s claim of error under state law does not entitle him to relief on appeal. People v Allen, 2008 WL 214856, at *4-8. 2. Analysis 5 6 Petitioner first argues that the state court erred in 7 rejecting his claim under California Evidence Code sections 1030- 8 33 because Reverend Vining spoke to him as a pastor, not as a 9 friend, and, because Petitioner viewed his discussion with United States District Court For the Northern District of California 10 Reverend Vining as a pastor, he reasonably expected Reverend 11 Vining to keep his confession in confidence. 12 previously, a state court's conclusion regarding a state law claim 13 is unreviewable by a federal court on habeas review. 14 Swarthout, 131 S. Ct. at 861 ("federal habeas corpus relief does 15 not lie for errors of state law"). 16 review the Superior Court's conclusion that the clergy-penitent 17 privilege was inapplicable to Petitioner's confession to Vining. 18 Petitioner next claims that the admission of his confession As mentioned See Therefore, this Court may not 19 to Reverend Vining constituted a violation of his due process 20 rights. 21 Oregon v. Smith, 494 U.S. 872 (1990), "the Free Exercise Clause of 22 the First Amendment provided an exemption from state or federal 23 laws if that law had the effect of unduly burdening the free 24 exercise of religion . . . and if there was an undue burden in a 25 given instance, the state had to justify the imposition by a 26 compelling interest." 27 Ministries v. Board of Equalization, 493 U.S. 378, 384-85 (1990) According to Petitioner, in cases prior to State of Pet. at 93-94 (citing Jimmy Swaggart 28 13 1 and Wisconsin v. Yoder, 406 U.S. 205, 220 (1972)).2 2 Petitioner acknowledges that these pre-1990 cases were overruled 3 by Smith, he concludes that, because the clergy-penitent privilege 4 "is congruent with the Free Exercise Clause in its pre-1990 5 manifestation, with its requirements establishing on a case-by 6 case basis the pre-1990 constitutional foundation as well as the 7 evidentiary foundation," a protected liberty interest exists. 8 at 94. 9 This claim fails for many reasons. Although Id. First, no authority holds United States District Court For the Northern District of California 10 that a liberty interest can be created based on Supreme Court 11 authority that was good law over twenty years ago, but not at the 12 time the events at issue took place. 13 liberty interest could be created, Petitioner does not describe 14 the liberty interest and how it was violated. 15 a liberty interest could be created, Petitioner misapplies his 16 cited pre-1990 authority regarding the free exercise clause. 17 Second, even if such a Third, even if such In Jimmy Swaggart Ministries, the Court stated that the free 18 exercise Clause "withdraws from legislative power, state and 19 federal, the exertion of any restraint on the free exercise of 20 religion. 21 individual by prohibiting any invasions thereof by civil 22 authority. . . . [T]he free exercise inquiry asks whether 23 government has placed a substantial burden on the observation of a 24 central religious belief or practice and, if so, whether a 25 compelling governmental interest justifies the burden." 26 27 Its purpose is to secure religious liberty in the 2 493 U.S. Because Petitioner relies on pre-1990 cases, the Court does not address the holding in Smith or authority that relied on or overruled it. 28 14 1 at 384-85. 2 Yoder examined laws that were neutral on their face to determine 3 if their application infringed upon the respondents' exercise of 4 their religion. 5 (holding State's imposition of a sales and use tax on ministries' 6 sale of religious material did not infringe upon their Free 7 Exercise rights); Yoder, 406 U.S. at 234-35 (holding First 8 Amendment prevents State from compelling Amish parents to comply 9 with state law requiring parents to send their children to formal United States District Court For the Northern District of California 10 Using this principle, Jimmy Swaggart Ministries and See Jimmy Swaggart Ministries, 493 U.S. at 385-89 high school to age sixteen). 11 Petitioner does not show how the denial of the clergy- 12 penitent privilege placed a substantial burden upon his exercise 13 of religion. 14 privilege had no effect on Petitioner's exercise of religion. 15 Reverend Vining testified that Petitioner had no ties to Reverend 16 Vining's church, 8 RT 2171, and the trial court found that 17 Petitioner was not a member of Reverend Vining's church, 8 RT 18 2116. 19 or that he is a member of another religion. 20 Petitioner's claim. 21 claim is denied. In fact, the evidence shows that the clergy-penitent Petitioner fails to point to any evidence to the contrary This is fatal to For all of the above-mentioned reasons, this 22 B. Ineffective Assistance of Counsel 23 1. Court of Appeal Opinion 24 On appeal, Petitioner contended his trial counsel was 25 ineffective because he allowed the prosecutor to have access to 26 Petitioner's psychological evaluation. 27 Petitioner's statements to the psychologist that he had fantasized 28 15 The report included 1 about raping women when he was in prison. 2 denied this claim, finding no prejudice, as follows: 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 The Court of Appeal . . . [F]ormer counsel asked for or at least acquiesced in the preparation of a publicly available report on defendant’s psychological condition. When defendant obtained new trial counsel, his new counsel moved to have his statements suppressed, in part because former counsel was ineffective in permitting the prosecution to obtain them. The trial court denied the motion on the ground that "[t]here was a tactical reason for it. I can’t tell from the record what that might have been, however, in hindsight, illogical it seems, but there was a tactical reason for that. . . ." The court added that defendant, for reasons the court acknowledged were mysterious, had knowingly and intelligently waived his right to a private psychological evaluation. 11 . . . 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 . . . [F]ormer defense counsel admitted that he had no tactical reason for permitting the psychological evaluation to be made available to the prosecution. Former counsel told the trial court, "I obtained a public report, mistakenly thinking that Mr. Allen had given me the green light to do so. I would not have sought a public evaluation, one public to the District Attorney and the court, had I known Mr. Allen was objecting to it." Moreover, even if defendant had not objected, indeed even if defendant had demanded the production of a public report, "counsel, as 'captain of the ship,' maintains complete control of defense tactics and strategies, except that the defendant retains a few 'fundamental' personal rights" (People v. Cook (2007) 40 Cal. 4th 1334, 1343), and counsel could have said no. We agree with defendant that there was no tactical reason for permitting a report to be divulged without knowing what it might reveal. As it happened, the report was damning: the psychologist concluded that defendant did not suffer from any "major mental disorder or mood disturbance," but rather that "[h]is behavior demonstrates a strong degree of psychosexual deviance and sexually aggressive motivation for the rapes, pathologic egocentricity, limited empathy and remorse, and aggressive narcissism. He has exhibited a callous[,] remorseless use of others within a chronically unstable and antisocial lifestyle." And he "is certainly at very high risk for recidivism with regard to rape behavior." 