Green v. Swarthout

Filing 16

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 7/28/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 7/28/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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v.

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G. SWARTHOUT, Warden,
Respondent.

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United States District Court
For the Northern District of California

ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS; DENYING
CERTIFICATE OF
APPEALABILITY

Petitioner,

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No. C 12-1872 CW (PR)

FRANK G. GREEN,

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Petitioner Frank G. Green, a state prisoner proceeding pro se,
filed this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his state criminal conviction, in which
he asserts four claims: (1) violation of the Confrontation Clause;
(2) violation of Brady v. Washington, 373 U.S. 83 (1963);
(3) ineffective assistance of trial counsel; and (4) ineffective
assistance of appellate counsel.

and a memorandum of points and authorities in support thereof and
Petitioner has filed a traverse.

BACKGROUND
I. Procedural History

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For the reasons discussed below,

the Court DENIES the petition and a certificate of appealability.

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Respondent has filed an answer

On April 11, 2008, the San Francisco County Grand Jury
charged Petitioner with murder.

Clerk’s Transcript (CT) at 3-4.

On March 4, 2009, a jury trial commenced and, on May 13, 2009, the
jury found Petitioner guilty of second degree murder.
262.

CT at 150,

On July 10, 2009, the trial court sentenced Petitioner to

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state prison for fifteen years to life.

CT at 328-30.

Petitioner

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appealed, asserting a Confrontation Clause claim.

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2011, the California Court of Appeal affirmed the judgment in an

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unpublished decision.

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193358 (Cal. Ct. App. Jan 21, 2011).

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California Supreme Court summarily denied review.

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Petitioner filed a petition for a writ of habeas corpus in San

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Francisco County Superior Court, asserting claims of a Brady

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violation and ineffective assistance of trial and appellate

On January 21,

Ex. B, People v. Green, A125684; 2011 WL
On April 13, 2011, the
Ex. C.

United States District Court
For the Northern District of California

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counsel.

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petition.

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corpus, raising these issues, in the California Court of Appeal

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and the California Supreme Court, both of which were summarily

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denied.

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petition for a writ of habeas corpus.

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II. Statement of Facts

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In a brief written order, the Superior Court denied the
Ex. D.

Id.

Petitioner filed petitions for a writ of habeas

On April 16, 2012, Petitioner filed this federal

The California Court of Appeal summarized the facts of this
case as follows:
The murder victim, Sherry Davis, lived in apartment number
602 in a six-floor apartment building at 155 Hyde Street in
San Francisco. Defendant was her “boyfriend,” and lived with
her in the apartment. According to Ashley Davis, [FN1]
Sherry’s daughter, defendant was “dominating” and
“controlling” with the victim, typically “ordering her
around” and “telling her” to do things for him. In the past,
defendant also verbally abused and threatened Sherry.
FN1 To avoid confusion we will refer to the victim
Sherry Davis and her daughter Ashley Davis by their
first names.
Ruth Marest occupied apartment 601 in the same building,
next to the victim’s residence. Their apartments shared
a common kitchen wall. Marest was acquainted with both
the victim and defendant. On the afternoon of November

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4, 2005, from her kitchen Marest heard Sherry and
defendant arguing. They argued frequently, so Marest
was not “too concerned,” until the argument “started to
escalate” and she heard “scuffling” and heavy “bumping”
against the wall. Marest then heard a woman’s voice
yelling, “Help me. Help me. Please help me.” Marest
looked out her kitchen window and saw a woman next door
only 15 inches away, with her neck “against the window
sill” and her head “being shaken back and forth.” She
did not recognize the woman or her “distorted” voice
because her throat was pressed against the window and
her “head was being shaken” vigorously. Marest also
noticed that the window curtain had blood stains on it.

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United States District Court
For the Northern District of California

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Suddenly, the woman was pushed out of the window, and
fell to the ground “on her back, face up, on the first
floor landing.” The woman’s “blouse was up,” and her
“face was very bloody.” Marest called 911. While she
was on the phone with the operator she heard another
“woman’s voice” from inside the victim’s apartment say,
“Oh, my God, what did you do?”

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Joseph Dalton, another resident of the same building in
apartment number 301, heard the argument from his
kitchen. He heard a “very passive” and quiet woman’s
voice above him pleading for “help.” Dalton had heard
the same voice before many times crying for help, so he
thought, “no, not this again,” and closed his kitchen
window. He nevertheless continued to hear a “struggle
going on,” and “knew somebody was fighting up there.”
“There was a lot of noise and vibration,” the “whole
building shook,” and a window was opened and closed
several times. Dalton called 911 to report that
“somebody was fighting up there.” As he sat at his
kitchen table next to the window he “saw something” out
of corner of his eye that he thought was a shadow, but
then realized was a “lady falling.” He then heard a
“huge crash” on the landing of the building. Dalton
looked down and observed a woman lying on the ground
“just looking up,” with a “horrified look” on her face.
While he was waiting for a bus at Turk and Hyde Streets,
Jeremy Brady also heard the sound of a “very loud,”
“intense” argument between a man and a woman emanating
from the top left window of the apartment complex across
the street at 155 Hyde Street. The argument continued,
with a “lot of yelling” and “screaming.” As Brady looked
up, he observed a “woman’s buttocks j[u]tting out of a
window.” The woman held onto the window sill and pulled
“herself back in” two times, but was pushed out again.
The third time, she was pushed completely out of the
window and fell into the alley below, “screaming on the
way down.” After she fell, Dalton heard a man from the
window yell, “Take that, you fucking bitch.” The man
was about “middle age,” with “very short” hair, and
appeared to be “African-American.”
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United States District Court
For the Northern District of California

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Paramedics from the San Francisco Fire Department
arrived at 155 Hyde Street in response to a dispatch of
a “person thrown from a window” at 2:30 p.m. . . . A
single sandal and a white T-shirt with “what appeared to
be blood stains” and drops on it were found in the
landing area near the victim. The victim was
transported to San Francisco General Hospital, but she
died the next day.
San Francisco police officers also arrived at the scene
around 2:30 p.m. Officer Mario Busalacchi “responded up
to the sixth floor” of the building, and noticed that
the “door to room 602 was ajar.” Officer Busalacchi
entered the room, which was unoccupied. He noticed
“blood throughout the whole apartment, on the walls, on
the floor, on the windows.” Busalacchi, assisted by
other officers, inspected the scene and booked evidence
that was seized from the apartment. [FN2]
FN2 A videotape of the crime scene was also played
for the jury.

