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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 10-4516 CW (PR)

WILLIAM M. ALLEN,
Petitioner,
v.
JOE LIZARRAGA, Acting Warden,

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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

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Petitioner William M. Allen, a state prisoner proceeding pro

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se, filed this petition for a writ of habeas corpus pursuant to

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28 U.S.C. § 2254, challenging his state criminal conviction, in

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which he asserts the following claims: (1) due process violation

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based on the trial court's refusal to suppress his confession to a

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minister; (2) insufficient evidence to support his assault

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conviction; (3) ex post facto clause violation based on the

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court's failure to strike two of his prior convictions;

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(4) erroneous denial of his state habeas petition based on

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substantial delay; (5) due process violation based on the court

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ordering him to wear a leg brace during trial; (6) ineffective

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assistance of trial counsel; and (7) ineffective assistance of

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appellate counsel.

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DENIES the petition and a certificate of appealability.

For the reasons discussed below, the Court

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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

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I. Procedural History
In 2005, a Santa Cruz County jury found Petitioner guilty of

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multiple sex crimes.

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November 7, 2005, the trial court sentenced Petitioner to 260

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years to life in prison.

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Petitioner appealed his conviction, asserting the following

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federal claims: (1) First Amendment and due process violations

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based on the admission of his confession to Reverend Vining;

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On

On August 18, 2006,

United States District Court
For the Northern District of California

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(2) ineffective assistance of counsel because counsel allowed the

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prosecutor to have access to Petitioner's psychological

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evaluation; and (3) ex post facto clause violation based on the

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trial court's failure to strike his prior sex-crime convictions.

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On January 25, 2008, the California Court of Appeal affirmed the

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judgment.

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25, 2008) (unpublished).

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Supreme Court summarily denied review.

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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

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habeas corpus in the Santa Cruz County Superior Court.

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2, 2009, the Superior Court denied the petition because it was

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filed late without justification for the significant delay or an

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explanation of why many of the claims were not addressed on direct

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appeal.

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California Court of Appeal and California Supreme Court were

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summarily denied.

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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

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for a writ of habeas corpus.

On November 17, 2010, the case was

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dismissed without prejudice because Petitioner had failed to file
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a complete application for leave to proceed in forma pauperis.

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June 26, 2012, the Court granted Petitioner's motion to reopen his

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action, vacated the order of dismissal, granted leave to proceed

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in forma pauperis and directed Respondent to show cause why the

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petition should not be granted.

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and ready for the Court's review on the merits.

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II. Statement of Facts

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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:

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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.

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I. Prosecution Case

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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.

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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.”
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United States District Court
For the Northern District of California

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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.

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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.

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J.N. testified that she had never met defendant or even
seen him before the spree of sex crimes he committed
against her.

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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.

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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
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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.

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II. Defense Case
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United States District Court
For the Northern District of California

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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
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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.

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II. Prosecution Rebuttal Case

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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.

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People v Allen, 2008 WL 214856, at *1-3.
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LEGAL STANDARD
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A federal court may entertain a habeas petition from a state
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United States District Court
For the Northern District of California

prisoner “only on the ground that he is in custody in violation of
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the Constitution or laws or treaties of the United States.”
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U.S.C. § 2254(a).

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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:

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“(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in

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the State court proceeding.”

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Taylor, 529 U.S. 362, 412 (2000).

28 U.S.C. § 2254(d); Williams v.

A state court decision is “contrary to” Supreme Court

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authority, that is, falls under the first clause of § 2254(d)(1),

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only if “the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the

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state court decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.”
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Id. at 412-

A state court decision is an “unreasonable application of”
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Supreme Court authority, under the second clause of § 2254(d)(1),

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if it correctly identifies the governing legal principle from the

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Supreme Court’s decisions but “unreasonably applies that principle

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to the facts of the prisoner’s case.”

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court on habeas review may not issue the writ “simply because that

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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.
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Id. at 409.

Under AEDPA, the writ may be granted only “where

United States District Court
For the Northern District of California

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there is no possibility fairminded jurists could disagree that the
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state court’s decision conflicts with this Court’s precedents.”
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Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
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If constitutional error is found, habeas relief is warranted
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only if the error had a “‘substantial and injurious effect or
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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

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court to consider the petitioner’s claims, the court looks to the

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last reasoned opinion of the highest court to analyze whether the

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state judgment was erroneous under the standard of § 2254(d).

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Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

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case, the highest court to issue a reasoned decision on three of

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Petitioner’s claims is the California Court of Appeal.

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In the present

If no state court has adjudicated a federal claim on the

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merits, the federal court must review the claim de novo.

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Bell, 556 U.S. 449, 472 (2009); see also Pirtle v. Morgan, 313

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F.3d 1160, 1167-68 (9th Cir. 2002) (holding that de novo standard
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Cone v.

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of review rather than the deferential standard of § 2254(d)

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applies where state courts never reached merits of habeas claim).

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As discussed below, there is no reasoned state court decision for

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the claims Petitioner presented in his state habeas petitions and

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the Court reviews those claims de novo.
DISCUSSION

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I. Claims Presented on Appeal
The Court first reviews the claims Petitioner presented on
direct appeal.

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A. Admission of Petitioner's Statements to Reverend Vining
United States District Court
For the Northern District of California

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Petitioner contends that the trial court denied his right to
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due process by refusing to suppress his statements to Reverend
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Vining.

The Court of Appeal held that Petitioner forfeited this

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constitutional claim because he did not make this argument to the
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trial court and he did not assert it until his reply on appeal.
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Although the Court of Appeal did not address the merits of
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Petitioner's constitutional claim, it addressed the merits of his
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related state law claim, that his confession to Reverend Vining
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violated California Evidence Code sections 1030-1033, which
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prohibit the admission of a communication made in confidence in
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the course of the clergy-penitent relationship.

Although a

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federal habeas court may not review a state court's ruling
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regarding a state law claim, see Swarthout v. Cooke, 131 S. Ct.
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859, 861 (2011), this ruling is presented below because it
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pertains to other constitutional claims Petitioner asserts.
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1. Superior Court Opinion
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The Court of Appeal denied Petitioner's state law claim as
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follows:
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United States District Court
For the Northern District of California

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[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."

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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
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private any conversation that the two might have.
Vining did not perceive that defendant was making a
confidential communication to him.

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After receiving defendant’s statement that he raped
J.N., Vining later informed a jailer, Sergeant McAulay,
and other people about it.

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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.

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United States District Court
For the Northern District of California

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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
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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."

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[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."

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. . . [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.

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United States District Court
For the Northern District of California

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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.)

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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.
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United States District Court
For the Northern District of California

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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.

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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.)

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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
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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

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8
9

United States District Court
For the Northern District of California

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