27 28 Nonetheless, we discern no prejudice, i.e., no reasonable probability of a different outcome 16 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 (Strickland v. Washington, 466 U.S. 668, 694 (1984), had defense counsel acted in such a manner that the jury would not have heard evidence about defendant’s rape fantasies. There was strong evidence against defendant apart from that evidence. The victim testified in detail and at length about the multiple sexual assaults defendant committed. It was plain that defendant had stalked the victim and her partner. Defendant’s friend Ronald Vining, a minister and defendant’s benefactor in a number of ways, testified that defendant admitted raping the victim. The victim’s partner described the victim’s return to the house in disarray and distress. Defendant’s own testimony, that the victim consented to a bizarre staged sexual assault in order to have full custody of her child, made little sense on its own and was refuted by the rebuttal testimony of the victim and her son’s father. There is no reasonable probability that, but for counsel’s failure to take actions to keep the prosecution from learning of defendant’s rape fantasies, the outcome would have differed. People v. Allen, 2008 WL 214856, at *10-11. 2. Analysis 12 13 A claim of ineffective assistance of counsel is cognizable as 14 a claim of denial of the Sixth Amendment right to counsel, which 15 guarantees not only assistance, but effective assistance of 16 counsel. 17 benchmark for judging any claim of ineffectiveness must be whether 18 counsel's conduct so undermined the proper functioning of the 19 adversarial process that the trial cannot be relied upon as having 20 produced a just result. 21 Strickland v. Washington, 466 U.S. 668, 686 (1984). The Id. First, the petitioner must show that counsel's performance 22 was deficient. Id. at 687. This requires showing that counsel 23 made errors so serious that counsel was not functioning as the 24 "counsel" guaranteed by the Sixth Amendment. 25 scrutiny of counsel's performance must be highly deferential, and 26 a court must indulge a strong presumption that counsel's conduct 27 falls within the wide range of reasonable professional assistance. 28 Id. at 689. 17 Id. Judicial 1 Second, the petitioner must show that counsel's errors were 2 so serious as to deprive the petitioner of a fair trial, a trial 3 whose result is reliable. 4 that there is a reasonable probability that, but for counsel's 5 unprofessional errors, the result of the proceeding would have 6 been different; a reasonable probability is a probability 7 sufficient to undermine confidence in the outcome. 8 The likelihood of a different result must be substantial, not just 9 conceivable. Id. at 688. The petitioner must show Id. at 694. Harrington v. Richter, 131 S. Ct. 770, 792 (2011). United States District Court For the Northern District of California 10 Where the state court rejects an ineffective assistance claim 11 based on a finding of no prejudice, habeas relief is warranted 12 only if that determination was objectively unreasonable. 13 v. Visciotti, 537 U.S. 19, 26-27 (2002)(per curiam)(deferring to 14 state court's conclusion of no prejudice); Cullen v. Pinholster, 15 131 S. Ct. 1388, 1410 (2011) (even assuming counsel performed 16 deficiently, it was not necessarily unreasonable for the state 17 court to conclude that the petitioner had failed to show a 18 substantial likelihood of a different sentence). 19 Woodford The only evidence from the psychological report that the jury 20 heard was that Petitioner had rape fantasies over a decade 21 earlier. 22 to cross-examine Petitioner about whether he had rape fantasies; 23 Petitioner admitted having fantasies fifteen years ago but not 24 since his release from prison in January 2002). 25 rape fantasy evidence, there was a strong case against Petitioner, 26 as discussed by the Court of Appeal. 27 evidence that Petitioner had committed two similar sexual offenses 28 in the past. See Allen, 2008 WL 214856, at *9 (prosecutor used report 18 Even without the Moreover, the jury heard 1 Given the strong evidence against Petitioner, it was not 2 objectively unreasonable for the state court to conclude that 3 there was no reasonable probability that, but for counsel's 4 failure to keep the prosecutor from learning of defendant's rape 5 fantasies, the outcome would have been different. 6 denied. This claim is 7 C. Ex Post Facto Clause Violation 8 Petitioner contends that the trial court's failure to strike 9 United States District Court For the Northern District of California 10 11 two prior sex-crime convictions, which were used to enhance his sentence, violated the ex post facto clause. A federal habeas petitioner generally may not attack the 12 constitutionality of a prior conviction used to enhance a later 13 sentence. 14 or collateral attack in its own right because the defendant failed 15 to pursue those remedies while they were available (or because the 16 defendant did so unsuccessfully), the conviction may be regarded 17 as conclusively valid. 18 enhance a criminal sentence, the defendant generally may not 19 challenge the enhanced sentence through a petition under § 2254 on 20 the ground that the prior conviction was unconstitutionally 21 obtained." 22 394, 403-04 (2001) (citation omitted). 23 rule is that a petitioner may challenge a prior conviction on the 24 ground that there was a failure to appoint counsel in that case in 25 violation of the Sixth Amendment. 26 not argue that he was not represented by counsel in his prior 27 cases. 28 prior convictions in this habeas proceeding. "[O]nce a state conviction is no longer open to direct If that conviction is later used to Lackawanna County Dist. Attorney v. Coss, 532 U.S. The only exception to this Id. at 404. Petitioner does Therefore, he cannot attack the constitutionality of the 19 1 II. Claims Presented in State Habeas Petitions 2 A. State Court Erred in Denying Petition as Untimely 3 Petitioner's remaining claims were presented in his state 4 habeas petitions. Citing In re Clark, 5 Cal. 4th 750, 765 (1993), 5 the Santa Cruz County Superior Court denied the petition on the 6 ground that Petitioner had provided "insufficient justification 7 for the significant delay in presenting these claims." 8 M, In the Matter of William M. Allen, for Writ of Habeas Corpus, 9 No. F05911, at 2 (Oct. 2, 2009). Pet., Ex. Petitioner argues that the United States District Court For the Northern District of California 10 Superior Court erred in denying his petition based on significant 11 delay because, although it was filed ten months "from receipt of 12 record on appeal," it was filed within the one-year statute of 13 limitations deadline under AEDPA. 14 fails because whether a petition is filed timely in state court is 15 determined by state law, not by AEDPA. 16 F.3d 1145, 1148 (9th Cir. 2005) amended on other grounds by 439 17 F.3d 993 (9th Cir. 2006)(under AEDPA, properly filed state 18 petition means its delivery and acceptance are in compliance with 19 applicable laws and rules governing filings in that state); In re 20 Robbins, 18 Cal. 4th 770, 780 (1998) (state petition not entitled 21 to presumption of timeliness if filed more than ninety days after 22 final due date for filing appellant's reply brief on direct 23 appeal). 24 from his receipt of his record on appeal, it was late under 25 Robbins. 26 Pet. at 76. This argument See Bonner v. Carey, 425 Because Petitioner's state petition was filed ten months Petitioner's claim of error is denied. However, Respondent has not argued that Petitioner's claims 27 are procedurally defaulted under California's timeliness bar; 28 therefore, any procedural default argument is waived. 20 See 1 Morrison v. Mahoney, 399 F.3d 1042, 1046-47 (9th Cir. 2005) 2 (procedural default is an affirmative defense which must be raised 3 in first responsive pleading to avoid waiver). 4 Because the Superior Court denied Petitioner's habeas claims 5 on procedural grounds, it did not address their merits. The 6 summary denials of Petitioner's petitions by the California Court 7 of Appeal and California Supreme Court mean that these courts 8 adopted the reasoning of the Superior Court and denied the 9 petitions on procedural grounds. See Ylst, 501 U.S. at 803, 805 United States District Court For the Northern District of California 10 (federal habeas court looks through to last highest court to issue 11 an opinion). 