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Blood was found on the kitchen counter, the
refrigerator, a dish towel, a shower curtain, pants, Tshirts, bathrobes, and a shoe. According to a police
inspector who investigated the scene, the blood stains
were “consistent with some type of medium velocity
stain, probably——consistent with somebody being struck.”
“Hair swipe” stains discovered on the wall were in “a
classic pattern” which indicated a head with “bloody
hair” had been forcefully banged into the wall. A
“smear pattern” blood stain on the edge of the kitchen
window was consistent with someone who had bloody hands
and was “trying to prevent themselves from being pushed
out the window by grabbing the side of the wall.” Drops
of blood were also found directly below the kitchen
window sill that were indicative of a bloody face or
head held over the window. Also visible on the exterior
wall of the adjacent building, about five feet away, was
a “glob of blood” that had been projected with
considerable force.

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Documents with defendant’s and the victim’s names on
them were found in the apartment. Other items also
seized from the apartment that the officers believed
belonged to defendant were a blood-stained Nike T-shirt,
a jacket, a black glove, pills and other medication, a
cell phone, a syringe, and a watch with blood on it.
[FN3]

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FN3 The victim’s daughter testified that the watch
belonged to defendant.
Analysis of Sherry’s blood-stained T-shirt found in the
apartment landing area near her revealed a mixture of

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United States District Court
For the Northern District of California

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DNA from both the victim and defendant. A Nike T-shirt
seized from the floor of the apartment contained
defendant’s DNA as the “major component” on the inside
of the rear collar, indicating that he was the “habitual
user” of the shirt. “[E]xtensive blood staining” on the
“upper left-front panel” of the Nike T-shirt contained
the victim’s DNA. The blood stains on the front of the
Nike T-shirt were of two types: a “three-finger contact
pattern” of blood transfer with the fingers facing
upward; and drops of blood in a “medium velocity impact
spatter.” An expert offered the opinion that the finger
pattern occurred when the victim’s bloody fingers
touched defendant’s chest while the shirt was being
worn. The drops of blood appeared to be from a source
standing in front of the shirt, consistent with
defendant punching or hitting the victim. Three “long
marks” of blood stain transfer patterns were also
observed on the inside of the Nike T-shirt, suggestive
of “the shirt being taken off” by someone with bloody
fingers.
An autopsy of the victim revealed that she died of
“multiple blunt traumatic injuries” to the “head, torso
and extremities.” . . . The coroner testified that . . .
the manner of death was homicide, not suicide or
accident.
The prosecution also adduced testimony from defendant’s
[sic] daughter Ashley Davis, who visited her mother at
her apartment the evening before she died. Ashley
testified that the apartment “was fine,” with no blood
on the walls, and Sherry “looked normal.” According to
Ashley, Sherry was “leaving” defendant, and planning to
move with her to Florida. Sherry had packed some bags
in the apartment in preparation for the move. Ashley
testified that the victim diligently took her prescribed
medication for bipolar disorder, and was not suicidal.

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Evidence related to other prior acts of domestic
violence committed against the victim by defendant was
also presented.

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. . .
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Sherry made a [] 911 call to the police from her Hyde
Street apartment on October 14, 2005, just a few weeks
before she was killed. Ashley was present in the
apartment when the call was made. Just before Sherry
called the police, Ashley observed defendant park his
car on the side of the apartment building and yell to
Sherry that he “was going to find her” and “do something
to her” or have “other people do stuff to her.” Sherry
was “scared” and called 911. In the 911 call, [FN4]
Sherry told the operator that defendant was outside her
apartment building, “hollering” and “threatening” her.
She added that defendant was “really mad,” and could
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“get inside the building” and into her apartment.
Sherry expressed that she was “scared” defendant was
“going to try to hurt” her, and asked for police
officers to “hurry.”
FN4 An audiotape of the 911 call was played for
the jury.
Ex. B at 1-6 (footnotes in original).
LEGAL STANDARD

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A federal court may entertain a habeas petition from a state

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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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United States District Court
For the Northern District of California

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U.S.C. § 2254(a).

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Penalty Act (AEDPA) of 1996, a district court may not grant habeas

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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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Under the Antiterrorism and Effective Death

unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in

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the State court proceeding.”

28 U.S.C. § 2254(d); Williams v.

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Taylor, 529 U.S. 362, 412 (2000).
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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.”
529 U.S. at 412-13.

Williams,

A state court decision is an “unreasonable

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application of” Supreme Court authority, under the second clause

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of § 2254(d)(1), if it correctly identifies the governing legal

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principle from the Supreme Court’s decisions but “unreasonably

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applies that principle to the facts of the prisoner’s case.”

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at 413.

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“simply because that court concludes in its independent judgment

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that the relevant state-court decision applied clearly established

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Id.

The federal court on habeas review may not issue the writ

federal law erroneously or incorrectly.”

Id. at 411.

Rather, the

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

Id. at 409.

Under AEDPA, the writ may be granted only

“where there is no possibility fairminded jurists could disagree
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that the state court’s decision conflicts with this Court’s
United States District Court
For the Northern District of California

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precedents.”

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,

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532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.
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619, 638 (1993)).
When there is no reasoned opinion from the highest state
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 the

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Confrontation Clause claim is the California Court of Appeal and

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the highest court to issue a reasoned decision on the Brady and

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ineffective assistance of counsel claims is the Superior Court.