12 Petitioner's habeas claims, the Court must review them de novo. 13 See Pirtle, 313 F.3d at 1167-68. Because no state court reached the merits of 14 B. Due Process Claim Based on Use of Physical Restraints 15 Petitioner contends that the trial court violated his right 16 to due process by ordering him to wear a leg brace during the 17 trial. 18 19 1. Factual Background On September 19, 2005, the trial court held a hearing on 20 Petitioner's oral motion to remove the leg brace that he had been 21 ordered to wear under his pants during the trial. 22 Pet., Ex. K at 3. 23 Court authority required a showing of a manifest need for any 24 physical restraint. 25 Petitioner had been involved in approximately thirty incidents 26 while in jail, including possessing an altered razor, altered 27 staples and other contraband in his cell, fighting with another 28 inmate, using inappropriate language and cursing at the medical 5 RT 1001; Defense counsel argued that California Supreme 5 RT 1001. The trial court stated that 21 1 nursing staff. 2 Petitioner to wear a leg brace under his pants was "the minimal 3 restrictive action." 4 5 RT 1003-04. The court concluded that requiring 5 RT 1004. The court granted defense counsel's request that, on the day 5 Petitioner testified, the court security officer allow him "in 6 court without his knee brace so that when he walks up to the stand 7 he doesn't have to show any sign that he has a restraint on." 8 RT 2505. 9 security officer did not allow him to take off the leg brace. 11 However, on the day Petitioner was to testify, the court United States District Court For the Northern District of California 10 Only after defense counsel intervened did the court security 11 officer allow Petitioner in the courtroom without the leg brace. 12 13 2. Federal Authority The Constitution forbids the use of shackles (or other 14 physical restraints) visible to the jury absent a trial court 15 determination, in the exercise of its discretion, that the use is 16 justified by an essential state interest——such as the interest in 17 courtroom security——specific to the defendant on trial. 18 Missouri, 544 U.S. 622, 624 (2005); Holbrook v. Flynn, 475 U.S. 19 560, 568-69 (1986); see also Hedlund v. Ryan, 750 F.3d 793, 803 20 (9th Cir. 2014) (finding state court decision affirming use of leg 21 brace was not contrary to, or an unreasonable application of, 22 clearly established Supreme Court precedent where ordering the leg 23 brace was justified by an essential state interest). 24 the defendant's right to due process is violated if the trial 25 court fails to make a finding on the record justifying the 26 necessity of physical restraints. 27 1057, 1063 (9th Cir. 2008). 28 shackled in error, when the shackles are not seen by the jury, the Deck v. Generally, Larson v. Palmateer, 515 F.3d However, even if a defendant is 22 1 shackling itself has been held to be harmless error. 2 Rowland, 172 F.3d 633, 636 (9th Cir. 1999). 3. Analysis 3 4 Rhoden v. Petitioner's due process claim fails for two reasons. First, 5 he has not shown that the jury saw the leg brace. See Pet., Ex. 6 K, App'x 3 at 2 (appellate counsel's letter to Petitioner) 7 (appellate counsel stated nothing in the record indicated jurors 8 saw the leg brace). 9 claim. Under Deck, this is fatal to Petitioner's Second, the trial court held a hearing at which it cited United States District Court For the Northern District of California 10 instances in which Petitioner had displayed violent or 11 obstreperous behavior in the jail. 12 court's findings justifying the necessity of the leg brace shows 13 that Petitioner's due process rights were not violated. 14 Under Larson, the trial Petitioner argues that the trial court's hearing on his 15 motion to remove the leg brace was flawed in that the court used 16 information from an unidentified source to determine the need for 17 a leg brace and the court would not allow defense counsel to view 18 the information. 19 reports from Petitioner's jail. 20 established federal law suggests that it is impermissible for a 21 trial court to base its finding about the need to restrain a 22 defendant during a trial on hearsay evidence coming from jail 23 officials. 24 state court to find that defendant posed an escape risk based on 25 hearsay). 26 counsel did not see the evidence discussed by the court, the 27 transcript of the hearing on counsel's motion suggests that he was 28 familiar with at least some of the jail incidents mentioned by the Pet. at 25. The trial court relied on incident 5 RT 1002. No clearly See Hedlund, 750 F.3d at 802-03 (not unreasonable for Furthermore, although Petitioner contends that defense 23 1 court. 2 unpersuasive. 3 See 5 RT 1002. Therefore, these arguments are Petitioner also argues that his due process rights were 4 violated because, in Santa Cruz County, leg braces are routinely 5 placed on defendants without a hearing by the trial court to 6 determine whether restraints are warranted. 7 held such a hearing, this is irrelevant. Because the court 8 Petitioner next argues that his Sixth Amendment right to 9 confront witnesses was violated because he could not cross-examine United States District Court For the Northern District of California 10 witnesses at the hearing on his motion. 11 The confrontation clause of the Sixth Amendment provides that 12 in criminal cases the accused has the right to “be confronted with 13 the witnesses against him.” 14 confrontation clause applies to all "testimonial" statements. 15 Crawford v. Washington, 541 U.S. 36, 50-51 (2004). 16 . . . is typically a solemn declaration or affirmation made for 17 the purpose of establishing or proving some fact." 18 (internal quotation and citation omitted); see id. ("An accuser 19 who makes a formal statement to government officers bears 20 testimony in a sense that a person who makes a casual remark to an 21 acquaintance does not."). 22 U.S. Const. amend. VI. The "Testimony Id. at 51 The right to confrontation is “basically a trial right.” 23 Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010) 24 (finding California Proposition 115, allowing hearsay at 25 preliminary hearings, does not violate Sixth Amendment). 26 hearing on Petitioner's motion was not part of Petitioner's 27 criminal trial; the confrontation right did not apply. 28 24 The 1 Finally, Petitioner argues that his mental and emotional 2 equilibrium were thrown off balance on the day he was scheduled to 3 testify because the court security officer ordered him to put on 4 the leg brace, even though the trial court had ordered he did not 5 have to wear it that day. 6 that the prosecutor intimidated him and interfered with his 7 ability to testify on his own behalf. 8 conclusion that the court security officer's conduct can be 9 imputed to the prosecution is unsubstantiated by evidence or Petitioner contends that this shows However, Petitioner's United States District Court For the Northern District of California 10 authority. 11 People v. Bryant, 157 Cal. App. 3d 582, 590 (1984), the court 12 addressed the prosecutor's "intimidating statements." 13 Ornoski, 431 F.3d 1158, 1168 (9th Cir. 2005), the court addressed 14 the prosecutor's intimidation of a post-trial witness. 15 evidence shows the prosecutor caused the court security officer to 16 tell Petitioner to put on his leg brace in spite of the court's 17 order. 18 The two cases Petitioner cites are inapplicable. In In Earp v. Here, no In summary, Petitioner fails to present evidence supporting 19 his due process claim based on being required to wear a leg brace 20 during trial. 21 B. Insufficient Evidence of Assault Conviction 22 Petitioner argues that his conviction of assault with force 23 likely to produce great bodily injury was not supported by 24 sufficient evidence. 25 he choked her with two hands, nearly to the point of 26 unconsciousness, was contradicted by physical evidence indicating 27 he grabbed her with only one hand. He contends that the victim's testimony that 28 25 1 2 1. Federal Authority The due process clause "protects the accused against 3 conviction except upon proof beyond a reasonable doubt of every 4 fact necessary to constitute the crime with which he is charged." 5 In re Winship, 397 U.S. 358, 364 (1970). 6 alleges that the evidence in support of his state conviction 7 cannot be fairly characterized as sufficient to have led a 8 rational trier of fact to find guilt beyond a reasonable doubt 9 states a constitutional claim, which, if proven, entitles him to United States District Court For the Northern District of California 10 federal habeas relief. 11 A state prisoner who Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979). 12 A federal court reviewing collaterally a state court 13 conviction does not determine whether it is satisfied that the 14 evidence established guilt beyond a reasonable doubt. 15 Borg, 982 F.2d 335, 338 (9th Cir. 1992). 16 habeas court in general question a jury's credibility 17 determinations, which are entitled to near-total deference. 18 Jackson, 443 U.S. at 326. 19 conflicting inferences, a federal habeas court "must presume——even 20 if it does not affirmatively appear in the record——that the trier 21 of fact resolved any such conflicts in favor of the prosecution, 22 and must defer to that resolution." 23 "determines only whether, 'after viewing the evidence in the light 24 most favorable to the prosecution, any rational trier of fact 25 could have found the essential elements of the crime beyond a 26 reasonable doubt.'" 27 U.S. at 319). Payne v. Nor does a federal If confronted by a record that supports Id. The federal court Payne, 982 F.2d at 338 (quoting Jackson, 443 Only if no rational trier of fact could have found 28 26 1 proof of guilt beyond a reasonable doubt may the writ be granted. 2 Jackson, 443 U.S. at 324. To grant relief under the AEDPA, a federal habeas court must 3 4 conclude that "the state court's determination that a rational 5 jury could have found that there was sufficient evidence of guilt, 6 i.e., that each required element was proven beyond a reasonable 7 doubt, was objectively unreasonable." 8 957, 965 (9th Cir. 2011); see also Coleman v. Johnson, 132 S. Ct. 9 2060, 2062 (2012) (per curiam) ("Jackson claims face a high bar in United States District Court For the Northern District of California 10 Boyer v. Belleque, 659 F.3d federal habeas proceedings . . ."). 11 2. Analysis 12 The victim testified that Petitioner reached through her open 13 car window with both hands and grabbed her neck tightly, making it 14 difficult for her to breathe, and making her feel like she was 15 going to pass out. 16 testified that Petitioner strangled her with two hands a number of 17 other times while he was raping and sodomizing her. 18 1830, 1849; 8 RT 2012-15. 19 the victim testified that the victim had visible injuries on both 20 sides of her neck, though there was a higher level of injury on 21 the right side. 22 photographs of the victim's injuries and the photographs were 23 admitted into evidence. 7 RT 1800, 1802, 1928-29; 8 RT 2012. She 7 RT 1807, The sexual assault nurse who examined 8 RT 2065, 2122-23, 2141-42. The nurse had taken 8 RT 2122-26. Petitioner testified that he grabbed the victim with one hand 24 25 on one occasion for a short period of time, using only enough 26 pressure to cause bruising so as to support her plan to claim 27 rape. 28 the victim's testimony that Petitioner choked her with two hands 11 RT 2256. During closing, defense counsel argued that 27 1 was not credible because she had a prominent bruise on the right 2 side of her neck, most likely from Petitioner's left thumb, and 3 scratches on the left side of her neck, most likely from 4 Petitioner's fingernails. 5 Petitioner had choked the victim with two hands, there would be 6 corresponding bruises on both sides of her neck. 7 Defense counsel argued that, if 12 RT 2859-61. Petitioner submits a declaration from James E. Daly, Doctor 8 of Osteopathy, Master of Science in Biochemistry and Microbiology, 9 which was submitted with his state habeas petition, but was not United States District Court For the Northern District of California 10 presented during his trial. Pet., Ex. L. Dr. Daly states that he 11 reviewed the photographs of the victim's injuries and concludes 12 that the victim was grabbed by Petitioner with only his left hand. 13 Id. at 4. 14 victim's testimony that he choked her with two hands was not 15 credible. 16 the victim's injuries, heard the testimony of the victim and 17 Petitioner and found that the force used by Petitioner was likely 18 to produce great bodily injury. 19 that Petitioner used two hands to have found that he used force 20 likely to cause great bodily injury. He could have accomplished 21 this with the use of only one hand. Viewing the evidence in the 22 light most favorable to the prosecution, any rational trier of 23 fact could find that the testimony of the victim and the examining 24 nurse established that Petitioner was guilty of assault with force 25 likely to produce great bodily injury. Petitioner argues that this evidence shows that the However, the jurors themselves saw the photographs of The jury did not have to believe This claim is denied. 26 C. Ineffective Assistance of Counsel 27 Petitioner submits fifteen grounds to argue trial counsel's 28 ineffective assistance. 28 1 2 1. Failure to Investigate Petitioner contends counsel was ineffective for failing to 3 investigate the following: (1) whether there was DNA evidence on a 4 redwood tree limb that the victim said Petitioner had placed 5 between her legs; (2) whether there was DNA evidence on the 6 victim's sarong, which Petitioner used to wipe feces off his 7 penis; (3) whether anyone in the victim's neighborhood owned a 8 loud car similar to Petitioner's; and (4) the reason Reverend 9 Vining left California for Ohio. United States District Court For the Northern District of California 10 11 a. Federal Authority A defense attorney has a general duty to make reasonable 12 investigations or to make a reasonable decision that particular 13 investigations are unnecessary. 14 Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) (per curiam); 15 Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011); Turner v. 16 Duncan, 158 F.3d 449, 456 (9th Cir. 1998). 17 that “‘a particular decision not to investigate must be directly 18 assessed for reasonableness in all the circumstances, applying a 19 heavy measure of deference to counsel’s judgments.’” 20 Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 21 466 U.S. at 491). 22 would be fruitless or might be harmful to the defense. 23 v. Richter, 131 S. Ct. 770, 789-90 (2011). 24 25 26 Strickland, 466 U.S. at 691; Strickland directs Silva v. Counsel need not pursue an investigation that Harrington b. DNA Evidence (1) Tree Limb The victim testified that Petitioner laid a limb from a 27 redwood tree over her body and the crevice of her buttocks, but he 28 did not penetrate her with it. 7 RT 1866-67; 8 RT 2037. 29 1 Petitioner argues that, because the victim testified that he laid 2 the limb on her body, an absence of DNA on it would diminish her 3 credibility. 4 small portion of her testimony that any lack of DNA would not have 5 damaged her credibility. 6 for failing to have the limb tested nor has Petitioner shown a 7 reasonable probability of a different result had it been tested. 8 See Harrington, 131 S. Ct. at 789-90 (counsel need not pursue 9 fruitless investigations). The victim's account of the limb constituted such a (2) Feces on Sarong United States District Court For the Northern District of California 10 11 Counsel's performance was not deficient The victim testified that Petitioner sodomized her twice, 7 12 RT 1825-26, 1837, raped her, 7 RT 1839, sodomized her again, 7 RT 13 1848, raped her again, 7 RT 1861, but never ejaculated, 7 RT 1862, 14 1870, 1872-73. 15 victim's sarong to wipe off fecal material left on his penis. 16 RT 1865. 17 visible fecal stains on it and the nurse who examined the victim 18 found feces in her vagina. 