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In the present

DISCUSSION
I. Confrontation Clause Claim
Petitioner, citing Crawford v. Washington, argues that the
trial court violated his due process and confrontation rights by
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admitting testimony that the victim, Sherry Davis, had identified

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him in Seattle in 1997 as the person who punched her in the face.

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A. Federal Authority

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The Confrontation Clause of the Sixth Amendment provides that

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in criminal cases the accused has the right to “be confronted with

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the witnesses against him.”

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confrontation right applies to the states through the Fourteenth

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Amendment.

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U.S. Const. amend. VI.

The federal

Pointer v. Texas, 380 U.S. 400, 403 (1965).

The ultimate goal of the Confrontation Clause is to ensure

United States District Court
For the Northern District of California

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reliability of evidence, but it is a procedural rather than a

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substantive guarantee.

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(2004).

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reliability be assessed in a particular manner: by testing in the

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crucible of cross-examination.

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308, 315-16 (1974) (noting a primary interest secured by the

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Confrontation Clause is the right of cross-examination).

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Crawford v. Washington, 541 U.S. 36, 61

It commands, not that evidence be reliable, but that

Id.; see Davis v. Alaska, 415 U.S.

The Confrontation Clause applies to all "testimonial"

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statements.

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typically a solemn declaration or affirmation made for the purpose

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of establishing or proving some fact."

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Confrontation Clause applies not only to in-court testimony but

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also to out-of-court statements introduced at trial, regardless of

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the admissibility of the statements under state laws of evidence.

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Id. at 50-51.

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Crawford, 541 U.S. at 50-51.

"Testimony . . . is

Id. at 51.

The

Out-of-court statements by witnesses that are testimonial

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hearsay are barred under the Confrontation Clause unless (1) the

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witnesses are unavailable, and (2) the defendant had a prior

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opportunity to cross-examine the witnesses.
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Id. at 59.

When the

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primary purpose of taking an out-of-court statement is to create

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an out-of-court substitute for trial testimony, the statement is

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testimonial hearsay and Crawford applies.

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S. Ct. 1143, 1155 (2011).

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“the admissibility of a statement is the concern of state and

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federal rules of evidence, not the Confrontation Clause.”

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131 S. Ct. at 1155.

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lack of it, may inform the court’s inquiry as to its “primary

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purpose.”

Michigan v. Bryant, 131

When that was not the primary purpose,

Bryant,

The formality of the interrogation, or the

Id. at 1160.

The primary purpose of a statement is

United States District Court
For the Northern District of California

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determined objectively.

United States v. Rojas-Pedroza, 716 F.3d

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1253, 1267 (9th Cir. 2013).

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the subjective or actual purpose of the individuals involved in a

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particular encounter, but rather the purpose that reasonable

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participants would have had, as ascertained from the individuals'

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statements and actions and the circumstances in which the

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encounter occurred.'"

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"Statements are nontestimonial when made in the course of police

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interrogation under circumstances objectively indicating that the

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primary purpose of the interrogation is to enable police

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assistance to meet an ongoing emergency."

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547 U.S. 813, 821-23; 826-29 (2006)(holding that a victim's

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initial statements in response to a 911 operator's interrogation

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were not testimonial because the elicited statements, i.e., naming

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her assailant, were necessary to resolve the present emergency).

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"They are testimonial when the circumstances objectively indicate

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that there is no such ongoing emergency, and that the primary

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purpose of the interrogation is to establish or prove past events

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potentially relevant to later criminal prosecution."

Thus, "'the relevant inquiry is not

Id. (quoting Bryant, 131 S. Ct. at 1156).

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Davis v. Washington,

Id. at 821-

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23; 830-31 (holding that statements made by a domestic battery

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victim in an affidavit given to police officers at the scene were

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testimonial because they memorialized what had already happened

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and did precisely what a witness does on direct examination).
A showing of constitutional error under the Sixth Amendment

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only merits habeas relief if the error was not harmless, that is,

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if it had a "'substantial and injurious effect or influence in

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determining the jury's verdict.'"

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1091, 1100 (9th Cir. 2009) (quoting Brecht v. Abrahamson, 507 U.S.

United States District Court
For the Northern District of California

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Holley v. Yarborough, 568 F.3d

619, 637 (1993)).

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B. Factual Background

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The prosecutor filed a pretrial motion to admit prior

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incidents of domestic violence.

CT at 81-102.

The only incident

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at issue is Sherry Davis’s identification of Petitioner in Seattle

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in 1997.

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the testimony of Seattle Police Officer Jung Trinh.

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Officer Trinh testified to the following:

At the hearing on the motion, the prosecutor presented
RT at 14.

On November 9, 1997, at 4:46 a.m., he was dispatched to

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investigate a “fight disturbance.”

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Aurora Avenue motel and saw a woman walking just south of the

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motel.

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to the right side of her head and a bruise on her left wrist.

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at 17, 20.

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punched her.”

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Trinh.

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Petitioner over the radio.

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herself as Sherry Akers, which was Sherry Davis' name at that

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time.

RT at 17.

RT at 15-16.

He drove to an

The woman was crying, had a bloody mouth, a cut
RT

The woman said “her boyfriend, [Petitioner], had
RT at 19.

RT at 20.

RT at 21.

She described Petitioner to Officer

Officer Trinh put out a description of
RT at 20, 38.

The woman identified

When Officer Trinh asked Sherry what happened,
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she verbally described the circumstances of the assault and then

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wrote out a statement in her motel room after paramedics had

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examined and cleared her.

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statement, Sherry asked to go to a woman’s shelter.

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route to the woman’s shelter in Officer Trinh’s car, Sherry saw

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Petitioner on the street and pointed him out to Officer Trinh.

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at 35.

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seat, appearing to hide from Petitioner.

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continued driving southbound, then completed a u-turn, contacted

United States District Court
For the Northern District of California

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RT at 22, 32-34.

After writing out her
RT at 35.

En

RT

After pointing him out, Sherry laid down across the back

Petitioner and arrested him.

RT at 36.

Officer Trinh

RT at 36-37.

Citing Crawford v. Washington, defense counsel argued the

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statements were testimonial because they were given to an

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investigating officer and the written statement, at least, was to

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be included in a police report.

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conceded Sherry’s initial statement to Officer Trinh, that she had

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been punched by her boyfriend, was nontestimonial and, thus,

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admissible.

RT at 130-33.

Defense counsel

RT at 134.

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The trial court ruled as follows:

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With respect to the Seattle incident, the analysis, I
believe, is that the initial communication between the
officer and Ms. Davis was nontestimonial in nature in that it
was communication which was intended to determine what was
going on at that point in time. And that would be true
through and including the interaction with the paramedics,
. . . But, I believe that when the officer and Ms. Davis went
to the motel room and had a discussion about what had
happened previous to the time that the officer arrived, that
that is an out-of-court analog to in-court testimony, and it
is testimonial in nature and, therefore, Crawford applies,
both to the oral statements, and I think, absolutely clearly,
to the written statements because the officer testified that
he told Ms. Davis prior to the time that she wrote the
statement out that it would be included in a police report,
reviewed by a prosecutor, and perhaps used in court. So that
is very clear.

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Now, we have an interesting twist, because, generally, when
we get to that point in time where Crawford applies, it
applies from that point forward. Here, though, Ms. Davis
gave both a written and oral statement in the motel room.
And then the officer and Ms. Davis determined that it would
be appropriate for her to be transported to a shelter for
domestic violence victims.

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United States District Court
For the Northern District of California

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So Ms. Davis rode in the patrol car with the officer. They
were not looking for Mr. Green. They were on the way to the
shelter. And on the way to the shelter, fortuitously, Ms.
Davis spotted Mr. Green. And I think, clearly, based on the
testimony of the officer, Ms. Davis was surprised and upset
upon seeing Mr. Green, identified him to the officer, and
then immediately lay down abruptly, flat on the car seat so
that Mr. Green could not see her.
That suggests two things. Number one, that she was stressed
by the fact that she saw Mr. Green and, therefore, the
hearsay exception would apply. And, second, that what she
told the officer at that point in time was intended to deal
with an immediate situation, that is, the identification and
detention of Mr. Green, as opposed to something that happened
in the past. So it’s my view that Crawford does not apply to
that interaction, and that the communication between Ms.
Davis and the officer at that point would be admissible.

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RT at 261-63.
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C. Court of Appeal Opinion
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The California Court of Appeal rejected this claim as
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follows:
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The crucial issue before us is whether Sherry’s
identification of defendant while riding in the police car
was a testimonial statement within the meaning of Crawford.

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Defendant . . . points out that when “this interaction
occurred, any emergency situation had passed.” Sherry was no
longer “vulnerable to any further attack,” and no ongoing
crisis existed. He submits that the sole purpose of the
identification evidence was to facilitate his prosecution for
the assault, which he claims is the “very essence of a
‘testimonial’ communication in the context of the Crawford
doctrine.”

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We find that the identification evidence is a nontestimonial
statement within the meaning of Crawford and Davis. The
statement by Sherry was made immediately following the
officer’s response to her 911 call. Defendant, the suspected
perpetrator of the assault, was still at the scene of the
crime, just outside the victim’s residence. Although the
victim was secure in the police vehicle, she continued to
express fear of defendant and hid from his view.

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United States District Court
For the Northern District of California

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The fact that the victim is no longer in immediate danger is
not dispositive to our Crawford analysis. More significant
to us is the purpose of the identification under the
circumstances. The exclamation of identification was quite
brief, and the officer did not solicit an account of the
events or seek to discover any details of the assault. As we
view the record, the identification was not obtained as part
of an effort to collect evidence to establish or prove past
facts for prosecutorial use, but rather to facilitate
defendant’s immediate apprehension by the dispatched officer.
[citations omitted]. No formality or solemnity was
associated with the identification evidence. [citations
omitted]. The officer was not engaged in the process of
collecting evidence, but instead was transporting the victim
to a place of safety. The utterance was spontaneous and
unsolicited; the victim was a passenger in the patrol car
going to a shelter. The victim’s identification of defendant
was nontestimonial under Crawford, and thus was properly
admitted as evidence without violation of defendant’s right
to confrontation.
Ex. B at 7-9.

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D. Analysis
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As presented in the Court of Appeal’s reasonable opinion,
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Sherry’s1 identification of Petitioner was not testimonial
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evidence.

To determine if a statement is testimonial and, thus,

21

barred by Crawford, the inquiry focuses on the purpose that
22

reasonable participants would have under the circumstances.

See

23

Rojas-Pedroza, 716 F.3d at 1267.

At the time Sherry identified

24

Petitioner, she had finished providing to Officer Trinh her verbal
25

and written statements about how Petitioner punched her and they
26
27

1

The Court will continue the Court of Appeal’s convention of
referring to the victim as “Sherry.”

28

13

1

were enroute to a battered women’s shelter, where Sherry was going

2

to stay.

3

they were driving to the woman’s shelter was accidental.

4

Trinh was no longer questioning Sherry about the incident and they

5

were not looking for Petitioner.

6

uttered in surprise and fear.

7

Sherry’s identification, other than a purely spontaneous

8

utterance, it was to enable Officer Trinh to apprehend Petitioner,

9

which he did.

That Sherry happened to see Petitioner on the street as
Officer

Sherry’s identification was

If there was any purpose to

A reasonable person in Sherry and the officer’s

United States District Court
For the Northern District of California

10

position, would not have thought Sherry’s brief statement was

11

meant to establish or prove past events; a reasonable person in

12

their position would conclude it was a statement describing what

13

was taking place at the present moment.

14

nontestimonial.

15

evidence as not violative of Petitioner’s due process or

16

confrontation rights was not unreasonable.

17

Thus, the statement was

The trial court’s decision to admit it into

Petitioner argues that, because there was no emergency at the

18

time Sherry identified him, her statement was testimonial.