19 contends that, to diminish the victim's credibility, counsel 20 should have had the feces on the sarong tested for DNA. 21 The victim testified that Petitioner used the 7 The sarong, which the victim identified at trial, had 7 RT 1888; 8 RT 2119. Petitioner Petitioner acknowledges that he was told that fecal material 22 could not be tested for DNA but disputes this with a citation to 23 the Reference Manual on Scientific Evidence, 2d ed. at 503-04 24 (2000), which states, "Thus, DNA typing has been performed 25 successfully on old blood stains, semen, semen stains, vaginal 26 swabs, hair, bone, bite marks, cigarette butts, urine, and fecal 27 material." 28 30 However, Petitioner does not state whose DNA he wanted the 1 2 the fecal material to be tested for and how any result would have 3 impeached the victim or otherwise have aided his defense. 4 Petitioner admitted that he raped and sodomized the victim, his 5 identity was not at issue. 6 found would not have been probative of anything in dispute. 7 Likewise, there was no reason to test for the victim's DNA because 8 that also would not be probative of any issue in dispute. Because Whether or not Petitioner's DNA was Therefore, defense counsel did not act unreasonably in 9 United States District Court For the Northern District of California 10 failing to test the fecal material for DNA. See Harrington, 131 11 S. Ct. at 789-90 (counsel need not pursue an investigation that 12 would be fruitless). 13 material did not constitute ineffective performance. Counsel's decision not to test the fecal c. Neighbors' Cars 14 Petitioner claims that, to rebut the testimony of the victim 15 16 and her lover, R.F., that they had heard a car that made a 17 distinctive rattling noise like Petitioner's driving by R.F.'s 18 house in the weeks preceding the sexual assault, counsel should 19 have investigated R.F.'s neighbors' cars to see if any of them 20 made a similar rattling noise. 21 1884. 22 prosecutor's argument that Petitioner had been stalking the victim 23 in the weeks preceding the offense. 24 7 RT 1759-60; 1790; 1793; 1821; Petitioner argues this was important to counter the Petitioner provides no reason to believe that such an 25 investigation would have been fruitful. There was sufficient 26 evidence that Petitioner was the person who had been driving by 27 R.F.'s house before the assault. 28 a remote area, on a single-lane road with only two neighbors past R.F testified that she lived in 31 1 her house. 7 RT 1757-58. She stated that any car coming down 2 that single-lane road would belong to someone living in or 3 visiting those two houses. 4 two months before the sexual assault, she heard a loud car, with a 5 noise like it had no muffler, driving by her house late at night 6 and sometimes during the day. 7 that, during the assault, Petitioner told her that he knew that 8 she and R.F. were lovers. 9 she was "shocked that he knew about [R.F.], and then I made the 7 RT 1758. She testified that, in the 7 RT 1759. 7 RT 1821. The victim testified The victim testified that United States District Court For the Northern District of California 10 connection of the car and the sound of the car and that we heard 11 that car around. . . ." 7 RT 1821. 12 The facts that the victim recognized the distinct sound of 13 Petitioner's car at the scene of the crime as the car she heard 14 driving by R.F.'s house, and that Petitioner had information about 15 R.F., provided strong evidence that Petitioner had been driving by 16 that house and watching the victim in the weeks before the 17 offense. 18 would not have been sufficient to counter the evidence that 19 Petitioner had been driving by R.F.'s house and watching the 20 victim. d. Reverend Vining's Departure from Santa Cruz 21 22 Even if counsel had found a car with a loud sound, it Petitioner argues that counsel was ineffective for failing to 23 investigate the reason Reverend Vining left Santa Cruz and moved 24 to Ohio. 25 leave the Santa Cruz church as a direct consequence of 26 Petitioner's arrest, the ensuing publicity and the loss of 27 confidence by the membership of the Church" and counsel could have 28 impeached Reverend Vining with this evidence because it would have Petitioner contends that Reverend Vining "was forced to 32 1 caused Reverend Vining to resent Petitioner. 2 However, the evidence does not support Petitioner's theory. 3 Pet. at 54. When Reverend Vining testified at Petitioner's trial, he was 4 living in Ohio. 8 RT 2178. Reverend Vining testified that he 5 came to Santa Cruz to re-start the Free Methodist Church, but it 6 never re-started. 7 had visited Petitioner in jail shortly after Petitioner was 8 arrested and, at this meeting, Petitioner confessed to him. 9 2172; 2175. 8 RT 2169; 2171; 2178. He testified that he 8 RT Immediately afterward, Reverend Vining told his wife United States District Court For the Northern District of California 10 what Petitioner had said. 11 Petitioner's statements to two gentlemen who were helping him 12 start the church. 13 enforcement about Petitioner's statements. 14 examination, defense counsel asked Reverend Vining if he had any 15 ill will toward Petitioner and Reverend Vining replied, "No. 16 are friends." 17 8 RT 2176. 8 RT 2177. He also relayed A few months later, he told law 8 RT 2177. On cross- We 8 RT 2178. The evidence shows that Reverend Vining communicated 18 Petitioner's confession to three people immediately after his 19 meeting with Petitioner, before he could have been aware that 20 Petitioner's arrest allegedly would cause his church to fail and 21 force him to move to Ohio. 22 Petitioner's statements to others, he had no reason to resent 23 Petitioner for causing him to move to Ohio. 24 investigate the reason for Reverend Vining's move to Ohio based 25 upon Petitioner's speculation about Reverend Vining's resentment 26 was not ineffective. 27 need not pursue investigation that would be fruitless). Thus, when Reverend Vining repeated Counsel's failure to See, Harrington, 131 S. Ct. 789-90 (counsel 28 33 2. Failure to Call Experts 1 2 Where the evidence does not warrant it, the failure to call 3 an expert does not amount to ineffective assistance of counsel. 4 Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (a decision not 5 to pursue testimony by a psychiatric expert is not unreasonable 6 when the evidence does not raise the possibility of a strong 7 mental state defense). a. Medical Expert 8 9 Petitioner argues counsel should have called an expert to United States District Court For the Northern District of California 10 testify that the victim's physical injuries demonstrated that 11 Petitioner grabbed her neck with one hand, not two. 12 this claim, Petitioner presents the declaration of Dr. J. E. Daly, 13 discussed above, who reviewed the photographs of the victim's 14 injuries and concluded that she was choked with only one hand. 15 Petitioner speculates that, if counsel had presented Dr. Daly's 16 testimony at trial, the jury would not have found Petitioner 17 guilty of assault with force likely to cause great bodily injury. 18 However, as discussed above, finding that Petitioner choked the 19 victim with two hands was not a prerequisite for the jury to have 20 found him guilty of using force likely to produce great bodily 21 injury. 22 testimony that Petitioner used two hands to choke her, but it 23 would not have placed into question her testimony that Petitioner 24 choked her with great force. 25 victim's injuries which showed that she was injured more on one 26 side of her neck than the other and defense counsel argued that 27 this showed she was only choked with one hand. 28 jury found that Petitioner had used sufficient force to find him In support of Dr. Daley's testimony may have undermined the victim's The jury saw the photos of the 34 Nevertheless, the 1 guilty of assault with force likely to produce great bodily 2 injury. 3 different result if the jury heard Dr. Daly's testimony. Petitioner has not shown a reasonable probability of a b. Corrections Expert 4 5 Petitioner claims counsel was ineffective for failing to call 6 a corrections expert who could have bolstered Petitioner's 7 credibility by testifying that Petitioner's previous years in 8 prison motivated him to abide by a prison code of "integrity" 9 which included not cooperating with police. Petitioner argues United States District Court For the Northern District of California 10 that this would have explained to the jury why, when the police 11 asked him where he was at the time of the crime, he originally 12 lied to them and said he was in San Jose. 13 Counsel argued to the jury that Petitioner's response to the 14 police was an example of his integrity because he kept his promise 15 to the victim not to expose their plan of a "staged sexual 16 assault." 17 18 19 20 21 22 23 In his closing, defense counsel stated: As Mr. Allen candidly admitted here, one thing he does, all true to, is integrity. . . . When he makes a promise to someone, when he makes a deal, when he makes an agreement, when he makes an arrangement, he has integrity and he sticks by it and he stuck by it. It was falling around——falling apart around him as Detective Gazza continued to question him, but he stuck to one thing. He stuck to his integrity not to disclose that plan, that arrangement. 12 RT 2864-65. Because Petitioner's defense relied on his alleged agreement 24 with the victim, counsel strategically emphasized Petitioner's 25 integrity in keeping to that agreement. 26 have thought that testimony regarding a prison code of integrity 27 which required Petitioner to lie to the police might hinder his 28 defense instead of helping it. Counsel reasonably could Furthermore, if the jury did not 35 1 believe Petitioner's testimony regarding his agreement with the 2 victim, it is unlikely that expert testimony about the prison code 3 of lying to the police would have strengthened his credibility. 4 Therefore, counsel's failure to call a corrections expert was 5 neither deficient nor prejudicial. 3. Failure to Call Character Witnesses 6 7 Petitioner contends that counsel was ineffective for failing 8 to call three of his family members who would testify that he had 9 a difficult time adjusting to society after he was released from United States District Court For the Northern District of California 10 prison. Petitioner states that Janis Jones, his sister, would 11 have testified that, after Petitioner was released on parole, she 12 had to assist him in purchasing necessary, everyday things that a 13 normal person would take for granted. 14 two nieces would have testified that, after Petitioner was 15 released on parole, they had to help him buy groceries because he 16 could not go into a grocery store without experiencing a panic 17 attack. 18 the jury understand his difficulties in adjusting to society after 19 his release from prison, and would have bolstered his credibility. Petitioner states that his Petitioner argues that this testimony would have helped 20 Petitioner's adjustment problems after his release from 21 prison did not excuse or mitigate the sexual crimes he committed. 22 Counsel cannot be faulted for failing to introduce testimony that 23 was irrelevant to the issue of whether Petitioner sexually 24 assaulted the victim. 25 family members was neither deficient nor prejudicial. 26 4. Failure to Enlarge Photographs Counsel's failure to call Petitioner's 27 Petitioner argues that counsel was ineffective for failing to 28 enlarge photographs of the less injured side, or left side, of the 36 1 victim's neck to counter the prosecution's enlarged photographs of 2 the more injured right side of her neck. The nurse who examined the victim after the assault testified 3 4 that there were some injuries on the left side of the victim's 5 neck, though they were not as extensive as the injuries on the 6 right side of her neck. 7 that enlarging the photos of the left side of the victim's neck 8 would have emphasized the injuries on that side, undermining his 9 argument that the disparity between the injuries on the two sides Counsel could reasonably have decided United States District Court For the Northern District of California 10 of the victim's neck showed Petitioner choked her with only one 11 hand. 12 choked the victim with one hand or two was not determinative of 13 whether he assaulted her with force likely to produce great bodily 14 injury. 15 performed ineffectively by not showing the jury enlarged photos of 16 the left side of the victim's neck. Furthermore, as discussed previously, whether Petitioner Therefore, Petitioner fails to demonstrate counsel 5. Failure to Impeach Witnesses 17 a. The Victim 18 19 Petitioner argues that counsel should have impeached the 20 victim with the the tape of her interview with Detective Robert 21 MacAulay. 22 during the interview, when Detective MacAulay left the room, the 23 victim took notes from her purse, reviewed them and, when 24 Detective MacAulay returned, she quickly replaced her notes into 25 her purse. 26 victim was not truthful. 27 have impeached her with her testimony that she gave her notes to According to Petitioner, the tape would show that, Petitioner contends that this would show that the Petitioner also contends counsel could 28 37 1 Detective MacAulay because Detective MacAulay testified that she 2 did not give him her notes. 3 Defense counsel's impeachment of the victim on this issue was 4 not deficient or prejudicial. Counsel cross-examined the victim 5 about her use of notes during the police interview. 6 from the victim testimony that she wrote notes before her 7 interview with Detective MacAulay and, at one point during the 8 interview, she asked Detective MacAulay to retrieve her purse in 9 which she had the notes. 8 RT 2032-34. He elicited The victim stated that, United States District Court For the Northern District of California 10 after Detective MacAulay brought her the purse, she got her notes 11 out from the purse and referred to them several times during the 12 interview. 13 notes at the police station, gave them to Detective Macaulay or 14 threw them away. 15 Detective MacAulay and elicited his testimony that the victim 16 brought notes to her interview with him and he did not take those 17 notes or obtain copies of them. 18 The victim also testified that either she left the During the defense case, counsel called 10 RT 2519. Because counsel questioned the victim about her notes and she 19 admitted she used them during her interview with Detective 20 MacAulay, playing the videotape of the interview to show that the 21 victim used notes would have been redundant. 22 ineffective for failing to show the videotape. 23 victim did not say she gave her notes to Detective MacAulay, as 24 Petitioner suggests, but testified that she either gave them to 25 him, left them at the station or threw them away. 26 claim that Detective MacAulay's testimony would have impeached the 27 victim is not accurate. 28 38 Counsel was not Furthermore, the Petitioner's 1 Petitioner also contends that the tape shows that the victim 2 had "no new details to offer and no new insights from her long 3 'spiritual' journey to 'recovery.'" 4 is demonstrated by the fact that, during the interview, the victim 5 showed little of the emotional turmoil that she demonstrated 6 during the trial. 7 that the victim's lack of emotion during her interview shows that 8 her trial testimony about a spiritual journey to recovery after 9 the sexual assault was not believable. Pet. at 59. Petitioner argues that this Petitioner apparently is inferring Petitioner's failure to United States District Court For the Northern District of California 10 mention this claim in his traverse may be an indication that he is 11 abandoning it. 12 victim about her "lack of emotion" during the interview or about 13 her emotional recovery appears to be a reasonable strategic 14 decision not to upset or badger a sympathetic witness, which would 15 have been prejudicial to Petitioner's case. 16 not to impeach the victim regarding her emotional state of mind 17 was neither deficient nor prejudicial. 