19

However, the fact that the danger was over is not dispositive of a

20

determination under Crawford.

21

addressed a specific situation where a 911 operator was

22

questioning a victim regarding an ongoing emergency situation.

23

Davis, 547 U.S. at 822-23.

24

questioning was not testimonial and distinguished it from the

25

police interrogation in Crawford, which was testimonial.

26

826 (citing Crawford, 541 U.S. at 53).

27

that what it had in mind in Crawford were interrogations directed

28

at establishing the facts of a past crime in order to identify or

In Davis, the Supreme Court

The Court held the 911 operator's

14

Id. at

The Davis Court clarified

1

to provide evidence to convict the perpetrator.

2

at 826-27.

3

to describe current circumstances requiring police assistance.

4

Id. at 827.

5

happened to see him on the street enroute to the battered women’s

6

shelter was similar to the 911 call in Davis because its purpose

7

was not to establish facts of a past crime to provide evidence at

8

a trial, but was to describe current circumstances requiring

9

police assistance.

In contrast, the purpose of the 911 call in Davis was

Sherry’s identification of Petitioner when she

Furthermore, even if a Confrontation Clause violation

10

United States District Court
For the Northern District of California

Davis, 547 U.S.

11

occurred, for the following reasons, it did not have a substantial

12

and injurious effect in determining the jury’s verdict.

13

Brecht, 507 U.S. at 637.

See

14

First, Sherry’s identification of Petitioner enroute to the

15

battered women’s shelter was cumulative to her earlier statement

16

to Officer Trinh when he first contacted her.

17

contact with Officer Trinh, Sherry described the perpetrator as

18

her boyfriend who had punched her.

19

identification is admissible.

20

three other incidents of domestic abuse perpetrated by Petitioner

21

on Sherry, which Petitioner does not challenge.

22

alone, Sherry’s identification of Petitioner when she saw him on

23

the street while going to the women’s shelter was harmless.

24

In her initial

Petitioner concedes this

Also, the jury heard evidence of

For this reason

Second, there was overwhelming evidence of Petitioner’s

25

guilt.

Petitioner had a motive for killing Sherry——she was

26

leaving him and had her bag packed to move to Florida.

27

evidence included Petitioner’s Nike T-shirt, which had Sherry’s

28

blood on it, and Petitioner’s blood and DNA on Sherry’s shirt.
15

Physical

RT

1

at 904, 1005-06.

Ruth Marest, who lived in the apartment next

2

door, heard Petitioner and the victim arguing at 2:30 a.m. and

3

again at 2:30 p.m.

4

saying, “[H]elp me, help me.

5

From her kitchen window, Marest saw a woman’s head against the

6

window sill next door, moving back and forth.

RT at 648.

She saw

7

“some arms” pushing the woman out the window.

RT at 651.

After

8

the victim was pushed out the window, Jeremy Brady saw the outline

9

of a male’s face looking out the window and heard the male say,

RT at 653.

She heard scuffling and a woman

Please help me.”

United States District Court
For the Northern District of California

10

“Take that, you fucking bitch.”

11

male as an African American male with a medium build, short hair

12

and middle aged.

13

At the scene of the crime, police officers found no signs of an

14

apartment break-in.

15

RT at 722.

RT at 721.

RT at 647-49.

Brady described the

This fit Petitioner’s description.

RT at 668.

Petitioner argues that the case against him was weak

16

primarily because no direct evidence linked him to the crime.

17

points out that he was not seen entering or leaving the apartment

18

and that there were reasonable explanations for his DNA and

19

fingerprint evidence in the apartment because he was frequently

20

there.

21

Sherry’s blood on it is not inculpatory because it could have been

22

left on the floor of the apartment and then touched Sherry or the

23

perpetrator during the assault.

24

He

He postulates that the Nike t-shirt with both his and

Petitioner’s speculation about his blood, fingerprints and

25

DNA being found at the scene of the crime is unpersuasive.

26

blood and DNA evidence and witnesses’ testimony show that the

27

prosecutor’s case against Petitioner was strong.

28

argument, defense counsel argued that, because the prosecutor had
16

The

In his closing

1

not tested all the blood and DNA evidence, an unidentified person

2

had killed Sherry.

3

an unidentified perpetrator was insufficient to overcome the

4

above-mentioned evidence pointing to Petitioner’s guilt.

5

However, defense counsel’s argument regarding

Given this strong evidence establishing Petitioner’s guilt,

6

any error in admitting Sherry’s identification of Petitioner when

7

she saw him as she was being driven to the women’s shelter did not

8

have a substantial and injurious effect or influence on the jury’s

9

verdict.

United States District Court
For the Northern District of California

10

The Court of Appeal’s rejection of this claim was not

11

contrary to or an unreasonable application of Supreme Court

12

authority.

13

II. Brady Claim

Habeas relief on this claim is denied.

14

Petitioner argues that the prosecutor failed to disclose

15

evidence of “numerous” unknown latent fingerprints lifted from the

16

victim’s apartment and failed to disclose that the government’s

17

key percipient witness, Ruth Marest, was diagnosed with bipolar

18

disorder in 1978.

Pet’n at 6b.

19

A. Federal Authority

20

In order to succeed under Brady v. Maryland, 373 U.S. 83

21

(1963), a petitioner must show: (1) that the evidence at issue is

22

favorable to the accused, either because it is exculpatory or

23

impeaching; (2) that it was suppressed by the prosecution, either

24

willfully or inadvertently; and (3) that it was material.

25

v. Dretke, 540 U.S. 668, 691 (2004).

26

Banks

Under Brady, the terms “material” and “prejudicial” have the

27

same meaning.

United States v. Kohring, 637 F.3d 895, 902 n.1

28

(9th Cir. 2011).

Evidence is material if “there is a reasonable
17

1

probability that, had the evidence been disclosed to the defense,

2

the result of the proceeding would have been different.”

3

Bell, 556 U.S. 449, 469-70 (2009).

4

not mean that the defendant ‘would more likely than not have

5

received a different verdict with the evidence,’ only that the

6

likelihood of a different result is great enough to ‘undermine

7

confidence in the outcome of the trial.’”

8

Ct. 627, 630 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434

9

(1995)).

Cone v.

“A reasonable probability does

Smith v. Cain, 132 S.

However, the mere possibility that undisclosed

United States District Court
For the Northern District of California

10

information might have been helpful to the defense or might have

11

affected the outcome of the trial does not establish materiality

12

under Brady.

13

Cir. 2013).

United States v. Olsen, 704 F.3d 1172, 1184 (9th

14

B. Analysis

15

The Superior Court succinctly denied this claim stating,

16

“Petitioner’s Brady argument is without merit because Petitioner

17

has not shown that any evidence was suppressed by the People or

18

that Petitioner was prejudiced.”

19

the Application of Frank Green, Writ Number 6298 (San Francisco

20

Superior Court, Jul 26, 2011)).

21

not objectively unreasonable.

22
23

Ex. D, Ex. 1 (In the Matter of

The Superior Court’s opinion was

1. Fingerprint Evidence
In his federal petition, to support the claim that the

24

prosecutor withheld fingerprint evidence, Petitioner cites the

25

testimony of fingerprint experts indicating that two latent

26

fingerprints were collected from Sherry’s apartment.

27

863, 923-24.

28

can and was identified as belonging to Petitioner.

See RT at

One fingerprint was taken from a Royal Dansk Wafer

18

RT at 863.

1

Tests of the second fingerprint taken from the side of a dresser

2

showed that it did not belong to the victim or to Petitioner, but

3

it was not of sufficient quality to determine if it was a match

4

for any other individual.

5

Id.

Respondent cites defense counsel’s statements during a

6

hearing on pretrial motions and during his closing argument to

7

argue that defense counsel knew of the latent fingerprints and,

8

thus, the prosecutor did not withhold them.

9

that, if his counsel had known about these fingerprints earlier,

Petitioner argues

United States District Court
For the Northern District of California

10

he would have investigated the source to mount a defense of third-

11

party culpability.

12

latent fingerprints from defense counsel is not dispositive

13

because they were not material under Brady.

14

fingerprint on the wafer can belonged to Petitioner, it was not

15

exculpatory.

16

sufficient quality to determine if it belonged to a third party,

17

it was not exculpatory because it could not have implicated

18

another person even if defense counsel had it tested.

19

evidence was not exculpatory, it was not material and, thus, no

20

Brady violation occurred even if the prosecutor did not reveal

21

this information until the fingerprint experts testified.

22
23

Whether the prosecutor withheld these two

Because the

Because the fingerprint from the dresser was not of

Because the

2. Prosecutor Witness Ruth Marest’s Bipolar Disorder
Several days before Marest was scheduled to testify, she

24

informed the prosecutor that for many years she had suffered from

25

a bipolar disorder and was on medication for it.

26

The prosecutor informed the court of Marest’s bipolar disorder at

27

an in camera hearing; the court ordered her to disclose this fact

28

to the defense and she did so.

RT 612-13.
19

RT at 608-13.

Immediately after the

1

prosecutor called Marest as a witness, she asked Marest about her

2

bipolar disorder and if she thought it affected her ability to

3

perceive events or her ability to testify truthfully.

4

Marest answered that it did not affect her ability to perceive

5

events or to testify truthfully.

6

RT at 647.

Id.

Petitioner contends that, if his counsel had known in advance
of the trial that Marest was “mentally-ill” and that her

8

medication had “pernicious side-effects,” he would have procured

9

an expert witness to testify about how Marest’s “mental disorder”

10

United States District Court
For the Northern District of California

7

and medication affected her perception, credibility and cognitive

11

functioning.

12

Marest in this manner because she was the prosecutor’s most

13

important witness.

14

Petitioner contends it was important to impeach

However, Marest’s perception and cognitive functioning were

15

put in question without the testimony of an expert witness.

16

direct examination Marest testified that, on the day of the

17

incident, although she heard Petitioner and Sherry arguing, she

18

never saw Petitioner going in or out of Sherry’s apartment, she

19

never saw the face of the woman at the window and, after the

20

incident, she heard someone who sounded like Sherry say, “Oh, my

21

god, what did you do?

22

on direct examination, Marest’s perception and cognitive

23

functioning were discredited because she thought she heard Sherry

24

speak, when the physical evidence showed that Sherry was the

25

person who had been pushed or fallen from the apartment window.

26

What did you do?”

RT at 654.

On

Thus, even

On cross-examination, defense counsel elicited Marest’s

27

testimony that, in the statement she wrote for the police

28

immediately after the incident, she indicated that she had heard a
20

1

different woman arguing with Petitioner that afternoon, that

2

Sherry had not been the person arguing with Petitioner.

3

656.

4

had written in her statement that she never saw any hands pushing

5

the woman out the window and did not know if the woman was pushed

6

or fell, even though at trial she testified that she did see hands

7

pushing the woman.

8

examination, defense counsel discredited Marest’s cognition and

9

her ability to recall past events in other ways.

United States District Court
For the Northern District of California

10

RT at

Defense counsel also elicited Marest’s testimony that she

Id.

During the course of his cross-

RT at 654-62.

This evidence shows that there was no Brady violation.

11

First, the prosecutor disclosed to the defense as soon as she

12

could that, for many years, Marest suffered from a bipolar

13

disorder and was taking medication for it.

14

disorder was put before the jury so the jury could determine for

15

itself if the disorder affected Marest’s perception or memory.

16

Finally, in his cross-examination of Marest, defense counsel

17

impeached Marest with her prior inconsistent statements,

18

demonstrating that she had memory and perception difficulties.

19

Therefore, any testimony from an expert regarding Marest’s bipolar

20

disorder and her medication would have been cumulative to what the

21

jury already knew about Marest and, thus, was not material.