18 19 In any event, that counsel did not question the Counsel's decision b. Reverend Vining Petitioner argues that counsel was deficient for failing to 20 impeach Reverend Vining with the reasons he moved to Ohio. 21 argument was addressed above in regard to Petitioner's claim that 22 counsel was ineffective for failing to investigate why Reverend 23 Vining moved to Ohio. 24 ineffective for failing to investigate this issue, he was not 25 ineffective for failing to impeach Reverend Vining on this theory. 26 27 28 This For the same reasons that counsel was not 6. Failure to Assert Due Process Challenge Petitioner claims counsel was ineffective for not preserving an issue that the Court of Appeal determined was forfeited because 39 1 it was not argued before the trial court, namely, whether the 2 state clergy-penitent privilege is "congruent with the Free 3 Exercise Clause in its pre-1990 manifestation." 4 discussed previously, the state court's decision that the clergy- 5 penitent privilege did not apply to Petitioner could not support a 6 due process claim. 7 during Petitioner's trial was not ineffective. 8 Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (trial counsel cannot 9 have been ineffective for failing to raise a meritless motion). As Therefore, counsel's failure to assert it See Juan H. v. 7. Failure to Object 10 United States District Court For the Northern District of California Pet. at 62. Petitioner contends that trial counsel was ineffective 11 12 because he failed to object to the prosecutor's alternate theories 13 in closing argument that the crimes were opportunistic and the 14 result of stalking. 15 The prosecutor argued that Petitioner was stalking the victim 16 with the intent to rape her and, on the day of the crime, found an 17 opportunity to carry out his intent when he saw her parked on the 18 side of a deserted road. 19 inconsistent. 20 assistance. 21 1999) (petitioner did not show that (1) had counsel objected, it 22 was reasonable that trial court would have sustained objection as 23 meritorious; and 24 reasonable that there would have been an outcome more favorable to 25 petitioner). 26 // 27 // 11 RT 2885. This argument was not Counsel's failure to object was not ineffective See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. (2) had objection been sustained, it was 28 40 1 8. Failure to Argue a. Failure to Counter Prosecutor's Argument 2 3 Petitioner contends trial counsel failed to counter the 4 prosecutor's closing argument. 5 had made an agreement with the victim to pretend to rape her, and 6 that the contrary testimony of the victim and Reverend Vining was 7 not credible. 8 making an argument based on Petitioner's testimony and the 9 evidence presented to the jury. United States District Court For the Northern District of California See 11 RT 2859-71. Counsel cannot be faulted for b. Victim Accomplished Her Goals 10 11 Counsel countered that Petitioner Petitioner argues that counsel was ineffective for failing to 12 argue that the victim accomplished her goals for enlisting his 13 help to stage a rape——that is, the victim (1) obtained full 14 custody of her son; (2) received full financial support from the 15 child's father; and (3) broke away from her son's father to live 16 with another. 17 had emphasized this in his closing argument, Petitioner's 18 credibility would have been bolstered. 19 Pet. at 63. Petitioner contends that, if counsel The prosecutor called the father of the victim's son to rebut 20 Petitioner's testimony. 21 victim shared time caring for their son, that the victim's 22 relationship with R.F. did not cause any tension between himself 23 and the victim, that his relationship with the victim was loving 24 and they liked spending time with each other as shown by the fact 25 that they took vacations together. 26 The father testified that he and the 10 RT 2727-30. Contrary to Petitioner's argument, the evidence did not show 27 that the victim had full custody of her son or that she received 28 full financial support from the father of her son. 41 Rather, the 1 evidence showed that the father and the victim had a friendly, 2 loving relationship that would not require the victim to ask 3 Petitioner to pretend to rape her in order to accomplish her 4 "goals" with her son's father. 5 the victim "accomplished" her goals was not ineffective because 6 the evidence did not support such an argument. 9. Stipulation Against Petitioner's Interests 7 Petitioner argues counsel was ineffective for entering into a 8 9 United States District Court For the Northern District of California 10 Counsel's failure to argue that stipulation about the room in which Petitioner met with Reverend Vining. Petitioner's counsel offered a stipulation that before 11 12 Reverend Vining met with Petitioner at the Santa Cruz County Jail, 13 the jail chaplain, Chaplain Seifert, explained to Reverend Vining 14 "that the type of room in which he was meeting with Mr. Allen was 15 an attorney-contact room in which conversations are not recorded." 16 3 RT 507. 17 that information was communicated to Mr. Allen. 18 didn't communicate with Mr. Allen at all." 19 counsel did not object and the court accepted the stipulation. 20 Id. 21 Chaplain Seifert told him that his meeting with Reverend Vining 22 "would be in an attorney-client room and remain confidential." 23 Pet. at 65, Exh. K ¶ 21. 24 Chaplain Seifert's representation, he agreed to meet with Reverend 25 Vining. 26 this. 27 28 The prosecutor added to the stipulation that "none of Mr. Seifert 3 RT 507. Defense Petitioner submits his declaration in which he states that Id. Petitioner declares that, based on Petitioner also declares that he informed counsel of Id. Petitioner argues that the stipulation was prejudicial because the state court determined that his conversation with 42 1 Reverend Vining was not confidential based, in part, on the fact 2 that Petitioner did not know their conversation could not be 3 overheard. 4 Assuming counsel knew that Petitioner believed his 5 conversation with Reverend Vining could not be overheard, 6 counsel's stipulation that Petitioner lacked such knowledge may 7 have constituted deficient performance. 8 not established prejudice. 9 However, Petitioner has As discussed above, under California Evidence Code section United States District Court For the Northern District of California 10 1032, the privilege only applies when a communication is made to a 11 member of the clergy who has a duty to keep the communication 12 secret. 13 penitent privilege did not apply to Petitioner's confession to 14 Reverend Vining, in part, on the fact that, when Reverend Vining 15 spoke with Petitioner, he was not acting as a member of the 16 clergy. 17 knowledge about the room in which he spoke with Reverend Vining 18 would not change the Court of Appeal's finding that Reverend 19 Vining was not acting as a minister during this conversation. 20 Because Petitioner has not shown a reasonable probability that, 21 but for counsel's unprofessional errors, the result of the 22 proceeding would have been different, this claim fails. 23 24 The Court of Appeal based its conclusion that the clergy- See People v Allen, 2008 WL 214856, at *8. Petitioner's In summary, none of Petitioner's arguments establish that his trial counsel's performance was ineffective. 25 D. Ineffective Assistance of Appellate Counsel 26 Petitioner argues that appellate counsel was ineffective 27 because he failed to raise the following claims on appeal: (1) the 28 policy of the Santa Cruz County Sheriff's Department of routinely 43 1 using physical restraints on defendants during trial violates due 2 process; (2) the denial of his motion to recuse the trial judge 3 violated his due process rights; (3) admission of his rape 4 fantasies violated his Fifth Amendment rights; (4) the prosecutor 5 committed misconduct by denigrating defense counsel; 6 (5) insufficient evidence supported the charge of assault with 7 force likely to produce great bodily injury; and (6) trial counsel 8 was ineffective. 1. Federal Authority 9 United States District Court For the Northern District of California 10 The due process clause of the Fourteenth Amendment guarantees 11 a criminal defendant the effective assistance of counsel on his 12 first appeal as of right. 13 (1985). 