22

all of these reasons, the Superior Court's denial of Petitioner's

23

claim that the prosecutor's disclosure of Marest’s bipolar

24

disorder just before trial constituted a Brady violation was not

25

objectively unreasonable.

26

III. Ineffective Assistance of Counsel

Second, Marest’s

For

27

Petitioner contends his trial counsel was ineffective because

28

he failed to test the government’s “forensic evidence” of blood on
21

1

walls and clothes and fingerprints in Sherry’s apartment and

2

failed to interview prosecution witnesses Ruth Marest and Jeremy

3

Brady.

4

appellate counsel was ineffective for failing to raise on appeal

5

claims of a Brady violation and of ineffective assistance of trial

6

counsel.

7
8
9

Petition at 6e; Traverse at 18.

Petitioner contends his

A. Federal Authority
1. Trial Counsel
In order to prevail on a Sixth Amendment ineffectiveness of

United States District Court
For the Northern District of California

10

counsel claim, Petitioner must establish two things.

11

must establish that counsel's performance was deficient, i.e.,

12

that it fell below an "objective standard of reasonableness" under

13
14
15

prevailing professional norms.
668, 687-88 (1984).

First, he

Strickland v. Washington, 466 U.S.

Second, he must establish that he was

prejudiced by counsel's deficient performance, i.e., that "there
is a reasonable probability that, but for counsel's unprofessional

16

errors, the result of the proceeding would have been different."
17

Id. at 694.

A reasonable probability is a probability sufficient

18

to undermine confidence in the outcome.

Id.

"The likelihood of a

19

different result must be substantial, not just conceivable."
20

Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (citing
21

Strickland, 466 U.S. at 693).
22
23
24

Counsel is empowered to make strategic decisions after
reasonable investigation or to make a reasonable decision that a
particular investigation is unnecessary.

Jennings v. Woodford,

25

290 F.2d 1006, 1014 (9th Cir. 2002).

26

presumption” that counsel's attention to certain issues to the

27

exclusion of others reflects trial tactics rather than “sheer

28

22

There is a “strong

1

neglect."

2

(citations omitted).

3

court 'must indulge [the] strong presumption' that counsel 'made

4

all significant decisions in the exercise of reasonable

5

professional judgment.’"

6

"Strickland specifically commands that a

Cullen v. Pinholster, 131 S. Ct. 1388,

1407 (2011) (quoting Strickland, 466 U.S. at 689-90).
2. Appellate Counsel

7
8

Harrington v. Richter, 131 S. Ct. 770, 790 (2011)

The Due Process Clause of the Fourteenth Amendment guarantees
a criminal defendant the effective assistance of counsel on his

9

first appeal as of right.

Evitts v. Lucey, 469 U.S. 387, 391-405

United States District Court
For the Northern District of California

10

(1985).

Claims of ineffective assistance of appellate counsel are

11

also reviewed according to the standard set out in Strickland.
12

Smith v. Robbins, 528 U.S. 259, 285 (2000).

First, the petitioner

13

must show that counsel’s performance was objectively unreasonable,
14

which in the appellate context requires the petitioner to
15
16
17

demonstrate that counsel acted unreasonably in failing to discover
and brief a meritorious issue.

Id.

Second, the petitioner must

show prejudice, which in this context means that the petitioner

18

must demonstrate a reasonable probability that, but for appellate

19

counsel’s failure to raise the issue, the petitioner would have

20

prevailed in his appeal.

21

constitutional duty to raise every nonfrivolous issue requested by

22

the defendant.

23

weeding out of weaker issues is widely recognized as one of the

24

hallmarks of effective appellate advocacy.

25

F.2d 1428, 1434 (9th Cir. 1989).

26

frequently remain above an objective standard of competence and

27

have caused his client no prejudice for the same reason——because

28

he declined to raise a weak issue.

Id.

Appellate counsel does not have a

Jones v. Barnes, 463 U.S. 745, 751-54 (1983).

The

Miller v. Keeney, 882

Appellate counsel therefore will

23

Id.

1

B. Analysis

2

Petitioner raised this claim in his state habeas petitions.

3

A written decision was issued only by the Superior Court.

4

Superior Court noted the petition was defective because, although

5

it cited to trial records, it failed to provide the court with

6
7
8

The

supporting transcripts that would enable an informed review.

The

Superior Court denied the claim of ineffective assistance of trial
counsel on the ground that Petitioner had failed to show that
“trial counsel’s performance was deficient or that any performance

9

prejudiced the defense” and denied the claim of ineffective
United States District Court
For the Northern District of California

10

assistance of appellate counsel on the ground that “Petitioner has
11

presented only conclusory allegations without any explanation of a
12

basis for relief.”
13
14
15

Ex. D, Ex. 2 at 2.

The Superior Court’s denial of these claims was not
objectively unreasonable.

Although defense counsel did not test

the forensic evidence, the record shows that he made effective

16

strategic decisions about it as evidenced by his closing argument,

17

which he began by answering the prosecutor’s question of who else

18

but Petitioner could have pushed Sherry out the window:

19
20
21
22
23

Who else? Who else? How about the person who left the
bloody palm print on the wall that’s in this envelope that
was so important that the inspectors cut it out of the wall,
that Ms. Garcia (prosecutor) tried to say could have been
left by protein or hamburger. But Inspector Gee, who was in
charge of the crime scene, said it was in blood, in blood, a
palm print which could be compared to Mr. Green and to Ms.
Davis. Neither one of them . . . left the palm print in
blood on that wall.

24
25
26

Who else? I don’t know but I know it was somebody else.
appreciate the opportunity to answer that question.

I

27

The issue is really, Ladies and Gentlemen, you know, is there
reasonable doubt here? That’s what we’re talking about.

28

. . .
24

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18

The law very carefully says that you look at each piece of
evidence independently. And that evidence in this particular
case is what’s called circumstantial evidence, not direct
evidence. Nobody saw anybody actually getting pushed out of
a window. But there are facts which Ms. Garcia says conclude
that, in fact Mr. Green did it.
However, let’s put the bloody palm print aside for a minute,
because the prosecution certainly ignored that fact. She
never addressed it in her statement to us. She tried very
hard to show us that it wasn’t in blood, but of course we
know it was right there with the other bloody patterns. But
the D.A. didn’t look at that when they initially arrested Mr.
Green.
. . .
If there is blood that belongs to another person, there is a
bloody palm print on the wall that belongs to another person,
isn’t it incumbent upon the inspector to really dig in here,
but perhaps, because of the inexperience, or because he was
too busy, or because it happened in section eight housing in
the tenderloin, or because he waited almost a year, ten days
shy of a year, to do his report, he missed this. He just
assumed, as everyone else didn’t, because of the prior
history between Mr. Green and Ms. Davis, that Mr. Green was
the suspect. And he didn’t fulfill his role as investigator.
. . .
And what did they find when they test this other evidence,
evidence that they never had when they decided to arrest him?
Is lo and behold, somebody else’s DNA in blood.

19

. . .
20
21
22
23
24
25
26
27

There has been a little something that has been deceptive
here, which is that when we see the blood on the stair, the
police took photographs of it, and they took swabs of it.
These are on the outside stairs. Remember, it was on the
outside of apartment 602 on the elevator. It was on the
fourth floor. There was a bloody tissue that was found on
the fourth floor. It was down in the lobby. . . It looks
like the perpetrator left and went down. None of those
stains were ever tested for DNA; however, Ms. Garcia’s
response was, you know what? Isn’t it common . . . to find
blood in Tenderloin apartments? . . . Well, you know, that’s
a stereotype. . . . To say that is unrelated to this crime,
where it is——the bloody——a blood——blood is outside the

28

25

1

apartment, right on the wall by the elevator.
stairwell. It’s photographed.

2

. . .

3

Why didn’t she (prosecutor) test the DNA? Why didn’t you
test the DNA? Because it’s expensive $800. $800. [sic]
But, you know what? They spent enough money flying everybody
down here, from southern California . . . for the officer in
Seattle to come here, for Jeremy Brady to come from Texas.
$800 is not the reason not to test the evidence.

4
5
6
7

It’s in the

And, by the way, do not let her say, do not let her say,
[sic] why didn’t the defense do it? Because you know better.
You know the defense has no obligation to do anything except
sit there and make them prove their case.

8
9

RT at 1314-15; 1321-22; 1332-1334.
United States District Court
For the Northern District of California

10

These excerpts from defense counsel’s closing argument show
11

that he strategically used the fact that the prosecutor did not
12

test all the forensic evidence to raise reasonable doubt with the
13

jury.

It appears that counsel decided that focusing on the

14

prosecutor’s failure to test all the blood and fingerprints was a
15

more powerful argument for raising reasonable doubt with the jury
16

than if the defense had tested the evidence.

Counsel’s strategic

17

decision cannot form the basis of deficient performance.

See

18

Pinholster, 131 S. Ct. at 1407 (no deficient performance where
19

counsel makes reasonable strategic decisions that makes particular
20

investigation unnecessary).
21

In regard to the claim that counsel failed to interview Ruth
22

Marest, as discussed above, counsel raised questions regarding her
23

perception and memory in his cross-examination of her.

See RT at

24

654-62.

Similarly, in cross-examining Jeremy Brady, defense

25

counsel impeached him with his prior inconsistent statements to
26

the police and the grand jury.

RT at 723-28; 731-34.

27
28

26

1

Because counsel competently cross-examined and impeached

2

Marest and Brady, Petitioner cannot show counsel’s performance was

3

deficient or prejudicial in that regard.

4

denial of this claim was not objectively unreasonable.

5

The Superior Court’s

The claim against appellate counsel fails because, as

6

discussed above, there was no Brady violation and trial counsel’s

7

performance was not ineffective.

8

criticized for failing to appeal frivolous claims.

9

Court’s denial of this claim was not objectively unreasonable.

United States District Court
For the Northern District of California

10

Appellate counsel cannot be
The Superior

Habeas relief on the claims of ineffective assistance of

11

trial and appellate counsel is denied.

12

IV. Evidentiary Hearing

13

Petitioner requests an evidentiary hearing on the suppressed

14

Brady material and on the evidence trial counsel failed to

15

investigate.

16

evidentiary hearing on disputed facts where his allegations, if

17

proven, would entitle him to relief.

18
19
20

Traverse at 24.

Petitioner is entitled to an

Perez v. Rosario, 459 F.3d

943, 954 n.5 (9th Cir. 2006); Williams v. Calderon, 52 F.3d 1465,
1484 (9th Cir. 1995).
An evidentiary hearing is not required here.

As discussed

above, Petitioner has not shown the allegedly withheld evidence
21

was material under Brady and he has not shown deficient
22

performance or prejudice based on counsel’s failure to investigate
23

the forensic evidence.

Accordingly, Petitioner’s request for an

24

evidentiary hearing is denied.

See Tejada v. Dugger, 941 F.2d

25

1551, 1559 (11th Cir. 1991) (no hearing required if allegations,
26

viewed against the record, fail to state a claim for relief).
27
28

27

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

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constitutional claims on the merits, the showing required to
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satisfy § 2253(c) is straightforward: The petitioner must
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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

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ruling on any of Petitioner’s claims debatable or wrong.

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Therefore, a certificate of appealability is denied.

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Petitioner may not appeal the denial of a certificate of

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appealability in this Court but may seek a certificate from the

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Court of Appeals under Rule 22 of the Federal Rules of Appellate

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Procedure.

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Cases.

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See Rule 11(a) of the Rules Governing Section 2254

CONCLUSION

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Based on the foregoing, the Court orders as follows:

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1. The request for an evidentiary hearing is denied.
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2. The petition for a writ of habeas corpus is denied.

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3. The Clerk of the Court shall enter a separate judgment and

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close the file.

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4. A certificate of appealability is denied.

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IT IS SO ORDERED.

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Dated: 7/28/2014

____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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