14 reviewed according to the standard set out in Strickland. 15 v. Robbins, 528 U.S. 259, 285 (2000). 16 show that counsel’s performance was objectively unreasonable, 17 which in the appellate context requires the petitioner to 18 demonstrate that counsel acted unreasonably in failing to discover 19 and brief a meritorious issue. 20 show prejudice, which in this context means that the petitioner 21 must demonstrate a reasonable probability that, but for appellate 22 counsel’s failure to raise the issue, the petitioner would have 23 prevailed in his appeal. 24 Evitts v. Lucey, 469 U.S. 387, 391-405 Claims of ineffective assistance of appellate counsel are Id. Smith First, the petitioner must Second, the petitioner must Id. Appellate counsel does not have a constitutional duty to 25 raise every nonfrivolous issue requested by the defendant. Jones 26 v. Barnes, 463 U.S. 745, 751-54 (1983). 27 issues is widely recognized as one of the hallmarks of effective 28 appellate advocacy. The weeding out of weaker Miller v. Keeney, 882 F.2d 1428, 1434 (9th 44 1 Cir. 1989). 2 above an objective standard of competence and have caused his 3 client no prejudice for the same reason——because he declined to 4 raise a weak issue. Id. 2. Analysis 5 6 Appellate counsel therefore will frequently remain Many of the grounds for Petitioner's claims of ineffective 7 assistance of appellate counsel have been discussed above and have 8 been denied. 9 (2) insufficient evidence of assault with force likely to cause These are the claims based on (1) the leg brace; United States District Court For the Northern District of California 10 great bodily injury; and (3) ineffective assistance of trial 11 counsel. 12 was not ineffective for failing to assert them on appeal and 13 Petitioner has not shown a reasonable probability that the result 14 would have been different had counsel done so. 15 Because these claims have no merit, appellate counsel In a letter to Petitioner, appellate counsel explained his 16 reasons for not raising the remaining claims Petitioner suggested. 17 See Pet., Ex. K, App'x. 3 (appellate counsel's letter to 18 Petitioner). 3. Judicial Bias 19 20 During the trial, Petitioner, under California Civil 21 Procedure Code section 170.1, filed a pro se motion for recusal of 22 the trial judge based on a comment that he made during jury 23 selection. 24 another judge, who rejected it. 25 Petitioner that he would not assert a claim of judicial bias 26 because the judge's comment was "a very thin reed to support so 27 weighty a claim" and no other evidence showed that the judge was 28 biased. Ex. K, App'x. 3 at 2. The motion was referred to Id. Exh. K, App'x. 3 at 2. 45 Appellate counsel informed 4. Miranda Violation 1 2 Petitioner claims appellate counsel should have argued that 3 admitting Petitioner's rape fantasies violated his Fifth Amendment 4 rights under Miranda v. Arizona, 384 U.S. 436 (1966). 5 counsel reminded Petitioner that he had raised this issue on 6 appeal as grounds for a claim of ineffective assistance of counsel 7 and a violation of California Evidence Code sections 352 and 1101. 8 Appellate counsel explained that the admission of the rape 9 fantasies did not constitute a Miranda violation because Appellate United States District Court For the Northern District of California 10 statements given without a Miranda warning are suppressed only for 11 the prosecutor's case in chief, but may be used to impeach the 12 defendant. 13 impeach Petitioner, there was no Fifth Amendment right to 14 suppression. 15 informed Petitioner that he could not claim that Petitioner's 16 statements to the psychologist were involuntary because the 17 evidence supported the finding that Petitioner made the statements 18 voluntarily. 19 20 Because the prosecutor used the rape fantasies only to Exh. K, App'x. 3 at 3. Appellate counsel also Id. 5. Prosecutorial Misconduct Petitioner argues that appellate counsel should have asserted 21 a claim of prosecutorial misconduct based upon the prosecutor's 22 closing remark that defense counsel was fabricating a defense. 23 Appellate counsel pointed out to Petitioner that the prosecutor 24 did not argue that defense counsel was fabricating a defense, but 25 that Petitioner was fabricating a defense, which was a proper 26 closing argument for the prosecutor. 27 28 Exh. K, App'x. 3 at 3. In summary, appellate counsel's explanations to Petitioner demonstrate that he made considered, tactical decisions not to 46 1 raise the claims Petitioner suggested. His considered, strategic 2 choices do not constitute ineffective assistance of counsel. 3 Jones, 463 U.S. at 752-53 (appellate counsel's obligation is to 4 examine the record to select most promising issues for review and 5 to weed out weaker arguments). 6 ineffective assistance of appellate counsel is denied. See Therefore, the claim of 7 E. Cumulative Effect of Errors 8 Petitioner argues the cumulative effect of all the alleged 9 United States District Court For the Northern District of California 10 constitutional errors entitles him to habeas relief. In some cases, although no single trial error is sufficiently 11 prejudicial to warrant reversal, the cumulative effect of several 12 errors may still prejudice a defendant so much that his conviction 13 must be overturned. 14 2011). 15 accumulate to the level of a constitutional violation. 16 Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. Where no single constitutional error exists, nothing can Id. As discussed above, no constitutional errors were made during 17 Petitioner's trial. 18 level of a constitutional violation. 19 IV. Evidentiary Hearing 20 Therefore, no errors could accumulate to the This claim is denied. Petitioner moves for an evidentiary hearing on several 21 claims. 22 There are no material factual disputes in the record that, if 23 resolved in Petitioner's favor, would entitle him to relief. 24 Accordingly, Petitioner’s request for an evidentiary hearing on 25 26 27 Petitioner has failed to state a claim for habeas relief. any ground is denied. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (no hearing required if allegations, viewed against the record, fail to state a claim for relief). 28 47 1 2 V. Certificate of Appealability The federal rules governing habeas cases brought by state 3 prisoners require a district court that denies a habeas petition 4 to grant or deny a certificate of appealability in the ruling. 5 Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 6 7 8 A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a certificate of appealability "only if the 9 applicant has made a substantial showing of the denial of a United States District Court For the Northern District of California 10 constitutional right." 28 U.S.C. § 2253(c)(2). The certificate 11 must indicate which issues satisfy this standard. 28 U.S.C. 12 § 2253(c)(3). “Where a district court has rejected the 13 constitutional claims on the merits, the showing required to 14 satisfy § 2253(c) is straightforward: The petitioner must 15 16 17 18 demonstrate that 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 Court finds that reasonable jurists would not find its 19 ruling on any of Petitioner’s claims debatable or wrong. 20 Therefore, a certificate of appealability is denied. 21 Petitioner may not appeal the denial of a certificate of 22 appealability in this Court but may seek a certificate from the 23 Court of Appeals under Rule 22 of the Federal Rules of Appellate 24 Procedure. 25 Cases. 26 See Rule 11(a) of the Rules Governing Section 2254 CONCLUSION 27 Based on the foregoing, the Court orders as follows: 28 1. The petition for a writ of habeas corpus is denied. 48 1 2. The request for an evidentiary hearing is denied. 2 3. The Clerk of the Court shall enter a separate judgment, 3 terminate all pending motions and close the file. 4 4. A certificate of appealability is denied. 5 6 IT IS SO ORDERED. Dated: September 26, 2014 ____________________________ CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 49

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?